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Name: People v. Peyton
Case #: E044069
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 08/10/2009

Under Penal Code section 1009 (amendment of accusatory instrument), when no preliminary hearing is held, defendant may not be charged with additional crimes not charged in the pleading to which he waived his right to a preliminary hearing. Appellant waived preliminary hearing on the charged four counts of aggravated sexual assault and the prosecution then filed charging documents essentially alleging the same conduct. Once trial started, the prosecution amended the information to allege a fifth count without objection from defense counsel. The appellate court agreed that trial counsel was ineffective in failing to object and reversed appellant’s conviction on this count. The court explained that preliminary hearings provide the requisite due process notice to defendant of the charges against him so that he can defend himself. Police reports and other discovery or information available to defendant are an inadequate substitute for the preliminary hearing transcript. Where appellant waives the hearing, a charge added to the information that was not alleged in the complaint deprives appellant of this right to due process. On the other hand, amendment to the information to correct a variance in the pleadings with evidence presented at trial is not regarded as material unless it is so substantive as to mislead appellant in the preparation of his defense. Here, excluding the addition of the fifth count, the pleadings consistently alleged four Penal Code section 269 charges dealing with one victim and conduct over a limited time period. The only difference between the initial complaint and the final information was the type of conduct underlying the assault. These amendments did not prejudice appellant’s ability to prepare a defense; particularly where he denied engaging in any illegal conduct whatsoever. Accordingly the convictions on these four counts were affirmed.