Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F04724
RAYE, Acting P. J.A jury convicted defendant Monique Edith Henriquez of infliction of corporal injury upon a spouse (Pen. Code, § 273.5, subd. (a); all further statutory references are to this code), assault with a deadly weapon (§ 245, subd. (a)(1)), infliction of pain or mental suffering on two children, a misdemeanor (§ 273a, subd. (b)), and damage to a telephone line or apparatus, a misdemeanor (§ 591).
Granted probation, defendant appeals. She contends that the trial court lacked jurisdiction over the case because an information was not filed and the parties did not stipulate that the complaint could be deemed an information. We will reject this contention. She also contends that certain probation conditions are unconstitutionally vague because of the lack of a knowledge requirement. The People concede. We accept the concession and will modify the probation conditions accordingly. We will otherwise affirm the judgment.
FACTS
A detailed recitation of the facts underlying the offenses is unnecessary in view of the contentions raised on appeal. Suffice it to say that an oral argument between defendant and her husband escalated in front of their two children. Defendant threw a wooden stake at her husband and the nail in the stake hit him in the face. When one of their children dialed 911, defendant unplugged the phone, making a hole in the wall, and threw the phone, making it unusable.
DISCUSSION
I
Defendant contends the trial court lacked jurisdiction to proceed because the prosecutor did not file an information and the parties did not stipulate that the complaint could be deemed an information. Relying upon People v. Smith (1986) 187 Cal.App.3d1222 (Smith), she claims the judgment must be reversed. We reject defendant’s claim.
Background
A complaint filed June 16, 2008, charged defendant with infliction of corporal injury upon a spouse, assault with a deadly weapon, infliction of pain or mental suffering on two children, a misdemeanor, and damage to a telephone line or apparatus, a misdemeanor. Defendant was held to answer on all four counts at the conclusion of the preliminary hearing held on August 11, 2008. The magistrate inquired of the prosecutor: “Do you wish to deem the Complaint to be an Information, or do you want to file a formal Information?” The prosecutor responded: “We’ll put it over to file a formal Information, please.” Noting that there was a statutory time for the information to be filed, the court set the matter for arraignment on August 21, 2008.
On August 21, 2008, defense counsel stated that the matter was on calendar to set trial dates. The court queried whether the matter was on for arraignment. The prosecutor responded affirmatively. The court asked the clerk whether an information was on file and she stated that she did not have an information. The following discourse ensued:
“[Prosecutor]: The complaint should have been deemed an information.
“The Court: She’s already been arraigned.
“[Prosecutor]: She waived time for arraignment. We put it over for arraignment. The complaint was deemed an information. She was not arraigned, however.”
The court then arraigned defendant on the four counts. Defense counsel waived any further arraignment and entered not guilty pleas on behalf of defendant. The court set dates for the trial readiness conference and jury trial. Defendant waived time.
The minute order for August 21, 2008, reflects: “(Per DA Satchell/[defense counsel] Bowman complaint was deemed an info on 8/11/08.” The complaint has a handwritten note which states: “Deemed info 8/21/08” with a name, perhaps that of a clerk.
The minute order for the trial readiness conference held on October 17, 2008, reflects the following notation: “nunc pro tunc to 8/21/08 complaint deemed information Mike Bowman w/def DA Satchell.” The record on appeal does not include a reporter’s transcript for October 17, 2008.
Analysis
“The offenses with which defendant was charged must be prosecuted by an indictment or information. (§ 682.) ‘An information is a written accusation of crime made by a district attorney, without action by a grand jury, after a magistrate, at a preliminary hearing, has found sufficient cause to believe the defendant guilty of a public offense and has ordered him committed.’ [Citation.]” (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1132 (Cartwright).)
Here, after a preliminary hearing was conducted, a magistrate held defendant to answer on the four counts of the complaint. At arraignment on August 21, 2008, the superior court judge recognized that there was no information on file. The prosecutor relied upon the document on file, that is, the complaint, as an information (stating that the complaint should have been, or incorrectly, that the complaint was, deemed an information at the preliminary hearing). Defense counsel voiced no objection. The superior court judge impliedly accepted the complaint as an information when it arraigned defendant on the same. The information was thus filed. (See Cartwright, supra, 39 Cal.App.4th at p. 1132.) The October 17, 2008, nunc pro tunc order confirms this interpretation of what occurred on August 21, 2008. The trial court, in effect, affirmed its August 21, 2008, implied acceptance of or intention to accept the complaint as an information. Any irregularity or ambiguity was properly cured by the October 17, 2008, nunc pro tunc order. (See Estate of Careaga (1964) 61 Cal.2d 471, 474, 478; Conservatorship of Tobias (1989) 208 Cal.App.3d1031, 1034-1035.) Defendant cites no authority requiring the magistrate or the superior court judge to state expressly that “the complaint is deemed the information.” Defendant cites no authority requiring the prosecutor to state at the conclusion of the preliminary hearing rather than at the commencement of arraignment that the complaint should be deemed the information. Further, defense counsel’s consent to the prosecutor’s using the complaint as the information is not required.
Defendant cites section 739, which provides: “When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed. The information shall be in the name of the people of the State of California and subscribed by the district attorney.”
Defendant misplaces her reliance upon Smith. In Smith, supra, 187 Cal.App.3d1222, a complaint charged the defendant with grand theft and nine counts of forgery. After a preliminary hearing was conducted, a magistrate held the defendant to answer and scheduled arraignment in superior court. At arraignment, the court noted that no information had been filed, only a complaint. The prosecutor had no information to file. The court and parties proceeded on the complaint. The defendant entered a plea of guilty to two offenses. The defendant also admitted a prior prison term enhancement that had not been alleged in the complaint. The People argued that an information charging offenses five years earlier should be treated as the accusatory pleading to support the prior prison term allegation. (Id. at pp. 1223-1224.) Smith rejected that argument and found that the trial court had no jurisdiction to accept the defendant’s plea and to enter judgment, stating that “[f]ailure to file an information is an irregularity of sufficient importance to the functioning of the courts that the parties cannot cure the irregularity by their consent to the proceedings.” (Id. at pp. 1224-1225.)
In Smith, the defendant admitted a prior prison term enhancement that had not been alleged in the complaint, and an information had not been filed. Here, defendant was tried on the four counts for which she was held to answer after a preliminary hearing, the prosecutor chose to utilize the complaint as the information, and the superior court judge accepted the complaint as the information with no objection by defense counsel. An information was thus filed. No new charges or allegations were added. Smith is distinguishable.
The trial court had jurisdiction and judgment was properly entered. We find no error.
II
The trial court granted probation subject to certain terms and conditions, including the following two conditions that defendant now challenges on appeal as unconstitutionally vague because they lack a knowledge requirement: (1) “Defendant shall not associate with known or reputed users of marijuana, dangerous drugs or narcotics nor be in places where narcotics and/or dangerous drugs are present,” and (2) “Defendant shall not own or possess any dangerous or deadly weapons nor remain in any building or vehicle where any person has such a weapon, nor remain in the presence of any armed person.” (Italics added.) The People concede that the foregoing italicized portions of the conditions require modification to include a knowledge requirement.
We accept the People’s concession. In re Sheena K. (2007) 40 Cal.4th 875 held that a condition of probation prohibiting the defendant from associating with anyone who is a member of a particular class of persons without requiring that the defendant know that the person is a member of such class is unconstitutionally vague. (Id. at pp. 889-892.) The remedy is for the appellate court to insert the knowledge requirement. (Id. at p. 892.) We will modify the conditions accordingly.
DISPOSITION
Defendant’s convictions are affirmed. The two probation conditions at issue are modified as follows: (1) “Defendant shall not associate with known or reputed users of marijuana, dangerous drugs or narcotics nor be in places where she knows narcotics and/or dangerous drugs are present,” and (2) “Defendant shall not own or possess any dangerous or deadly weapons nor remain in any building or vehicle where she knows any person has such a weapon, nor remain in the presence of any person she knows is armed.” As modified, the order of probation is affirmed. The trial court is directed to amend its records to reflect this modification and to forward the appropriate documents to defendant and to the probation department.
We concur BUTZ, J., CANTIL-SAKAUYE, J.