Category Archives: Due process

Error and/or relief

After the preliminary hearing, the defendant failed to appear at a trial readiness conference. The trial court then allowed the prosecution to amend the information to add a fourth charge for willful failure to appear on felony charges. The case proceeded to trial and a jury found the defendant guilty of all four counts. The court’s ruling violated section 1009 and impinged upon his constitutional due process rights because the new charge was not supported by evidence from the preliminary hearing.

First Holding:

The court may allow amendment of the accusatory pleading to correct or make more specific the factual allegations of the offense charged at any stage of the proceeding, up to and including the close of trial, if there would be no prejudice to the defendant.

Authority:

People v. Graff (2009) 170 Cal.App.4th 345, 361

Second Holding:

Section 1009 provides that an indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.

Authority:

People v. Rogers (2016) 245 Cal.App.4th 1353, 1360 [Section 1009 prohibits amending an information to charge an offense not shown by evidence taken at the preliminary hearing, even if the amendment would not prejudice the defendant or if the defendant had notice of the facts underlying the new charges.]

People v. Peyton (2009) 176 Cal.App.4th 642, 654 [In enacting section 1009, the Legislature determined that an accusatory pleading cannot be amended based on evidence not taken at the preliminary hearing]

People v. Winters (1990) 221 Cal.App.3d 997, 1007 [Section 1009 specifically proscribes amending an information to charge an offense not shown by the evidence taken at the preliminary hearing.]

Third Holding:

The trial court’s accession to an amendment to the information, including the addition of counts, is reviewed for abuse of discretion. The trial court abused its discretion by permitting the amendment at issue. The preliminary hearing was held before the defendant committed the acts giving rise to the new charge of failure to appear. Therefore, the new charge was not based on evidence from that hearing. By allowing the prosecution to add the new charge, the court violated section 1009 and exceeded the bounds of its discretion

Authority:

People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581

Fourth Holding:

Case law has recognized that reversal is automatic where, as here, a defendant is convicted of an offense that was not based on evidence taken at a preliminary hearing. It is as a matter of law irrelevant whether a defendant is prejudiced by being prosecuted for an offense not shown by the evidence at the preliminary hearing. Before any accused person can be called upon to defend himself on any charge prosecuted by information, he is entitled to preliminary examination. These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial. To say that he was accorded a fair trial upon an information filed against him without a substantial compliance with these jurisdictional requirements, and, therefore, that there had been no miscarriage of justice, hardly meets the situation. Such an argument would apply with equal force to the validity of the conviction upon an information filed by the district attorney in a case where no preliminary examination at all had been held. Such practice would result, in legal effect, in wiping out all provisions of the Constitution and the Penal Code providing for a preliminary examination, and in clothing the district attorney with unlimited authority to file information against whomsoever in his judgment he might consider guilty of crime.

Authority:

People v. Burnett (1999) 71 Cal.App.4th 151, 177

People v. Winters (1990) 221 Cal.App.3d 997, 1007

Fifth Holding:

A defendant’s conviction of a charge that was improperly added to a charging instrument is unquestionably prejudicial.

Authority:

People v. Dominguez (2008) 166 Cal.App.4th 858, 868