P. v. Solorio CA1/4

Filed 4/15/13 P. v. Solorio CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A134476 v. ANDRES SOLORIO, (Sonoma County Super. Ct. No. SCR609362) Defendant and Appellant.

I. INTRODUCTION A complaint was filed charging appellant with possession of a switchblade knife, a misdemeanor. After appellant had been arraigned and pled not guilty, the prosecution filed an amended complaint based on the same facts, without notice to appellant or leave of court, charging appellant with possession of a concealed dirk or dagger, a felony. Appellant demurred to the amended complaint, and moved to dismiss on the ground that he had not received a preliminary hearing within 10 days of his arraignment. The trial court overruled the demurrer and denied the motion to dismiss. After this court denied appellant‟s petition for a writ of prohibition, appellant entered into a plea bargain, reserving his right to appeal. The trial court granted a certificate of probable cause. Appellant contends that the trial court erred in permitting the prosecution to amend its misdemeanor complaint to charge a felony in the same proceeding. We conclude appellant has not shown he was prejudiced by any irregularity in the proceedings, and therefore affirm.

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II. PROCEDURAL BACKGROUND On October 25, 2011,1 the Sonoma County District Attorney (prosecution) filed a complaint charging appellant with possession of an illegal switchblade, a misdemeanor, under former Penal Code section 653k.2 The crime was alleged to have been committed on October 22. Appellant, who was already in custody, was arraigned on October 25, and pled not guilty. He waived time for trial, and remained in custody. On November 2, the prosecution filed an amended complaint, under the same case number assigned to the original complaint filed on October 25. The amended complaint charged appellant with possession of a concealed dirk or dagger, a felony, under former Penal Code section 12020, subdivision (a)(4). The prosecution did not seek leave of court before filing the amended complaint, and did not serve notice of its filing on appellant‟s trial counsel. On November 3, appellant was arraigned on the amended complaint, but did not enter a plea. On November 9, appellant filed a demurrer to the amended complaint, and a document entitled “opposition to amendment of complaint.” The prosecution filed an opposition to the demurrer, and on November 17, the trial court held a hearing on the matter. At the November 17 hearing, the trial court overruled appellant‟s demurrer, and implicitly rejected appellant‟s opposition to the prosecution‟s amendment of the complaint. Appellant then pled not guilty, and moved to dismiss the complaint because he had not been afforded a preliminary hearing within 10 days of his arraignment. The 1 All further references to dates are to the year 2011 unless otherwise noted. Because this case was resolved by a guilty plea, the facts leading to appellant‟s arrest are not reflected in the record, and in any event, are not germane to the issues on appeal. 2 All further statutory references are to the Penal Code; all further references to former Penal Code sections are to the version of the Penal Code in effect in 2011. Effective January 1, 2012, the pertinent part of former section 653k was reenacted without substantive change as section 17235, and the pertinent part of former section 12020, subdivision (a)(4) was reenacted without substantive change as section 21310. (Stats. 2010, ch. 71, § 6, operative Jan. 1, 2012.)