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Name: Barragan v. Superior Court
Case #: C054719
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/28/2007

Penal Code sections 950, 951, 952, governing accusatory pleadings in a criminal case, permit amendment of the information to allege aggravating factors for purposes of sentencing per Cunningham. As the prosecution prepared to present its first witness, Cunningham v. California (2007) __U.S.__ [166 L.Ed.2d 856] was decided. In response, the prosecutor amended the information to allege aggravating factors for sentencing purposes. Appellant’s demurrer was overruled and he filed a writ of prohibition. Construing the statutes governing accusatory pleadings, the appellate court found that they do not preclude allegations other than public offenses. Further, the court noted that an aggravating factor is not an “offense” within the meaning of Penal Code section 1009 and, as such, does not require the prosecutor to plead and prove the factors at preliminary examination.