People v. Dugan

AGEE, J. In the absence of some showing of prejudice, a jury conviction of first degree robbery should not be set aside merely because defendant’s plea of not guilty to the amended information was made in chambers instead of in open court as required by Penal Code sections 1017 and 1018. We, of course, are not concerned here with a plea of guilty.

Defendant had previously pleaded not guilty to the information in open court. However, he was again arraigned when the information was amended by changing the amount obtained in the robbery from $300 to $200 and by adding that defendant had served a term in state prison on the first prior conviction charged in the original information.

We are of the opinion that the procedural error now complained of on appeal did not in any way prejudice defendant or result in a miscarriage of justice. (Cal. Const., art. VI, §4%.)

Defendant had been charged in a prior action with the same offense and the information therein was set aside by order of the superior court pursuant to a motion made by defendant under Penal Code section 995. However, section 999 of the Penal Code provides that such an order “is no bar to a future prosecution for the same offense.’’ Such [256]relitigation is not a denial of due process. (People v. Prewitt, 52 Cal.2d 330, 340 [341 P.2d 1]; People v. Van Eyk, 56 Cal.2d 471, 477 [15 Cal.Rptr. 150, 364 P.2d 326].)

Defendant was accordingly again charged and held to answer following another preliminary examination in which the evidence was more detailed but was substantially the same as before. He now contends on this appeal that the order setting aside the information in the prior action “was a final determination of the issue as to whether there was or was not probable cause to hold defendant over as to evidence adduced at the first preliminary hearing” and that such finding “was res judicata of this issue upon the same set of facts.”

While section 995 of the Penal Code provides in pertinent part that a defendant may move to set aside an information on the ground that he “had been committed without reasonable or probable cause,” defendant did not so move in the present prosecution.

Section 996 of the Penal Code provides that, unless such motion is made, “defendant is precluded from afterwards taking the objections mentioned in the last section [995].” (People v. Middleton, 103 Cal.App. 135, 137 [283 P. 976], to the effect that section 996 relates back to section 995, not 995a.)