Pleadings

State numbers vs descriptions

[§ 212] Designation of Statute by Number. Correlation Table | Tables and Index (1) In General. Neither P.C. 951 nor 952 (supra, § 208), specifying the form and matters that must appear in an information, requires that the violated statute be designated by number. “However, the accusatory pleading ‘might well’ designate by number the statute allegedly violated, although ‘the defect’ in failing to do so may not be of substance.” (People v. Schueren (1973) 10 C.3d 553, 558, 111 C.R. 129, 516 P.2d 833.) (2) Effect of Erroneous Designation. In People v. Carbonie (1975) 48 C.A.3d 679, 121 C.R. 831, defendant was put on trial for allegedly using her minor son as an intermediary in an amphetamine transaction. The information defining her offense referred to Health & Saf.C. 11380, the proper statute governing the furnishing of amphetamine, but described her activities in the language of another statute, Health & Saf.C. 11353. Defendant was thus charged with using “a minor … to knowingly and lawfully … sell” a controlled substance, amphetamine sulphate (Health & Saf.C. 11353), instead of using a minor as agent through soliciting, etc., the minor (Health & Saf.C. 11380). The district attorney erred in so describing the offense. Held, this was harmless error. “The purpose of the information is to provide the accused with fair notice of the charges he or she is expected to answer. That purpose was adequately served by the information before us. The information referred to the correct statute and named the correct substances. Moreover, the type of activity described in the information would also fall within [Health & Saf.C.] 11380. … In any event, since appellant failed to object in the trial court to the adequacy of the notice she received, she thereby waived her objection.” (48 C.A.3d 691.) In Isaac v. Superior Court (1978) 79 C.A.3d 260, 146 C.R. 396, defendant was charged with attempted extortion in violation of P.C. 664 (general attempt statute) and P.C. 518 (defining extortion) in that she “did willfully and unlawfully attempt to obtain an official act of a public officer … by the wrongful use of force or fear.” Attempted extortion is an offense under P.C. 524. Held, defendant was properly charged with violation of P.C. 524. (a) Because the charging language clearly refers to attempted extortion, defendant suffered no prejudice from the erroneous designation of P.C. 664. (b) Legislative history shows that the broadened definition of extortion in P.C. 518 was intended to apply to P.C. 524. (79 C.A.3d 263.) (See People v. White (2005) 133 C.A.4th 473, 483, 34 C.R.3d 848 [in light of legislative declaration that no substantive change was intended by adding subparagraphs to statute, error in designating subparagraph in information was not necessarily fatal; issue is whether defendant was misled or can show prejudice, and that was not shown].) Sometimes, an erroneous designation requires a reversal. (See People v. Hernandez (1976) 64 C.A.3d Supp. 16, 22, 134 C.R. 620, citing the text [defendants were improperly charged with violating P.C. 4550 (attempted rescue of prisoner), when they should have been charged with attempted violation of Welf.C. 1152 (aiding inmate of juvenile facility to escape); “having been charged under the wrong statute, they did not receive the requisite notice which due process requires and this fundamental error compels reversal”].)

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

"The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." (Pen. Code, § 1159.)

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’”].)

lesser included

To determine whether one offense is a lesser included offense of another, we have at times looked to the accusatory pleading in the case before us, as well as to the statutory elements of the two offenses at issue. (People v. Robinson (2016) 63 Cal.4th 200, 207, 202 Cal.Rptr.3d 485, 370 P.3d 1043.) But because the first amended information charging Fontenot with completed kidnapping merely “incorporate[d] the statutory definition of the charged offense without referring to the particular facts” in detail, we “must rely on the statutory elements” alone. (Ibid.) So here we need only apply the so-called “elements test.” (Ibid.) What that test requires is determining whether a given crime's elements together constitute a mere subset of another crime's elements. (Ibid.) If the answer is yes, the greater offense “ ‘ “ ‘cannot be committed without also necessarily ***348 committing [the] lesser offense.’ ” ’ ” (Ibid., quoting Bailey, supra, 54 Cal.4th at p. 748, 143 Cal.Rptr.3d 647, 279 P.3d 1120.) Which means that, so long as some additional evidence is required to support a conviction for the former, the latter is a lesser included offense. (Robinson, at p. 207, 202 Cal.Rptr.3d 485, 370 P.3d 1043.)

People v. Fontenot (2019) 8 Cal.5th 57, 65 [251 Cal.Rptr.3d 341, 347–348, 447 P.3d 252, 258]

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”].)

[§ 242] Authority To Amend.

Correlation Table | Tables and Index Supplement (1) Without Leave: Before Plea or Demurrer Sustained. An indictment, accusation, or information may be amended by the district attorney, or an amended complaint may be filed by the prosecuting attorney, without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. (P.C. 1009; see People v. Gilbert (1938) 26 C.A.2d 1, 6, 78 P.2d 770 [amended second indictment was returned by grand jury while demurrer to first indictment was pending]; People v. Stuhlmiller (1940) 37 C.A.2d 603, 605, 99 P.2d 1072 [same right when plea to original information is withdrawn]; People v. Crosby (1962) 58 C.2d 713, 721, 25 C.R. 847, 375 P.2d 839 [court erred in denying leave to amend indictment before entry of defendants' plea]; People v. Carrasco (2006) 137 C.A.4th 1050, 1057, 40 C.R.3d 768 [P.C. 1009 permits court to amend information without request of prosecution; thus, after denying defendant's motion to dismiss, court did not err in amending information to conform to complaint that had been amended according to proof at preliminary hearing]; C.E.B., Criminal Law, §§ 7.1, 7.14 et seq.; 41 Am.Jur.2d (2005 ed.), Indictments and Informations § 160 et seq.) (2) With Leave: At Any Stage. The court may order or permit an amendment for any defect or insufficiency, at any stage of the proceedings. (P.C. 1009; see 17 A.L.R.3d 1181 [court's power to make or permit amendment of indictment].) Thus, after a plea or demurrer is sustained, the court's permission to amend is necessary. (People v. Brower (1949) 92 C.A.2d 562, 564, 207 P.2d 571.) However, with this permission, amendment may be made at any time prior to verdict or judgment. The following situations are illustrative: (a) Before trial. (See People v. Alves (1957) 154 C.A.2d Supp. 877, 879, 315 P.2d 755 [dictum: after demurrer sustained without leave to amend, and before dismissal, if court should decide that it had erred].) (b) At or during trial. (See People v. Valladoli (1996) 13 C.4th 590, 54 C.R.2d 695, 918 P.2d 999, infra, § 247 [after return of guilty verdicts but before discharge of jury, information was amended to charge inadvertently omitted enhancement allegations]; People v. Lancaster (2007) 41 C.4th 50, 87, 58 C.R.3d 608, 158 P.3d 157 [defendant was not prejudiced where count charging kidnaping for ransom was amended to include “other valuable things” in addition to money sought by defendant; extortion was originally pleaded in that count and thus both original and amended counts “referred to kidnapping for ransom as a shorthand way of designating the aggravated kidnapping offenses enumerated” in P.C. 209]; People v. Miralrio (2008) 167 C.A.4th 448, 459, 84 C.R.3d 169 [following all evidence and before closing arguments, trial court did not abuse discretion by allowing prosecution to file second amended information to attach multiple victim enhancement to each of eight counts; first amended complaint with enhancement to count one only was deemed clerical error and parties always understood that prosecution was seeking enhancement on all counts]; People v. Arevalo-Iraheta (2011) 193 C.A.4th 1574, 1582, 124 C.R.3d 363 [where original complaint alleged five counts of aggravated sexual assault on child under age 14, amendments prior to close of prosecution's case adding five counts of lewd and lascivious behavior with child under age 14, for which defendant was convicted, were proper; added counts involved lesser charges of which defendant had notice through original complaint].) (c) Following a mistrial. (See People v. Flowers (1971) 14 C.A.3d 1017, 1021, 92 C.R. 647 [charging new offense shown at original trial]; People v. Brown (1973) 35 C.A.3d 317, 323, 110 C.R. 854 [information was amended to allege two counts of unlawful intercourse in addition to the two counts of rape charged in original information; defendant was aware at preliminary hearing that victim was 15 years old and thus was not prejudiced by amendment; following Flowers].) The court's discretion is broad, and is almost invariably upheld. (People v. O'Moore (1948) 83 C.A.2d 586, 594, 189 P.2d 554; People v. Stoddard (1948) 85 C.A.2d 130, 138, 192 P.2d 472; People v. Byrd (1960) 187 C.A.2d 840, 842, 10 C.R. 43; People v. Baldwin (1961) 191 C.A.2d 83, 87, 12 C.R. 365; People v. Hernandez (1961) 197 C.A.2d 25, 31, 17 C.R. 20.) (3) Distinction: New Information or Indictment. If the defect in an indictment or information cannot be remedied by amendment, the court may order the case resubmitted to the same or another grand jury or the filing of a new information. (P.C. 1009; on procedure when court directs refiling or resubmission, see P.C. 1010.) SUPPLEMENT (1) Without Leave: Before Plea or Demurrer Sustained. See 41 Am.Jur.2d (2015 ed.), Indictments and Informations § 153 et seq.

(2) With Leave: At Any Stage. See People v. Simpson (2014) 223 C.A.4th Supp. 6, 8, 167 C.R.3d 396 [trial court exceeded its authority under P.C. 1009 and violated separation of powers doctrine by amending complaint sua sponte during trial to add charge]; People v. Hamernik (2016) 1 C.A.5th 412, 424, 427, 204 C.R.3d 649 [after erroneously determining that attempted possession of controlled substance was lesser included offense of possession of controlled substance, trial court, after presentation of evidence, dismissed possession of controlled substance charge, substituted attempted possession charge, and ruled that prosecution's motion to amend information was moot; defendant's conviction of attempted possession of controlled substance had to be reversed, where attempted possession charge was not included in information; Court of Appeal had no authority to order trial court to amend information after conviction].

[§ 246] Improper Amendments. Correlation Table | Tables and Index Supplement (1) Indictment or Accusation Changing Offense. The grand jury alone determines what crime is to be charged on the basis of the evidence presented to it. Hence, while an indictment may be amended as freely as an information within the scope of the charge (infra, § 247 et seq.), an indictment or accusation “cannot be amended so as to change the offense charged.” (P.C. 1009; People v. Granice (1875) 50 C. 447 [change from manslaughter to murder]; see People v. Foster (1926) 198 C. 112, 120, 243 P. 667 [discussing reasons for distinction].) (2) Information Charging Offense Not Shown at Preliminary Examination. The district attorney may not originally charge an offense not shown by the evidence at the preliminary examination (supra, § 202), and the same limitation applies to an amendment. (P.C. 1009; People v. Fyfe (1929) 102 C.A. 549, 555, 283 P. 378; see People v. Tallman (1945) 27 C.2d 209, 213, 163 P.2d 857 [amendment is proper if shown by evidence]; People v. Winters (1990) 221 C.A.3d 997, 1005, 1007, 270 C.R. 740 [amendment violated P.C. 1009 where defendant waived preliminary hearing on charge of possession of methamphetamine for sale but objected to amendment of information at trial to add charge of transportation of methamphetamine].) In People v. Peyton (2009) 176 C.A.4th 642, 98 C.R.3d 243, defendant was initially charged with three counts of oral copulation and one count of sexual penetration. Defendant waived the preliminary hearing, and the prosecution filed an information charging defendant with the same crimes charged in the complaint. The prosecution then filed two more amended informations, one on the first day of trial, the second following the prosecution's case to conform to proof. Both changed the allegations to three counts of sexual penetration and one count of oral copulation. However, the second amended information added a count of aggravated lewd conduct. The trial court approved the amendments and the jury convicted defendant as charged. Held, conviction for lewd conduct reversed and other convictions affirmed. (a) Improper amendment. The reasoning of People v. Winters applies here. P.C. 1009 prohibits adding new charges to an accusatory pleading after a defendant has waived the right to a preliminary hearing on that pleading. Here, the lewd conduct charge was alleged as an additional fifth charge following the prosecution's case-in-chief. Thus, defendant was convicted of a charge not included in the complaint to which he had waived a preliminary hearing. (176 C.A.4th 655.) (b) Proper amendment. A variance in pleading is not material unless it misleads a defendant in preparing a defense. Here, all of the pleadings, including the amended complaint and second amended information, “consistently alleged” four charges of aggravated sexual assault of a child by force or duress based on either oral copulation or sexual penetration. “Each pleading dealt with one victim and with conduct occurring over a very limited timeframe. And the only difference between the amended complaint, to which defendant waived his right to a preliminary hearing, and the second amended information, upon which defendant was convicted at trial, is that the bases of two of the four alleged section 269 charges were changed from oral copulation to sexual penetration.” (176 C.A.4th 659.) Thus, defendant was not deprived of an ability to properly prepare a defense to the charges as originally alleged, and the convictions were not in significant variance from the charges in the complaint. (176 C.A.4th 659, 660.) The defendant's right to attack the information on this ground is, however, limited by the following procedural rules: (a) The defendant waives the error by failing to object or move to set aside the information. (People v. Workman (1953) 121 C.A.2d 533, 535, 263 P.2d 458; People v. Walker (1959) 170 C.A.2d 159, 164, 338 P.2d 536.) (b) Unless the defendant brings up the preliminary examination transcript in the appeal record, the presumption (in favor of the judgment) will be that the evidence supported the amendment. (People v. Walker, supra, 170 C.A.2d 163; People v. Dean (1958) 158 C.A.2d 572, 575, 322 P.2d 929.) (3) Complaint Charging Offense Not Charged by Original Complaint. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added that might properly have been joined in the original complaint. (P.C. 1009; see People v. Berkowitz (1977) 68 C.A.3d Supp. 9, 14, 137 C.R. 313 [at close of trial, complaint charging defendant with two counts of practicing medicine without a license was amended to add two counts of dispensing dangerous drugs without good faith examination; lack of notice violated due process and required reversal of convictions on those counts].) SUPPLEMENT (2) Information Charging Offense Not Shown at Preliminary Examination. In People v. Mora-Duran (2020) 45 C.A.5th 589, 258 C.R.3d 893, defendant waived a preliminary hearing and pleaded no contest to felony marijuana cultivation under former Health & Saf.C. 11358. After defendant's plea, but before sentencing, Proposition 64 became effective. Proposition 64 amended Health & Saf.C. 11358 to require additional elements for a felony marijuana cultivation conviction, such as an accompanying violation of certain environmental protection laws. The trial court rejected the plea agreement and reinstated charges. The prosecution filed an amended information and defendant pleaded no contest to a new felony marijuana cultivation charge under Health & Saf.C. 11358(d)(3)(C) pertaining to marijuana cultivation resulting in a violation of Fish & Game C. 5650 or 5652, both relating to contaminating state waters. On appeal, defendant argued that charges were added to the amended information after a preliminary hearing was waived in violation of P.C. 1099. Held, conviction reversed. The amendment to the information constituted a significant variance from the original charges. “As originally charged, defendant was to defend against accusations of planting, cultivating, harvesting, drying, or processing marijuana. After the amendment, the scope of his defense grew to encompass” violations of Fish & Game C. 5650 and 5652. (45 C.A.5th 600.) Although the amendment made it more difficult for the prosecutor to obtain a felony conviction, “the amendment still presented a moving target by requiring the defendant to defend against allegations not encompassed within the original charge.” (45 C.A.5th 600.) (2a) (New) Information Charging Conduct Enhancement After Defendant Waives Preliminary Hearing. An information cannot be amended to add a conduct enhancement after the defendant has waived the right to a preliminary hearing. (People v. Rogers (2016) 245 C.A.4th 1353, 1357, 200 C.R.3d 355.) In Rogers, defendant appealed his convictions on numerous charges, arguing that his attorney rendered ineffective assistance by failing to object to the prosecution's motion to amend the information to include an enhancement for inflicting great bodily injury (GBI) after he waived a preliminary hearing. Held, convictions affirmed, but case remanded for resentencing. (a) People v. Superior Court (Mendella) (1983) 33 C.3d 754, 191 C.R. 1, 661 P.2d 1081, held that a defendant could challenge the prosecution's failure to present evidence supporting a GBI enhancement allegation at the preliminary hearing by moving to dismiss the enhancement under P.C. 995 (text, § 261). However, the court concluded that as long as evidence at the preliminary hearing supported the enhancement, there was no bar to adding the enhancement to the information. In contrast, Thompson v. Superior Court (2001) 91 C.A.4th 144, 110 C.R.2d 89, held that the prosecution is not required to present evidence to support prior strike convictions at the preliminary hearing. Based on the reasoning of Mendella and Thompson, the prosecution may not add a conduct enhancement to the information after a defendant has waived a preliminary hearing. This conclusion “is a necessary extension from Mendella, because if there is no preliminary hearing, there can be no evidence supporting the allegation.” (245 C.A.4th 1362.) (b) P.C. 1009 must be construed to bar the addition of conduct enhancements. To do otherwise would mean that a prosecutor could amend an information to add a conduct enhancement over the defendant's objection, but the defendant could then move to dismiss the enhancement under P.C. 995 and Mendella on the ground that there was no preliminary hearing testimony supporting the enhancement. (245 C.A.4th 1363.)

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.