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People v. Trujillo (2016) · DecisionDepot
/ California Court of Appeal People v. Trujillo Published Filed 1/4/16; pub. order 1/22/16 ( see end of opn.)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D069275 Plaintiff and Appellant,
v. (Super. Ct. No. RIF1405208)
SABAS TRUJILLO et al.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Riverside County, Helios J.
Hernandez, Judge. Reversed.
Michael A. Hestrin, District Attorney, Alan D. Tate, Deputy District Attorney, for
Plaintiff and Appellant.
Werksman Jackson Hathaway & Quinn, Alan Jackson and Kelly C. Quinn, for
Defendant and Respondent Sabas Trujillo.
Blumenthal Law Offices and Jeffrey G. Moore, for Defendant and Respondent
Alex Trujillo.
Law Offices of Joel W. Baruch and Joel W. Baruch, for Defendant and
Respondent Laura Fitzpatrick.
Law Offices of Larry M. Bakman and Larry M. Bakman, for Defendant and
Respondent Lucia Trujillo.
Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, Benjamin
N. Gluck, for Defendant and Respondent Richard Trujillo.
The People appeal the order sustaining a demurrer to the felony complaint in this
action, which contended (as relevant here), the complaint failed to provide sufficient
notice of its charges in violation of Penal Code sections 950 and 952. (All undesignated
More from California Court of Appeal Source: opinion data from the Free Law Project / CourtListener (public-domain court records). DecisionDepot is for informational use only and is not legal advice — verify against the official reporter before relying on any text or AI-generated summary.
statutory references are to the Penal Code.) The People maintain they met applicable
pleading requirements. We agree and reverse the order.
FACTUAL AND PROCEDURAL BACKGROUND According to the People, Defendants Sabas Trujillo, Lucia Trujillo, Richard (Rick)
Trujillo, Laura Fitzpatrick, and Alex Trujillo (collectively Defendants), own or are
current or former employees of three entities, United Paving, Prestige Striping, and
Yeguada Trujillo, Inc. Following earlier pleading challenges, the People filed a 20-count
first amended felony complaint in January 2015, alleging Defendants submitted payroll
documents that underreported employee wages over a period of years to, among others,
two insurance companies, the State Compensation Insurance Fund, and the Employment
Development Department, for purposes of reducing insurance premiums and taxes.
Specifically, the People asserted violations of Insurance Code sections 1871.4 (workers'
compensation insurance fraud), 11760, subdivision (a) (same), and 11880, subdivision (a)
(same), Unemployment Insurance Code section 2118.5 (withholding tax fraud), Labor
Code section 1778 (wage fraud), and section 115 (false or forged instrument).
For each count relating to insurance and tax fraud, the People identified a
particular defendant or defendants, business, the statutory provision at issue, the relevant
time period (which, according to the People, generally corresponded to an insurance
policy term), and the alleged victim. For example, Count 1 stated, in relevant part:
"[D]efendants[] SABAS TRUJILLO, LUCIA TRUJILLO and RICK TRUJILLO[]
committed a violation of California Insurance Code section 11760, subdivision (a), a
felony, in that on or about June 1, 2005 through and including June 1, 2009, . . . they did
wilfully and unlawfully make and cause to be made a knowingly false and fraudulent
statement, orally and in writing, of a fact material to the determination of the premium,
rate, and cost of a policy of workers' compensation insurance, for the purpose of reducing
the premium, rate, and cost of the insurance. (California Insurance Company by Prestige
Stripping Services, Inc.)"
Defendants demurred on statute of limitations grounds (which are not before us),
and for failure to conform to the pleading provisions of sections 950 and 952, contending
counts were "vague and uncertain as to the charges alleged." Rick Trujillo submitted
supplemental authority in support of the demurrer, focusing on its alleged deficiency
under section 954 in bringing multiple charges under single counts.
The trial court held a series of hearings on the demurrer. At a February 2015
hearing, the court stated the crimes at issue were single incident crimes, and the date on
which Defendants submitted a false document was the crime, explaining the specificity
issue was the lack of specific dates. The court took the matter under submission and
subsequently issued an order, directing the People to "provide three specific dates of
crimes for each count," one within the first six months of the time period, one within six
months of the middle, and one within six months of the end. The court clarified it was
not limiting the People to "three counts per time period," but wanted to "obtain a better
view of what is truly at stake" so it "may make an appropriate ruling." At a hearing the
same day, the court again characterized the issue as "specificity under [section] 952."
The People provided a 1,198 entry spreadsheet identifying specific dates, rather
than date ranges. The People later revised the spreadsheet to reflect 1,096 entries and
certain other revisions. At the next hearing in March 2015, the trial court found the
"spreadsheet is good, it gets all the information out there," but directed the People to
prepare an "actual amended complaint" with "specific people that are charged and a
specific date and whatever it was that they did." It elaborated the People had to "have at
least one specific date per count" and "may want to file one count for every specific date,
or just file one count and use the other stuff as 1101(b)." California Evidence Code
section 1101, subdivison (b), permits admission of evidence a person committed a crime
to prove a fact other than disposition to commit such an act.
In April 2015, the parties again appeared on the demurrer. The People provided
copies of an amended complaint, now reflecting 1,104 counts, but maintained they were
not required to file it. The trial court reiterated its view that there was a "lack of
specificity," noting the "long time span," "number of defendants," and that "some
defendants were on some counts, some . . . in others" and finding the amended complaint
would answer the questions of "what exactly you are charging [them] with" and "which
days." The court sustained the demurrer and the People appealed.
DISCUSSION
I. Legal Principles All felonies are prosecuted by indictment or information, other than as provided in
section 859a (which is not at issue here). (§ 737; see also § 949.) The information is
preceded by a written complaint and a preliminary examination. (§ 738.)
The courts have observed that " 'in modern criminal prosecutions initiated by
informations, the transcript of the preliminary hearing, not the accusatory pleading,
affords defendant practical notice of the criminal acts against which he must defend.' "
(People v. Jones (1990) 51 Cal.3d 294, 317 (Jones), quoting People v. Gordon (1985)
165 Cal.App.3d 839, 870-871 (conc. opn. of Sims, J.); see also People v. Marshall (1957)
48 Cal.2d 394, 399, fn. 5 (accord); People v. Washington (1971) 17 Cal.App.3d 470, 475
(accord).) Specifically, "[t]he information plays a limited but important role - it tells a
defendant what kinds of offenses he is charged with and states the number of offenses
that can result in prosecution. However, the time, place, and circumstances of charged
offenses are left to the preliminary hearing transcript. This is the touchstone of due
process notice to a defendant. . . . The defendant may demur if he or she believes the
lack of greater specificity hampers the ability to defend against the charges." (People v.
Jeff (1988) 204 Cal.App.3d 309, 342 (Jeff).)
Section 1004 provides a defendant "may demur to the accusatory pleading at any
time prior to the entry of a plea, when it appears upon the face thereof" that, among other
things, "it does not substantially conform to the provisions of Sections 950 and 952, and
also Section 951 in case of an indictment or information," or "[t]hat more than one
offense is charged, except as provided in Section 954." An accusatory pleading
"include[s] an indictment, an information, an accusation, and a complaint." (§ 691, subd.
Section 950 requires the accusatory pleading to contain the title of the action, the
court, the parties' names, and a statement of the charged offenses. Section 952 states, in
relevant part: "[E]ach 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 made in ordinary and concise language without any
technical averments or any allegations of matter not essential to be proved. It may be in
the words of the enactment describing the offense or declaring the matter to be a public
offense, or in any words sufficient to give the accused notice of the offense of which he is
Section 954 states, also in relevant part: "An accusatory pleading may charge two
or more different offenses connected together in their commission, or different statements
of the same offense or two or more different offenses of the same class of crimes or
offenses, under separate counts . . . ."
C. Standard of Review "[A] demurrer lies only to challenge the sufficiency of the pleading. It is limited
to those defects appearing on the face of the accusatory pleading, and raises only issues
of law. [Citations.] ' "The [accusatory pleading] must be given a reasonable
interpretation and read as a whole with its parts considered in their context." ' " (People
v. Biane (2013) 58 Cal.4th 381, 388, italics omitted.)
However, a demurrer in a felony proceeding on section 952 grounds also requires
consideration of the preliminary hearing or grand jury transcript. (People v. Jordan
(1971) 19 Cal.App.3d 362, 369-370 (Jordan) ["Since the constitutional application of
section 952 relies in part upon notice afforded by the transcript, it follows a demurrer
under section 1004 for failure of the indictment to substantially conform to section 952
contemplates testing the adequacy of the notice to defendant by allegations in the
language of the statute when viewed in light of the transcript."]; People v. Hathaway
(1972) 27 Cal.App.3d 586, 595 (Hathaway) [accord]; People v. Tolbert (1986) 176
Cal.App.3d 685, 690, fn. 2 (Tolbert) [same with respect to information].)
On review, we make our own independent judgment on the sufficiency of the
complaint. (People v. Keating (1993) 21 Cal.App.4th 145, 150-151 [" ' "[W]e are not
bound by the construction placed by the trial court on the pleadings but must make our
own independent judgment thereon." ' "].)
II. Analysis The People contend the complaint was sufficient under sections 950 and 952 at
this stage of the felony proceeding. We agree. On the face of the complaint, there is no
issue; it states the action's title, court, parties, and charges (§ 950), and the counts set
forth the charges in ordinary language and using the statutory text, as permitted (§ 952).
Although it does not identify specific dates for all counts, it is not required to do so unless
time is a material element and Defendants identify no authority to establish it is. (§ 955
["The precise time at which the offense was committed need not be stated in the
accusatory pleading, but it may be alleged to have been committed at any time before the
finding or filing thereof, except where the time is a material ingredient in the offense."].)
With respect to the adequacy of notice for due process purposes, the authorities
direct us to review the allegations in the accusatory pleading in conjunction with the
preliminary hearing transcript, but are silent as to how to proceed when the preliminary
hearing has not occurred yet. (See, e.g., Jordan, supra, 19 Cal.App.3d at pp. 369-370.)
We find we still must consider the preliminary hearing's role, relative to notice; namely,
to provide sufficient information to satisfy due process concerns. (See, e.g., Jones, supra,
51 Cal.3d at p. 317; Jeff, supra, 204 Cal.App.3d at p. 342.) Here, the trial court requested
the People provide specific dates, information that normally is "left to the preliminary
hearing transcript." (Jeff, at p. 342.) The People provided this information and the court
found it satisfied its specificity concerns. We cannot assume the People would fail to
provide such information at the preliminary hearing and, at this early stage, find the
complaint sufficient for notice purposes. Because we find notice sufficient, we need not
reach the parties' arguments regarding restitution.
Defendants' arguments regarding notice at this stage are unpersuasive. First, they
contend the court cannot rely on later-provided information in assessing the sufficiency
of a complaint, citing a misdemeanor case, People v. Lamadrid (1981) 118 Cal.App.3d
786. However, Lamadrid itself distinguishes felony proceedings, noting in
misdemeanors, "no transcript of preliminary examination or grand jury proceedings will
be available (as it would be in felony proceedings) to augment the allegations of the
pleading." (Id. at p. 790; see also Sallas v. Municipal Court (1978) 86 Cal.App.3d 737,
742 ["[I]n felony prosecutions an accused will be advised of the nature of the charge
against him by the transcribed grand jury or preliminary hearing testimony, thus
ordinarily satisfying due process requirements. [Citations.] But such information is not
available to the misdemeanor defendant."].)
They also argue that while statutory language may suffice pre-demurrer, it may
not provide sufficient notice once tested, noting due process concerns and citing cases
where statutory language was insufficient (e.g., where the statutory definitions included
unconstitutionally vague terms). The due process concerns should be resolved at the
preliminary hearing and Defendants do not argue the statutes at issue are ambiguous;
rather, they want specifics regarding the alleged crimes, which, again, are provided at the
preliminary hearing. (See Jordan, supra, 19 Cal.App.3d at pp. 369-370 [recognizing that
"pleading in the words of a statute is not sufficient where the statute itself does not give
constitutionally adequate notice of the offense," but confirming that the adequacy of
allegations in statutory language must be tested in light of the transcript].)
Likewise unpersuasive is Defendants' argument that the post-preliminary hearing
cases are inapplicable. As our discussion ante reflects, we find felony procedural
considerations govern felony proceedings, even at the early stages. Thus, these cases are
instructive. The dearth of authority on pre-preliminary hearing demurrers in felony
proceedings is itself telling, but also unsurprising, given the function of the preliminary
hearing in providing notice and the ability to demur to the information. (See Jordan,
supra, 19 Cal.App.3d at pp. 369-370; §§ 961, 1004.)
Finally, Defendants suggest statutory timing rules require them to demur to the
felony complaint prior to the preliminary hearing or risk waiving their notice argument.
Section 1003 provides the demurrer and plea must be made "at the time of the
arraignment or at such other time as may be allowed to the defendant for that purpose,"
while section 1004 requires a demurrer be made before the plea. Even assuming a
demurrer to a felony complaint generally must be made prior to the preliminary hearing,
this does not change our analysis, as a defendant can demur to the information. (§§ 691,
1004; see also Tolbert, supra, 176 Cal.App.3d at p. 690.) Defendants, however, claim
failure to demur to the complaint constitutes waiver, relying on section 1012. But section
1012 simply provides that "[w]hen any of the objections mentioned in Section 1004
appears on the face of the accusatory pleading, it can be taken only by demurrer, and
failure so to take it shall be deemed a waiver thereof." (§ 1012.) It does not state a
defendant must demur at the first opportunity, nor prevent defendants from demurring to
informations or indictments on notice grounds (as the cases reflect they do). (See, e.g.,
Jordan, supra, 19 Cal.App.3d at pp. 369-370; Hathaway, supra, 27 Cal.App.3d at p. 594;
Tolbert, supra, at p. 689.) Defendants' reliance on In re Geer (1980) 108 Cal.App.3d
1002, 1005 is also misplaced, as Geer provides no guidance on the notice issues before
We now turn to Defendants' contention that the complaint violates principles of
"duplicity" (i.e., including two or more offenses in a single count) and section 954 by
including multiple criminal acts under each count. We decline to rule on this ground, as
Defendants did not actually demur upon it.
Section 954 is a waivable ground for demurrer. (§ 1012, People v. McNeill (1980)
112 Cal.App.3d 330, 334-335 (McNeill).) Defendants did not demur on this ground and
identify nothing to suggest the trial court ruled on it. Meanwhile, the record reflects the
trial court found the issue before it was specificity under section 952. Although
Defendants presented supplemental briefing and argument on section 954, they do not
explain their failure to include this ground in the demurrer itself. Under the applicable
pleading and waiver principles, we cannot affirm an order sustaining a demurrer by
relying on a waivable ground not stated in that demurrer, when the pleading is otherwise
sufficient. (See §1005 [demurrer "must distinctly specify the grounds of objection to the
accusatory pleading"]; People v. Palumbo (1932) 127 Cal.App. 703, 705-706 [objection
on section 954 grounds "can only be taken by demurrer"]; People v. McNabb (1935) 3
Cal.2d 441, 449 [finding demurrer deficient under section 1005 where it actually
identified section 954, but failed to specify how the allegation violated the section];
People v. Kemp (1961) 55 Cal.2d 458, 474 ["Under [§ 1012] it is well settled that in the
absence of demurrer or proper objection, the defendant must be deemed to have waived
the point"]; see also Collins v. Rocha (1972) 7 Cal.3d 232, 239 [in civil context,
reviewing stated grounds for demurrer, but finding objection that defendant failed to raise
by special demurrer was deemed waived].)
Although we do not reach the section 954 issue, we make two further observations
for the benefit of the parties and trial court.
First, Defendants do not establish that the section 954 issue here (i.e., whether the
alleged criminal activity constitutes multiple offenses for section 954 purposes) could be
resolved prior to the preliminary hearing. The People maintain this case involves
"necessarily multiple identical acts for a number of ongoing plans," pointing to ongoing
payroll practices; Defendants disagree, contending each submission was a separate act
and noting the People stated payroll "was submitted to the payroll company roughly once
per week, but it did fluctuate from time to time." The case upon which Defendants rely
to contend they can demur to a complaint including multiple offenses in one count,
McNeill, supra, 112 Cal.App.3d 330, did not even involve a demurrer. There, the
reviewing court reversed a conviction on a single assault count involving four victims,
finding each assault was a separate offense, the accusatory pleading was "defective in
alleging multiple offenses in one count" (although defendant waived the issue by not
demurring), and there was no sufficient unanimity instruction. (Id. at pp. 334-335.)
McNeill did not address a situation where, as we may have here, information at the
preliminary hearing may inform the section 954 analysis.
Second, even assuming section 954's "may charge . . . []under separate counts"
language, along with McNeill's findings and broader principles of duplicity, prohibit
multiple acts in the same count, the authorities on which the parties rely provide little
guidance on how to apply the facts before us to a section 954 demurrer at this stage.
The People cite People v. Bailey (1961) 55 Cal.2d 514 and People v. Whitmer
(2014) 59 Cal.4th 733 (Whitmer). These cases address aggregation of theft offenses in
certain contexts and may not apply to the alleged criminal conduct here at all. (Bailey, at
pp. 518-519; Whitmer, at p. 740; People v. Kirvin (2014) 231 Cal.App.4th 1507, 1518.)
Defendants rely on continuing offense cases from various contexts and stages, only one
of which even addresses insurance fraud (and appears to involve incidents of fraud rather
than an alleged ongoing plan to reduce insurance premiums). (See People v. Zanoletti
(2009) 173 Cal.App.4th 547, 556 [upholding insurance fraud convictions under two
subsections of section 550, where they were based on different acts of fraud]; see also,
e.g., Wright v. Superior Court (1997) 15 Cal.4th 521, 525, 524 [finding felony
prosecution for failure to comply with sex offender registration statute was not ex post
facto because such failure was a continuing offense]; People v. Epps (1981) 122
Cal.App.3d 691, 701, 704 [reversing conviction based on multiple acts of annoying or
molesting a minor where court failed to give sua sponte unanimity instruction].)
Defendants also cite Jordan, supra, 19 Cal.App.3d at p. 371 (addressing the specificity of
assault charges on a demurrer to an indictment, not purported multiplicity in a felony
complaint), and federal constitutional law and out-of-state authority (by its nature,
offering little guidance on section 954).
None of these authorities expressly prohibit what the People seek to do at this
early stage, and if anything, suggest the kind of multiplicity questions at issue here may
be resolved at least somewhat later in a proceeding; e.g., after the preliminary hearing or
grand jury. (See, e.g., Whitmer, supra, 59 Cal.4th at p. 747 (conc. opn. of Liu, J)
[observing, in the theft context, "it may not be evident at the time of charging whether the
takings were 'committed pursuant to one intention, one general impulse, and one plan' "];
Jordan, supra, 19 Cal.App.3d at p. 371 [on demurrer to indictment after grand jury,
noting defendant's right "to demand the People make an election of the acts upon which
they rely as to specific counts" and finding it "appropriate . . . the election be exercised by
amendment of the accusatory pleading"]; see also People v. Salvato (1991) 234
Cal.App.3d 872, 882 ["[T]he defendant is entitled, at the commencement of trial (or as
soon as practically possible), to a prosecutorial election upon demand."]; People v.
Gonzales (2014) 60 Cal.4th 533, 537 [observing "Section 954 . . . concerns the propriety
of multiple convictions."].)
DISPOSITION The order is reversed and the matter is remanded to the trial court for further
proceedings consistent with this opinion.
AARON, J.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069275 Plaintiff and Appellant, (Super. Ct. No. RIF1405208)
v. ORDER CERTIFYING OPINION FOR PUBLICATION SABAS TRUJILLO et al.,
Defendant and Respondent.
The opinion in this case filed January 4, 2016, was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of
Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is
GRANTED. IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing on
page 1 of said opinion be deleted and the opinion herein be published in the Official
AI-generated · verify before citing Holding. The court held that the felony complaint provided sufficient notice of the charges under Penal Code sections 950 and 952, as the preliminary hearing transcript—not the complaint itself—is the primary vehicle for providing notice of the specific criminal acts.
Issues
Whether a felony complaint must identify specific dates for each count to satisfy the notice requirements of Penal Code sections 950 and 952. Whether a demurrer can be sustained on the ground of duplicity under Penal Code section 954 when that ground was not specified in the demurrer. Disposition. reversed
“'in modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend.'” “We decline to rule on this ground, as Defendants did not actually demur upon it.”