People v. Preston

Opinion

KINGSLEY, J.

Defendant was charged in four counts, as follows: count I—kidnaping for the purpose of robbery, in violation of section 209 of the Penal Code; count II—assault with a deadly weapon with intent to commit murder, in violation of section 217 of the Penal Code; count III —attempted extortion, in violation of section 524 of the Penal Code; and count IV—assault with a deadly weapon, in violation of section 245 of the Penal Code. He pled not guilty to all counts. Thereafter the People were permitted to file an amended information which: (1) added a count charging conspiracy to commit murder, in violation of subdivision 1 of section 182 of the Penal Code; (2) a count charging robbery, in violation of section 211 of the Penal Code; (3) changed the former charge of attempted extortion to a charge of extortion; and (4) dropped the former charge of assault with a deadly weapon. As amended, the information charged: count I—conspiracy to commit murder; count II—kidnaping for the purpose of robbery; count III—robbery; count IV—extortion; and count V—assault with a deadly weapon with the intent to commit murder. Defendant pled not guilty to all counts in the amended information. After a trial by jury, he was found guilty on counts I, III, IV and V; on count II he was found guilty of the lesser and included offense of kidnaping, in violation of section 207 of the Penal Code.

Defendant’s motion for a new trial, or for arrest of judgment, on counts I and IV was denied; probation was. denied. He was sentenced to state

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prison for life on count I; counts II, HI and IV were “merged for the purpose of sentencing” and he was sentenced to state prison on those three counts as so merged; he was sentenced to state prison on count V. The sentences on counts II, III and IV, as merged, and the sentence on count V were ordered to run consecutively with each other; execution of sentence on those four counts was stayed pending completion of the sentence on count I. Defendant has appealed; with a modification hereinafter indicated, we affirm.

I

It is argued that the People should not have been allowed to file the amended information. The contention is without merit. Examination of the transcript of the preliminary examination discloses that the evidence there presented showed the commission of the offenses added by the amendment. All of the offenses ultimately charged were part of the same episodes as those involved in the original information. The requirements of section 739 of the Penal Code, as construed in