Byrd v. Municipal Court

Opinion

SCOTT, Acting P. J.

The appellants in these consolidated cases appeal from orders of the superior court denying their petitions for writs of prohibition and/or mandate.

Appellants Robert Byrd, Howard Koch, George Shelby and William Chikan were each charged by separate complaint with driving “under the influence of intoxicating liquor and under the combined influence of intoxicating liquor and drugs” in violation of Vehicle Code section 23102, subdivision (a). Each demurred to the complaint, and the demurrers were overruled by the municipal court. Seeking to restrain further prosecution, appellants petitioned for writs of prohibition and/ or mandate in the superior court; the petitions were denied and these consolidated appeals followed.

The sole question presented is whether the complaints against appellants give constitutionally adequate notice of the allegations against which they will be required to defend. Relying on

Sallas

v.

Municipal Court

(1978) 86 Cal.App.3d 737 [150 Cal.Rptr. 543], appellants argue that the use of the word “drugs” in the complaint does not afford them adequate notice; they urge that unless the prosecution specifically indicates at a minimum the class of drugs allegedly consumed in combination with liquor, they have not been provided with proper notice and cannot prepare a defense.

A demurrer may be sustained when an accusatory pleading "... does not substantially conform to the provisions of Sections 950 and 952

[1057]

. .. . ” (Pen. Code, § 1004.) Section 952 provides in relevant 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. Such statement . . . may be in the words of the enactment describing the offense .... ” However, due process requires that an accused be reasonably advised of the charges against him so that he may have an opportunity to prepare and present his defense, and so that he can avoid being taken by surprise at trial.