Opinion
No. 54164-1-I
Filed: March 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-01430-0. Judgment or order under review. Date filed: 03/29/2004. Judge signing: Hon. Gregory P. Canova.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Sarah Mcneel Hrobsky, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Alice Degen, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Jemuel Galla Alba was accused of attempted theft for trying to steal an automobile from a car rental company. The State identified the automobile in its information as a Mitsubishi Leganza. At trial, the State's witness identified the automobile as a Mitsubishi Lancer. After the State rested, it moved to amend its information to correct the misidentification. The trial court granted the motion and denied a motion by Alba to dismiss. The jury found Alba guilty. Alba appeals on the ground that the trial court violated his constitutional right to notice of the crime of which he was charged. We affirm.
FACTS
The State charged Jemuel Galla Alba with one count of theft in the first degree, one count of attempted theft in the first degree, and two counts of assault in the fourth degree. For the attempted theft charge, the State alleged in its information that Alba, `on or about May 28, 2003, with intent to deprive another of property, to-wit: Mitsubishi Leganza, did attempt to wrongfully obtain such property belong to Alamo-Rent-A-Car[.]'
At trial, Consolacion Sedlacek, a supervisor for the Alamo branch at Sea-Tac International Airport, identified the automobile as a Mitsubishi Lancer with license plate number 620 PXJ. After the State presented its case in chief and rested, Alba moved the court to dismiss the charges. Among Alba's arguments, he contended that no reasonable jury could convict on the attempted theft charge because the information alleged that Alba tried to steal a Leganza while Sedlacek identified the automobile as a Lancer. The State moved to amend the information to allege the attempted theft of a Lancer. The court granted the State's motion to amend its information and denied Alba's motion to dismiss. The jury acquitted Alba of the theft charge and convicted him on the attempted theft and two assault charges. He appeals the attempted theft conviction.
ANALYSIS
Alba contends that the trial court violated his constitutional right to notice of the crimes for which he was charged when it allowed the State after its case in chief to amend the information alleging attempted theft and correct the misidentification of the model of the automobile. In criminal prosecutions, the accused has the right to demand the nature and cause of the accusation against him and to have a copy of the accusation. Wash. Const. art. I, sec. 22. Washington court rules allow a trial court to permit any information or bill of particulars to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced. CrR 2.1(d). A defendant's rights under article I, section 22 limits the ability of a court under CrR 2.1(d) to permit the amendment of an information against the defendant. State v. Markle, 118 Wn.2d 424, 437, 823 P.2d 1101 (1992); State v. Pelkey, 109 Wn.2d 484, 490, 745, P.2d 854 (1987).
Alba first argues that our Supreme Court in Pelkey adopted a per se rule prohibiting any amendment of an information after the State rests its case, except to allow a lesser degree of a charged crime or a lesser included offense, because such an amendment violates article I, section 22. Alba further argues that the trial court violated this rule by allowing an amendment to correct the misidentification of the model of the automobile. We disagree. In Pelkey, our Supreme Court ruled that an amendment alleging a new crime after the State's case in chief violates the defendant's rights under article I, section 22. Pelkey, 109 Wn.2d at 487. The court further stated that a criminal charge itself may not be amended after the State's case in chief unless the amendment is to a lesser degree of the same charge or a lesser included offense. Pelkey, 109 Wn.2d at 491. The court clarified this holding in State v. Vangerpen, 125 Wn.2d 782, 888 P.2d 1177 (1995).
In Vangerpen, the State had charged the defendant with attempted murder in the first degree but inadvertently failed to include the necessary element of premeditation in the information. Vangerpen, 125 Wn.2d at 785. The trial court allowed the State after its case in chief to amend the information adding the element of premeditation. Vangerpen, 125 Wn.2d at 785-86. The court ruled that the addition of an essential element violated the rule of Pelkey because it changed the crime charged from attempted murder in the second degree to attempted murder in the first degree. Vangerpen, 125 Wn.2d at 791. The court concluded its analysis by restating that `any amendment from one crime to a different crime after the State has rested its case is per se prejudicial error (unless the change is to a lesser included or lesser degree crime)[.]' Vangerpen, 125 Wn.2d at 791. An amendment that corrects a technical defect or a `scrivener's' error, however, does not violate the Pelkey rule as long as it does not charge a different crime.
This court applied this analysis in State v. DeBolt, 61 Wn. App. 58, 808 P.2d 794 (1991). In DeBolt, the trial court allowed the State, after it rested its case in chief, to amend an information alleging indecent liberties to change the charging period. DeBolt, 61 Wn. App. at 60. We affirmed on the ground that the date was not a material part of the criminal charge and therefore did not implicate Pelkey. DeBolt, 61 Wn. App. at 62.
Alba argues that the change in the identification of the model of the automobile results in a charging of a new offense. In support of this argument, Alba relies on State v. Van Cleve, 5 Wash. 642, 32 P. 461 (1893) and State v. Phillips, 27 Wash. 364, 67 P. 608 (1902). In Van Cleve, the appellant was charged with stealing 17 horses that were the property of `Wm.' Burbank. Van Cleve, 5 Wash. at 642. After the trial began, the court allowed the prosecution to amend the information by changing `Wm.' to `Walter.' Van Cleve, 5 Wash. at 642. The Supreme Court ruled that since the horses were identified only by ownership and not by distinguishing marks or location, a change in the identification of the owner resulted in a change of a material allegation of the charge. Van Cleve, 5 Wash. at 642-43. The amendment was therefore unlawful, and the proper remedy was reversal of the conviction. Van Cleve, 5 Wash. at 643.
While we acknowledge that the State alleged a specific automobile model in the information, the model was not a material part or element of the crime of attempted robbery. Furthermore, the automobile was identified by its license plate number in the trial testimony. The State therefore did not charge a new crime by correcting the misidentification and therefore did not run afoul of Alba's constitutional rights as defined in Pelkey and its progeny.
By contrast, in Phillips, the defendant was charged with stealing property in the form of `lawful money of the United States.' Phillips, 27 Wash. at 365. The State presented evidence that Phillips stole Canadian money, and the jury convicted him of grand larceny. Phillips, 27 Wash. at 365-66. Our Supreme Court ruled that because the information specified American currency, the nationality of the currency was material and therefore must be proved. Phillips, 27 Wash. at 367. Because the defendant was convicted of stealing Canadian currency, the conviction was outside the information and therefore required reversal. Phillips, 27 Wash. at 368. This decision is not applicable here, because it deals with the sufficiency of the evidence to support a conviction, not with an amendment of an information.
In conclusion, the State did not charge Alba with a new crime when it corrected the misidentification of the model of the automobile in its information alleging attempted robbery, and therefore did not violate the Pelkey rule. Furthermore, Alba does not contend that the State prejudiced him by correcting the misidentification in the information after it presented its case in chief.
Affirmed.
COLEMAN, BECKER and AGID, JJ.