IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
February 3, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BILLY CHUM, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF109486B)
The opinion of the court was delivered by: Hoch , J.
P. v. Chum CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Billy Chum of assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1),*fn1 threatening a witness (§ 140; count 2), street terrorism (§ 186.22, subd. (a); count 4), and street gang activity (§ 186.26, subd. (a); count 5). The jury also found true the allegations that each of the offenses was committed for the benefit of a street gang (§ 186.22, subd. (b)(1)), and that count 5 was committed by recruiting a minor for street gang activity (§ 186.26, subd. (d)). The trial court sentenced defendant to nine years and eight months in state prison.
On appeal, defendant contends (1) the information was improperly amended to substitute a different victim in count 2 after he waived his right to a preliminary hearing, (2) insufficient evidence supports his conviction of threatening a witness, (3) the trial court erred in admitting testimony by a detective that defendant knew about the conviction of a fellow gang member, and (4) section 654 precluded separate prison terms for his conviction of counts 1 and 2.
We conclude that the trial court erred in allowing the People to amend count 2 of the information during trial. Our conclusion obviates the need to consider defendant's remaining contentions, each of which hinges upon his conviction of count 2. We remand the case to the trial court for resentencing on the remaining counts of conviction and sentence enhancements.
FACTUAL AND PROCEDURAL HISTORY
In an amended complaint, the San Joaquin County District Attorney charged Rodney Noch and defendant with several offenses related to the beating of Uon Un. In pertinent part, the amended complaint alleged that defendant dissuaded a witness, Uon Un, in violation of section 136.1. During a preliminary hearing on the charges faced by Noch and defendant, Noch reached a negotiated plea agreement. Defendant then waived the remainder of the preliminary hearing. The evidence presented during the preliminary hearing focused on the beating of Uon Un, but did not show any threat to Emily Un.*fn2
An information was subsequently filed that charged, in count 2, that "[o]n or about 09/09/2008 the crime of THREATENING A WITNESS, in violation of Section 140 . . . , a FELONY, was committed by BILLY CHUM, who at the time and place last aforesaid, did willfully and unlawfully threaten to use force and violence upon UON UN, or did take, damage and destroy property of said victim because said victim provided assistance and information to a law enforcement officer and a public prosecutor in a criminal and juvenile court proceeding."
A jury trial commenced, during which the People introduced evidence that defendant is a member of the Tiny Raskal Gang and participated in attacking Uon on September 9, 2008. The People also introduced evidence that defendant's assault on Uon was meant to retaliate against Emily for her testimony against other members of the Tiny Raskal Gang.
Amendment of Count 2 of the Information to Allege a Different Victim Defendant contends the trial court erred in allowing the People to amend the information to substitute Emily for Uon as the victim in count 2. The contention has merit.
A. Constraint on Amendment of an Information After a Preliminary Hearing has been Waived
The Penal Code prohibits amendment of an information to allege an offense not shown by the evidence adduced at the defendant's preliminary hearing. Specifically, section 1009 provides: "An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination." In People v. Winters (1990) 221 Cal.App.3d 997 (Winters), the Court of Appeal noted that "[t]he general framework within which criminal pleadings are amended is statutorily derived and has remained constant since 1911. (People v. Superior Court (Alvarado) (1989) 207 Cal.App.3d 464, 472.) Section 1009 authorizes amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination." (Id. at p. 1005; see also id. at p. 1007.)
In Winters, the Court of Appeal reversed a conviction for which the defendant was not charged in the pleading to which he waived his right to a preliminary hearing. (221 Cal.App.3d at pp. 1006-1007.) Reversal was required even without an analysis of prejudice or a showing that the defendant had not had actual notice of the facts underlying the new charges. (Ibid.) The Winters court explained, "Before any accused person can be called upon to defend himself on any charge prosecuted by information, he is entitled to preliminary examination upon said charge, and the judgment of the magistrate before whom such examination is held as to whether the crime for which it is sought to prosecute him has been committed, and whether there is sufficient cause to believe him guilty thereof. These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial. To say that he was accorded a fair trial upon an information filed against him without a substantial compliance with these jurisdictional requirements, and, therefore, that there had been no miscarriage of justice, hardly meets the situation. Such an argument would apply with equal force to the validity of the conviction upon an information filed by the district attorney in a case where no preliminary examination at all had been held. Such practice would result, in legal effect, in wiping out all provisions of the [C]onstitution and the Penal Code providing for a preliminary examination, and in clothing the district attorney with unlimited authority to file information against whomsoever in his judgment he might consider guilty of crime." (Id. at p. 1007, quoting People v. Bomar (1925) 73 Cal.App. 372, 378, italics added by the Winters court.)
B. Amendment of Count 2 to State a Different Victim
In this case, the trial court erroneously granted the People's motion to amend count 2 of the information to conform to proof at trial. No evidence introduced in the preliminary hearing showed Emily to be the victim of a threat by defendant. Defendant's waiver of the remainder of the preliminary hearing after his co-defendant accepted a plea deal precluded the People from adding new charges to the operative complaint. (§ 1009; Winters, supra, 221 Cal.App.3d at pp. 1006-1007.) Consequently, the trial court erred in allowing the mid-trial amendment of count 2 to allege a violation of section 140 against Emily.
The People urge us to affirm by looking "to the amended complaint to determine whether [defendant] received the measure of notice required to satisfy his right to due process." On this point, the People assert that defendant "was charged in count 2 of the amended complaint with threatening a witness within the meaning of section 140, the same offense charged in count 2 of the information, as amended." The record does not support this assertion. Count 2 of the amended complaint expressly alleged an offense "as to Rodney Ren Noch only." (Italics added.) In the amended complaint, the charge of violating section 140 did not pertain to defendant. Moreover, count 2 of the amended complaint charged a violation of section 140 against Uon, not Emily. Thus, the amended complaint did not support amendment of the information to charge defendant with threatening Emily.
Next, the People contend we should deem the amendment of count 2 to have "state[d] more particularly the nature of the acts relied upon . . . ." The People contend "the amendment identifying Emily Un as the victim neither changed the offense charge[d], nor charged a new offense not previously alleged in the complaint." We disagree. Even though the People did not amend count 2 to allege a different Penal Code violation, the substitution of victims meant that a new offense was alleged. Commission of the same type of offense against separate persons constitutes separate crimes. (See People v. Davey (2005) 133 Cal.App.4th 384, 390.) Substituting Emily for Uon ran afoul of section 1009's prohibition on amendment of an information to state charges not shown in a preliminary hearing.
In sum, neither the amended complaint nor the evidence adduced at the preliminary hearing supported an amendment of the information to charge defendant with a threat against Emily. Consequently, the trial court erred in allowing the People to amend count 2 of the information.
Defendant's conviction of threatening a witness (Pen. Code, § 140) as alleged in count 2 is reversed. In all other respects, the judgment is affirmed. The case is remanded to the trial court for resentencing on the remaining counts and sentence enhancements.
We concur: BLEASE , Acting P.J. ROBIE ,J.