Pleadings

Notice

People v. Anderson, 141 Cal. App. 4th 430, 445, 45 Cal. Rptr. 3d 910 (1st Dist. 2006) [“the role of the accusatory pleading is to provide notice to the defendant of the charges that he or she can anticipate being proved at trial”]; People v. Jordan, 19 Cal. App. 3d 362, 368, 97 Cal. Rptr. 570 (4th Dist. 1971) [noting “the constitutional requirement defendants be given adequate notice of the nature of the charges against them so they may prepare their defense and plead the judgment as a bar to any later prosecution for the same offense”].)

Attempts

Part and parcel of almost every charge is the possibility the charge may actually be an attempt and not a substantive offense, or based upon a theory of aiding and abetting, or the natural and probable consequences doctrine, or a conspiracy. (See, e.g., People v. Fontenot, 8 Cal. 5th 57, 61, 251 Cal. Rptr. 3d 341, 447 P.3d 252 (Cal. 2019) [“Under California law, a defendant may be convicted of an attempt even if the People charged only the completed crime”];

Pleading aiders/abbetors and accomplice liability

People v. Garrison, 47 Cal. 3d 746, 776 n.12, 254 Cal. Rptr. 257, 765 P.2d 419 (1989) [“notice as a principal is sufficient to support a conviction as an aider and abettor … ‘without the accusatory pleading reciting the aiding and abetting theory so long as defendant is charged in that pleading as a principal to the substantive offense and thus receives the notice of the charge against him’”].)

Amendments

Garcia v. Superior Court (2020) 47 Cal.App.5th 631. Arraignment on amended complaint started a new 10 days. Amendment was a new charge. 

Unless the amendment is an “amendment of substance,” the defendant is not entitled to a new clock. (Hankla v. Municipal Court, 26 Cal. App. 3d 342, 358, 102 Cal. Rptr. 896 (1st Dist. 1972) (disapproved on other grounds by, Owens v. Superior Court, 28 Cal. 3d 238, 249, fn. 10, 168 Cal. Rptr. 466, 617 P.2d 1098 (1980)).) Where the amendments do “no more than add [] evidentiary allegations to the same charge,” the amendments are “of no substance” and do not extend the time within which the defendant is entitled to be brought to trial. (Id. at p. 359.) Amendments that change the charges but leave the times, dates, and victims the same as in the first information are not substantial changes and therefore do not toll Penal Code § 1382's 60-day speedy trial period. (Perez v. Superior Court, 111 Cal. App. 3d 994, 999, 169 Cal. Rptr. 45 (2d Dist. 1980) (disapproved on other grounds by, People v. Engram, 50 Cal. 4th 1131, 1159-1161, 116 Cal. Rptr. 3d 762, 240 P.3d 237 (2010)).) Similarly, the addition of prior conviction allegations or aggravating sentencing factors14 to an information or a complaint are not substantial changes triggering a new period. (See Huerta v. Superior Court, 18 Cal. App. 3d 482, 485, 95 Cal. Rptr. 748 (2d Dist. 1980).) In Perez, the Court of Appeal reaffirmed that “[i]n order for an amendment to an information to toll the running of the 60-day period prescribed by section 1382, the amendment must go to the substance of the charge.” (Perez, at pp. 998-999.) While the foregoing cases discuss the impact of substantive amendments to the trial clock (Penal Code § 1382), the same reasoning should apply to Penal Code § 859b. In short, only substantive amendments trigger the need to rearraign the defendant and start a new clock.

Unlike the amendment of a complaint or information to add a conduct enhancement, “neither the Legislature nor the courts have ever deemed aggravating facts used to impose the upper term as being equivalent to statutory sentencing ‘enhancements’ … that must be alleged in the accusatory pleading and provided at the preliminary hearing.” (Barragan v. Superior Court, 148 Cal. App. 4th 1478, 1485, 56 Cal. Rptr. 3d 660 (3d Dist. 2007).) Accordingly, the amendment of a complaint to add aggravating factors is likely not an “amendment of substance” (Hankla, supra, 26 Cal. App. 3d at 358) that would trigger a new clock. Rather, the addition of aggravating factors is similar to the addition of prior conviction allegations in that aggravating factors pertain solely to the length of punishment. In Huerta v. Superior Court, 18 Cal. App. 3d 482, 95 Cal. Rptr. 748 (2d Dist. 1980), the Court of Appeal held that the addition of prior conviction allegations to an information is not a substantial change triggering a new 60-day period. Noting that the added allegations did not go “to the substance of the charge,” the court stated: “Whatever justification there may be for delay of trial when an amendment has changed the nature of the offense involved, we see no reason why the formal addition of a matter going (at most) to the length of penalty, should automatically affect the right to a trial on the merits.” (Id. at p. 485.)

With respect to the trial clock under Penal Code § 1382, the filing of a substantive amendment either tolls the 60-day speedy trial clock (Perez v. Superior Court, 111 Cal. App. 3d 994, 997, 169 Cal. Rptr. 45 (2d Dist. 1980) (disapproved on other grounds by, People v. Engram, 50 Cal. 4th 1131, 1159-1161, 116 Cal. Rptr. 3d 762, 240 P.3d 237 (2010)) or starts a new clock (Hankla v. Municipal Court, 26 Cal. App. 3d 342, 358, 102 Cal. Rptr. 896 (1972) (disapproved on other grounds by, Owens v. Superior Court, 28 Cal. 3d 238, 249, fn. 10, 168 Cal. Rptr. 466, 617 P.2d 1098 (1980)) [“it may be assumed, as in Huerta, that an amendment of substance would constitute a new charge which would start a new period for trial, following the petitioner's arraignment”].)

Aggravating circumstances

Pleading and proof—Aggravating factors Effective January 1, 2022, Senate Bill 567 amended Penal Code § 1170(b)(1)-(3) to limit the court's discretion to impose the upper limit. Under the amended statute, the court cannot impose the upper term unless an aggravating factor justifies the imposition of a term exceeding the middle term, and (1) the defendant stipulates to the aggravating factor; (2) the aggravating factor is based on a prior conviction as established by a certified record of conviction; or (3) the jury or judge finds the aggravating factor true beyond a reasonable doubt in a bifurcated trial. (Penal Code § 1170(b)(1)-(3).) Although there are no cases discussing the effects, if any, of these amendments on pleading and proof requirements at preliminary hearings, prior case law suggests that People need not prove and the court need not make findings concerning aggravating factors at the preliminary hearing. (See Barragan v. Superior Court, 148 Cal. App. 4th 1478, 1484, 56 Cal. Rptr. 3d 660 (3rd Dist. 2007) [“an aggravating fact is not an ‘offense’ within the meaning of [Penal Code] section 1009 and the statutes governing accusatory pleadings. [Citation.] Thus, the statutory scheme does not require the prosecution to plead and prove at the preliminary examination the existence of aggravating facts that can be used to impose the upper term in California's determinate sentencing law” (internal citation omitted)].) The Barragan Court held that the People were entitled to amend the information to include aggravating factors in the information even though those factors were not pled or proved at the preliminary hearing. Doing so, the court explained, complied with the constitutional mandates set forth in Apprendi v. New Jersey, 530 U.S. 466, 494, fn. 19, 120 S.Ct. 2348 (2000), and complied with California's statutory pleading requirements primarily because “an aggravating factor is not an ‘offense’ within the meaning of section 1009 and the statutes governing accusatory pleading.” (Barragan, at p. 1484.) A contrary case, People v. Superior Court (Brooks), 159 Cal. App. 4th 1, 71 Cal. Rptr. 3d 49 (2d Dist. 2007) was decided after Barragan, but its central holding was abrogated by the passage of the new amendment. Penal Code § 1170(b)(2) is in sync with Barragan. The statute requires the People to plead the aggravating factors in the information or indictment. The statute does not require the People to plead and prove the aggravating factors at the preliminary hearing stage. And the Legislature did not amend the statutory definition of “offense” to include aggravating factors. Nonetheless, Barragan and section 1170(b)(2) may be vulnerable to several due process based/notice pleading arguments that may favor requiring the People to plead and prove aggravating factors at the preliminary hearing stage. (See People v. Mancebo, 27 Cal. 4th 735, 747, 117 Cal. Rptr. 550 (Cal. 2002) [“a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes”]; People v. Dominguez, 166 Cal. App. 4th 858, 866, 83 Cal. Rptr. 3d 284 (6th Dist. 2008) [“It is the rule that ‘a defendant may not be prosecuted for an offense not shown by the evidence at the preliminary hearing or arising out of the transaction upon which the commitment was based’”]; People v. Jeff, 204 Cal. App. 3d 309, 342, 251 Cal. Rptr. 135 (5th Dist. 1988) [“the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript. This is the touchstone of due process notice to a defendant. [Citation.] So long as the evidence presented at the preliminary hearing supports the number of offenses charged against defendant and covers the timeframe(s) charged in the information, a defendant has all the notice the Constitution requires”].)

Comment: Barragan is controlling law (Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450, 455, 20 Cal. Rptr. 321 (Cal. 1962)) and the statutory scheme does not require the People to plead or prove aggravating factors at the preliminary hearing stage. However, because there are good arguments on both sides of the issue, a cautious prosecutor may choose to plead and prove aggravating factors at the preliminary hearing, and, where such proof is not presented or the magistrate did not make findings, a diligent defense counsel may choose to file a 995 motion and move to dismiss the aggravating factors. Time will tell.