Levy v. Superior Court

California Court of Appeal Mar 30, 1973 No. Civ. 41047Published

Before: Kaus

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Holding. The court held that the prosecution cannot amend an information to charge a felony where a prior conviction is an essential element of the offense if no evidence of that prior conviction was presented at the preliminary hearing.

Issues

Whether the prosecution may amend an information to add a charge of violating Penal Code section 12021 when no evidence of the required prior felony conviction was presented at the preliminary hearing.

Disposition. Peremptory writ of prohibition issued.

Quotations verified verbatim against the opinion

“When a prior conviction is an element of an offense sought to be charged in the information and there is no evidence of such a conviction before the magistrate, there simply is no statutory authority for including the charge in the information.”

“Our statutory scheme is that the defendant must be given an opportunity to raise and—should he so decide—fully litigate those issues at a preliminary hearing.”

Opinion

KAUS, P. J.

This petition for a writ of prohibition is directed against the impending trial of count 4 of an amended information, which otherwise charges the petitioner (“defendant”) with a violation of section 11500.5 of the Health and Safety Code (count 1) and a violation of section 11530 of the same code (count 2). Count 3 is directed against another defendant.

Defendant’s preliminary hearing furnished probable cause for an information charging him with the narcotics violations embodied in counts 1 and 2. It also justified the filing of two additional counts—4 and 5 of the original information—charging violations of sections 12031 and 12025 of the Penal Code, two misdemeanors.

At the preliminary hearing the People offered no evidence that defendant had suffered any prior felony convictions.

[429]

A jury trial held in June 1972 resulted in a mistrial.

Thereafter, over defendant’s objection, the People were permitted to amend the information in several respects: 1. they added allegations charging defendant with two prior felony convictions which they had just discovered; 2. counts 4 and 5 of the original information were abandoned and a new count 4 was added. It charges a violation of section 12021 of the Penal Code—colloquially known as “ex-con with a gun.” The weapon involved in the new charge is the same weapon which formed the basis of counts 4 and 5 of the original information. In short, the People were permitted to charge one felony instead of two misdemeanors.

Although on its face the petition before us prays for a peremptory writ prohibiting any retrial, the thrust of defendant’s argument is directed only at count 4 as amended.

Defendant is obviously entitled to the writ. A prior felony conviction is an element of the crime denounced in section 12021.

(People

Davenport,

210 Cal.App.2d 335, 340-341 [26 Cal.Rptr. 753].) The People were well within their statutory rights in adding charges of defendant’s two priors as a device which, under certain circumstances, increases the punishment after a conviction. (Pen. Code, §§969, 969a.) We have no doubt that this may be done after a mistrial. This is what was generally held in

Levy v. Superior Court

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KAUS, P. J.

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