People v. Valentine CA4/1

Filed 11/27/24 P. v. Valentine CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082627

Plaintiff and Respondent,

v. (Super. Ct. No. SCD295459)

BRADLEY VALENTINE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Steven E. Stone, Judge. Reversed and remanded. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Anastasia Sagorsky, Deputy Attorneys General, for Plaintiff and Respondent. After the trial court granted the People’s disputed motion to consolidate two matters, the People filed an amended information and a jury convicted Bradley Valentine of a misdemeanor count of exhibiting a deadly weapon

other than a firearm (Pen. Code, § 417, subd. (a)(1); count 2) but acquitted him of a felony count of assault with a deadly weapon (§ 245(a)(1); count 1). On appeal, Valentine contends his conviction must be reversed because the trial court violated Penal Code section 1009 in allowing the People to amend the information without holding a preliminary hearing on the misdemeanor count. Alternatively, he claims his trial counsel was constitutionally ineffective in failing to object to amendment on this ground. The People concede error but claim it was harmless. While Valentine forfeited this claim for appellate review by failing to object to amendment on this specific ground in the trial court, because (1) the claim depends on undisputed facts and is largely a legal determination and (2) of Valentine’s alternative claim for ineffective assistance of counsel, we exercise our discretion to reach the merits and agree with the weight of authority that error of this type requires reversal. We therefore reverse Valentine’s conviction of count 2 and remand for further proceedings consistent with this opinion. Given our determination, we need not correct the inconsistent oral and written sentences imposed for count 2. I. A. In September 2021, Valentine sought to use the restroom at a store, but the manager informed him it was closed. Outside the store door, he brandished what the manager described as a machete. Law enforcement called to the scene found a knife in Valentine’s car. In December 2021, the People filed a misdemeanor complaint charging Valentine with exhibiting a deadly weapon other than a firearm. In July 2022, Valentine accepted informal pre-plea diversion. The trial court vacated