People v. Rogers
245 Cal. App. 4th 1353
| Cal. Ct. App. | 2016Background
- Defendant Daniel James Rogers waived a preliminary hearing after initial charges: corporal injury to a cohabitant (§ 273.5), false imprisonment (§§ 236, 237), a deadly-weapon-use enhancement (§ 12022, subd. (b)(1)), and a prior prison term (§ 667.5, subd. (b)).
- After waiver and after a new prosecutor was assigned, the prosecution moved to amend the information to add three counts (assault likely to cause great bodily injury, assault, criminal threats) and a great-bodily-injury (GBI) conduct enhancement (§ 12022.7, subd. (e)). The defense did not object at trial.
- At trial the jury convicted on the original counts and on one added assault count and found the GBI enhancement true; it acquitted on the criminal threats count and found the deadly-weapon enhancement not true.
- On appeal Rogers argued counsel was ineffective for failing to object to the amended information (both added counts and the GBI enhancement) after he had waived the preliminary hearing; he sought reversal or, alternatively, striking the new convictions.
- The Court of Appeal concluded the addition of counts and the GBI enhancement after a preliminary-hearing waiver violated the limits of section 1009 and controlling precedent; it struck the added counts (3 and 4) and the GBI enhancement, affirmed the original convictions and prior-prison-term finding, and remanded for resentencing due to a global plea settlement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecution may amend information to add new substantive charges after defendant waived preliminary hearing | Amendment was permissible under §1009 court discretion; defendant had notice of underlying facts | Waiver bars adding charges not presented at preliminary hearing; counsel ineffective for not objecting | Adding counts 3 and 4 after waiver violated §1009; convictions on those counts stricken |
| Whether prosecution may add a conduct (GBI) enhancement after preliminary-hearing waiver | Enhancement may be added because it doesn’t alter the essential elements and defendant had notice | GBI enhancement required evidence at preliminary hearing; waiver bars adding conduct enhancements | GBI enhancement cannot be added after waiver absent preliminary-hearing evidence; enhancement stricken |
| Whether counsel’s failure to object constituted ineffective assistance | People conceded failure re: added counts only; argued enhancement was proper | Defendant argued counsel’s failure was deficient and prejudicial given sentencing exposure | Failure to object to both added counts and GBI enhancement was deficient performance; prejudice shown for GBI (added 5 years) and for counts; remedy limited to striking those items |
| Remedy: reversal or partial relief | Complete reversal unnecessary; strike improper counts/enhancement | Full reversal requested because jury may have been influenced by evidence introduced for added allegations | No new trial; convictions on original charges and prior-prison-term affirmed; counts 3 & 4 and GBI enhancement stricken; remand for resentencing |
Key Cases Cited
- People v. Superior Court (Mendella), 33 Cal.3d 754 (1983) (GBI and other transactionally related enhancements must be supported by preliminary hearing evidence; §995 remedy available)
- People v. Peyton, 176 Cal.App.4th 642 (2009) (amendment adding new charges after waiver improper; failure to object can be ineffective assistance)
- People v. Winters, 221 Cal.App.3d 997 (1990) (adding new charge after waiver violates §1009)
- Thompson v. Superior Court, 91 Cal.App.4th 144 (2001) (discusses Mendella principle: People must present probable-cause-level evidence at preliminary hearing for transactionally related enhancements)
- Ramos v. Superior Court, 32 Cal.3d 26 (1982) (statutory construction supports evaluating non-element allegations at preliminary hearing)
- People v. Cooper, 256 Cal.App.2d 500 (1967) (distinguishes indictment amendments and addresses when enhancements alter punishment but not elements)
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-prong ineffective-assistance standard)