Information/Indictment/Complaint
Category > Information/Indictment/Complaint
Updated 3/6/2024Adding charges to the amended information after the preliminary hearing was waived violated section 1009.Defendant pled guilty to felony marijuana cultivation under former Health and Safety Code section 11358. After his plea, but before sentencing, Prop 64 was passed which narrowed the scope of conduct relevant to the offense. The court withdrew its acceptance of the plea. The prosecution then filed an amended information, and defendant pled no contest to the new provision enacted as part of Prop 64 requiring proof of additional elements. However, the conviction was reversed because it was based on a charge added to the information after defendant had waived a preliminary hearing in violation of Penal Code section 1009. The amendment to the information, even though it was ostensibly the same statute, constituted a significant variance from the original charge.id: 26670
Updated 3/4/2024The trial court erred by imposing the 20-kilogram weight enhancement because the information did not allege that provision. The trial court erred when it imposed a 20-kilogram weight enhancement under Health and Safety Code section 11370.4(a)(4), because the accusatory pleading (which alleged the 10-kilo enhancement) failed to give the defendant notice that she could be subject to that enhancement with respect to any charged count. id: 27499
Updated 2/26/2024The trial court properly denied the prosecutor’s request to deny reinstatement of the complaint under section 871.5 where the dismissal was based on constitutional, not statutory grounds.The magistrate granted defendant’s motion to dismiss the complaint for prosecutorial vindictiveness. The prosecution then moved to reinstate the complaint under Penal Code section 871.5. The court properly denied reinstatement because the magistrate’s dismissal was not grounded in one of the statutes enumerated in section 871.5, but instead was based on constitutional grounds. It did not matter that court noted it was relying on Penal Code section 1385.id: 26453
Third prosecution was barred under section 1387 following dismissals under section 1385 and 8596.Defendant was facing a third prosecution for escape by force or violence with the first prosecution being dismissed in furtherance of justice and the second prosecution being dismissed under Penal Code section 8596. The exception to the “two dismissal” rule set forth in section 1387(c) did not apply here, and further prosecution was barred.id: 27853
Defense counsel rendered ineffective assistance by failing to object to the improper amendment to the information after the jury was discharged. The trial court erred by allowing the prosecution to amend the prior conviction allegation after the jury had been discharged. The amendment substituted an entirely different conviction involving different underlying conduct. The issue was forfeited by counsel’s failure to object but there was no satisfactory explanation for the failure and so the mistake constituted the ineffective assistance of counsel.id: 25957
Evidence was insufficient to support the conviction for attempted extortion against an employee of the food truck business who was listed in the information as the victim of the offense. Defendant approached a food truck and said he was there to collect “rent” on behalf of his gang. He left and returned five minutes later where he tapped Martinez, who was working the grill, on the back and shot him in the face when he turned around. The evidence was insufficient to support the attempted extortion as there was no evidence that defendant attempted to extort anything from Martinez, who was the only victim listed in the information. If the prosecution sought to prove the food truck business was the victim of the attempted extortion, it should have amended the information to reflect that theory.id: 24893
The life terms for the premeditated attempted murder findings were unauthorized due to the prosecution’s failure to plead the allegations.The life terms following the finding that the attempted murders were premeditated and deliberate were stricken where the prosecution failed to plead premeditation under Penal Code section 664, subd.(a). The issue was not forfeited where the evidence did not show the defendant was given notice of the allegation. While the prosecutor referenced the allegation there was no evidence that defendant was present, informed of the charge, or that he waived his right to object.id: 25467
The trial court erred by imposing an enhancement under section 273.5, subd. (f)(1) that had not been pled in the information.Defendant was charged with, and convicted of, two counts of corporal injury to a cohabitant in violation of Penal Code section 273.5, subd.(a). That provision carries a sentence range of two, three, or four years. The information also included a special allegation under section 273.5, subd. (h)(1) that provided for an additional 15 days on each count. The sentencing court (at the prosecution’s request) erred by imposing a longer term under section 273.5, subd. (f)(1), an enhancement (or an alternative sentencing provision) that was never pled despite the prosecutor’s claim that there was proof to support it. The sentence under that provision violated defendant’s due process rights.id: 25278
Conspiracy to commit murder charge violated section 1387 after the attempted murder charges based on the same facts had been twice dismissed.Penal Code section 1387 generally permits a felony charge to be dismissed and refiled once, but not twice. Charges that defendants committed attempted murder were dismissed twice. The prosecution then charged them with conspiracy to commit murder based on the same underlying facts as the twice dismissed charges. However, because the conspiracy charges contain all of the elements of the twice-dismissed attempted murder charges, they were the offenses for purposes of section 1387.id: 24588
Trial counsel rendered ineffective assistance by failing to object to the prosecution’s motion to add counts and a GBI enhancement allegation after defendant waived his right to a preliminary hearing.When a defendant has waived his or her right to a preliminary hearing, an information cannot thereafter be amended to add additional charges or conduct enhancement allegations. Defense counsel rendered ineffective assistance by failing to object to the prosecution’s motion to amend the information to add two counts and a great bodily injury enhancement after defendant waived a preliminary hearing.id: 24604
Life sentences for the attempted murder convictions violated the defendants’ due process rights where the information did not allege the attempted murders were willful, deliberate and premeditated.Defendants’ life sentences for the attempted murder counts violated Penal Code section 664, subd.(a) and their due process rights because the fact that the attempted murders were willful, deliberate and premeditated was not charged in the information and defendants had no notice before sentencing that they were facing life terms for the convictions. Because the record shows the defendants were unaware of the issue they did not forfeit the claims by failing to raised them in the trial court.id: 24054
Irritation to the juvenile hall deputy’s eye after the spitting incident did not constitute an injury under the felony battery with injury provision. The juvenile court did not err by permitting the prosecution to amend the wardship petition to allege a battery with injury charge based on the minor’s spitting in the eye of a juvenile hall deputy where the amendment was added before trial after sufficient notice. However, the evidence was insufficient to support the finding that the minor violated Penal Code section 243, subd.(c) , because while the officer’s eye was irritated there was not an actual physical injury. The offense was reduced to simple battery.id: 24068
The trial court erred by not knowing it had discretion to permit the filing of an amended information alleging a new prior discovered after the guilty plea.Defendant pled guilty to drunk driving with a prior conviction and the agreement provided the maximum term was 14 years but defendant would receive eight. Before sentencing, the prosecution discovered another out-of-state strike and amended the information resulting in a new guilty plea and a 14 year sentence. However, the law requires that the prosecution obtain approval from the court before amending an information alleging a previously uncharged prior. The record here shows the trial court was unaware that it had discretion whether to permit the filing of the amended information. The judgment was reversed and the matter remanded to allow the court to exercise its discretion.id: 23380
The trial court’s dismissal of an indictment after granting a section 995 motion to dismiss was a dismissal under section 1387 (which bars further prosecution after two dismissals).The trial court’s order dismissing the first indictment qualified as a termination for purposes of Penal Code section 1387 because it followed defendant’s 995 motion - one of the specified bases for a qualifying termination under section 1387. While the prosecutor had asked that it be dismissed as “duplicative,” the court clarified that it was dismissing the case based on the merits of the 995 motion. The court expressly referred to it as a “1387 dismissal.” The order was appealable by the prosecution. Contrary to the prosecutor’s argument, the dismissal was not due to “excusable neglect” under section 1387.1, which allows one more chance to refile.id: 23223
An indictment may be set aside under section 995 on the ground that the grand jury was wrongly instructed on the mental state required for the offense.A defendant may move to set aside an indictment under Penal Code section 995, subd.(a)(1)(B), on the ground that the grand jurors were misinstructed on the scienter required to establish an element of the charged offense. If not properly instructed on the mens rea of a crime, the grand jury may have indicted on less than reasonable or probable cause. id: 22336
The charging document violated the minor’s due process rights by omitting an important exception to the curfew law. The true finding that the minor violated the curfew ordinance was reversed where the petition alleged that she had violated the San Diego Municipal Code section rather than the corresponding ordinance, and the former omitted an important exception to the curfew law’s proscription. The charging document therefore necessarily deprived the minor of the required notice of the elements of the offense with which she was charged and violated her due process rights.id: 21711
Where evidence did not support the charged firearm use enhancements, the court could not substitute another uncharged subdivision and the prosecution forfeited the issue by not raising it earlier.The evidence was insufficient to prove the defendant personally used or discharged a firearm, and therefore did not support the charged Penal Code section 12022.53 subds. (b)(c), or (d), or section 12022.5 enhancements. Moreover, the findings on the enhancements cannot be saved by applying, for the first time on appeal, the uncharged provision of section 12033.53, subd.(e)(1), Applying that section would violate the language of that provision (requiring that it be pled) and the notice requirement of due process. Moreover, by failing to plead the subdivision, or argue for its application at sentencing, the prosecution forfeited the right to rely on it.id: 21511
Trial counsel rendered ineffective assistance by failing to object to an amended charge added to an information after defendant waived his right to a preliminary hearing.Defendant argued trial counsel was ineffective for failing to object to the amendments set forth in the amended informations which were filed after defendant waived a preliminary hearing. Counsel was ineffective in failing to object to the second amended information which added a count that was not included in the amended complaint to which defendant waived his right to a preliminary hearing. Counsel was not ineffective in failing to object to the amended informations regarding the other charges because they were effectively pled in the amended complaint and there was no substantial variance between the amended complaint and the amended informations.id: 21174
The trial court prejudicially erred by allowing the jury to base its guilty verdict on an incident not disclosed at the preliminary hearing.The trial court erred by granting the prosecutor’s motion to amend the information allowing the defendant to be tried for an offense not shown by the evidence at the preliminary hearing.id: 20573
Failure to charge defendant with the precise sex offender registration theory presented by the prosecution was harmless.Penal Code section 290, subd.(g)(2), applies to any person who willfully violates any requirement of section 290. Defendant was
convicted of violating this provision based upon his failure to register a new address. Defendant argued the state proved a violation of section 290, subd.(a)(1)(A), rather than the charged offense. However, any error in charging the offense was harmless where the prosecutor elected to proceed on the section 290(a)(1)(A) theory, instructed on that violation, and defendant never claimed the information failed to adequately notify him of the charge against him or that the variance affected his defense.id: 19005
Defendant’s due process rights to notice of the charges against him were violated by the prosecutor’s decision to go forward with charges not established at the preliminary hearing. Defendant was convicted of two lewd acts against a 15 year-old in violation of Penal Code section 288, subd.(c)(1). However, the magistrate refused to bind over these charges at the preliminary hearing due to the lack of evidence that they occurred before the victim’s 16th birthday. The charges were not refiled, and the prosecutor gave no notice to the defense that the intended to go forward on these charges. Instead, he argued these counts to the jury during closing argument, based on the victim’s trial testimony, and the jury convicted on both counts. However, the convictions were reversed as defendant’s due process rights were violated by the prosecutor’s decision to go forward with charges not established at the preliminary hearing.id: 20788
Penal Code section 1387.1 does not permit a third filing to charge a violent felony offense when only a nonviolent felony was charged in the two accusatory pleadings previously dismissed. The trial court erred in denying defendant’s Penal Code section 1387 motion to dismiss the third complaint filed against him because neither of the first two dismissed accusatory pleadings alleged a violent felony as defined in Penal Code section 667.5 which would have permitted the third filing under section 1387.1. Had the prosecution believed defendant’s conduct supported a great bodily injury enhancement, as they argued, they should have included the allegation in the prior accusatory pleadings.id: 20630
The trial court prejudicially erred in failing to instruct on second degree murder and voluntary manslaughter as lesser included offenses of first degree murder where the original information did not allege felony murder.The trial court refused to instruct the jury on second degree murder and voluntary manslaughter because those crimes are
not lesser included offenses of felony murder. However, felony murder was not the crime charged in the accusatory pleading. The prosecutor's oral amendment to the information following the close of evidence should not be permitted to alter the expectations created by the original information. This is especially true where the court referred to the felony murder as an "added charge."id: 19154
Defendant's prior conviction for drunk driving under section 23153, subd.(b) could not be charged as a prior felony conviction, after it had been declared to be a misdemeanor "for all purposes."When a court acts under Penal Code section 17 to specify that a conviction for driving under the influence of alcohol should be treated as a misdemeanor "for all purposes," that offense may not afterwards be pled as a prior felony conviction under the terms of former Vehicle Code section 23175.5, now section 23550.5, even though the offense may have been originally punished as a felony.id: 14887
Vehicular manslaughter charge that had been dismissed as a felony could not be refiled as a misdemeanor under the one-dismissal rule of section 1387. The trial court dismissed a complaint accusing defendant of misdemeanor vehicular manslaughter under Penal Code section 192, subd.(c)(2). The charge had previously been dismissed as a felony pursuant to section 871, and was thus barred by section 1387 as construed by Burris v. Superior Court (2005) 34 Cal.4th 1012.id: 19909
Indictment should have been dismissed due to the prejudice resulting from the prosecutor's failure to present the exculpatory evidence to the grand jury. The trial court erred in failing to dismiss a grand jury indictment under Penal Code section 939.71 because the prosecution failed to properly notify the grand jury about the availability of exculpatory evidence - primarily evidence relating to the credibility of the witness. Defendant was
substantially prejudiced by the failure to disclose the exculpatory evidence.id: 19543
The grand jury failed to demonstrate the requested juvenile court records were necessary or relevant to a specific investigation.A county grand jury sought access to certain juvenile records under Welfare and Institutions Code section 827, subd.(a)(1)(M). The grand jury made no showing to warrant the release of the records except to state the records were required in connection with an ongoing "public watchdog" investigation. Because the grand jury did not provide the court with any specific facts concerning the need for the records or their relevance to any legitimate grand jury activity, the juvenile court had no basis upon which to determine whether and to what extent the request was appropriate.id: 17261
Amending the information to charge offenses not shown by evidence taken at the preliminary examination was prejudicial error.Although the amendment to the information did not change the nature of the unlawful acts alleged to have been committed, it did charge offenses not shown by the evidence taken at the preliminary examination, and allowing the amendment was therefore prejudicial error.id: 11442
Allowing an amendment to the information during trial was improper where defendant had waived the preliminary hearing.Appellant was charged with possession of methamphetamine. The prosecution concluded its case-in-chief and then moved to amend the information by adding a charge of transporting methamphetamine. Granting the motion was improper. The amendment violated Penal Code section 1009 because there had been no preliminary hearing and defendant's notice of the People's evidence of transportation did not alter that result.id: 11440
If defendant demands an election the prosecution must elect the acts relied upon unless the acts are part of a continuous course of conduct.Where several distinct potentially criminal acts are shown, and only one charged, the defendant is entitled, at the commencement of trial (or as soon as practically possible), to a prosecution election upon demand. The court's refusal to require one is not in all cases cured by the giving of a jury instruction which requires unanimous agreement on the particular act supporting the conviction. An election cannot be required where none is possible as where the evidence is completely genuine or where the various acts do not constitute distinct potential crimes but rather one continuous course of criminal conduct. Dissuading a witness (Penal Code section 136.1) falls within the continuous conduct exception and no election or unanimity instruction was required. Terrorist threats under section 422 does not come within the continuous course of conduct exception.id: 11447
A magistrate's order striking a prior under Vehicle Code section 41403 is not within the scope of Penal Code section 871.5 regarding reinstatement of the complaint.A Vehicle Code section 23152 conviction with three or more priors is punishable as a felony or misdemeanor. The People in the instant case charged the offense as a felony. The magistrate granted defendant's motion to strike one of the priors on the grounds it was constitutionally invalid, determined the charges were misdemeanors as a matter of law and transferred the cause to a municipal court. The People moved to reinstate the complaint under Penal Code section 871.5. Had the offense been charged as a misdemeanor, thereby giving the municipal court original jurisdiction over the matter, the order striking the prior would be appealable as an order of an inferior court dismissing an action before defendant was placed in jeopardy within the meaning of Penal Code section 1466. However, because the offense was charged as a felony, the magistrate's order was outside the purview of section 1466. Therefore, the order striking the prior was not subject to review by a higher court.id: 11439
Superior court was without jurisdiction to consider the motion to reinstate the complaint when it was filed 20 days after the dismissal.The magistrate dismissed the complaint after granting defendant's suppression motion. Penal Code section 871.5 requires a motion to reinstate the complaint be made within 15 days of the dismissal. The instant motion to reinstate was filed 20 days after dismissal of the complaint. The Superior Court was therefore without jurisdiction to consider the matter. That the prosecutor orally stated in open court at the time of the dismissal that such motion would be made did not cure the defect. Moreover, respondent's failure to show prejudice as a result of the People's untimely motion did not alter the result.id: 11461
Juvenile court erred in permitting a mid-trial amendment to the petition where the new charge came at the court's suggestion.The amendment to the juvenile court petition filed in mid-trial did not violate double jeopardy principles because the purpose of the amendment was to add a new offense different than that for which the minor had been placed on trial. However, the court erred in permitting the amendment where the prosecutor had apparently never considered the new weapons charge and it was only added after the court pointed out the weakness of the prosecution's case and the availability of a weapons charge for purposes of a possible plea.id: 11450
Penal Code section 1387 barred prosecution of an enhancement that was twice dismissed.The enhancement was dismissed the first time by a superior court judge pursuant to a Penal Code section 995 motion. It was then refiled. It was dismissed a second time by a magistrate after a preliminary hearing. Penal Code section 1387 barred further prosecution of the enhancement.id: 15694
Penal Code section 654 barred prosecution of different offenses under an amended information where the original convictions were reversed for insufficient evidence and the new charges involved the identical conduct.Defendant was convicted of several counts of grand theft but the convictions were reversed for insufficient evidence. The prosecution then charged defendant with several counts of forgery and presenting a forged document based on the identical conduct. However, Penal Code section 654 barred prosecution under the amended information. The quote in the appellate opinion reversing the grand theft counts and remanding for "any further appropriate proceedings" was included inadvertently and did not permit the refiling of the new charges.id: 15695
The indictment was properly dismissed where the prosecutor failed to instruct the grand jury on the mental state necessary for a criminal conflict of interest by a city attorney. Defendant, the city attorney, was charged by indictment, with 10 violations of Government Code section 1090 based upon a financial interest he had in contracts negotiated on behalf of the city. However, the prosecutor erred in failing to instruct the grand jury on the mental state ("knowing and willful") necessary for a criminal conflict of interest under section 1097. The instructional error was likely to have caused the grand jury to indict defendant on less than reasonable or probable cause.id: 17005
Updated 3/6/2024There was no fatal variance between the indictment and proof where the prosecution charged defendant with a continuing kidnap offense.Defendant argued there was a material variance between the kidnap alleged in the indictment and the prosecutor’s argument regarding his actual offense. However, the indictment charged defendant with a continuing kidnapping that extended over a period of time, and defendant was on notice that the prosecution would focus on the latter events.id: 26644
Updated 2/26/2024The information gave defendant fair notice that he faced a sentence of 25 years-to-life under the One Strike Law.Defendant argued that his due process rights were violated because the trial court imposed a 25 years-to-life sentence under Penal Code section 667.61, subd. (J)(2), which was not specifically alleged in the information. However, the facts alleged in the information, as well as the 25 years-to-life exception under section 667.61, subd.(j) - which is specifically mentioned within section 667.61, subd.(b) - gave notice that he was subject to a 25 years-to-life sentence.id: 26384
Updated 2/7/2024As long as the information alleges a prior strike conviction, it need not be pleaded on a count-by-count basis.Defendant argued the trial court erroneously doubled the sentence on count six where the strike prior was only pleaded as to the first count. However, as long as the information alleges a strike prior, it need not be pleaded on a count-by-count basis.id: 27162
Updated 1/29/2024The superior court’s dismissal under section 995 of two counts of murder, recharged after the magistrate dismissed the counts under section 871 was not a bar to further prosecution of those offenses.The superior court’s dismissal under Penal Code section 995 of two counts of murder, recharged by information after the magistrate dismissed the courts under section 871 in the same action was not a bar to further prosecution for the same offenses. Section 739 permitted recharging of the murder counts.id: 28080
Where joinder of charges is proper under Penal Code section 954, the prosecution can file a unitary information covering charges that were the subject of complaints and preliminary hearings in separate cases.When a defendant is held to answer on charges brought in separate cases following separate preliminary hearings, the prosecution does not need the court’s permission to file a unitary information covering the charges in both cases. The decision is left to the prosecutor’s discretion. If the defendant believes the inclusion of all charges in a unitary information prejudices him or her, he or she may move for a severance of counts.id: 25929
The trial court properly overruled the demurrer to the information charging multiple counts where each count included multiple acts that could constitute the charged offense. Defendant was charged with multiple counts of health insurance fraud. Each count identified multiple patient files and a timeframe that spans years. Defendant demurred to the information. The trial court properly overruled the demurrer. Each count alleged a single offense and complications arising from the fact that multiple discreet acts may constitute the charged offense in each count can be dealt with by a unanimity instruction at trial, or by other tools at the court’s disposal, such as a severance of counts or trial continuances where appropriate.id: 25421
The prosecution could amend the indictment to cure the defect regarding the inadequately alleged statute of limitations.Defendant moved to dismiss five counts because the complaint and indictment inadequately alleged tolling of the statute of limitations. However, amending an indictment by adding or extending allegations tolling the statute of limitations does not change the offense charged, and such amendment was allowable under Penal Code section 1009.id: 25082
The trial judge’s dismissal for lack of territorial jurisdiction did not prohibit a second complaint, and the prosecution’s dismissal of its appeal of that ruling, which occurred after a ruling on a subsequent indictment, did not act as collateral estoppel prohibiting the prosecution. Defendant was charged with murder for financial gain based on an incident that occurred on a Mediterranean cruise with the body being found off the coast of Italy. The trial court granted the motion to dismiss for lack of territorial jurisdiction. The prosecution then filed a second complaint but before the preliminary hearing was conducted the grand jury returned an indictment. Another judge overruled defendant’s demurrer and denied his motion to dismiss the indictment. The prosecution dismissed its appeal of the original ruling. The dismissal of the appeal, which occurred after the ruling on the indictment, did not act as collateral estoppel of that ruling prohibiting prosecution.id: 24545
The prosecution met the pre-preliminary pleading requirements and the trial court erred by sustaining the demurrer.Defendants were charged with multiple counts of insurance and tax fraud. Before the preliminary hearing was conducted, the trial court sustained the demurrer to the complaint due to the lack of notice to the charges in violation of Penal Code sections 950 and 952. The specific information is usually provided in the preliminary hearing transcript but here (because there had been no prelim yet), the prosecution provided the information in response to the court’s request. This was sufficient under the circumstances and the trial court erred by sustaining the demurrer.id: 24491
Penal Code section 991 permits the court to dismiss individual charges from the complaint.Penal Code section 991 permits an in-custody defendant to require the arraigning magistrate to determine whether there is probable cause to believe the defendant committed a public offense. If the magistrate finds no such probable cause, defendant is entitled to have the complaint dismissed. Under section 991, the trial court has the authority to dismiss only some of the charges for lack of probable cause and need not dismiss the entire complaint.id: 24404
Section 1387.1, which provided an exception to the “two dismissal” rule, could not be used to revive a case that was barred at the time of its enactment. Defendant was charged with three murders, including the murder of Apodaca, in a capital case. Apodaca was killed in 1987 and the charge had previously been dismissed twice. In 1998, the Legislature enacted Penal Code section 1387.1, which provided an exception to the “two dismissal” rule of section 1387. Defendant’s case was time - barred at the time section 1387.1 was enacted, and that provision could not revive a barred prosecution. That conviction was reversed.id: 24112
Indictment was not flawed where the district attorney provided investigative services requested by the jury commissioner. Defendant moved to dismiss the indictment claiming the district attorney's investigative role usurped the function of the judiciary in selecting grand jurors. However, the district attorney's role was limited to providing investigative services requested by the jury commissioner, a judicial officer.id: 19731
First degree murder conviction was proper where the information alleged generic murder without specifying degree but the verdict found first degree murder “as charged in the information.”When a crime has more than one degree, and the jury fails to specify degree, Penal Code section 1157 provides the conviction shall be deemed to be of the lesser degree. In the present case, the verdict finding defendant “guilty of violation of section 187(a) of the Penal Code, a felony, first degree murder... as charged in the information” satisfies section 1157 even though the information charged generic murder without specifying the degree.id: 23831
The juvenile court did not err by allowing the prosecutor to amend the delinquency petition to change the gun enhancement section during closing arguments. The juvenile court did not err by allowing the prosecutor to amend the delinquency petition during closing arguments to allege an arming enhancement under Penal Code section 12022, subd.(a). The personal use of a deadly weapon enhancement under section 12022, subd.(b) was already charged. Because that charge referred to a handgun, the section 12022, subd.(a) enhancement was a lesser included offense, and defendant had adequate notice and opportunity to defend against the allegation.id: 23969
Uncorroborated testimony can be the basis for a grand jury indictment.efendant argued the indictment was not supported by probable cause because the evidence presented to the grand jury consisted only of uncorroborated accomplice testimony. However, that’s enough to support an indictment.id: 23974
An adult criminal prosecution against a minor can be commenced by a grand jury indictment.The minor demurred to the indictment arguing that Welfare and Institutions Code section 707, subd.(d)(4) provides that an adult criminal prosecution cannot be commenced by way of a grand jury indictment. The trial court erred by sustaining the demurrer because the law does not require that adult criminal cases proceed by preliminary hearing and information.id: 23566
Section 1387 did not preclude the prosecutor from charging defendant with conspiracy to commit murder after the attempted murder charges had been dismissed. Under Penal Code section 1387, the prosecution may only file a complaint for the same offense (in the case of a felony) twice. Here the prosecution twice filed attempted murder charges and both cases were dismissed. The prosecution then charged the defendant with conspiracy to commit murder, which arose out of the same underlying incident. The term “same offense” has been narrowly construed to be an offense with identical elements. Because attempted murder and conspiracy to commit murder were not the “same offense” section 1387 did not bar the filing of a third complaint.id: 23647
On a silent record it was presumed that the court granted leave to file the third amended information.Defendant argued the trial court lacked jurisdiction to arraign him on additional allegations included in the third amended information because the record did not show an order granting leave to file the amended information. However, under these circumstances it is presumed that the court granted leave to file the amended information. Assuming the trial court erred by not exercising its discretion to approve the filing, the argument was forfeited for the lack of an objection in the trial court.id: 23694
Defendant forfeited the challenge regarding the amendment to the information by failing to object at trial.Defendant argued that the trial court erred when it permitted the prosecution to amend the information to conform to evidence produced at trial. However, defendant forfeited the right to complain about the amendment by not objecting at trial.id: 23190
The two dismissal rule of section 1387 did not apply where the court dismissed the misdemeanor drunk driving case after the prosecutor failed to prove the felony allegation.Defendant was charged with drunk driving that was elevated to a felony because of a prior DUI conviction. The prosecutor failed to present proof of the prior convictions at the preliminary hearing and the magistrate later granted the prosecutor’s motion to dismiss the case. After the case was refiled defendant moved to dismiss under the “two dismissal” rule of Penal Code section 1387, arguing that the case had been dismissed once when the felony charge was dropped for lack of evidence, and a second time when the misdemeanor was dismissed. However, under the circumstances, the case was only dismissed once.id: 23379
Because defendant failed to demur to the information, he forfeited the issue of whether he was allegedly convicted of a 288(a) offense that occurred during the same time period as was alleged for the continuous sexual abuse. Defendant argued that he was illegally convicted of a discrete sexual offense against one of his nieces because that offense occurred during the same time period as was alleged for the continuous sexual abuse under Penal Code section 288.5. However, because he failed to demur to the information, defendant forfeited the issue of whether he was illegally convicted of a discrete sexual offense that occurred during the time period alleged for continuous sexual abuse. Defense counsel was not ineffective for failing to demur because it wasn’t reasonably probable that defendant would have received a better result if counsel had done more.id: 23574
The trial court did not err in allowing the prosecution to amend the information to add an allegation after the conditional examination. The trial court did not err by allowing the prosecution to amend the information to add a one strike torture allegation after playing a video of the conditional examination of the victim. The amendment was supported by the evidence taken at the preliminary hearing and supplied sufficient notice to satisfy defendant’s due process rights.id: 23173
The “surprise” addition of a new theory of murder did not violate defendant’s right to a fair trial. Defendant argued she did not receive a fair trial because she did not have adequate notice of the charges. Specifically, she claimed a lack of notice about the prosecution’s theory of murder where the original theory was premeditated murder but the prosecutor sought felony murder instructions following the testimony of a defense witness. However, defendant was not “ambushed” by this new theory as there was much discussion about the theory before the end of trial and defense counsel declined the court’s offer of additional time to prepare for the new theory.id: 22762
Defendant forfeited the claim that the indictment failed to allege the attempted murders were deliberate and premeditated. Defendant argued that he was improperly sentenced to life imprisonment for each count of attempted murder (to go along with his capital conviction) because the indictment failed to allege that the attempted murders were premeditated, deliberate and willful. Defendant failed to object earlier and so the claim was forfeited. In any event, it was established beyond a reasonable doubt that the attempted murders were deliberate and premeditated and the jury made that express finding. id: 22836
The information was filed by the prosecutor when it was delivered to the court even though the clerk failed to process the document correctly. The trial court erred by granting the motion to dismiss because the prosecutor’s office timely filed the information by delivering it to the court clerk even though the clerk failed to process the document correctly.id: 22364
Evidence supported the attempted murder conviction even though the prosecutor conceded defendant did not intend to kill the person named in the information and verdict.Defendant argued there was insufficient evidence to support the attempted murder conviction because there was no evidence that he intended to kill the person named in the information and verdict - Anita Rodriguez. The prosecutor conceded at trial that defendant did not intend to harm Rodriguez, but instead sought to kill members of a gang. However, the evidence supported the verdict. To the extent there was a variance between the charge and the evidence, defendant had adequate notice where the prosecutor argued that defendant intended to kill whoever was in the house into which he fired.id: 22390
The failure to initially swear-in the grand jurors was not structural error. The trial judge did not swear in the grand jury until midway through the proceedings. He argued the omission constituted a fundamental jurisdictional error that required reversal of his convictions. However, the belated swearing-in of the grand jurors did not have a structural impact on the proceedings, because the grand jury, once properly sworn, received sufficient evidence to support the indictment. id: 22005
The trial court did not err by allowing the prosecutor to amend the information to allow five new charges during trial. Defendant argued the trial court erred by allowing the prosecution to amend the information midtrial to add five counts of lewd acts - the only counts for which he was convicted. However, there was no “ambush” as evidence of the additional offenses had been adduced at the preliminary hearing. The amendment occurred prior to the completion of the prosecution’s case and the court acted within its discretion by permitting it.id: 22128
Criminal proceedings cannot be dismissed on the basis of a “cooperation” agreement between the defendant and police that was not authorized by the district attorney.The trial court erred by “enforcing” the cooperation agreement and dismissing a felony charge and related probation violations after defendant worked with and provided information to the police. The police had no authority to promise that charges would be dismissed, and defendant’s reliance on that unauthorized consequence did not require dismissal on due process grounds.id: 21379
The trial court had jurisdiction to substitute lesser included offenses after it granted defendant’s motion for acquittal on the greater offenses. During trial in a multiple count case involving drunk driving and fleeing from police, the trial court granted defendant’s motion to dismiss the two DUI felonies for insufficient evidence. Contrary to defendant’s claim, the court thereafter did not exceed its jurisdiction by substituting two lesser included misdemeanor charges.id: 21365
Penal Code section 1387 did not deprive the court from proceeding on a misdemeanor charge which had been dismissed and elevated to a felony when priors were discovered, where one of the priors was then found to be invalid.The prosecution originally charged defendant with misdemeanor drunk driving. It was later discovered that defendant had three prior convictions for that offense, so the court dismissed the charge and the case was refiled as a felony. However, one of the priors was invalid which removed the charge from felony status. Defendant then argued the court no longer had jurisdiction to proceed on the misdemeanor because Penal Code section 1387 says that once a misdemeanor is dismissed, the prosecution may not go forward on the case. However, section 1387 did not prevent this case from proceeding as a misdemeanor. id: 21369
The prosecution for felony evading was proper even though evidence from that offense was used in the earlier murder trial that resulted in an acquittal. Defendant was acquitted of murder in a case where the prosecution used evidence of his evading arrest to help prove the charge. He argued the trial court erred in denying his motion to dismiss the evading charges after the murder trial. He claimed the prosecution of those charges was barred by Penal Code section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822. However, the prosecution for felony evading was not barred by section 654. Although the prosecution used evidence of evading in the murder trial to show consciousness of guilt, the same act or crime of conduct did not play a significant part in both the murder and evading.id: 21766
Defendants could not challenge the burglary charges filed in the information after those issues had been rejected by the magistrate. Following the preliminary hearing, the magistrate declined to hold defendants to answer on a burglary charges and burglary special circumstance allegations. The information subsequently filed included both despite the magistrate’s ruling. Defendants argued the magistrate’s ruling precluded the prosecution from refiling the burglary charges. The rule announced in People v. Pompa-Ortiz (1980 27 Cal.3d 519, preventing appellate review of an alleged error that occurred during a preliminary hearing also applies where the alleged error occurred in the trial court after the preliminary hearing. Whether defendants could show an erroneous denial of their Penal Code section 995 motions, they could not show prejudice where the jury convicted them of the burglary charges and found the special circumstance allegations to be true.id: 21756
Under section 1387(a), following the first felony dismissal for insufficient evidence, the prosecution could file a second complaint alleging the lesser included misdemeanor.Under Penal Code section 1387, subd.(a), the prior dismissal of a felony complaint against defendant for vehicular manslaughter with gross negligence did not bar the current prosecution for the lesser included misdemeanor offense of vehicular manslaughter with ordinary negligence. For purposes of section 1387(a), the misdemeanor prosecution in this case was not “for the same offense” as that charged in the prior felony complaint.id: 21175
Superior court has jurisdiction where the parties agreed the complaint could serve as the information. Defendant argued the superior court lacked jurisdiction to try him because no information was filed, and the stipulation that the complaint could be deemed the information was not a stipulation to jurisdiction. However, the stipulation was not a stipulation to jurisdiction but a stipulation that the complaint could become the information which conferred jurisdiction upon the superior court.id: 20572
An information was filed where the parties stipulated the complaint could serve as the information.Defendant argued the trial court had no jurisdiction to try him because the district attorney failed to file an information. However, at the conclusion of the preliminary hearing, and immediately upon the superior court judge’s order, as magistrate, binding the defendant over for trial, the parties stipulated that the court could treat the complaint already before it as the information. Contrary to defendant’s claim, that procedure did not violate article 1, section 14 of the California Constitution. id: 20846
Because the juvenile petition described an offense that could only be first degree murder, the court did not err in failing to specifically find first degree murder.The minor argued the juvenile court’s failure to determine whether his crime was first or second degree murder mandated a finding that it was second degree. However, the petition specified that the minor committed a willful, deliberate and premeditated first degree murder, and the juvenile court found the allegations to be true. Because the language of the charge could only refer to first degree murder, the petition did not allege an offense that was divided into degrees and a finding of degree was therefore not required. id: 20714
The trial court did not err by allowing the prosecution to amend the information during trial to add one strike law allegations to each count. Defendant argued the trial court erred by allowing the prosecution to file a second amended information during trial to attach to each count the multiple victims allegation (under the one strike law), whereas the first amended information charged the allegation as to count one only. However, the record shows the trial court considered and rejected defendant’s claim that the first amended information showed a deliberate decision by the prosecutor.id: 20631
Defendant suffered no prejudice from the fact that a witness lied to the grand jury.Defendant argued the indictment underlying the two murder counts was impermissibly based on perjury before the grand jury. Specifically, a witness lied about not being present at the scene of the murders, although defendant acknowledges the prosecutor did not know the witness was lying at the time. Nevertheless, he claimed the indictment was tainted under state and federal law. However, defendant suffered no prejudice from the perjury. The jury heard of the witness’s perjury and still found defendant guilty beyond a reasonable doubt.id: 20465
The dismissal of a duplicative accusatory pleading was not a termination of actions within the "two dismissal" rule of section 1387.Defendant argued the complaint charging him with murder and attempted murder was barred by Penal Code section 1387's "two dismissal" rule. However, the prosecutor had moved to dismiss the information as a duplicative pleading that was unnecessary due to a superceding indictment. The dismissal of a duplicative accusatory pleading was not a termination of actions within the "two dismissal" rule of section 1387.id: 20100
The trial court erred by dismissing the entire grand jury indictment under section 1385 after discovering the prosecutor's failure to advise the grand jury of defense favorable evidence. Defendant, a bookkeeper at a local college was indicted for embezzlement and tax fraud. After a finding that the prosecutor had withheld Brady material from the grand jury, the trial court dismissed the entire indictment under Penal Code section 1385. Assuming defendant's due process rights were violated, an outright dismissal of the indictment was not warranted. First the tax fraud charges were not affected by the whistle-blower evidence. Second, even if the court correctly believed the prosecutor could not amend the indictment to strike the time-barred embezzlement allegations, it then had the option of ordering the case resubmitted to the grand jury.
id: 18067
The prosecutor was not barred from amending the information during trial to add aggravating facts for sentencing where Cunningham was decided during trial.After trial started, the U.S. Supreme Court decided Cunningham v. California (2007) ___ U.S. ___, which prevented the imposition of upper terms based upon certain aggravating facts found true by the judge rather than the jury. The trial court thereafter allowed the prosecutor to amend the information to allege aggravating facts for purposes of sentencing. Contrary to defendant's claim, California's statutory scheme governing accusatory pleadings did not prevent this practice. Moreover, the prosecution was not precluded from amending the information to allege aggravating facts that had not be presented at the preliminary hearing.id: 19515
Defendant who evaded police from California to Nevada could be prosecuted for the offenses in California even after the related convictions in Nevada. Defendant was pursued by police in California, but then crossed the Nevada border where he was subsequently arrested by Nevada police after the chase continued. He was prosecuted for and
convicted of drunk driving and eluding police in Nevada. Penal code section 656 did not thereafter bar a California prosecution since the offenses defendant committed in California did not involve the same acts he committed in Nevada. His acts in California were neither necessary nor sufficient to prove the Nevada offenses and his actions in Nevada were neither necessary nor sufficient to prove the California offenses. That he engaged in a continuous course of conduct did not affect the analysis.id: 19450
The carjacking charge, unlike the weapons possession charge, was a violent felony and could be pursued after two dismissals in light of the excusable neglect.The case was first dismissed when the prosecution could not proceed with the preliminary hearing since subpoenas had been sent out just the day before. The prosecution then refiled the felony complaint. The case was dismissed again when the victim, an actor, did not appear because he left the country to work on a film. He left without telling the prosecutor. The trial court found excusable neglect. The trial court properly denied the motion to dismiss the carjacking charge pursuant to Penal Code section 1387.1, subd.(a), because carjacking is a violent felony, and section 1387.1 provides an exception to the "two dismissal rule "upon a finding of excusable neglect. However, the weapons possession charge was not a violent felony and should have been dismissed.id: 19132
The prosecutor's oral amendment of the information adequately alleged that defendant had suffered a prior strike conviction.Defendant argued the trial court erred in imposing sentence under the three strikes law because the information did not properly allege that he had suffered a prior strike conviction. First, the amended information drafted by the court's clerk without authorization was improper and ordered stricken from the record. However, the prosecutor's oral amendment of the information adequately alleged that defendant had suffered a prior strike conviction.id: 19102
Defendant was properly charged with two counts of child endangerment where she used her son to commit a burglary and then assaulted him afterwards.Count two alleged child endangerment where defendant had her son enter the open window of a neighbor's house to facilitate a burglary, and count three alleged a separate count based upon
abuse of the boy after the burglary. Defendant argued the counts were part of a single course of conduct and should have been charged as a single count. However, defendant endangered her son at two different times, in different ways for different reasons, and she was properly charged with two counts of child endangerment.id: 19026
Defendant waived the 10 day time limit for amending the complaint by not objecting to the court's order permitting an amendment beyond the statutory time limit.Penal Code section 1007 states that an order sustaining a defendant's demurrer to a criminal complaint for a defect that can be remedied by amendment, must permit amendment "within such time not exceeding 10 days as it may fix." Section 1008 requires that the action be dismissed if an amended complaint is not filed within the time fixed. Here, an order sustaining the demurrer allowed 33 days to amend. No objection was made, but the defense moved to dismiss the complaint 22 days later. By her silence on the face of the court's order permitting the amendment beyond the statutory time limit, defendant forfeited the right to have the amended complaint filed within 10 days.id: 18822
Penal Code section 1387 does not bar a subsequent felony prosecution when the same criminal act was originally charged as a misdemeanor and was previously dismissed.The dismissal of a misdemeanor complaint does not bar all further prosecution for the same offense, even a felony charge based on the same conduct. Instead, two prior dismissals are required before felony prosecution will be barred.id: 18304
Defense counsel was not ineffective for failing to object to an amendment in the information.Defendant argued trial counsel rendered ineffective assistance by failing to object to the prosecutor's motion to amend the information to include a charge of petty theft with a prior under Penal Code section 666, without first proving the prior offense at the preliminary hearing. However, section 666 does not establish a separate substantive offense, but rather is a discretionary sentencing statute which allows the trial court to punish petty theft as a felony or misdemeanor. Moreover, the complaint charging robbery put defendant on notice that he could be convicted of the lesser included offense of petty theft, and it enumerated two petty theft priors for other purposes. Finally, defense counsel may have had a reasonable tactical reason not to object - as the only benefit he could gain would be delay through a dismissal and the refiling of charges.
id: 18100
Having foregone the use of a preliminary hearing, defendant forfeited the right to complain on appeal that he was provided with insufficient notice of the charges against him.Defendant argued his demurrer to the information should have been sustained because the child molest charges were too vague to address as they were alleged, and this vagueness violated defendant's rights to notice and due process. However, defendant forfeited the claim by waiving a preliminary hearing.id: 17825
Penal Code section 1387's two-dismissal rule does not bar reinstatement of a complaint under section 871.5.Penal Code section 1538.5, subd.(p) prohibits the prosecution from refiling dismissed charges if the defendant's suppression motion has been granted twice. Section 871.5, subd.(a) gives the prosecution the option of asking the superior court "to compel the magistrate to reinstate" the dismissed complaint. These provisions, when read together, did not preclude the superior court from compelling reinstatement of a complaint under section 871.5, subd.(a) after the magistrate at the preliminary hearing had granted defendant's second suppression motion and dismissed a second complaint for insufficient evidence.id: 17711
No due process violation where defendant was convicted of falsely reporting a bomb under a general provision where, because of the occupations of the people to whom the threat was reported, the charges could have been made under another provision.Defendant reported a false bomb threat to a 911 operator and a security guard at the LA Times building. He argued his conviction under Penal Code section 148.1, subd. (c) violated due process because subdivision (c) is a catchall provision covering people to whom a false report is made that are not otherwise listed in subdivisions (a) and (b), and both the 911 operator (police) and the security guard (newspaper employee) are listed in the other subdivisions. However, that the person informed might have fit another category did not mean that charging defendant under the catchall provision violated defendant's right to due process.id: 17629
Imposition of felony sentence for petty theft with a prior did not violate due process where section 666 was not charged since robbery was charged and defendant was on notice as to all facts necessary to impose the sentence.Defendant argued a felony sentence under Penal Code section 666 violated due process because, although the accusatory pleading charged him with robbery and alleged prior qualifying convictions, it did not specifically charge him with the separate crime of petty theft with a prior conviction. However, defendant was not misled since every fact necessary to impose the felony sentence under section 666 was alleged in the amended information.id: 17589
Defendant's failure to demur or object to the accusatory pleading in the trial court prevented a challenge to the lack of notice of the mandatory consecutive term.Defendant was convicted of gross vehicle manslaughter and leaving the scene of an accident. He was sentenced to the low term of four years for the former along with a mandatory consecutive term of five years for leaving the scene. He argued the court erred by imposing the latter term because the felony complaint did not specifically allege the relevant subdivision (Vehicle Code section 20001, subds. (a) and (c) or provide adequate notice of the mandatory consecutive five year term. However, defendant did not demur or otherwise object to the accusatory pleading in the trial court. Moreover, the record showed he was provided adequate notice of the mandatory consecutive five-year term.id: 17393
Grand juries have the power to issue subpoenas duces tecum.California grand juries have the power, stemming from both common law tradition and statutory enactment, to issue subpoenas duces tecum. Moreover, such subpoenas do not require good cause affidavits.id: 17076
Prosecutor established excusable neglect under section 1387.1 by showing its diligent efforts to secure the attendance of its main witness.The prosecution filed three complaints charging defendant with robbery and burglary, conducted three preliminary hearings, and twice dismissed the action on the eve of trial. After the third filing, defendants unsuccessfully moved to dismiss the complaint, relying on Penal Code sections 1387 and 1387.1, which prevent a retrial after two dismissals except in limited circumstances. The cases were dismissed here because of the prosecution's inability to locate its main witness. The filing of the matter a third time, even without finding the key witness did not constitute bad faith. Moreover, the prosecution met its burden of proving excusable neglect under section 1387.1, at the hearing on the motion to dismiss, by showing its diligent efforts to locate the witness. The magistrate properly denied the motion to dismiss.id: 16999
Penal Code section 1387 does not bar the district attorney from refiling a dismissed misdemeanor charge as a felony.Penal Code section 1387, subd.(a) provides that an order terminating an action under this chapter or certain others, is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged with a felony and the action has previously been dismissed, or if it is a misdemeanor not charged with a felony. The word "it" in the provision refers to the misdemeanor - felony nature of a subsequently filed charge, rather than the nature of the dismissed charge. Therefore, section 1387 does not bar the district attorney from refiling a dismissed misdemeanor charge as a felony.id: 16773
Information alleging rape, robbery, and murder, along with felony-murder special circumstances gave adequate notice that the prosecution was proceeding on a felony-murder theory.The information charged defendant with rape and robbery, as well as murder, and it alleged the felony-murder special circumstance based on rape and robbery. Defendant argued a lack of notice that the prosecutor was proceeding on a felony-murder theory. However, the pleading adequately notified the defendant of the possibility of murder on a felony-murder theory.id: 16553
Court erred in denying motion to reinstate a complaint where the police were diligent in attempting to secure witnesses and there was excusable neglect under section 1387.1.The trial court misinterpreted the applicable standard under Penal Code section 1387.1 and erroneously precluded the prosecution from filing a felony complaint against defendant. The magistrate's finding of diligence in attempting to secure the witnesses was equivalent to a finding of "excusable neglect" under section 1387.1. Because the provision allows a refiling where either of the two prior dismissals was the result of excusable neglect, the magistrate erred in dismissing the complaint as a matter of law.id: 15693
Penal Code section 871.5 can be used to review the granting of a suppression motion under section 1538.5.The prosecution appealed the denial of a motion to reinstate a criminal complaint under Penal Code section 871.5. Contrary to the defendant's argument, section 871.5 can be used to review the granting of a suppression motion under Penal Code section 1538.5.id: 15696
There was no due process violation where the information pled only one theory of the pimping statute and the prosecutor argued both theories at the preliminary hearing thereby giving notice of the charges.Penal Code section 266 h, subd.(a) prohibits receiving money from prostitution, as well as solicitation. The information did not set forth the portion of the statute dealing with solicitation. Defendant argued she was denied due process because she had no notice the prosecution would rely on both portions of the statute. However, a defendant is entitled to notice of the offense of which he or she is charged, but not the particular circumstances. Moreover, evidence at the preliminary hearing showed the prosecutor was proceeding on both theories. While the pleading was careless, there was no detriment to the defendant.id: 14935
Failure to demur to an information on the ground of uncertainty in the pleading constitutes a waiver of the objection.Appellant argued his due process rights were violated as to 11 counts alleging various felonies against 6 victims because the information failed to specify a particular date on which the crimes allegedly occurred, thereby preventing him from presenting an alibi defense. However, failure to demurrer to an information on the ground of uncertainty in the pleading constitutes a waiver of the objection. Moreover, counsel was not ineffective for failing to demur where it appeared that any demurrer would have been overruled, given that the information for these counts was phrased in the traditional on or about language.id: 11445
Grand Jury may indict a person who was under the age of 18 at the time of the offense.Appellant argued that a grand jury has no jurisdiction to indict a person under the age of 18 until after that person has been the subject of a juvenile court petition and had been found unfit to be handled under the juvenile court law. However, the law does not preclude the filing of an accusatory pleading such as a grand jury indictment against a person who may have been under the age of 18 at the time of the commission of the offense.id: 11446
Information may be amended to charge prior conviction allegations after the verdict on the substantive charges but before the jury is discharged.Penal Code section 969a permits the prosecution to amend an information to include prior felony conviction enhancement allegations when the jury has already rendered a verdict for the substantive crimes charged in the information, but has not yet been discharged.id: 11448
Information was not inadequate in failing to plead conspiracy or felony-murder.Appellant argued the information was inadequate in that it failed to put him on notice that the prosecution planned to proceed on a conspiracy or felony-murder theory. However, conspiracy need not be pleaded and a pleading charging murder adequately notifies a defendant of the possibility of conviction of first degree murder on a felony-murder theory.id: 11449
Kellett v. Superior Court (1966) 63 Cal.2d 822 does not require that offenses committed at different times and at different places be prosecuted in a single proceeding.Defendant argued the instant prosecution for cocaine sales was barred by the prosecutor's failure to charge these offenses in an earlier prosecution for possession of cocaine for sale. However, the prosecution is not required to proceed against a defendant simultaneously for all known offenses, whether related to one another or not.id: 11451
Murder charge was not barred under the two-dismissal rule where the information was dismissed in favor of an indictment.Defendants helped stage an automobile accident for purposes of committing insurance fraud. During the accident a passenger in their car was killed. Defendants were charged by complaint with murder and conspiracy to commit insurance fraud. At the preliminary hearing the magistrate found there was insufficient evidence to bind over on the murder but bound defendants over on the conspiracy. Two weeks later an information was filed charging defendants with murder. Subsequently a grand jury returned an indictment against defendants and others charging murder. The trial court dismissed the information in the interest of justice pursuant to Penal Code section 1385 and arraigned defendants on the indictment. Defendants moved to set aside the murder charge in the indictment arguing the charge had been twice dismissed under 1387. However, the magistrate's order of dismissal under section 871 was not an order terminating the action under section 1387. The dismissal under section 1385 was the first termination within the meaning of section 1387 not the second. Moreover, even if the magistrate's order under section 871 was treated as a previous terminating order for the purpose of section 1387, the subsequent dismissal under section 1385 in favor of proceeding by indictment did not bar prosecution under the indictment.id: 11452
Notwithstanding defendant's appearance at the scheduled arraignment, issuance of an arrest warrant for failing to appear at a subsequent arraignment was proper.Defendant was arrested for drunk driving. He appeared at the date of his arraignment, but a complaint had not yet been filed. A complaint was subsequently filed and an arrest warrant issued after he failed to appear. Notwithstanding defendant's appearance on the earlier citation, the People were entitled to issue a new complaint and obtain a valid arrest warrant. Moreover, even if the warrant had been improperly issued, dismissal of the case was not the proper remedy.id: 11453
Offenses arose out of the same transaction for purposes of section 739 where they occurred over a few hours against one victim in the same apartment.At the preliminary hearing, the People presented evidence not only of the charged sex offense (Penal Code section 288, subdivision (b)), but also of other offenses in order to show the defendant's intent. Thereafter, the People filed an information later amended to add six additional offenses. Pursuant to Penal Code section 739, an offense may be charged after the preliminary hearing if it arose out of the same transaction which was the basis for the commitment on the related offense. The instant offenses arose out of the same transaction where the conduct was directed at a single victim over a few hours time punctuated only by changes in location from one place in the apartment to another.id: 11454
Petitioners could not seek writ review of the order reinstating the complaint where they failed to move to set aside the information prior to the preliminary hearing.Petitioners were charged by complaint with illegal disposal of hazardous waste. the magistrate granted petitioner's motion to suppress evidence and dismissed the case. Respondent's superior court granted the motion for reinstatement of the complaint. Petitioners were precluded from seeking writ review of the order reinstating the complaint by their failure to move to set aside the information filed after the preliminary hearing was resumed and they were held to answer on the reinstated complaint.id: 11455
Pursuant to Proposition 115, an indicted defendant is no longer entitled to a postindictment preliminary hearing.The new constitutional provision (California Constitution, Article I, Section 14.1) enacted by Proposition 115 has abrogated the holding of <i>Hawkins v. Superior Court</i> (1978) 22 Cal.3d 584. As such, a defendant indicted in California is no longer entitled to, and indeed may not be afforded, a postindictment preliminary hearing or any other similar procedure. The new provision violates neither state nor federal equal protection principles.id: 11456
Rule requiring the filing of a complaint 25 days after the arrest does not apply to Vehicle Code violations.When an accused misdemeanant is released from arrest, he is given a notice to appear in court at a specific time. Under Penal Code section 853.6, subdivision(e)(3) a criminal complaint must be filed within 25 days after issuance of the notice to appear. The municipal court barred action on a misdemeanor complaint against defendant for violation of Vehicle Code section 23152(a) based on the failure to file the criminal complaint within the prescribed period. However, the limitation imposed by section 853.6, subdivision(e) does not apply to Vehicle Code violations.id: 11457
Second dismissal based on the omission of one murder count from the information was due to excusable neglect thus allowing a third filing under section 1387.1.The superior court erred in dismissing a murder prosecution after the magistrate found the second dismissal was due to excusable neglect (following the omission of one of the murder counts from the information) and allowed the People a third filing under Penal Code section 1387.1. The Court of Appeal deferred to the ruling of the magistrate who heard the evidence, was in a position to judge credibility, and found no prejudice to the defendant or bad faith by the government. Moreover, separate scrutiny of each twice dismissed count is required in deciding whether a third filing is justified by excusable neglect. The refiling of both counts was justified here where proceeding on one count would have meant forfeiting the special circumstance allegation. Dismissal of both counts allowed their refiling based on excusable neglect under section 1387.1.id: 11458
Serving a copy of the motion to reinstate the complaint on the opposing party one day late constituted substantial compliance.When an action is dismissed by a magistrate pursuant to Penal Code section 871, the prosecutor may make a motion in superior court within 15 days to compel the magistrate to reinstate the complaint. The motion for reinstatement in the instant case was filed 15 days after the dismissal and was personally served on petitioners the following morning. Filing the motion on the final day and personally serving the petitioners the next day constituted substantial compliance with the statute.id: 11459
Superior court has the authority to refuse to accept a minority report as part of the grand jury's final report.A minority report that was never submitted to the full membership of the grand jury for approval by a majority of its members as a minority report or view on a matter investigated by the grand jury is not an authorized report of the grand jury. The Superior Court acted properly in refusing to accept the minority report for filing and publication.id: 11460
Supreme Court holds prosecutor is not required to present exculpatory evidence to Grand Jury.In a 5-4 decision, the Supreme Court reversed the Tenth Circuit's use of its supervisory power to dismiss an indictment. The Grand Jury is an institution separate from the courts, which functions to determine whether there exists an adequate basis for filing charges, not to determine guilt or innocence. The prosecutor need not undermine the foundation of the charges brought to the Grand Jury by presenting exculpatory evidence. The federal courts' supervisory power allows the courts to manage their own affairs by installing procedural rules to implement or improve the fact-finding process. The court's power over the separate entity of the Grand Jury is limited to curbing prosecutorial misconduct. <i>See e.g., Bank of Nova Scotia</i>, 487 U.S. 250 (1988). The prosecutor does not engage in misconduct by failing to exonerate the suspect, nor by presenting unreliable evidence to the Grand Jury. Moreover, the suspect has no right to testify nor to present exculpatory evidence.id: 11462
The court did not err in permitting an amendment to the complaint before defendant pled guilty.Defendant was charged with escape while charged with a felony (Penal Code section 4532, subdivision (b)). After he was arraigned the People filed an amended complaint adding a prior felony conviction under Penal Code section 667, subdivision (d), enacted as part of the three strikes law. At arraignment on the amended complaint, defendant sought to plead guilty to the original complaint. The court did not err in refusing to accept a plea to the original complaint.id: 11463
The information was filed when the magistrate acting as a superior court judge, accepted the amended complaint as an information.At the conclusion of the preliminary hearing, after defendant was held to answer on all charges the magistrate, in her capacity as a cross-designated judge of the municipal and superior courts, deemed the amended complaint to be an information. Defendant argued an information was never actually filed, and the trial court lacked jurisdiction to try him. However, the magistrate, acting as a superior court judge, accepted the document filed as an information. At that point the information was filed.id: 11464
Trial court did not err in failing to rearraign defendant on the original charges from his first trial, which were recharged upon retrial.Defendant argued the trial court committed reversible error in failing to rearraign him on the original charges from his first trial, which were recharged upon retrial. However, there is no logical or practical necessity for such a procedure. The record revealed defendant clearly understood the charges against him on which he had successfully obtained a retrial, and was prepared to vigorously defend against these charges.id: 11465
Amending the information did not impair appellant's ability to defend against the charges.Prior to amendment, the counts charged burglaries based on appellant's entry into dwellings with intent to commit a felony therein. On the prosecution's motion to amend to conform to proof, the court permitted amendment of these counts to include appellant's entry into dwellings with intent to commit a felony <U>or theft</U> therein. He argued the amendment violated his due process right and prejudiced him because proof of the robbery allegation was more limited than the proof necessary to establish the theft allegation. However, appellant Failed to establish that the amendment impaired his ability to defend against the charges or that the court abused its discretion.id: 11441
Court did not err in ordering an amendment of the information during trial.Defendant argued the court erred in ordering the information amended during trial to charge him with selling a genuine vehicle identification number (VIN), instead of selling him a counterfeit VIN. However, the court did not err in ordering the information amended for a defect after the prosecution had rested since defendant knew the basic charge against him was the sale of a VIN for a fraudulent purpose and whether the VIN was counterfeit or genuine was not a controlling factor in the prosecution.id: 11443
Dismissal of duplicate complaint after an earlier dismissal did not bar further proceedings.The People inadvertently filed two complaints charging defendant with grand theft. The first was dismissed pursuant to a Penal Code section 995 motion. The People then refiled the same charge and at that time, the second original complaint which was never acted upon was dismissed. Under the circumstances the action was not twice terminated within the meaning of Penal Code section 1387 and further proceedings on the refiled complaint were not barred.id: 11444
Allegation that a rape occurred between June 1 and August 31 did not deny defendant due process.The information alleged that a rape occurred between June 1, 1985 and August 31, 1985. Time is only an essential allegation if the defense is alibi, which was not the case in instant matter. Therefore, defendant suffered no denial of due process.id: 9915
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245