Motion Bank # M-3006 (Re: LRO II(J) [The Defendant Should Be Permitted To Move For Amendment Of The Information Under PC 1009 To Add Uncharged Offenses] / LRO II(K) Even If Granting A Defense Motion To Amend Violates Separation Of Powers Principles, Federal Constitutional Principles Require The Court To Consider A Discretionary Motion To Amend By The Defendant].)
NOTE: The text of the footnote appears at the end of the document.
Attorney for John Doe
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ____________
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
JOHN DOE,
Defendant.
____________________________________/
MOTION FOR DISCRETIONARY AMENDMENT OF INFORMATION
TO INCLUDE UNCHARGED OFFENSE
(Penal Code Section 1009)
Defendant hereby moves, pursuant to Penal Code § 1009, for an order amending the information to include a charge of ________ in violation of _______. This motion will be based on this notice of motion, the attached points and authorities in support of the motion, all of the records and files in this case and such other evidence as may be presented in support of this motion at the time of the hearing.
Dated: Respectfully Submitted,
___________________________
Attorney for Defendant
JOHN DOE
Attorney for John Doe
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ____________
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
JOHN DOE,
Defendant.
____________________________________/
POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR DISCRETIONARY AMENDMENT OF INFORMATION
TO INCLUDE UNCHARGED OFFENSE
(Penal Code Section 1009)
A. The Defendant Should Be Permitted To Move For Amendment Of The Information Under Penal Code § 1009.
After arraignment an information may be amended, in the court’s discretion, pursuant to Penal Code § 1009 which provides, in pertinent part:
The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, … unless the substantial rights of the defendant would be prejudiced thereby. 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.
This language has been interpreted to permit discretionary amendment of the information to add additional charges provided they were proven at the preliminary hearing and the defendant is not prejudiced. (See e.g, People v. Brown (1973) 35 Cal.App.3d 317, 322 [110 Cal.Rptr. 854].)
While most reported cases involved a motion for amendment by the prosecution, Penal Code § 1009 does not expressly limit the statute to prosecutorial motions. And, this statutory language has been interpreted to include amendments initiated upon the court’s own motion. (See People v. Walker (1947) 82 Cal.App.2d 196, 198 [185 P.2d 842] [amendment on court’s own motion under former Penal Code § 1008 containing language similar to Penal Code § 1009]; see also People v. Castillo (1915) 28 Cal.App. 190 [151 P. 746]; People v. Sherman (1962) 211 Cal.App.2d 419, 424 [27 Cal.Rptr. 353].)
Moreover, by giving the trial court discretionary power over whether to allow post-information amendment by the prosecution, Penal Code § 1009 evinces a legislative intent that the court exercise substantial discretion over post-information charging decisions. The defendant should have just as much right to ask the court to exercise this discretion to amend the information as does the district attorney.
B. Birks Does Not Preclude Discretionary Amendment Upon A Defense Motion.
Nothing in Birks (People v. Birks (1998) 19 Cal.4th 108 [77 Cal.Rptr.2d 848]) precludes the defendant from moving to amend the information pursuant to Penal Code § 1009. Birks overruled People v. Geiger (1984) 35 Cal.3d 510 [199 Cal.Rptr. 45] because Geiger granted the defendant absolute power to gain instruction on lesser related offenses. This linchpin of Birks‘ analysis was stressed throughout the opinion:
“The Geiger rule, however, is calculated to produce just such an unfair one-way street where lesser related offenses are at issue. On the one hand, the defendant’s right to notice of the charges limits the circumstances in which a jury, over the defendant’s objection, may receive instructions on lesser offenses which are not necessarily included in those to which a plea was entered. On the other hand, if a lesser offense is related to the charge, as Geiger defines that term, Geiger gives the defendant an absolute entitlement to such instructions on request, regardless of notice or prejudice to the People, and even over their objection. ¶ Given the parties’ differing trial burdens and responsibilities, the consequent tactical imbalance is significant and inappropriate.” [Emphasis added.] (Birks, 19 Cal.4th at 127-28.)
“Geiger thus affords the defense a superior right at trial to determine whether the jury will consider a lesser offense alternative, or instead will face an all-or-nothing choice between conviction of the stated charge and complete acquittal. Such a rule is neither just nor rational.” (Birks, 19 Cal.4th at 128.)
“If the prosecutor declines to amend to allege a lesser related offense on which its case has not focused, the defendant can demand that the lesser offense be placed before the jury anyway, and the prosecutor is powerless to object. ¶ This inequality of rights and burdens is thus no mere abstraction. Instead, it directly contradicts the principles of neutrality and mutual fairness which, to a substantial degree, have informed and justified the rule requiring instructions on lesser necessarily included offenses.” [Emphasis added.] (Birks, 19 Cal.4th at 129-130.)
“Yet because a right to instructions such as that articulated in Geiger is absolute where it exists at all, the margin of error in ruling on a demand for lesser related offense instructions is small.” (Birks, 19 Cal.4th at 131.)
“Hence, separation of powers difficulties may arise, as they did in Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789]), from a constitutional interpretation that requires a judicial officer, acting at the defendant’s unilateral insistence, to add lesser nonincluded offenses which the prosecution has chosen to withhold in the exercise of its charging discretion, and to which it objects.” [Emphasis added.] (Birks, 19 Cal.4th at 136.)
Hence, Birks does not preclude the argument advanced here that the defendant may move for discretionary amendment of the information, under Penal Code § 1009. In fact, the analysis of Birks supports defendant’s contention. Birks emphasized the “inequality of rights and burdens” under Geiger which allowed the defendant to demand instruction on a lesser related but merely allowed the prosecutor to seek discretionary amendment. (Birks, 19 Cal.4th at 129-30.) Yet to allow the prosecutor to request discretionary amendment and to deny the same right to the defendant would violate the “equality of rights” upon which Birks so heavily relied. (See also People v. Moore (1954) 43 Cal.2d 517, 526 [275 P.2d 485] [“[t]here should be absolute impartiality as between the people and the defendant in the matter of instructions ….”].) In other words, if the prosecution can obtain amendment of the charges in the absence of prejudice to the defendant, the defendant be able to obtain amendment provided there is no prejudice to the prosecution.
C. Separation of Powers Principles Should Not Preclude Judicial Amendment of the Information.
There are several reasons why separation of powers principles (Calif. Const. Art I, § 3) do not limit the trial court’s discretion to amend the information to include an uncharged offense.
First, as discussed above, the statutory language has been interpreted to permit the trial court to amend the information on its own motion. (See People v. Walker (1947) 82 Cal.App.2d 196, 198 [185 P.2d 842].)
Second, while Birks discussed separation of powers, it did not “resolve the separation of powers issue ….” (Birks, 19 Cal.4th at 135.) Moreover, as discussed above, Birks considered the issue in terms of whether the defendant should be able to “dictate” whether to include a lesser charge (Id., at 134) not whether the trial court may, in its discretion, grant a defendant’s request to amend the information under Penal Code § 1009. [Footnote 1]
Third, allowing amendment of the charges in the absence of prejudice to the prosecution is a much different proposition than forcing uncharged offenses on the prosecution in situations where there is prejudice. If the trial court, in its discretion concludes that there is no prejudice and that amendment would further the interests of justice, such amendment should be considered reasonably within the broad powers of judicial discretion. For example, assume the defendant is charged with a substantive crime but the evidence also provides a basis for concluding that he/she was only an accessory after the fact. If the prosecution does not charge the accessory after the fact offense, and if the trial court is powerless to do so on its own motion, then the prosecution will have unilaterally dictated an all-or-nothing trial in which the jury can only convict of the greater offense or acquit. (Accessory after the fact is not an lesser included offense [People v. Markus (1978) 82 Cal.App.3d 447 [147 Cal.Rptr 151].) Such a trial would not be conducive to a fair and reliable jury verdict if the jury concluded that the defendant was an accessory after the fact. In that event the jury would have to choose between convicting the defendant of the greater crime which he/she did not commit or letting a person who committed a crime (i.e., accessory) go free.
Reasonably, whether such a trial should be submitted to the jury in the posture of an all-or-nothing choice should not be unilaterally dictated by the prosecution but should be decided by the trial court after fair and objective weighing of all the circumstances.
D. Even If Granting A Defense Motion To Amend Violates Separation Of Powers Principles, Federal Constitutional Principles Require The Trial Court To Consider A Discretionary Motion To Amend By The Defendant.
Procedures which unfairly favor the prosecution may also violate the federal constitution. (Wardius v. Oregon (1973) 412 U.S. 470, 473 fn. 6 [37 L.Ed.2d 82; 93 S.Ct. 2208].) In Wardius the U.S. Supreme Court warned that “state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial” violate the defendant’s due process rights under the Fourteenth Amendment. (See also Izazaga v. Superior Court (1991) 54 Cal.3d 356, 372-77 [285 Cal.Rptr. 231]; cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1180-92 (1960).) Noting that the Due Process Clause “does speak to the balance of forces between the accused and his accuser,” Wardius held that “in the absence of a strong showing of state interests to the contrary” … there “must be a two-way street” as between the prosecution and the defense. (Wardius, 412 U.S. at 474; see also People v. Birks, supra, 19 Cal.4th at 129 [rules regarding instruction on lesser offenses should be governed by principles of “neutrality and mutual fairness”]; People v. Moore, supra, 43 Cal.2d 517.)
Hence, even if the separation of powers clause of the California Constitution is interpreted to preclude a defense request for amendment of the information, this would violate the defendant’s federal constitutional rights. If the defendant’s theory of the case includes an uncharged offense, it would be fundamentally unfair to deny the defense an opportunity to request instruction on that theory (by constructive amendment) while at the same time allowing the prosecution to request amendment to conform with its theory of the case. Such an imbalanced procedure will promote unreliable and unfair verdicts in violation of the defendant’s federal constitutional rights to due process and fair trial by jury by allowing the prosecution to unilaterally dictate that the jury be given an all-or-nothing choice in situations where such a choice will skew the jury in favor of guilt in order to avoid setting a guilty defendant free. Moreover, denying the defense an opportunity to request amendment to encompass a defense theory would violate the defendant’s federal constitutional right to present a defense. (5th, 6th and 14th Amendments; see e.g., Mathews v. United States (1988) 485 U.S. 58, 63 [99 L.Ed.2d 54; 108 S.Ct. 883].)
E. Conclusion
Penal Code § 1009 vests with the trial court the ultimate power and discretion to decide whether the information should be amended to add an uncharged offense. Nothing in the statute states that this discretion can only be exercised at the behest of the prosecution. To the contrary, the cases have held that the statutory discretion to amend may be exercised by the court on its own motion. Hence there should be no limitation of this discretion simply because the amendment is suggested by the defendant. Moreover, the principles of equality and balance between litigants enunciated in Birks and the constitutional principles discussed above compel that Penal Code § 1009 be interpreted to allow the defense to request discretionary amendment of the information.
Dated: Respectfully Submitted,
___________________________
Attorney for Defendant
JOHN DOE
FOOTNOTES:
Footnote 1: A defense request for instruction on a lesser related offense is, in effect, a motion to amend the information. (See People v. Francis (1969) 71 Cal.2d 66, 75 [75 Cal.Rptr. 199]; People v. Toro (1988) 47 Cal.3d 966, 976 [254 Cal.Rptr. 811]; see also People v. Williams (1982) 316 N.W.2d 717, 719 [412 Mich. 711] [where the court held: “We regard the defendant’s action in prevailing upon the trial court to instruct the jury on the charge of accessory after the fact to have been the equivalent of a motion to amend the information * * *. [The] trial court agreed to so instruct the jury, thus effectively amending the information”].)
