Cervantes v. People, No. 83SC426

Docket NºNo. 83SC426
Citation715 P.2d 783
Case DateMarch 17, 1986
CourtSupreme Court of Colorado

Page 783

715 P.2d 783
Robert CERVANTES, Petitioner,
v.
The PEOPLE of the State of Colorado, Respondent.
No. 83SC426.
Supreme Court of Colorado,
En Banc.
March 17, 1986.

David F. Vela, Colorado State Public Defender, Duane M. Kline, III, Diana L. DeGette, Deputy State Public Defenders, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Daniel Dailey, First Asst. Atty. Gen., Robert Petrusak, Asst. Atty. Gen., Denver, Attorneys for respondent.

LOHR, Justice.

After a jury had been selected and sworn in Weld County District Court, the prosecution moved to amend a count of the criminal information charging the defendant, Robert Cervantes, with second degree assault. The trial court granted the motion. Thereafter, the jury found the defendant guilty of that charge as well as charges of third degree assault, resisting arrest and obstructing a peace officer. Cervantes appealed his conviction for second degree assault, challenging the propriety of the trial court's ruling allowing the amendment of the charge. The Colorado Court of Appeals held the amendment permissible under

Page 784

Crim.P. 7(e) and sustained the judgment in People v. Cervantes, 677 P.2d 403 (Colo.App.1983). We granted certiorari and now affirm.

I.

The events that resulted in Cervantes' conviction occurred on May 5, 1979. According to the evidence presented at the preliminary hearing and at trial, Cervantes went to the home of his estranged wife, Alice Cervantes, in Greeley to pick up his son and take him to a wrestling match in Denver. Alice Cervantes prepared some food for the defendant, and the two began arguing. The defendant slapped Alice Cervantes, and she ran to the house next door to call the police. The defendant followed her into the house, hung up the phone as she was trying to dial, and then pushed her out of the house. Alice Cervantes fell on the sidewalk as she was leaving the neighbor's house, causing her to receive a large bump on her head. In assessing the cause of her fall, Alice Cervantes did not know whether the defendant pushed her or whether she tripped. She then returned to her own home with the defendant, where they continued arguing.

Shortly thereafter, two uniformed police officers, Joseph Tymkowych and Raymond Leffler of the Greeley Police Department, arrived at Alice Cervantes' house. Tymkowych approached the house first, and Robert Cervantes met him on the porch. According to Tymkowych, Cervantes began shouting obscenities at him. Tymkowych informed Cervantes that the police officers merely wished to make sure that Alice Cervantes was not harmed. After Tymkowych moved towards the door of the house in an effort to see Alice Cervantes, the defendant shouted more obscenities and then delivered a blow with his fist to Tymkowych's chest. A scuffle involving both of the police officers and Cervantes ensued. During the scuffle, Cervantes called out to his wife's dog, a German Shepherd-Saint Bernard mix. He told the dog, "Sic 'em, boy, get them. Kill them." The dog proceeded to "grab" Tymkowych's ankle and then his shoulder. Although the dog did not break Tymkowych's skin, the grabbing left red marks on Tymkowych's shoulder. Before the officers managed to handcuff and arrest Cervantes, he either intentionally or inadvertently bit Leffler on the hand.

As a result of this incident, an information was filed against Cervantes charging him with first degree assault 1 on Officer Tymkowych, second degree assault 2 on Officer Leffler, and third degree assault 3 on Alice Cervantes. After the preliminary hearing, the trial court ruled that probable cause had not been established to support the first degree assault count. The court bound over that charge on second degree assault and directed the prosecution to file an amended information reflecting that lesser charge.

In response to the court's order, the prosecution filed a motion to amend the first count of the information against Cervantes and attached an amended count alleging in pertinent part that:

[O]n or about the 5th day of May, 1979, at the said County of Weld, State of Colorado, ROBERT CERVANTES, with intent to prevent Joseph Tymkowych, whom he knew and reasonably should have known to be a peace officer, did unlawfully, feloniously, and intentionally cause bodily injury to Joseph Tymkowych.

The trial court granted the motion. The amended count one stated that the alleged conduct by Cervantes violated section 18-3-203, 8 C.R.S. (1978), which is the Colorado statute that defines the offense of second degree assault. 4 The information did

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not specify which subsection of the statute Cervantes had allegedly violated. In order to track more precisely the language of subsection (1)(c) of the statute, the information should have contained the phrase "from performing a lawful duty" following the words "whom he knew and reasonably should have known to be a peace officer."

After the jury had been selected and sworn, Cervantes orally moved to dismiss the amended first count of the information on the grounds that it did not state a cause of action and did not allege a mental state. The trial court denied Cervantes' motion and instead granted the prosecution's motion to amend count one further by inserting the words "from performing a lawful duty." The court stated its belief that the amendment was "just a matter of form" and that the information, together with the preliminary hearing, gave notice to Cervantes of the charge against him.

At the close of the prosecution's evidence, the defendant moved for a judgment of acquittal on each count, reiterating the argument that the statement of the charge in amended count one was legally insufficient. The trial court reduced the charge of second degree assault on Leffler to one of third degree assault. The court refused, however, to render a judgment of acquittal as to the amended second degree assault charge involving Tymkowych or as to the charge of third degree assault on Alice Cervantes. Robert Cervantes was subsequently convicted of second degree assault on Tymkowych, third degree assault on Alice Cervantes, and of obstructing an officer and resisting arrest in connection with his conduct towards Leffler.

On appeal, Cervantes challenged only the second degree assault conviction concerning Tymkowych, contending that the trial court should have dismissed the amended first count and should not have allowed the prosecution to amend it further. The court of appeals, by a divided vote, determined that Cervantes was adequately advised of the second degree assault charge involving Officer Tymkowych before the prosecution moved to amend the information further after the jury was sworn, and therefore the additional amendment was one of form and was properly allowed by the trial court. We agree with this determination.

II.

"An information is sufficient if it advises the defendant of the charges he is facing so that he can adequately defend himself and be protected from further prosecution for the same offense." People v. Albo, 195 Colo. 102, 106, 575 P.2d 427, 429 (1978). The notice given to a defendant of the charges against him should be sufficient to ensure that he is not taken by surprise by the evidence offered at trial. People v. Cooke, 186 Colo. 44, 46, 525 P.2d

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426, 428 (1974). An information need not follow the exact wording of the statute that defines the offense charged in the information. Loggins v. People, 178 Colo. 439, 441, 498 P.2d 1146, 1147 (1972). However, an information that fails to charge an essential element of an offense is defective. People v. Bowen, 658 P.2d 269, 270 (Colo.1983). The sufficiency of an information is a matter of jurisdiction, so any conviction based on an information requiring major amendment is void. Bustamante v. People, 136 Colo. 362, 365, 317 P.2d 885, 887 (1957).

Defects in an information, however, can be cured by timely amendment. People v. Bowen, 658 P.2d at 270. Crim.P. 7(e) governs amendment of informations and provides as follows:

The court may permit an information to be amended as to form or substance at any time prior to trial; the court may permit it to be amended as to form at any time before the verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

Crim.P. 7(e) is to be construed liberally to avoid the dismissal of cases for technical irregularities in an information that can be cured through amendment. People v. Bowen, 658 P.2d at 270; People v. Hertz, 196 Colo. 259, 260, 586 P.2d 5, 6 (1978).

The present case involves the amendment of an information after the jury was chosen and sworn, not an amendment "prior to trial." Therefore, under the standards of Crim.P. 7(e), an amendment was permissible only if it was one of form, not substance, and if it charged no different offense and prejudiced no substantial rights of the defendant. In determining the sufficiency of a particular count alleged in an information, we have restricted our examination to the four corners of that count to make sure that the essential elements of a crime were alleged therein directly or incorporated by specific reference, and we have not allowed a defect in one count to be compensated for by averments contained in another count. See People v. Moore, 200 Colo. 481, 485, 615 P.2d 726, 729 (1980); Martinez v. People, 163 Colo. 503, 431 P.2d 765 (1967). However, our examination has never been, and should not be, similarly restricted when we are deciding whether an information as a whole so adequately advises a defendant of the charges against him that an amendment to that information can be considered one of form. To the contrary, in evaluating the form/substance question for the purpose of a motion to amend, a count in an information cannot be viewed as setting forth a naked charge isolated from any surrounding circumstances....

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31 practice notes
  • People v. Rodriguez, No. 91SA112
    • United States
    • Colorado Supreme Court of Colorado
    • March 11, 1996
    ...is facing so that he can adequately defend himself and be protected from further prosecution for the same offense." Cervantes v. People, 715 P.2d 783, 785 (Colo.1986) (citation and internal quotation marks omitted). The prosecution cannot constitutionally require a defendant to answer a cha......
  • People v. Williams, No. 98SC109.
    • United States
    • Colorado Supreme Court of Colorado
    • June 28, 1999
    ...defend him or herself; and (2) it protects the defendant from further prosecution for the same offense. See Cervantes v. People, 715 P.2d 783, 785 (Colo. 1986); People v. Albo, 195 Colo. 102, 106, 575 P.2d 427, 429 Colorado has followed the modern trend of testing the sufficiency of the inf......
  • People v. Counterman, Court of Appeals No. 17CA1465
    • United States
    • Colorado Court of Appeals of Colorado
    • July 22, 2021
    ...that he can adequately defend himself and be protected from further prosecution for the same offense." 497 P.3d 1054 Cervantes v. People , 715 P.2d 783, 785 (Colo. 1986) (quoting People v. Albo , 195 Colo. 102, 106, 575 P.2d 427, 429 (1978) ); see Rodriguez , 914 P.2d at 257. And the prosec......
  • State v. Sims, No. 22561-8-I
    • United States
    • Court of Appeals of Washington
    • September 10, 1990
    ...have described the essential elements requirement as "quasi-jurisdictional" or "jurisdictional" in nature. E.g., Cervantes v. People, 715 P.2d 783, 786 (Colo.1986); Kansas City v. Carlock, 12 Kan.App.2d 41, 733 P.2d 1273, 1274 (1987); State v. Blais, 391 A.2d 1198, 1201 (Me.1978); Williams ......
  • Request a trial to view additional results
31 cases
  • People v. Rodriguez, No. 91SA112
    • United States
    • Colorado Supreme Court of Colorado
    • March 11, 1996
    ...is facing so that he can adequately defend himself and be protected from further prosecution for the same offense." Cervantes v. People, 715 P.2d 783, 785 (Colo.1986) (citation and internal quotation marks omitted). The prosecution cannot constitutionally require a defendant to answer a cha......
  • People v. Williams, No. 98SC109.
    • United States
    • Colorado Supreme Court of Colorado
    • June 28, 1999
    ...defend him or herself; and (2) it protects the defendant from further prosecution for the same offense. See Cervantes v. People, 715 P.2d 783, 785 (Colo. 1986); People v. Albo, 195 Colo. 102, 106, 575 P.2d 427, 429 Colorado has followed the modern trend of testing the sufficiency of the inf......
  • People v. Counterman, Court of Appeals No. 17CA1465
    • United States
    • Colorado Court of Appeals of Colorado
    • July 22, 2021
    ...that he can adequately defend himself and be protected from further prosecution for the same offense." 497 P.3d 1054 Cervantes v. People , 715 P.2d 783, 785 (Colo. 1986) (quoting People v. Albo , 195 Colo. 102, 106, 575 P.2d 427, 429 (1978) ); see Rodriguez , 914 P.2d at 257. And the prosec......
  • State v. Sims, No. 22561-8-I
    • United States
    • Court of Appeals of Washington
    • September 10, 1990
    ...have described the essential elements requirement as "quasi-jurisdictional" or "jurisdictional" in nature. E.g., Cervantes v. People, 715 P.2d 783, 786 (Colo.1986); Kansas City v. Carlock, 12 Kan.App.2d 41, 733 P.2d 1273, 1274 (1987); State v. Blais, 391 A.2d 1198, 1201 (Me.1978); Williams ......
  • Request a trial to view additional results

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