Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR143677
Haerle, Acting P.J.
I. INTRODUCTION
Appellant, a resident at Napa State Hospital, was charged with one count of making criminal threats (Pen. Code, § 422) and one count of assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) Pursuant to a plea agreement, appellant pled no contest to the latter charge, and the court sentenced him to the upper term of four years in state prison. Pursuant to People v. Wende (1979) 25 Cal.3d 436, he appeals and asks that we examine the record to determine if there are any issues therein deserving of further briefing. We have done so, find none, and hence affirm the judgment of conviction.
All further statutory references are to the Penal Code unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
According to a report submitted to the trial court by a psychiatrist appointed by it, in July 2008, appellant, then 24 years old, was confined to Napa State Hospital (NSH) because of a “long history of aggressive, assaultive behavior in a number of settings, including the community, jail and hospital.” According to the same document, on July 24, 2008, “NSH police officers responded to a call from unit Q5/6 at Napa State Hospital (NSH). The defendant, Mr. Spaulding, was in restraints after threatening a staff member, social worker K.C.”
On December 9, 2008, the Napa County District Attorney filed a one-count criminal complaint alleging that appellant made criminal threats, in violation of section 422, against social worker K.C.
On June 28, 2010, a preliminary hearing was held in Napa County Superior Court on the one count with which had then been charged, i.e., the section 422 charge. The only witness who testified at that hearing was an NSH police officer named Teresa Gallardo, who related certain of the events of July 24, 2008, as they related to appellant’s statements and threats to NSH social worker K.C. K.C. herself was not called by the prosecution. At the conclusion of the preliminary hearing, the trial court noted that the evidence presented by the prosecution was “very, very sketchy, and very, very thin” regarding the identity of the person making the threats. Nonetheless, it found that appellant was “the guy that woman was talking about, Ms. Capeto. So I find there is probable cause to believe the crime alleged in Count One was committed. The defendant would be held to answer for it.”
The following day, June 29, 2010, a one-count information was filed alleging the same charge, i.e., a violation of section 422.
On July 21, 2010, appellant, represented by a Napa County Deputy Public Defender, entered pleas of not guilty and not guilty by reason of insanity to the section 422 charge. After those pleas were entered, the court appointed two doctors “to evaluate the defendant on his NGI plea, and they will have access to all his medical and psychiatric records and may have copies if they wish. Their reports should be filed with the Court and delivered to these two lawyers no later than August 17th [2010].” One of those two doctors could not serve and so, on July 26, the court amended its order to appoint psychiatrist Dr. Robbin Broadman to compile and submit one of the two reports to the court.
On August 12, 2010, appellant filed a section 995 motion, to which the District Attorney filed opposition on August 24, 2010. That motion was, of course, directed at the only count then charged in the information, i.e., the section 422 charge. The basis of that motion was the lack of specific identity of the person making the alleged threats against social worker K.C., as related at the preliminary hearing by witness Gallardo.
The section 995 motion was argued to the court on August 26, 2010, and denied by it the same day.
On August 10 and September 7, 2010, the court received the reports of the two doctors it had appointed to examine appellant with regard to his earlier NGI plea; both of their reports indicated that appellant did not meet the criteria for being found insane under section 25. But perhaps more importantly, Dr. Broadman’s report contained an extensive record of appellant’s history of confinement at NSH, including specifically very specific recitations of more serious offenses allegedly committed by him on July 24, 2008 (and before).
The next court session was held on October 7, 2010. Although, for reasons that are unclear to us, the clerk’s transcript does not contain an amended information. At that hearing, the District Attorney in fact moved to amend the information to add the second count, i.e., the count charging a violation of section 245, subdivision (a)(1) (section 245(a)(1)). After one off-the-record conference between counsel and the court, and then another such conference between counsel, the court asked appellant if he wished to plead to that charge, to which appellant responded that he pled no contest. Appellant also executed a formal plea form, pleading no contest to the new, second count of the information, i.e., the section 245(a)(1), count. The court then dismissed the section 422 count, and promptly sentenced appellant to the upper term of four years in state prison on the section 245(a)(1) count.
Appellant filed notices of appeal on both October 12 and December 6, 2010. The latter requested the issuance of a certificate of probable cause, which the trial court granted.
The latter notice is incorrectly identified by appellant’s appellate counsel as being filed on December 8, 2010, which would have been beyond the mandated 60-day period.
III. DISCUSSION
We are, candidly, puzzled by the October 7, 2010, handling of this matter, and the unusual record made by the parties and the court on that day. For example, there was no written amendment of the information ever filed by the prosecution in that court, and thus no such amendment in the record before us. Nor, due to appellant’s prompt and indisputably voluntary plea—indeed, reduced to the appropriate plea form—is there any reference to or identification of the evidence which belatedly caused the prosecution to change the charge from one under section 422 to one under section 245-(a)(1).
But our examination of the record convinces us that there was no miscarriage of justice or even a need for further briefing.
First of all, the law is clear that an amendment to an information may be made orally, i.e., is not required to “be in written form.” (See § 969a & People v. Sandoval (2006) 140 Cal.App.4th 111, 132.)
Secondly, on October 7, 2010, and before, appellant was ably represented by a Deputy Public Defender. And that counsel was clearly conscious of the sudden increase in the severity of the facts the prosecution now intended to rely upon, as he conferred with the court and the prosecutor off the record, and then negotiated in the same manner with the prosecutor. That same counsel also registered no objection to the court sentencing appellant immediately after the plea of no contest was made and accepted, and the section 422 charge dismissed. The same defense counsel also agreed to the denial of probation for appellant and to the upper term for the sentence to be imposed on him.
Thirdly, a review of, especially, the report submitted to the court on September 7, 2010, by Dr. Broadman, makes clear why, belatedly to be sure, the Napa District Attorney determined to amend the information to add the section 245(a)(1) charge. That report includes the following recitations:
“During his state hospital stays [appellant] repeatedly assaulted staff and peers, threatened to assault staff and peers and attempted to elope from his assigned area. There are also numerous incidents of sexually inappropriate behavior, including statements and gestures directed at female staff, and masturbating in front of female staff.”
Then, specifically under the heading of “7/24/08, ” Dr. Broadman added: “Mr. Spaulding refused to leave his room and go to the dining room for breakfast. When staff activated the alarm for help, Mr. Spaulding complained of rectal pain and was escorted to the treatment room. He resisted having his vital signs taken, and then relented. He was offered pain medication and ‘immediately grabbed a chair and threw it on the floor while in the treatment room.’ Alarm activated again. He then approached the janitor in the hallway and grabbed a broomstick and started swinging it at staff members. Staff got the broom and Mr. Spaulding continued to swing his fist at staff who finally took him down. Police came and handcuffed him and took him to the seclusion room. He was placed in restraints Two staff members sustained cuts and bruises.”
There then followed a recitation of the verbal threat made to social worker K.C.
Interestingly, this and prior and later recitations of appellant’s (often threatening and assaultive) behavior at NSH came directly from that hospital’s “IDN” or “Interdisciplinary Notes.” Nowhere in the record is it explained why Dr. Broadman, and not the Napa County District Attorney, found and relied on these notes.
We conclude that no further briefing is required in this case.
IV. DISPOSITION
The judgment of conviction is affirmed.
We concur: Lambden, J., Richman, J.