Opinion
H033315.
7-13-2009
THE PEOPLE, Plaintiff and Respondent, v. TONY ANTHONY CIVITILLO, Defendant and Appellant.
Not to be Published in Official Reports
Tony Anthony Civitillo appeals from a judgment of conviction of felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) following a jury trial. Defendant admitted being a felon based upon two felony convictions and admitted two prison prior enhancement allegations (§ 667.5, subd. (b)), which the court subsequently struck pursuant to section 1385. Defendant was sentenced to a total prison term of two years.
All further statutory references are to the Penal Code unless otherwise stated.
The abstract of judgment incorrectly states that defendant was convicted by plea.
On appeal, defendant argues that he was unlawfully convicted of an offense not shown by the evidence adduced at the preliminary hearing. If this contention was not preserved for appellate review because his trial counsel failed to object below, he asserts an ineffective assistance of counsel claim. In addition, defendant raises an instructional error and he challenges the "CJAF" fee imposed by the court.
We agree that trial counsel rendered ineffective counsel in failing to protect defendant against conviction of an offense not shown by the evidence taken at the preliminary examination. We reverse.
A. Procedural History
A felony complaint filed against defendant alleged two offenses occurring on or about March 2, 2008: discharge of a firearm, a shotgun (§ 246.3, subd. (a)), with personal use of the firearm within the meaning of sections 667 and 1192.7 and possession of a firearm, a shotgun, by a convicted felon (§ 12021, subd. (a)(1)). It also alleged two prior prison terms (§ 667.5).
The transcript of the preliminary examination held on April 14, 2008 shows the following. About a month before March 2, 2008, Capilla asked defendant to remove his belongings and leave his property because defendant was remaining on Capillas property without Capillas permission.
On March 1, 2008, defendant stayed overnight at Ronald Roberts trailer home. According to Robert, he had not fired his shotgun on his property or placed it in his pickup on March 1, 2008.
On the morning of March 2, 2008, Robert and defendant shared some beer and coffee and whiskey and took their drinks into Roberts truck and listened to the radio. Robert decided to go to the store for beer and chicken. He assumed that his shotgun was in his house. Robert retrieved a phone message from Douglas Capilla complaining about defendant talking about him behind his back and Robert called Capilla to "confront the issue." The phones speaker was on and, after defendant and Capilla "got involved in a conversation," Robert turned the phone off. Defendant subsequently used Roberts phone to leave messages for Capilla. Robert heard him say something about Edna getting out of the house. Robert began driving his truck toward the summit store on the dirt road that passes by Capillas property.
About 45 minutes to an hour before the subsequent shooting incident, Capilla received voice mail messages on his cell phone. Capilla recognized defendants voice and the caller identified himself as "Tony," told Capillas girlfriend Edna to get out of the house, and announced that he was on his way up there now. Another message stated, "Were coming up to barbeque today, were going to barbeque chickens, niggers, and Hawaiians." Capilla told his girlfriend that he was not worried.
About midday on March 2, 2008, Capilla was filling up a chain saw with gas in order to continue cutting firewood on his Los Gatos property. He heard a truck coming up the adjacent road. Capilla heard a gunshot and ducked. Capilla recognized the truck and its occupants. The truck belonged to Ron Robert, who was driving. Defendant, whom Capilla had known for almost a year and a half, was in the trucks cab on the passenger side. Another shot was fired and Capilla heard defendant yell something like, "Die Hawaiian." After the truck had passed, a third shot was fired. Capilla never saw a gun. The gunshots did not sound to Capilla like they came from a shotgun; he believed they came from a pistol or small caliber rifle. A neighbor, who had been with Capilla, called the Sheriff.
Robert recalled that, while driving to the store, just prior to reaching Capillas residence, he heard a loud explosion and ducked because he thought somebody was shooting at him. According to Robert, as he was recovering himself, Robert saw his 12 gauge shotguns magazine against defendants thigh; its barrel was sticking out the window and pointing up in the air. Robert saw people in the area and accelerated because he was not sure what defendant was going to do. He heard defendant fire a couple more shots. After about a half mile, Robert stopped the truck, grabbed the gun away from defendant, and asked defendant "something like `What the hell are you doing? "Robert unloaded the bird shot from the gun into his pocket and put the gun in his toolbox in the bed of the truck. A 12 gauge shotgun filled with bird shot makes a lighter popping sound. The vehicle was stopped by the Sheriff before reaching the store.
Following the preliminary examination, a magistrate held defendant to answer for discharge of a firearm (§ 246.3, subd. (a)) with personal use of a firearm within the meaning of sections 667 and 1192.7 and possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)).
Defendant was initially charged with these two offenses by information filed on April 25, 2008. The information also alleged two prior prison terms (§ 667.5, subd. (b)). A first amended information was filed. A second amended information charged four offenses, all occurring on or about March 2, 2008: assault with a deadly weapon, a shotgun (§ 245, subd. (a)(1)) with personal use of a firearm (§ 12022.5) (count one), willful discharge of a firearm, a shotgun, with gross negligence (§ 246.3, subd. (a)) with personal use of a firearm (§§ 667, 1192.7) (count two), willful discharge of a firearm, a shotgun, from a vehicle at a non-occupant (§ 12034, subd. (c)) (count three), and unlawful possession of a firearm, shotgun, by a felon (§ 12021, subd. (a)(1)) (count four). It also alleged two prior prison terms (§ 667.5, subd. (b)).
A first amended information charged two additional offenses: shooting at an inhabited dwelling house (§ 246) and assault with a deadly weapon (§ 245, subd. (a)(1)).
Defendant testified in his own behalf at trial. Defendant related that on March 1, 2009, he had gone to Roberts house. He testified: "[W]e were skeet shooting at first and then we put the guns away and started drinking." He admitted that he shot a .22 rifle that day. He later testified that he was actually shooting at bottles with the .22 and Robert and Roberts neighbor were skeet shooting with a 12 gauge shotgun. Defendant explained: "You do not shoot skeet with a .22, you do it with 12 gauge. When I said skeet shooting, I was generalizing. We were shooting weapons that day." After they were done shooting, Robert loaded the shotgun. Defendant assumed that Robert put the shotgun back in the toolbox on this truck because that was where Robert always kept it.
Defendant acknowledged he was drinking shots of whiskey on the morning of March 2. Defendant became aware that Capilla had left messages on Roberts cell phone. Robert telephoned Capilla from the cab of his truck and put it on the speakerphone. Defendant became involved in a heated conversation with Capilla. After Capilla hung up, defendant, who was angry, called Capilla back and left messages for Capilla and Edna. Robert decided they would go get beer and chicken.
According to defendant, as they neared Capillas house on the drive to the store, Robert reached into his shirt pocket, pulled out a small semiautomatic .22 caliber pistol and shot it out the drivers side window. Defendant stated that, as they passed Capillas house, Robert "put two more out the window." According to defendant, Robert stopped down the road and threw the pistol "over the side of the road" in the vicinity of a big gravel pile. Robert then unloaded his shotgun and put it back in his toolbox. Defendant denied taking the 12 gauge shotgun out of Roberts house and hiding it in the truck next to the passenger seat. Defendant acknowledged that he had admitted to police that he had shot a gun belonging to Robert on the day before the incident.
In closing argument, the prosecution told the jury that the felon in possession of a firearm charge could be based upon defendant shooting the .22 the day before the March 2, 2008 incident. Defense counsel told the jury it would have to make an election regarding when defendant possessed a firearm.
The court instructed the jury in accordance with CALCRIM No. 207: "It is alleged the crimes occurred on or about March 2nd, 2008. The People are not required to prove the crimes took place exactly on that day, but only that it happened reasonably close to that day." The court also gave a unanimity instruction: "For each count and each uncharged lesser offense, you must find the defendant not guilty unless the People prove that the defendant committed at least one of these acts and you all agree on which act he committed." Its instruction regarding the unlawful possession of a firearm charged in count four did not specify a shotgun and defined firearm as "any device designed to be used as a weapon from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of com[bust]ion."
Following trial, the jury found defendant not guilty of the offenses charged in counts one through three, and not guilty of lesser offenses to those counts. Defendant was found guilty of possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury specified in a special verdict form that the crime was committed on March 1, 2008. Defendant was implicitly acquitted of all charges related to the drive-by shooting, which the evidence showed occurred on March 2, 2008.
The jury did not mark either of the other two possible findings: "March 2, 2008 before the defendant got in the truck" or "March 2, 2008 while the defendant was in the truck."
On the record, the trial court memorialized off-the-record discussions concerning instructions and verdict forms. The court explained that defense counsel had wanted special jury findings regarding count four "because if it happened on March 1st which is the day before the information date, [defense counsel] wanted to later argue on appeal that this was outside the scope of the information" and also argue that the conviction "was based merely on the statement of the defendant and on no other evidence." The court further stated that defense counsel had objected to CALCRIM No. 207, "Proof Need Not Show Actual Date," because defendants testimony that he shot the gun the day before the charged incident created a "corpus issue." Defense counsel had agreed that a special verdict form "would take care of my issue."
Before trial, defense counsel indicated that he wanted to exclude defendants statement that he was shooting the day before the charged shooting because of the "potential corpus problem" and the trial court ruled that it would not exclude the statement because it was relevant to the charge of felon in possession of a firearm on or about March 2. The court suggested, and counsel agreed, that the prosecution would elect between the possession crimes in its closing argument and a special verdict form would be used in order to preserve the corpus issues. "[The California Supreme Court has] . . . required that trial courts instruct, sua sponte, on the corpus delicti rule, which provides that the corpus delicti or body of the crime cannot be proved exclusively by the defendants extrajudicial statements. (People v. Alvarez (2002) 27 Cal.4th 1161, 1165 . . .; see CALJIC No. 2.72.)" (People v. Najera (2008) 43 Cal.4th 1132, 1137.) "[A]s historically applied, the rule requires corroboration of the defendants extrajudicial utterances insofar as they indicate a crime was committed, and forces the People to supply, as part of their burden of proof in every criminal prosecution, some evidence of the corpus delicti aside from, or in addition to, such statements. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1178.) There is no contention on appeal that the trial court should have instructed the jury regarding the corpus delicti rule.
At sentencing, the trial court stated that "fairness dictates [defendant] be given a mid-term for basically shooting at bottles."
B. Offense Not Shown at Preliminary Hearing
Defendant now argues that he was convicted of an offense not shown by the evidence adduced at the preliminary hearing. He asserts that he was improperly convicted of the "same [type] of crime at a time and place not shown in the evidence before the magistrate." We agree.
The California Constitution requires felonies to be prosecuted "either by indictment or, after examination and commitment by a magistrate, by information." (Cal. Const., art. I, § 14, derived from former Cal. Const., art. I, § 8.) This constitutional requirement means that a criminal defendant "may not be prosecuted [for a felony] in the absence of a prior determination of a magistrate or grand jury that such action is justified." (Jones v. Superior Court (1971) 4 Cal.3d 660, 666 [applying former Cal. Const., art. I, § 8].)
"Penal Code section 739 authorizes the district attorney to file in superior court, following the preliminary examination, `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. . . . (Italics added.)" (Jones v. Superior Court, supra, 4 Cal.3d 660, 664.) "The cases have recognized that a literal construction of section 739 would bring it into conflict with the constitutional mandate which `protects a person from prosecution in the absence of a prior determination by either a magistrate or a grand jury that such action is justified. [Citations.] Accordingly, the rule has developed that an information which charges the commission of an offense not named in the commitment order will not be upheld unless (1) the evidence before the magistrate shows that such offense was committed (Pen. Code, § 739), and (2) that the offense `arose out of the transaction which was the basis for the commitment on a related offense. [Citations.]" (Id. at pp. 664-665; Parks v. Superior Court In and For Alameda County (1952) 38 Cal.2d 609, 612 ["[A]n information would be contrary to the Constitution [former Cal. Const., art. I, § 8] if it designated a crime or crimes unrelated to or unconnected with the transaction which was the basis for the commitment order"].) "This rule is subject to the qualification that an offense not named in the commitment order may not be added to the information if the magistrate made factual findings which are fatal to the asserted conclusion that the offense was committed." (Pizano v. Superior Court (1978) 21 Cal.3d 128, 133.)
Section 1009 allows an information to be amended by the district attorney "without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained" and authorizes a court to permit amendment of an information "for any defect or insufficiency, at any stage of the proceedings." But the section prohibits the amendment of an information "to charge an offense not shown by the evidence taken at the preliminary examination."
"Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. (U.S. Const., 6th Amend. [the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation]; id., 14th Amend.; Cal. Const., art. I, § 15.)" (People v. Seaton (2001) 26 Cal.4th 598, 640.) "Under modern pleading procedures, notice of the particular circumstances of an alleged crime is provided by the evidence presented to the committing magistrate at the preliminary examination, not by a factually detailed information. (People v. Thomas (1987) 43 Cal.3d 818, 829 . . . .)" (People v. Jennings (1991) 53 Cal.3d 334, 358.) "[T]he information has a `limited role of informing defendant of the kinds and number of offenses, `the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript, which represents `the touchstone of due process notice to a defendant. [Citations.]" (People v. Jones (1990) 51 Cal.3d 294, 312.) "[B]ecause the Constitution demands that the defendant have fair notice of the charges, the prosecutions statutory right of amendment to conform to proof is more restricted than the defendants [now abrogated] Geiger right to demand instructions on uncharged lesser related offenses that may be suggested by the evidence." (People v. Birks (1998) 19 Cal.4th 108, 129, see id. at p. 136 [overruling Geiger].)
In People v. Pitts (1990) 223 Cal.App.3d 606, numerous convictions were reversed because "evidence supporting the offense charged in each of said counts was not adduced at defendants respective preliminary hearings." (Id. at p. 908.) The appellate court rejected an argument that conviction of offenses charged in an amended information "were valid merely because the evidence at the preliminary hearings may have supported the same number of violations in the same time frame or because conspiracy was charged." (Ibid., fn. omitted.)
In People v. Burnett (1999) 71 Cal.App.4th 151, upon which defendant heavily relies, Burnett successfully appealed a conviction of being a felon in possession of a firearm. (Id. at p. 155.) The essence of his challenges was the "claim that he was tried for an offense different from the one charged in the information and addressed by the evidence at the preliminary hearing." (Ibid.)
Burnett was originally charged with "one count of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and one count of brandishing a firearm (§ 417, subd. (a)(2))" that he allegedly committed "on or about January 8, 1996." (Burnett, supra, 71 Cal.App.4th at pp. 155-156, fn. omitted.) "The first count specifically alleged that appellant possessed a `.38 caliber revolver." (Id. at p. 156.) "The evidence at [Burnetts] preliminary hearing addressed only the January 8 incident involving the altercation between the Weighills and Wallace, in which [Burnett] allegedly possessed and brandished a .38-caliber revolver." (Id. at p. 164.) "[N]o evidence presented at the preliminary hearing suggested appellant had possessed a different gun at a different time on January 8." (Ibid.)
On the first day of trial, "over objection, the court granted the prosecutions motion to amend count 1 by striking the words `.38 caliber from the information." (Burnett, supra, 71 Cal.App.4th at p. 156.) At trial, Mark Daniels, someone with whom Burnett had temporarily stayed before the charged incident, testified that Burnett had shown him a .357 magnum revolver, which Daniels had locked away for safekeeping on Thursday, January 4, 1996 and then returned to Burnett when Burnett left Daniels house on Sunday, January 7. (Id. at p. 157.) "[T]he prosecutor initially tried the case on the theory appellant had possessed a single gun, observed both by Wallace and the Weighills and (at a different time and location) by Daniels. The jury, however, was ultimately informed [that Burnett] had possessed two different guns and could be convicted based on either the Wallace/Weighill incident or on the discrete incident described by Daniels." (Id. at p. 167.) "In closing argument, the prosecutor explicitly told the jury the evidence showed appellant possessed two different guns in the Daniels and Wallace/Weighill incidents and could be convicted on the basis of either one . . . ." (Id. at p. 169.) The court gave a unanimity instruction. (Ibid.) The jury found Burnett guilty of being a felon in possession of a firearm but acquitted him of the brandishing charge. (Id. at p. 156.)
The appellate court observed that "[t]he amendment of the information, combined with the prosecutors argument at trial and the jury instructions, allowed the jury to convict appellant solely on the basis of his possession of the gun observed by Daniels, even if it did not believe the testimony of Wallace and the Weighills." (Id. at p. 170.) Burnett "did not, however, have notice that the district attorney intended to prosecute him for possession of the weapon observed by Daniels as a distinct offense from the possession based on the Wallace/Weighill incident. [Citation.]" (Id. at p. 171.) The appellate court concluded that the unanimity instruction did not remedy the problem because "the only offense shown by the evidence at the preliminary hearing was [Burnetts] possession of a . 38-caliber revolver in the altercation on the Weighills lawn" and, therefore, Burnett could not be properly convicted of possession of the .357 revolver as described by Daniels. (Id. at p. 173.)
The appellate court initially determined that Burnett, by failing to properly object, had forfeited any claim that he was tried for an offense different from the one shown by the evidence at the preliminary hearing since the trial courts lack of "authority to try a defendant for a felony charged by information with an offense not previously subjected to a preliminary hearing" did not deprive the court of fundamental jurisdiction. (Id. at pp. 178-179.) The appellate court then proceeded to find merit in Burnetts ineffective assistance claim since "defense counsel should have objected or taken some action to protect [Burnetts] rights" not to be "prosecuted for or convicted of an offense not shown by the evidence at the preliminary hearing" (id. at p. 181) and there could be no satisfactory explanation for counsels failure to object (ibid.) and there was "at least a reasonable probability appellant would have been acquitted of the possession count as well if the jury had been told the conviction could not be based upon the Daniels incident" (id. at p. 183).
This case is even more clear than Burnett because of the jurys special verdict. The transcript of the preliminary examination is devoid of evidence to support a charge of felon in possession of a firearm in connection with target shooting at Roberts home on March 1, 2009. The evidence at the preliminary examination did not involve generic testimony of multiple or continuous offenses (cf. People v. Jones, supra, 51 Cal.3d at p. 318 ["the prosecution of child molestation charges based on generic testimony does not, of itself, result in a denial of a defendants due process right to fair notice of the charges against him"]). The evidence presented at the preliminary hearing showed that, on March 2, 2008, defendant had fired a shotgun from a vehicle while traveling near Capillas property while Capilla was outside.
Despite this problem, defendants trial counsel never objected at trial to what amounted to a constructive amendment of the information, never asserted that defendant lacked due process notice that he was being prosecuted for his conduct on March 1, 2008, and never objected on either statutory or constitutional grounds to defendants conviction of an offense was not shown by evidence taken at the preliminary examination. Further, counsel failed to request jury instructions limiting the jurys use of defendants testimony that he had used a firearm on March 1, 2008 (see Evid. Code, § 355) or clarifying that the offense charged in this case involved only the alleged possession of a shotgun in connection with the drive-by shooting near Capillas property. Counsel in fact agreed to the special verdict form, which indicated to the jury that it could convict defendant of count four based upon defendants March 1, 2008 conduct.
Nevertheless, defendant argues his contention was preserved for appeal because his trial counsel objected to the CALCRIM No. 207 instruction and had agreed to the special verdict form with the purpose of preserving for appeal the argument that conviction of being a felon in possession of a firearm on March 1 was "outside the scope of the Information." As we have observed, however, trial counsel did not specifically object on grounds of a statutory or constitutional right to be convicted only of offenses shown by the evidence taken at the preliminary examination. Rather, counsel wanted the special jury findings so he could argue on appeal that a conviction of count four based on March 1 conduct was improper because the information alleged the offense occurred on March 2 and counsel objected to CALCRIM No. 207 because he was concerned there was a "corpus issue." Moreover, the record reflects that defense counsel agreed that the special verdict form "would take care of [his] issue" with respect to CALCRIM No. 207. Accordingly, we conclude any claim of error regarding defendants conviction of an offense not shown by evidence at the preliminary examination was not preserved for appellate review. (See People v. French (2008) 43 Cal.4th 36, 46 ["Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court"]; People v. Burnett, supra, 71 Cal.App.4th 151, 178-179 [failure to object resulted in forfeiture of claim that court lacked authority to try a defendant for an offense not shown by the evidence at the preliminary hearing]; People v. Newlun (1991) 227 Cal.App.3d 1590, 1604 [failure to object resulted in forfeiture of claim that defendant lacked adequate notice of charges because they were neither included in the information nor supported by evidence adduced at the preliminary hearing]; People v. Collins (1963) 217 Cal.App.2d 310, 313 [failure to object resulted in forfeiture of claim that D.A. improperly amended information to add offense for which he had not been held to answer].)
We next consider defendants ineffective assistance of counsel claim. "The standard for establishing ineffective assistance of counsel is well settled. A defendant must demonstrate that: (1) his attorneys performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694, 104 S.Ct. 2052 . . . .) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid.)" (People v. Stanley (2006) 39 Cal.4th 913, 954.) "If the record `sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected `unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426 . . .; see In re Avena (1996) 12 Cal.4th 694, 721 . . . .)" (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
The People argue that defense counsel had a strategic reason that defeats defendants ineffective assistance claim. They state: "By readily admitting every element of an uncharged offense on March 1, namely the firing of a .22-caliber weapon, appellant sought to establish credibility with the jury with respect to his ascribing the drive-by shooting the next day to Robert. This tactic increased his chance of being convicted of the charged weapon possession offense, but lessened the chance of conviction of the much more serious assault charges and enhancements. Given the strategic purpose for admitting the uncharged .22 caliber possession offense, it cannot be said there was no competent reason for failing to argue due process forbade the evidence to which appellant so readily testified or precluded a conviction for any conduct on the night of March 1." (Italics added.) The People overlook the critical fact that defendants strategic purpose relates only to defendant testifying regarding the March 1 shooting practice for the limited purposes of bolstering his credibility and undermining Roberts credibility. That strategic purpose provides no reasonable explanation for trial counsels multiple failures to object or request limiting or clarifying jury instructions.
We also reject the Peoples contention that "[e]vidence of the precise charge of which appellant was convicted, unlawful possession of a gun on March 1, was contained in the preliminary hearing record." At the preliminary examination, Robert denied shooting his shotgun on his property on March 1, 2008, he denied putting the shotgun in his truck, and he denied telling a Sheriffs deputy that he had put the shotgun in the trucks cab the day before the drive-by incident. There was no evidence, however, that defendant had used any of Roberts guns on March 1, 2008 or that he was responsible for placing the shotgun in the truck on March 1, 2008. Since there was no evidence regarding how Roberts shotgun came to be in the trucks cab, there certainly was not sufficient evidence to believe that defendant had "preposition[ed] the shotgun into the truck on Friday, March 1," as suggested by respondent. "Section 1009 specifically proscribes amending an information to charge an offense not shown by the evidence taken at the preliminary hearing." (People v. Winters (1990) 221 Cal.App.3d 997, 1007.)
We can conceive of no satisfactory explanation for trial counsels failures to protect defendant against conviction of an offense not shown by the evidence taken at the preliminary examination. There is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different, that is defendant would have been acquitted of count four. We refuse to speculate whether the District Attorney would have filed a new complaint based on defendants conduct on March 1, 2008 had he been acquitted of all charges in this prosecution, which involved other more serious charges. (But cf. People v. Robinson (2004) 122 Cal.App.4th 275, 282-283 [defense counsel not ineffective for failing to object to amendment of an information to add a count of petty theft with a prior to two charges of robbery, all arising from a single shoplifting incident, because, "[e]ven assuming the prosecution must prove the prior theft-related offense at the preliminary hearing," "reasonable defense counsel would have recognized that if he objected to amending the petition, the prosecution could simply have moved to dismiss the charges and refiled with the new count" and "all defense counsel would have gained by objecting would have been delay"].)
Given our conclusions, we need not reach defendants remaining contentions.
The judgment is reversed. Upon remand, the trial court shall dismiss the information.
WE CONCUR:
RUSHING, P. J.
PREMO, J.