Trial counsel rendered ineffective assistance by failing to object to the prosecution’s motion to amend the information to add new counts and a conduct enhancement after the defendant had waived a preliminary hearing. Rogers was charged with numerous offenses based on a domestic violence incident. He waived a preliminary hearing and the prosecutor filed an information with charges identical to those in the complaint. Before trial, a new prosecutor moved to amend the information to add three new counts and a great bodily injury (GBI) enhancement (Pen. Code, § 12022.7, subd. (e)). Defense counsel did not object to the amendment and the trial court granted the motion. The jury convicted Rogers of two of the newly charged offenses, in addition to other offense, and found true the GBI enhancement. He appealed, arguing trial counsel rendered ineffective assistance by failing to object to the amended information. Held: Remanded with directions to strike the convictions and enhancement. Section 1009 prohibits amending an information to charge an offense not shown by evidence taken at the preliminary hearing. If a defendant waives the preliminary hearing, the prosecution may not amend the information to add new charges. (People v. Peyton (2009) 176 Cal.App.4th 642, 654.) Here, the court concluded that the same logic should also apply to conduct enhancements. (See People v. Superior Court (Mendella) 33 Cal.3d 754.) Like new charges, conduct enhancements (like a GBI enhancement) can be added post-information if based on evidence adduced at the preliminary hearing. Thus, like new charges, new conduct enhancements cannot be added post-information when the defendant has waived a preliminary hearing. Accordingly, defense counsel rendered ineffective assistance by failing to object when the prosecutor sought to add new charges and a GBI enhancement and the convictions and true finding must be stricken.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C077159.PDF