Opinion
G032018.
11-24-2003
SHANE RYAN SANCHES, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Deborah A. Kwast, Interim Public Defender, Kevin J. Phillips, Katya Giritsky, Leonard Gumlia and Lee Blumen, Deputy Public Defenders, for Petitioner. No appearance for Respondent. Tony Rackauckas, District Attorney and Brian F. Fitzpatrick, Deputy District Attorney, for Real Party in Interest.
Shane Ryan Sanches is charged with penetration by foreign object (Pen. Code, § 289, subd. (e)), burglary (Pen. Code, § 459; all further statutory references are to the Penal Code) and allegations that he suffered prior convictions. He contends the court erred when it refused to consider his section 995 motion after the People amended the information to allege an element of the offense which was not supported by probable cause at the preliminary hearing. The petition is granted.
FACTS
Sanches was the next-door neighbor of the victims sister-in-law who hosted a bachelorette party for the victim. At the preliminary hearing, the victim testified that during the party she became intoxicated. According to the victim, she began to feel nauseous so she walked outside "for some fresh air." While outside, she briefly spoke to Sanches and then vomited as a result of her intoxication. After she vomited, her friends moved her to the downstairs bathroom where she laid on the floor "[going] in and out of consciousness." While the victim was in the bathroom, Sanches entered the house and stayed for a period of time, drinking and conversing with some of the guests. In response to Sanchess questions, one of the guests mentioned to him that the victim was passed out in the bathroom.
Sometime thereafter, Sanches entered the bathroom while the victim was still laying on the floor. She opened her eyes and asked who was in the bathroom with her. While laying on the floor, the victim felt her skirt go up. She then felt someone move her underwear aside and fingers penetrate her vagina. In a "state of alarm" the victim got up and discovered Sanches was in the bathroom with her. She reached for the door handle to open the door and Sanches put his hand on the door as she tried to open it. The victim yelled for her sister-in-law and ran out of the bathroom.
At the end of the preliminary hearing, Sanches was held to answer for one count of penetration by foreign object, burglary, on the theory that he entered the bathroom with the intent to commit a felony, and the prior convictions. In the trial court, the People filed an amended information adding attempted rape as count three. (§§ 664 and 261, subd. (a)(3).) Sanches pleaded not guilty to the charges, denied the allegations, and subsequently moved to set aside the information under section 995. At the hearing on the motion, the People argued the direct but ineffectual act done toward the commission of the attempted rape was the penetration allegation in count 1. The court disagreed with the Peoples use of facts and explained the conduct of the penetration was a crime unto itself and charged in count one of the information for which there was sufficient evidence. The court denied the section 995 motion with respect to the penetration by foreign object and burglary counts and granted the motion with respect to the attempted rape allegation and stated, "[t]here is no evidence to support count [3]."
The People filed a second amended information which again alleged penetration by a foreign object, but the language in the burglary count changed from an allegation that Sanches "enter[ed] an inhabited dwelling house . . . with the intent to commit larceny and any other felony" to Sanches "enter[ed] an inhabited dwelling house . . . with the intent to commit a felony: digital penetration and rape of Jane Doe." (Capitalization omitted.)
Sanches filed a second 995 motion to challenge the allegation in the burglary count that he had the specific intent to rape Jane Doe and asked the court for "an order setting aside the last phrase [of the information] `and rape of Jane Doe. . . ." (Capitalization omitted.) At the hearing on the motion, Sanches argued there was no evidence presented at the preliminary hearing that he intended to rape the victim, and the amendment to the information prejudiced his substantial rights. The People filed opposition to the motion and argued section 995 does not permit a challenge to a portion of an otherwise valid count which is supported by probable cause. The trial court agreed with the Peoples contention that it did not have the authority to consider only a portion of a count and refused to conduct a hearing on the motion.
Sanches contends that because the information now includes an allegation that he entered either the house or the bathroom with the specific intent to rape the victim, a fact which was not supported by at least some evidence at the preliminary hearing, he is entitled to have the court consider whether the amendment to the information prejudiced his substantial rights and changed the offense to one not shown by the evidence at the preliminary examination. In response, the People contend the petition should be denied because they are not required to present evidence of every alternative theory of liability at a preliminary hearing. In addition, the People argue Sanches has cited no authority that section 995 permits a challenge to only a portion of a count, which if stricken, is still supported by probable cause, and section 995 does not apply to Sanchess claim that his substantial rights were prejudiced.
DISCUSSION
"It is the purpose of the preliminary examination to establish whether there exists probable cause to believe that the defendant has committed a felony." (§ 866, subd. (b).) To establish probable cause, all of the elements to be proved at trial must also be proved at the preliminary hearing. (Cf. Cooley v. Superior Court (2002) 29 Cal.4th 228, 257.) If, at the conclusion of the preliminary examination, the defendant is held to answer to the charges listed in the complaint or shown by the evidence presented, section 739 requires the District Attorney to file an information "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 substance of the information is considered sufficient if it contains "a statement that the accused has committed some public offense therein specified. [The] statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused." (§ 952.)
Section 459 states that any person who "enters any house, room, apartment, . . . or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." In this case, the original and the first amended informations, complied with the pleading requirements of section 739 by using the words in the statute to allege Sanches entered a dwelling house "with intent to commit larceny and any other felony."
Although Sanches never complained the information was either inadequate or failed to give him sufficient notice of the offenses charged or the theory relied upon by the prosecution, the People amended the information to include "an alternative theory of liability" of the burglary count and alleged Sanches entered the house and room within the house "with the intent to commit a felony: digital penetration and rape of Jane Doe." (Capitalization omitted.)
The People are permitted to amend the information at any time without restriction before the accused enters a plea. However, after a plea has been entered, an amendment to the information is at the discretion of the court. Section 1009 states, "[t]he court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment or information be one that cannot be remedied by amendment, may order the case submitted to the same or another grand jury, or a new information to be filed. The defendant shall be required to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if the defendant has not yet pleaded and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. 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."
Pursuant to the statute, there appear to be two instances in which an amendment is contemplated. "`[T]he court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings . . . . [and] [c]ertain amendments are prohibited—those which change the offenses charged, or alter an information to add charges not supported by the evidence at the preliminary hearing. [Citation.]" (People v. Michaels (2002) 28 Cal.4th 486, 513.)
In this case, the People amended the information to include what they describe as an alternative theory of liability. Typically, the information need not specify the theory on which the prosecution intends to rely, because "the accused will receive adequate notice of the prosecutions theory of the case from the testimony presented at the preliminary hearing or at the indictment proceedings. [Citation.]" (People v. Diaz (1992) 3 Cal.4th 495, 557.) "The proper function of an indictment or information is to plead only the elements of a statutorily defined offense and not factual surplusage. [Citation.]" (People v. Bradford (1984) 160 Cal.App.3d 532, 537, disapproved on other grounds in People v. Equarte (1986) 42 Cal.3d 456, 465.)
Under the first type of amendment contemplated by section 1009, inclusion of the Peoples alternate theory of liability does not correct a defect or insufficiency in the information. As to the second type of amendment contemplated, Sanches contends the amendment now charges an offense not shown by the evidence at the preliminary examination. This contention has merit. When jurors are provided with alternate theories of liability, "[s]pecifically with respect to the crime of burglary, our high court has determined that `jurors need not be instructed that to return a verdict of guilty they must all agree on the specific "theory" of the entry—i.e., what particular felony or felonies the defendant intended at the time—provided they are told they must be unanimous in finding that a felonious entry took place. [Citation.]" (People v. Griffin (2001) 90 Cal.App.4th 741, 750.) Since the jury is not required to agree on the specific felony intended at the time of entry, adding a theory that was not factually supported by evidence at the preliminary examination, creates the possibility that jurors will be persuaded to convict a defendant based on a factual scenario that was neither supported by a magistrates probable cause determination, or subject to a section 995 motion.
Based on People v. Davis (1995) 10 Cal.4th 463 (Davis), the People argue they are not required to present evidence of every theory of liability at the preliminary examination. However, the Peoples reliance on Davis is misplaced. In Davis, the defendant was charged with crimes involving two victims. With respect to the first victim, Davis was charged with murder, forcible sodomy, kidnapping, assault with intent to commit rape and/or sodomy, and attempted rape. It was alleged for death penalty purposes that the murder occurred under the special circumstances of (1) felony-murder kidnapping; (2) felony-murder sodomy; and (3) felony-murder rape. At the section 995 hearing to set aside the information, not only did the trial court dismiss the count charging attempted rape, it also struck a portion of the assault count, that was otherwise supported by probable cause, by "str[iking] the reference to rape in the count charging assault [ ] with attempt to commit rape and/or sodomy" and the special circumstance of felony-murder rape. (Id. at p. 488.)
Contrary to the Peoples interpretation that Davis does not require proof of every alternate theory, the trial court in Davis dismissed a charge and struck a portion of a charge and special circumstance that were not supported by probable cause. Davis ultimately held that upon notice to the defendant, the court may permit the prosecution to present evidence and instruct on charges previously dismissed pursuant to section 995, if the evidence presented at trial is sufficient to support such a theory. (Davis, supra, 10 Cal.4th at p. 513.)
"The `clear purpose of the protections inherent in the constitutional and statutory framework for charging a felony by information is `to give the accused a preliminary hearing either before a grand jury or before a committing magistrate, and to deny to the district attorney the right to force an accused to trial before a jury upon an information which is not within the scope of the evidence taken. [Citations.]" (People v. Casillas (2001) 92 Cal.App.4th 171, 179-180.) "`It is of at least equal, and often far greater, importance that the defendant not be charged excessively. . . . [¶] To deny that the defendant is prejudiced by such exercises of prosecutorial discretion is to overlook the serious increase in a defendants burden of standing trial on the greater charge, the tactical advantage conferred upon the prosecutor in respect to plea bargaining . . . and the various collateral effects of the more serious accusation itself. An adequate screening procedure must be concerned with these problems of the overcharge as well as of the wholly unfounded charge. [Citation.]" (People v. Superior Court (1983) 33 Cal.3d 754, 759-760, superseded by statute on another point as stated in In re Jovan B. (1993) 6 Cal.4th 801, 814, fn. 8.) The danger of allowing unfounded allegations is the
"threat the jury will accept evidence concerning allegations that should have been `weeded out by the magistrate or superior court judge in pretrial proceedings. [Citation.]" (Id. at p. 761.)
In this case, Sanches filed a motion to challenge the amendment, but instead of making a motion to strike the excess language from the burglary count as surplusage, or objecting to the amendment on the basis that it does not comply with the requirements of section 1009, Sanches filed a section 995 motion on the basis that the amendment would prejudice the substantial rights of the defendant by attempting to change the offense to one not shown by the evidence at the preliminary examination.
Although section 1009 prohibits changing an offense to one not shown by evidence at the preliminary examination, the People are correct in that such a claim does not entitle Sanches to set aside the information. The People cite a number of cases in support of this contention, but the plain language of section 995 makes clear that the information shall be set aside if, before the information had been filed, the defendant had not been legally committed by a magistrate or the defendant had been committed without reasonable or probable cause. (§ 995, subd. (a)(2)(A), (B).)
However, had the People included the intent to rape language in the burglary count prior to the courts consideration of the section 995 motion, similar to the court in Davis, the trial court in this case may have considered striking the language if it determined it was not supported by probable cause at the preliminary examination. Generally, it is within the courts discretion to allow renewal of a section 995 motion upon a showing of changed circumstances. (In re Kowalski (1971) 21 Cal.App.3d 67, 70.) Based on the facts of this case, the allegation that Sanches entered the house, or a room within the house, with the intent to rape Jane Doe may represent a changed circumstance warranting the renewal of the section 995 motion.
DISPOSTION
Let a peremptory writ of mandate issue ordering the trial court to vacate its order refusing to consider petitioners section 995 motion and to exercise its discretion to determine whether the amendment to the information that petitioner entered the house or a room within the house with the intent to rape is a changed circumstance to permit petitioner to renew his section 995 motion. The stay previously issued is dissolved.
WE CONCUR: SILLS, P. J., FYBEL, J.