Can the prosecution amend the elements of section 136.1, subdivision (a)(2) of the Criminal Code?

Section 1009 permits a prosecutor to amend an information "at any stage of the proceedings" with leave of court. There are two limitations to the ability to amend an information at any time. First, the amended charge must be supported by evidence from the preliminary examination. (See 739 [information "may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed"].) Second, the amendment must not prejudice the defendant. (People v. Graff (2009) 170 Cal.App.4th 345, 361-362.) Thus, the prosecution could have amended the information in this case at trial, unless the defendants established they would be prejudiced by the amendment. There is nothing in the briefs suggesting defendants were somehow misled by count six in the information, such that the charge could not have been amended at trial. Defendants did not object to the jury being instructed on the elements of section 136.1, subdivision (b)(1) instead of the elements of subdivision (a)(2) of that same section. Neither did defense counsels' arguments to the jury demonstrate any prejudice. They did not argue the existence or nonexistence of the elements of section 136.1, subdivision (a)(2).

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