Trial court erred in sustaining defendants’ demurrer to complaint that met statutory pleading requirements. Defendants own or are current/former employees of several construction companies. They were charged in a 20-count complaint with numerous offenses related to the underreporting of employee income to the state and to insurance companies, for the purpose of reducing insurance premiums and taxes. Defendants demurred to the complaint, alleging it failed to give sufficient notice of the charges in violation of statutory requirements (see Pen. Code, §§ 950, 952). The prosecution presented an amended complaint with more detail and 1,104 counts, but maintained it was not required to file the amended complaint. The trial court sustained the demurrer, finding the lack of specificity related to the absence of specific dates the alleged crimes were committed. The prosecution appealed. Held: Reversed and remanded. A defendant may demurrer to an accusatory pleading at any time prior to entry of a plea when the pleading does not conform to the requirements of sections 950 (pleading must contain title of action, the court, the parties’ names and a statement of the charged offenses) and 952 (pleading must specify the offense charged). Normally, the allegations in an accusatory pleading are reviewed in conjunction with the preliminary hearing or grand jury transcripts. In a case such as this, where the preliminary hearing has not occurred, the preliminary hearing’s role to provide notice must still be considered. Here, prosecution provided more specific information about the charges in response to the trial court’s request and there is no reason to assume that this information would not be provided at the preliminary hearing. Under these circumstances, the complaint conformed to the statutory requirements. Although it did not refer to specific dates, it is not required to do so unless time is a material element of the charged offense.

Defendants’ contention the accusatory pleading violates Penal Code section 954 may not be considered on appeal because this was not a ground of their demurrer. The defendants claimed the complaint violated principles of “duplicity” and Penal Code section 954 by including more than one offense in a single count. Section 954 is a waivable ground for demurrer. The defendants did not demur upon this ground in the trial court, so the Court of Appeal did not decide the issue (see Pen. Code, § 1005 [demurrer must specify objections to accusatory pleading]).

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D069275.PDF