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Criminal Pleadings

Pleadings in criminal cases take one of three forms. A criminal accusation can be made through a complaint, information or indictment. One commonly seen pleading, the citation, is actually a subtype of the complaint. There are many rules related to each pleading type and varying legal ramifications.

Complaints
A complaint is a written document submitted under oath  which sets forth the criminal accusations against the defendant. Pursuant to California Penal Code  Secs.859, 949, a complaint may be used as the sole pleading in an infraction or misdemeanor case, including driving under the influence, or as the initial (preliminary) pleading for felony cases. In felony cases, the filing of a complaint precedes a preliminary hearing.

A complaint must be timely filed to comply with the statute of limitations, due process, and speedy trial rights guaranteed by the U.S. Constitution, Amendments 6  & 14, California Constitution art 1, Sec 15, and California Penal Codes 799 through 805.

Information
An information is used as the accusatory pleading when a felony is charged, or  when felonies accompany misdemeanors. Unlike a complaint which is filed prior to a preliminary hearing, the information is the type of  pleading filed subsequent to the preliminary hearing.

Under California Penal Code 1382(a)(1), an information must be filed within 15 calendar days after the commitment which occurs after the preliminary hearing. Late filings may be allowed upon showing good cause.

As with complaints , the information must comply with due process, speedy trial, and statute of limitations requirements per U.S. Constitution, Amendments 6  & 14, California Constitution art 1, Sec 15, and California Penal Codes 799 through 805.

Indictment
In cases where a grand jury is used, the grand jury decides whether to issue an indictment. the indictment takes place of a formal complaint.

An indictment must also adhere to  the statute of limitations, due process rights, and speedy trial rights per the U.S. Constitution, Amendments 6  & 14, California Constitution art 1, Sec 15, and California Penal Codes 799 through 805.

Required Information for Criminal Pleadings
All accusatory pleadings are required to contain certain information to form the basis of the accusation such as:

Biographical information about the defendant:  the names of the defendant/ co-defendants, age of defendant if relevant to the offense, any prior convictions required to be pleaded

. If a defendant's name is not known, a fictitious name may be used according to California Penal Code 949(4).

Information about the alleged offense: The date of the alleged crime, the location where the crime is alleged to have occurred, the name and applicable code section of the crime, and whether the crime is charged as a felony or misdemeanor.

Under California Penal Code 955, the exact time the offense is alleged to have occurred is not necessary unless it is a material element of the offense.

Typical additional information: special allegations (enhancements) related to the crimes, date of the arrest warrant, and/or a statement regarding tolling the statute of limitations as required by California Penal Code 803.

Per In re Demillo (1975) 14 C3d 598, 121 CR 725, the pleading must show the case is not barred by the statute of limitations, or alternatively that there is reason to toll the statute of limitations.

Court information: California Penal Code 950 requires the inclusion of  the name of the action, the name of the appropriate court, and the the names of all parties.

The prosecution may list itself as “The People of the State of California” per California Penal Code 684 and People v. Black (2003) 114 CA4th 830, 7 CR3d 902.

The pleading must also demonstrate that it is filed in a court with appropriate jurisdiction per California Penal Code 959(5).

Additional Information Regarding Statement of Offense
California Penal Code 950 requires that the pleading concisely state the alleged offenses. There is no requirement that this statement use the direct verbiage of the statute itself. California Penal Code 952 allows any language sufficient to properly notify the defendant of the crimes alleged against him/her.

There are several case law precedents that set  additional guidelines for  the content of criminal pleadings. Regarding tolling the statute of limitations, California case law precedent requires that the pleading explain why the charges are not barred by the statute of limitations. People v. Zamora (1976) 18 C3d 538, 134 CR 784.  When an offense is charged, it will automatically include any lesser included offenses per People v. Lohbaeur (1981) 29 C3d 364, 173 CR 784.

The Due Process Requirement for Pleadings
All pleadings must comply with Due Process. This means that all pleadings must give proper notification of the charges to allow the defendant to prepare a defense. In re Hess, (1955) 45 C2d 171, 288 P2d 5.

Although California Penal Code 952 allows the prosecution to  use any language which would adequately notify the defendant of the charges, the prosecution is not allowed to merely rely on the discovery process or presumed knowledge that the defendant is aware of the circumstances of the crime. Salas v. Municipal Court, 86 Cal. App. 3d 737, 150 Cal.Rptr. 543; People v. Clenney, supra,165 Cal. App. 2d 241, 253-254 [331 Cal.Rptr. 696].

An additional explanation of how a pleading must comply with due process is found in Gaylord v. Municipal Court (1978) 196 CA3d 1348, 242 CR 485. In this case the prosecution alleged a violation of California Penal Code 647(b) but failed to allege all the necessary elements of the offense. Specifically, the prosecution set forth facts related to the agreement element of Pen C 647(b), but failed to allege an act in furtherance as required by the statute. The court held that the lack of an allegation regarding this act constituted a failure to properly notify the defendant of the charges against him, thus violating the defendant's due process rights.

Cases involving charges accusing the defendant of being under the influence of a controlled substance per Health and Safety Code 11550 require specificity as to what substance is allegedly involved. Sallas v. Municipal Court (1978) 86 CA3d 575, 122 cr 807. SEE ROSS CASE.

A general accusation of murder has been held by courts to give proper notice of the charge regardless if the actual murder theory is specified. People v. Garule (2002)28 CA4th 557.

When an enhancement is added to an offense, factual information supporting it must be alleged for each offense it is applied to. Failing to do so can still be proper under some circumstances where the defendant has fair notice of possible punishments for the crimes. People v. Riva, (2003) 112 CA4th 981.

Additionally, the prosecution is not required to explain why the defendant does not qualify for certain statutory exclusions when filing a pleading. It is sufficient that the prosecution allege that the defendant is guilty of the offense itself as the existence of an applicable exception is a matter for the defense to present.  People v. Kinsley, 118 Cal.App. 593, 596 [5 P.2d 938]; People v. Bill, 140 Cal.App. 389 [35 P.2d 645]

The California Supreme Court has confirmed that in sexual molestation cases (where there are likely many instances of alleged abuse), there is not due process violation in alleging a general time period for the offenses. This is not a violation of the defendant's right to fair notice (i.e.where  the defendant could present a due process argument because he doesn't know exactly which offense he is prosecuted for) under People v. Jones (1990) 51 C3d 294, 270 CR 611.  thus, demurrers to this type of pleading are generally unsuccessful. However, a defendant in such a case may other options to challenge the charges such as a pretrial motion under California Penal Code 995.

Prosecutorial Discretion in Charging Crimes
The prosecutor (usually the District Attorney's office) is responsible for deciding what charges will apply to the defendant. This means that although law enforcement may initially issue charges against a defendant, the prosecutor has the final say in what crimes will be charged based on the on the evidence.

The prosecution has several options in deciding what charges to impose. Under California Penal Code 917 & 935, the prosecutor  can bring the case before a grand jury to verify if the evidence supports the charge. In some cases, the prosecution may allow a civil compromise (per California Code of Civil Procedure 33) in lieu of a criminal prosecution. A decision can be made as to whether to add special enhancements or prior convictions to new charges per People v. Adams (1974) 43 CA3d 697, 117 CR 905.

One of the more common acts of prosecutorial discretion is to decide whether an offense called a “wobbler” will be charged as a felony or misdemeanor. Wobblers are crimes which can be charged at the misdemeanor or felony level under California Penal Code 17(b)(4). Prosecutors are also allowed to change their decision to file one way or another, i.e. to assist in plea negotiations. The case People v. Hudson (1989) 210 CA3d 784, 258 CR 563, dealt with a situation where a plea to a misdemeanor charge was withdrawn by the defendant, then the prosecution re-filed the charge as a felony.

Limits to charging discretion

It should be noted that the prosecution does not have absolute discretion in determining charges. There are several statutory limits to which the prosecutor must abide. Prosecutors cannot use their discretion in a discriminatory manner per Yick Wo v. Hopkins (1886) 118 US 356. The prosecution cannot issue charges as an act of retaliation against the  defendant. Twiggs. +++

Amendments to Pleadings
An amendment may be made to an accusatory pleading to correct a deficiency. California Penal Code 1009 allows the prosecution to amend a pleading without the court's approval before the defendant enters a plea or prevails on a demurrer. At any other stage in the  case, the prosecution will be required to seek authorization from the court to make an amendment (correction) to the pleading. In any event,  the court will examine the requested amendment to ensure that it does not cause prejudice to the defendant's “substantial rights.”

Since amendments are allowed solely for corrective purposes, the prosecution is not allowed to change an information by adding an additional offense not factually supported in the preliminary hearing. As for indictments, the prosecution is prohibited from changing the offense considered by the grand jury. Permissible amendment acts include correcting a clerical error, including a required allegation (necessary to the offense) which was initially absent from the pleading, or providing a showing that the offenses are in compliance with the statute of limitations.

Other manners of amending pleadings include adding prior felony convictions as permitted by California Penal Code 969a and 969.5. Under Pen C 969a provides that whenever a pleading is missing applicable prior felonies, an amendment is proper with the court's approval. Once the amendment is made pursuant to 969a, the defendant must be arraigned again on the amended pleading. Similarly, under Pen C 969.5, mandates that whenever it is discovered that a prior charge was not alleged, and the defendant has already entered a guilty plea, the complaint can be amended upon the court's approval. In this case as well, the defendant will be re-arraigned. If the defendant denies having the prior conviction, the court will either submit the issue to the jury, or hold a bench trial

In order to amend a pleading for the purposes of including a prior conviction which is an element of the criminal offense or to add enhancements or additional offenses, there must be evidence supporting the action in the preliminary hearing record.

There are also other types of amendments that can be done by the prosecution. The prosecutor can choose to join different complaints in the same action. As previously discussed, enhancements can be added to the original charges before the jury is released per Pen C 969a, or after the entry of a guilty plea per Pen C 969.5. Under the California case Barragan v. Superior Court (2007) 148 CA4th 1478, aggravating factors can be added through an amended complaint.

Due Process Considerations with Amended Pleadings
The court will examine an amendment of a complaint to ensure it does not interfere with a defendant's right to due process. The case Jones v. Superior Court (1971) 4 C3d 660, interpreted the applicability of due process to mean that a pleading may not be amended to reflect a charge not presented at the preliminary hearing. A due process violation was also found in the case People v. Dominguez (2008) 166 CA 4th 858, 83 CR3d 284, where the court determined the violation occurred where the lower court allowed the prosecution's presentation of an additional basis for conviction at the close of evidence.

How amendments may be presented
According to California Penal Code 1009, the prosecutor may seek an amendment via an oral motion before the court, or the court itself may move to amend  an accusatory pleading. (add cases from 7.16). When processing an amended complaint, the prosecutor will file a new pleading document which will be titled to reflect that it is a new amended complaint. In some cases where there is a very small change to the original pleading as a whole, the prosecutor will be allowed to use the same complaint with interlineations with the court's permission. Any amendment complaint must adhere to the Pen C 1009 requirement of being verified. However 1009 allows the new pleading to be verified (submitted under oath) by someone other than the original filer.

Once the amended complaint or pleading is filed, the original no longer retains any legal effect. If the amended pleading is generally the same as the original, it will date back to the initial filing date. An amended pleading that dates back will also continue to toll the applicable statute of limitations, and the right to a speedy trial timeline will also run from the original date. However, where there is a substantial change through an amendment, the court will often postpone proceedings to give the defendant additional time to prepare for a plea or trial pursuant to Pen C 1009.

As previously stated, once the amended complaint is filed,the defendant must plea again to the new charging document. If the defendant fails to plea to a non-prejudicial amended pleading, the requirement that he be re-arraigned and any objections the the amendment will be considered waived by the court. In Re Peterson (1970) 4 CA3d 979, 84 CR 694.

Demurrers
California Penal Code 1004 covers the area of demurrers, which are formal challenges to the accusatory pleading. Pen C 1004 allows the defendant to demur at any time prior to the entry of a plea. The defendant's demurrer may exact a facial attack on the pleading on if it is based on any of the five permissible uses under Pen C 1004. Specifically, the grounds for demurrer include:

If an indictment was issued by a grand jury with no legal authority to do so, or if the court has no jurisdiction over the type of charge alleged in a complaint or information.

Demurrers contesting jurisdiction may argue the statute of limitations has run out i.e. In Re Demillo (1975) 14 C3d 381, or that the offense occurred outside  of the court's jurisdiction as in People v. Webber (1901) 133 C 623, 66 P 38.

That the information or indictment does not “substantially conform” to the requirements in 950, 951, and 952.

An example of a demurrer under this ground is where the charging document states an offense in an ambiguous manner as in the case People v. Horiuchi (1931) 114 CA 415, 300 P 457.

That more than one offense is charged unless allowed by Pen C 954.

Penal Codes 954, 1004 allows the defendant to challenge an improper joinder of charges. Pen C 1004 also allows the court, in its own discretion and with good cause, to separate the several charges and hold individual trials.

That there is no public offense alleged under the facts presented.

An example is the California case People v. Heitzman (1994) 9 C4th 189, 37 CR2d 236, where it was held that the statute for elder abuse was overbroad and therefore unconstitutional.

That there is a legal bar to the prosecution or there is an applicable legal justification.

An example is seen in People v. Ayhens (1890) 85 C 86, 24 P 635, where the timing of the alleged offense in the prosecution's complaint demonstrated the statute of limitations had expired.

Under People v. Saffell, the court found that the listed grounds are the only acceptable methods to form a basis for a demurrer under Pen C 1004. However the defendant's demurrer is not solely limited to the offenses listed in the accusatory pleading. A defendant may also use a demurrer to contest enhancements to charges as provided in People v. Equarte (1986) 42 C3d 456, 229 CR 116.

Once a demurrer is sustained, the court's next step depends on whether the shown defect in the pleading can be corrected. Where the issue is fixable, the court will allow the prosecution additional time to file an amended complaint per Pen C 1007. However, the court must impose a time limit of ten days or less. People v. Bailey (1946) 72 CA2d Supp 880, 165 P2d 558. If the defect has no legal remedy, the court can sustain the demurrer without leave to amend, and order the case dismissed. Pen C 1007-1008. Once the case is dismissed per Pen C 1008, a defendant on bail release will have bail funds repaid to him, or an in custody defendant will be released.

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