People v. Rogers

• Decision Date: 28 March 2016
• Docket Number: C077159
• Citation: 245 Cal.App.4th 1353,200 Cal.Rptr.3d 355
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel James ROGERS, Defendant and Appellant.

245 Cal.App.4th 1353

200 Cal.Rptr.3d 355

The PEOPLE, Plaintiff and Respondent,

v.Daniel James ROGERS, Defendant and Appellant.

C077159

Court of Appeal, Third District, California.

Filed March 28, 2016

Julia Freis, Santa Rosa, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri, Supervising Deputy Attorney General, Clifford E. Zall, Deputy Attorney General, for Plaintiff and Respondent.

MURRAY, J.

A jury convicted defendant Daniel James Rogers of inflicting corporal injury to a cohabitant/child's parent (Pen.Code, § 273.5, subd. (a) (count 1)),¹ false imprisonment by violence or menace (§§ 236, 237 (count 2)), assault with force likely to produce great bodily injury (§ 245, subd. (a)(4) (count 3)), and simple assault (§ 240 (count 4)), a lesser included offense to assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also found true allegations that defendant inflicted great bodily injury under circumstances involving domestic violence (GBI enhancement) (§ 12022.7, subd. (e)) and served a prior prison term (§ 667.5, subd. (b)).

On appeal, defendant contends his attorney rendered ineffective assistance of counsel by failing to object to the prosecution's motion to amend the information to add counts 3 and 4 and the GBI enhancement after defendant waived a preliminary hearing. Defendant asks that the entire judgment be reversed, or alternatively, that his convictions for the new charges be struck. The People concede that the information could not be amended to add the new charges, but argue that complete reversal is unprecedented and the remedy is to strike the improper charges. As for the GBI enhancement, the People contend that it was properly added to the information, even though defendant had waived his preliminary hearing.

We conclude that when a defendant has waived his or her right to a preliminary hearing, an information cannot thereafter be amended to add conduct enhancement allegations. Accordingly, we order that the GBI enhancement be struck along with counts 3 and 4. Because we conclude that defendant suffered no prejudice by the inappropriate amendments, we affirm the convictions on the original charges and the prior prison term enhancement. We remand for resentencing because defendant's sentence on this case was part of a global settlement involving other cases.

FACTUAL AND PROCEDURAL BACKGROUND

The Original Charges

Defendant was initially charged with two counts and two enhancements: inflicting corporal injury on a cohabitant/child's parent (§ 273.5, subd. (a) (count 1)), false imprisonment by violence (§§ 236, 237 (count 2)), personal use of a deadly weapon in the commission of the false imprisonment (§ 12022, subd. (b)(1)), and a prior prison term allegation (§ 667.5, subd. (b)). On November 21, 2012, defendant waived a preliminary hearing.² Both defense counsel and defendant as well as a prosecutor signed the waiver. On November 29, 2012, an information was filed with identical charges.

Four days before trial, a different prosecutor than the one who had previously signed the preliminary hearing waiver form advised the court she was ready to go to trial on this matter and indicated it was the lead case. The new prosecutor then moved to amend the information adding three counts and an enhancement: assault with force likely to produce great bodily injury (§ 245, subd. (a)(4) (count 3)), assault with a deadly weapon (§ 245, subd. (a)(1) (count 4)), criminal threats (§ 422 (count 5)), and a GBI enhancement as to count 3 (§ 12022.7, subd. (e)).³ The same defense attorney who had signed defendant's preliminary hearing waiver form represented defendant at this proceeding. Defense counsel expressly stated he had no objection and the court granted the motion.

On the second day of trial, the prosecution again moved to amend the information, this time to allege the GBI enhancement as to count 1 instead of count 3. Defense counsel again expressly stated he had no objection, and the trial court granted the motion.

Trial Evidence

Defendant and the victim, his girlfriend of nine years, had an abusive relationship. The day of the incident, they got into an argument in their trailer home. Defendant pushed the victim onto the bed, threw things at her, and strangled her while pushing her against the wall. He punched her in the face, knocking a tooth through her lip. The victim testified that at one point, defendant threatened her with a machete. When defendant strangled her, he told the victim, " ‘I will kill you.’ " When he came at the victim with the machete, defendant told the victim she was going to die "like [her] grandmother did." The victim's grandmother had been strangled to death by the grandmother's boyfriend, and defendant knew the grandmother had been killed by her boyfriend.

The attack and false imprisonment lasted two hours. When the victim tried to escape the trailer, defendant blocked her way and pushed her back. The victim finally escaped when friends arrived to drop off the victim's younger children.

A physician's assistant testified that she examined the victim at a hospital emergency room. The victim sustained a laceration where her tooth had pierced her upper lip, requiring suturing. The victim also complained of extreme tenderness to her neck and spine, and she had swelling of her lumbar and sacrum. Photographs of the victim's injuries were introduced into evidence.

Defendant did not testify and he offered no witnesses.

Verdicts and Sentencing

The jury convicted defendant on counts 1, 2, and 3, and a lesser included offense of simple assault on count 4. The jury found true the GBI allegation as to count 1 and the allegation that defendant had served a prior prison term. The jury returned a not guilty verdict for count 5 and a not true finding for the use of a deadly weapon enhancement.

Defendant was sentenced to a state prison sentence of 11 years 8 months on this case calculated as follows: the upper term of four years on count 1, corporal injury to a cohabitant/child's parent (§ 273.5, subd. (a) ); the upper term of five years on the GBI enhancement (§ 12022.7, subd. (e)); eight months (one-third the midterm) on count 2, false imprisonment by violence; one year (one-third the midterm) consecutive on count 3, assault with force likely to cause great bodily injury; and one year for the prior prison term enhancement (§ 667.5, subd. (b)). As for the lesser included offense on count 4, simple assault, the trial court sentenced defendant to 30 days concurrent.⁴

DISCUSSION

On appeal, defendant's sole contention is that his attorney rendered ineffective assistance in failing to object to the prosecution's amendments to the information. He argues that having waived a preliminary hearing, the prosecution could not properly add the charges and the GBI enhancement, because they were not charged in the pleading to which he waived a preliminary hearing. Defendant urges that the entire judgment must be reversed because the jury may have been swayed as to the original charges by evidence brought in support of the new charges and the GBI enhancement allegation. Alternatively, defendant urges that his convictions for the charges and GBI enhancement added by amendment be struck.

The People concede ineffective assistance of counsel as to the addition of counts 3 and 4, but assert that complete reversal is not appropriate; only counts 3 and 4 should be reversed. The People argue that the GBI enhancement should be affirmed because "there is nothing improper about adding an enhancement to a charge that appellant has notice of" and because the enhancement did not change " ‘the essential ingredients of the offense.’ " We disagree and hold that an information cannot be amended to add a conduct enhancement after a defendant has waived the right to a preliminary hearing.

We conclude that the convictions for counts 3 and 4, and the GBI enhancement must be stricken. However, there was no evidence introduced that would not have been admissible on the original charges and deadly weapon use enhancement. Consequently, we disagree with defendant's contention that complete reversal is warranted and affirm as to the verdict and finding regarding the original charges and enhancement.

A. The Offenses Added by the Amendment

Section 1009 prohibits amending an information to charge an offense not shown by evidence taken at the preliminary hearing. That provision reads in pertinent part: "An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination." It is well settled that where a defendant waives a preliminary hearing, the prosecution may not amend the information to add new charges . (People v. Peyton (2009) 176 Cal.App.4th 642, 654, 98 Cal.Rptr.3d 243 (Peyton ); People v. Winters (1990) 221 Cal.App.3d 997, 1007, 270 Cal.Rptr. 740 (Winters ).) This is so, even if the amendment would not prejudice the defendant or if the defendant had notice of the facts underlying the new charges. (Peyton, at pp. 654, 656, 98 Cal.Rptr.3d 243.)

Winters, supra, 221 Cal.App.3d 997, 270 Cal.Rptr. 740 provides guidance here. In Winters, the defendant was charged with possessing methamphetamine for sale and waived a preliminary hearing. (Id. at p. 1002, 270 Cal.Rptr. 740.) During the trial, over the defendant's objection, the court allowed the prosecution to amend the information to allege a second count, transporting methamphetamine. (Id. at pp. 1001–1002, 270 Cal.Rptr. 740.) On appeal, the appellate court reversed the transportation conviction as violative of section 1009. (Winters , at pp. 1007–1008, 270 Cal.Rptr. 740.) Because the defendant had waived his preliminary hearing, no evidence shown at a preliminary hearing could support the new charge. (Ibid. )...