After jury was discharged and defendant waived his right to a jury trial on his priors, trial court erred by allowing the prosecution to substantially amend the information to change the date, place, and the offense alleged as a strike prior. A jury convicted Lavoie of a number of felony offenses and was discharged. After waiving his right to a jury trial on his prior convictions, Lavoie admitted two strike priors, two prior serious felony enhancements, and two prison priors. While Lavoie was admitting the priors, the trial court permitted the prosecution to amend the alleged prior convictions. The first two amendments were to the date and jurisdiction of a prison prior and a prior serious felony. The third amendment changed the date, jurisdiction, and offense of a strike prior. Defense counsel did not object. Lavoie was sentenced to 71 years 4 months to life. On appeal, Lavoie argued it was error to allow the prosecution to amend the alleged prior convictions after the jury had been discharged. Held: Reversed in part. Penal Code section 1025, subdivision (b) “requires that the same jury that decided the issue of a defendant’s guilt ‘shall’ also determine the truth of alleged prior convictions. Because a jury cannot determine the truth of the prior conviction allegations once it has been discharged” an information may not be amended to add prior conviction allegations after the jury is discharged. (People v. Tindall (2000) 24 Cal.4th 767, 782.) After analyzing Tindall and related cases, the court concluded that “when a defendant has waived a jury trial on prior conviction allegations, and when the prior conviction allegations are amended typographically and not substantially, the waiver remains binding.” The waiver is not binding when the amendment is substantial. Here, the first two amendments to the date and jurisdiction of a prison prior and a prior serious felony were minor and did not constitute an error. The third amendment changing the date, jurisdiction and offense of a strike prior, however, was substantial.

Trial counsel provided ineffective assistance of counsel by failing to object to a substantial amendment to a prior conviction allegation after the jury had been discharged. The issue regarding the amendment to the information was forfeited on appeal because trial counsel did not object. Here, the failure to object constituted ineffective assistance of counsel. “[T]here could be no satisfactory explanation for defense counsel’s failure to object.” Lavoie could have avoided a 25-years-to-life sentence under the Three Strikes law if his trial attorney had objected. The erroneously amended strike was stricken and the matter remanded for resentencing.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/E068328.PDF