The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert CERVANTES, Defendant-Appellant.
No. 81CA0788
Colorado Court of Appeals, Div. III.
Sept. 22, 1983.
Rehearing Denied Oct. 27, 1983.
Certiorari Granted Jan. 23, 1984.
Here, no proceedings on the defendant‘s alleged further criminal conduct had occurred. Therefore, the court should have applied the reasonable doubt standard in the revocation hearing. Adair v. People, 651 P.2d 389 (Colo.1982), relied on by the trial court, is not applicable to the facts here, since the acts resulting in deferred sentence revоcation there did not constitute criminal offenses.
Accordingly, the judgment of conviction is reversed and the cause is remanded with directions that the trial court vacate defendant‘s conviction.
PIERCE and BERMAN, JJ., concur.
J.D. MacFarlane, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Marie Volk Bahr, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Diana L. DeGette, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant, Robert Cervantes, was convicted by a jury of second degree assault, third degree assault, obstructing a police officer, and resisting arrest. On appeal, he challenges the second degree assault conviction. We affirm.
The offenses committed here arose out of a family dispute between defendant and his estranged wife and an altercation between defendаnt and police officers who were summoned to the scene. Defendant was initially charged in an information with, inter alia, first degree assault of police officer Joseph Tymkowych by use of a deadly weapon, to wit, a St. Bernard dog. Following a preliminary hearing, the court found probable cause lacking as to this count, bound the charge ovеr as second degree assault, and directed the prosecution to file an amended information. The prosecution‘s motion to amend to charge second dеgree assault was granted on February 5, 1980, and the count was amended to charge defendant with violating
“with intent to prevent Joseph Tymkowych, whom he knew and reasonably should have known to be a peace officer, did unlawfully, feloniously, and intentionally cause bodily injury to Joseph Tymkowych.”
At an in camera hearing held after the jury had been selected and sworn on the first day of trial, November 24, 1980, defendant moved to dismiss this count on the grounds that it failed to charge an offense in that it failed to allege a culpable mental state and did not provide proper notice of the actual charge against defendant. The court denied the motion noting that although the written count did not “make sense,” the parties knew as a result of the preliminary hearing that the count was bound over as second degrеe assault, defendant should have made the motion prior to arraignment, and the information could be amended at that time because an amendment would be a mattеr of form. The court then asked the prosecution if it wanted to move to insert the words “from performing a lawful duty” (as modifying “with intent to prevent,” see
A criminal information serves a variety of purposes. It serves to advise a defendant of the nature of the charges against him, enables him to prepare his dеfense, and enables him to plead the judgment in bar of any further prosecution for the same offense. See People v. Donachy, 196 Colo. 289, 586 P.2d 14 (1978). However, to be sufficient an information need not allege every element of an offense. See People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973).
Here, defendant was well aware following the preliminary hearing that the
Moreover, we find the rationale of People v. Dickinson, 197 Colo. 338, 592 P.2d 807 (1979) apropos here. In that case, the information was originally amended in Februаry 1980, but defendant waited until November 1980, after the jury had been selected and sworn, to challenge the information. Defendant failed to raise the challenge earlier when any deficiency might easily have been cured by amendment. The court ruled defendant had waived his right to attack a defect in the information, stating: “Unless enforcement of prоcedural requirements is essential to shield substantive rights, litigation should be determined on the merits and not on the basis of technical rules.” People v. Dickinson, supra. See also People v. Hertz, 196 Colo. 259, 586 P.2d 5 (1978); Mora v. People, 172 Colo. 261, 472 P.2d 142 (1970).
Judgment affirmed.
KELLY, J., concurs.
TURSI, J., dissents.
TURSI, Judge, dissenting.
I respectfully dissent.
In the original amended information the People attempted to charge under
The People argue that the subsequent amendment was one of form only because defendant was well aware that he was being charged with second degree assault. Howevеr, while it may be true that defendant was aware, under the circumstances, that he was being bound over on second degree assault, that fact does not render the informatiоn sufficient. There are six distinct methods, pursuant to
The People have not produced any authority that the failure to include a material statutory element of a crime is mere form and not substance. Further, when, as here, the effect of the amendment is to increase substantially the severity of the punishment to which defendant is subjected, then even amendments as to form are not permissible.
Finally, I find no merit in the Pеople‘s argument that defendant has waived his right to object to any defect in the original amended information. The rationale of People v. Dickinson, 197 Colo. 338, 592 P.2d 807 (1979), relied on by the People, is inapposite. The defect in Dickinson was in the form which charged driving under the influence of intoxicating liquor or drugs disjunctively. In People v. Hertz, 196 Colo. 259, 586 P.2d 5 (1978), the court held this to be mere surplusage and thus a matter of form. The defect here is one of inadequacy of the charge, not onе of surplusage. See
Since the original amended information failed to charge the offense upon which defendant stands convicted, and since the trial court erred in allowing the subsequent amendment, defendant‘s conviction for second degree assault should be reversed.