Barragan v. Superior Court

Defendant then filed in this court a petition for writ of prohibition, asserting that the trial court should have sustained defendant’s demurrer because, in his view, “no statutory procedure exists in California under which a jury may decide the truth of [facts] in aggravation” and, in any event, “[facts] in aggravation must be established by sufficient proof at a preliminary hearing or a grand jury,” otherwise “a motion to dismiss pursuant to Penal Code section 995 will lie.” We denied defendant’s request for a “stay of bifurcated portion of trial,” but issued an alternative writ to address the issues that he raises. We now shall deny his petition for writ relief.^[1]

DISCUSSION

Contrary to defendant’s claim, California’s statutory scheme governing accusatory pleadings in criminal cases does not preclude the prosecutor from amending the information to allege aggravating facts for purposes of sentencing. Thus, the trial court correctly overruled defendant’s demurrer to those new allegations.

As pertinent to this case, a defendant in a criminal action “may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof’ that “it does not substantially conform to the provisions of Sections 950 and 952, and also Section 951 in case of an indictment or information” and that “the facts stated do not constitute a public offense.” (Pen. Code, § 1004, subds. 2 & 4; further section references are to the Penal Code.) Section 950 states in pertinent part that the “accusatory pleading must contain” a “statement of the public offense or offenses charged therein.” Section 952 states in part; “In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified.” Section 951 simply sets forth a suggested form for the accusatory pleading.^[2]

the upper term unless the fact has been submitted to a jury and proved beyond a reasonable doubt. Courts do not interpret statutes in a manner that results in absurd consequences that could not have been intended by the Legislature. (People v. Esparza (2003) 107 Cal.App.4th 691 , 698 [ 132 Cal.Rptr.2d 377 ].)^[3]

We also disagree with defendant’s claim that the prosecution was precluded from amending the information to allege aggravating facts because those facts had not been presented at the preliminary examination.

An accusatory pleading “cannot be amended so as to change the offense charged . . . [or] to charge an offense not shown by the evidence taken at the preliminary examination.” (§ 1009; see also § 739 [following a preliminary examination (§ 872), the prosecution “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”]; Cal. Const., art. I, § 14 [“Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information”]; Jones v. Superior Court (1971) 4 Cal.3d 660 , 666 [ 94 Cal.Rptr. 289 , 483 P.2d 1241 ] [a defendant cannot be prosecuted for a felony “in the absence of a prior determination of a magistrate or grand jury that such action is justified”].)

However, an aggravating fact is not an “offense” within the meaning of section 1009 and the statutes governing accusatory pleadings. (See § 15 and the discussion in pt. I, ante.) Thus, the statutory scheme does not require the prosecution to plead and prove at the preliminary examination the existence of aggravating facts that can be used to impose the upper term in California’s determinate sentencing law.

We recognize that for purposes of the constitutional right to trial by jury, a “ ‘sentence enhancement’ ” that “describe^] an increase [in punish

ment] beyond the maximum authorized' statutory sentence” has been viewed by the United States Supreme Court as the “functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.” (Apprendi v. New Jersey, supra, 530 U.S. at p. 494, fn. 19 [147 L.Ed.2d at p. 457, fn. 19].) But aggravating facts used to impose the upper term may have nothing to do with the offense; instead, they may relate solely to the offender regardless of the crime committed. Therefore, it would be inaccurate to say that such aggravating facts are the functional equivalent of elements of an offense.

In any event, we are concerned here with statutory provisions, not the constitutional right to trial by jury. For purposes of section 1009 and other sections governing pleading and proof at the preliminary examination, neither the Legislature nor the courts have ever deemed aggravating facts used to impose the upper term as being equivalent to statutory sentencing “enhancements”—many of which were contained in statutory definitions of particular offenses prior to enactment of the determinate sentencing law-—that must be alleged in the accusatory pleading and proved at the preliminary hearing. (E.g., § 667, subd. (f)(1); People v. Superior Court (Mendella) (1983) 33 Cal.3d 754 , 758-763 [ 191 Cal.Rptr. 1 , 661 P.2d 1081 ]; Thompson v. Superior Court (2001) 91 Cal.App.4th 144 , 149 [ 110 Cal.Rptr.2d 89 ].)

Simply stated, the applicable statutes do not, explicitly or implicitly, require the pleading and proof of aggravating facts at the preliminary examination. It would be wrong to so interpret the statutory scheme now because doing so would in effect nullify the availability of the upper term in many cases—and give defendant the windfall of a lesser sentence than allowed by the determinate sentencing law—simply because the prosecution played by the rules as they were understood when defendant’s preliminary examination was held. The law is not a game of “gotcha” that should be played to unfairly penalize the prosecution and frustrate the Legislature’s intent to better protect public safety by providing for the possible imposition of an upper term.

In sum, for purposes of sections 1009 and 995,^[4] aggravating facts need not be pleaded and proved at the preliminary examination. Indeed, some aggravating facts may not become apparent until after testimony at the preliminary examination.