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Name: Quinones v. San Diego County Superior Court
Case #: D052665
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/19/2008

Charges in the information filed following the preliminary hearing are limited to those offenses identified in the commitment order, any new offense arising out of the same transaction as the offense for which defendant has been committed, or any other offense shown by the evidence presented at the preliminary hearing, and cannot unfairly surprise defendant. Following a preliminary hearing dealing with a road rage incident resulting in significant injury to the victim, the parties stipulated that the complaint charging assault with a deadly weapon likely to produce great bodily injury, an enhancement for personal use of a deadly weapon, and a probation limitation alleging personal infliction of great bodily injury, and torture, could serve as the information. Five months later, a different prosecutor amended the information to add attempted murder and torture charges, thereby increasing the potential sentence exposure from eight years in prison to life. The appellate court noted that the preliminary hearing, at which a defendant has several substantial rights, determines if there is probable cause to believe defendant has committed a felony offense. It also operates as a judicial check on prosecutorial discretion and notifies a defendant of the charges for which he may be tried at trial. Accordingly, the information is limited to evidence adduced at the hearing and cannot unfairly surprise the defendant. Here, the torture offense charge which requires actual injury plus intent to inflict cruel and extreme pain for suffering and revenge is different in required elements from the assault charge. Due to the conjunctive language in the probation limitation allegation, petitioner was not on notice that he would be charged with the offense of torture. Because petitioner was not on notice of the potential charging of torture, he did not assert his rights at the preliminary hearing to challenge its basis and attempt to eliminate it. On the basis of these factors, the court ordered petitioner’s writ prohibiting the prosecution from proceeding on the torture charge to issue.