Date: May 4, #2- IPG (RODRIGUEZ - SASSER- SEDILLO February 5, 2016

Transcription

1 Date: May 4, #2- IPG (RODRIGUEZ - SASSER- SEDILLO February 5, IPG#15: FEAR NOT THE DEMURRER The filing of a demurrer to a charging document can be intimidating to some prosecutors. It smacks a little too much of civil litigation; and many prosecutors have a limited understanding of the law surrounding demurrers so they may not immediately realize when defense counsel is using the demurrer in unnatural ways. In this edition of IPG, our goal is to shine a light on the true nature of the demurrer and place it in its proper perspective so that prosecutors may stroll into court with a basic knowledge of when they actually need to worry about demurrers and when they do not especially when the demurrer is based on a claim of inadequate notice of the charges. However, if you do not have time to read the entire memo, at least know the following: Penal Code sections are the statutes that govern demurrers. A demurrer is limited to the grounds identified in section A demurrer is directed only to errors on the face of the accusatory pleading it cannot be used to challenge the sufficiency of the evidence. Prosecutors may refile a complaint dismissed after the granting of a demurrer, but must do so within 10 days. An accusatory pleading that simply states the offense by using the language of the statute alleged to be violated will normally comply with our statutory duty to provide adequate notice of what offense is alleged. However, it may not be sufficient to overcome a demurrer claiming the pleading fails to give constitutionally adequate notice especially if it is misdemeanor complaint. This IPG memo is accompanied by a podcast providing 35 minutes of general MCLE credit. Click hear to listen to the podcast: 1

2 TABLE OF CONTENTS 1. Wait! Before we start, what the heck is a demurrer anyway? 4 2. What statute identifies when demurrers may be filed? 4 3. Can a demurrer be filed that is not based on one of the statutory grounds identified in Penal Code section 1004? 5 4. May a demurrer be used to challenge the sufficiency of the evidence underlying the accusatory pleading? 5 5. How much information regarding the crime must be included in the accusatory pleading to overcome a demurrer based on a claim the pleading does not provide sufficient notice of the crime with which the defendant is charged? 6 A. What does not have to be included in the accusatory pleading? 8 1. The particulars of the offense, such as manner, means, place, or circumstances of the offense 8 2. Time of the offense 8 3. Presumptions of law and matters subject to judicial notice 9 4. The identity of the victim 9 5. Pleadings, records, or proceedings related to oath or authority of court or person before whom perjury was committed The coin, number, or denominations of money in theft of money, bank notes, stock certificates or securities Language used or figures shown in obscenity case Can a defendant base a demurrer on the ground that the accusatory pleading does not comply with the notice required by due process even if the pleading is technically in compliance with the requirements of sections ? In assessing whether a felony information or indictment substantially conforms to the notice provisions of section and/or due process, can the preliminary hearing or grand jury transcript be taken into account? In assessing whether a felony complaint comports with the notice requirements of due process, can the preliminary hearing or grand jury transcript be taken into account? Are the rules governing a demurrer to a misdemeanor complaint different than the rules governing demurrer to a felony complaint when the demurrer is based on a claim that the complaint does not meet the notice provisions of due process? 16 A. Can the fact that a defendant will be provided police reports in discovery suffice to meet due process concerns in the same way that a preliminary examination or grand jury transcript can be counted on to give adequate notice of the charges facing a defendant? 16 2

3 B. Can the fact that a defendant should reasonably be aware of what he is charged with be taken into consideration in assessing whether a charging document meets due process concerns? When a statute defines a material element of an offense by a reference to another statute, is charging in the language of the overarching statute sufficient to meet the requirements of section or due process? If a statute may be violated by possession or use of many different types of contraband (e.g., narcotics) does the complaint have to identify the specific type of contraband? Can a demurrer be used to challenge the validity of the statute identified in the accusatory pleading on vagueness or other grounds? Can a demurrer effectively be used to challenge joinder of offenses? Can a demurrer be made orally? When can or must a demurrer be filed and heard? If a demurrer is not filed, will any objection that might have been the basis for the demurrer be waived? 28 A. If a defendant waives preliminary examination, can the defendant still raise a claim of lack of due process notice to the information? Once a demurrer is filed, can the People amend the complaint to address any problem without leave of the court? What happens if the defendant s demurrer is denied? What happens if the defendant s demurrer is granted? Can the accusatory pleading be refiled? What happens if a demurrer is sustained and the accusatory pleading is not amended in response to the granting of the demurrer within ten days? Can the People appeal the granting of a demurrer? Can a demurrer be filed in a juvenile case? Can a defendant file a demurrer to a petition to revoke parole or probation? 32 3

4 1. Wait! Before we start, what the heck is a demurrer anyway? Funny... the term demurrer actually derives from the Latin or French word meaning to wait or stay. Black s Law Dictionary defines it as: A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the plaintiff to state a claim for relief and for the defendant to frame an answer. (DEMURRER, Black's Law Dictionary (10th ed. 2014).) The concept of the demurrer itself is infused with a very French-type of disdain as the party filing the demurrer to a complaint is effectively asking the court to stay the proceedings until the court determines whether the party even has to bother responding to such an insufficient, inadequate, and inarticulate charging document. 2. What statute identifies when demurrers may be filed? Penal Code section 1004 provides The defendant may demur to the accusatory pleading* at any time prior to the entry of a plea, when it appears upon the face thereof either: 1. If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged, or, if an information or complaint that the court has no jurisdiction of the offense charged therein; 2. That it does not substantially conform to the provisions of Sections 950 and 952, and also Section 951 in case of an indictment or information; 3. That more than one offense is charged, except as provided in Section 954; 4. That the facts stated do not constitute a public offense; 5. That it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution. *Editor s note: An accusatory pleading include[s] an indictment, an information, an accusation, and a complaint. (People v. Trujillo 2016 WL , *2 citing to Pen. Code, 691(c).) 4

5 3. Can a demurrer be filed that is not based on one of the statutory grounds identified in Penal Code section 1004? The legal grounds for demurrer to an accusatory pleading are limited to those specifically enumerated in Penal Code section (People v. Biane (2013) 58 Cal.4th 381, 388.) In Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, the California Supreme Court overruled the decision in People v. Jackson (1985) 171 Cal.App.3d 609, which had held that grounds other than those specified in Penal Code section 1004 may be urged in support of a common law demurrer raising constitutional and other attacks on the sufficiency of an accusatory pleading. (Tobe at p. 1091, fn. 10.) The Tobe court pointed out that Penal Code section 1004 specifies the grounds on which a demurrer may be made, and we have recognized that if a constitutional challenge is based on matters not appearing on the face of the accusatory pleading a demurrer will not lie. (Id. at p citing to In re Berry (1968) 68 Cal.2d 137, 146; but see this IPG memo, section 6, at p ) Moreover, the demurrer must distinctly specify the grounds of objection to the accusatory pleading or it must be disregarded. (Pen. Code, 1005, emphasis added by IPG.) Failure to assert one of the enumerated grounds, other than an objection to the jurisdiction of the court or that the facts stated do not constitute a public offense, shall be deemed a waiver thereof. (People v. Biane (2013) 58 Cal.4th 381, 388 citing to Pen. Code, 1012.) 4. May a demurrer be used to challenge the sufficiency of the evidence underlying the accusatory pleading? A demurrer is not a proper means of testing the sufficiency of the evidence supporting an accusatory pleading. (People v. Biane (2013) 58 Cal.4th 381, 388.) Rather, a demurrer lies only to challenge the sufficiency of the pleading. It is limited to those defects appearing on the face of the accusatory pleading, and raises only issues of law. (Ibid.) 5

6 5. How much information regarding the crime must be included in the accusatory pleading to overcome a demurrer based on a claim the pleading does not provide sufficient notice of the crime with which the defendant is charged? As noted above, one of the grounds for filing a demurrer is that it does not substantially conform to the provisions of Sections 950 and 952, and also Section 951 in case of an indictment or information[.] (Pen. Code, 1004(2).) Sections are notice statutes that explain the form the accusatory pleading must take. Penal Code section 950 states: The accusatory pleading must contain: 1. The title of the action, specifying the name of the court to which the same is presented, and the names of the parties; 2. A statement of the public offense or offenses charged therein. Penal Code section 951 states: An indictment or information may be in substantially the following form: The people of the State of California against A.B. In the superior court of the State of California, in and for the county of. The grand jury (or the district attorney) of the county of hereby accuses A.B. of a felony (or misdemeanor), to wit: (giving the name of the crime, as murder, burglary, etc.), in that on or about the day of, 19, in the county of, State of California, he (here insert statement of act or omission, as for example, murdered C.D. ). Penal Code section 952 states: In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another. (Emphasis added; see also Pen. Code, 958 [ Words used in a statute to define a public offense need not be strictly pursued in the accusatory pleading, but other words conveying the same meaning may be used. ].) 6

7 Penal Code section 959 provides: The accusatory pleading is sufficient if it can be understood therefrom: 1. That it is filed in a court having authority to receive it, though the name of the court be not stated. 2. If an indictment, that it was found by a grand jury of the county in which the court was held, or if an information, that it was subscribed and presented to the court by the district attorney of the county in which the court was held. 3. If a complaint, that it is made and subscribed by some natural person and sworn to before some officer entitled to administer oaths. 4. That the defendant is named, or if his name is unknown, that he is described by a fictitious name, with a statement that his true name is to the grand jury, district attorney, or complainant, as the case may be, unknown. 5. That the offense charged therein is triable in the court in which it is filed, except in case of a complaint filed with a magistrate for the purposes of a preliminary examination. 6. That the offense was committed at some time prior to the filing of the accusatory pleading. An accusatory pleading is not supposed to be larded with evidentiary detail; its purpose is to provide the accused with reasonable notice of the charges. (People v. Ruiloba (2005) 131 Cal.App.4th 674, citing to In re Hess (1955) 45 Cal.2d 171, 174, 175.) The [accusatory pleading] must be given a reasonable interpretation and read as a whole with its parts considered in their context. (People v. Biane (2013) 58 Cal.4th 381, 388.) The words used in an accusatory pleading are construed in their usual acceptance in common language, except such words and phrases as are defined by law, which are construed according to their legal meaning. (Pen. Code, 957.) There is no requirement that the statute which the accused is charged with violating be designated by number, and even a reference to the wrong statute has been viewed of no consequence... (People v. Ramirez (2003) 109 Cal.App.4th 992, 999 citing to People v. Schueren (1973) 10 Cal.3d 553, 558.) 7

8 A. What does not have to be included in the accusatory pleading? 1. The particulars of the offense, such as manner, means, place, or circumstances of the offense The particulars of an offense, including manner, means, place, or circumstances in general need not be alleged. It is sufficient if the essential elements of the offense are pleaded. (People v. Soto (1977) 74 Cal.App.3d 267, 273; see also People v. Hunt (1889) 120 Cal. 281 [in charging a violation of Penal Code section 148(a)(1) [t]he means and manner of the obstruction, resistance, or delay are matters of evidence, and are no more necessary to be alleged than the means or instrument used where charging a defendant with the crime on murder. ]; but see this IPG memo, section 10 at p. 21 [discussing statutes that reference other statutes].) 2. Time of the offense A charging document may substantially conform to the notice provisions of section even though it does not identify specific dates, unless time is a material element of the offense. (People v. Trujillo 2016 WL , at *3 citing to Pen. Code, 955 [ The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense. ]; see also Pen. Code, 959(6) [accusatory pleading is sufficient if it can be understood therefrom That the offense was committed at some time prior to the filing of the accusatory pleading. ].) In accordance with this statutory directive, the California Supreme Court has noted that a defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period. Beyond that,... the prosecution clearly has no duty to provide more explicit notice than human nature or science permit. (People v. Jennings (1991) 53 Cal.3d 334, 358 citing to People v. Jones (1990) 51 Cal.3d 294, 317; cf., People v. Barney (1983) 143 Cal.App.3d 490, 497 [when the prosecution s proof establishes the offense occurred on a particular day to the exclusion of other dates, and when the defense is alibi (or lack of opportunity), it is improper to give the jury an instruction using the on or about language].) 8

9 3. Presumptions of law and matters subject to judicial notice Neither presumptions of law, nor matters of which judicial notice is authorized or required to be taken, need be stated in an accusatory pleading. (Pen. Code, 961; but see Shortridge v. Municipal Court (1984) 151 Cal.App.3d 611, 616 [ a trial court may not judicially notice matters for the purpose of ruling upon a demurrer in a criminal case ].) 4. The identity of the victim As noted above, Penal Code section 952 specifically provides the name of victim of a theft need not be included in the accusatory pleading: In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another. However, there are other circumstances as well where section 952 will not violated just because the victim s identity is not alleged. For example, in People v. Stone (2009) 46 Cal.4th 131, the California Supreme Court court concluded that where a defendant was accused of attempted murder by firing a single shot at a group of 10 people, it would not be necessary to name a specific victim; rather, it would be sufficient to allege enough facts to give notice of the incident referred to and that the defendant is charged with attempted murder. (Id. at pp ; see also People v. Griggs (1989) 216 Cal.App.3d 734, 743 [due process did not require that victim be named when charging defendant with assault with deadly weapon, where defendant shot into crowd of people, and crowd dispersed and left scene of crime albeit also noting that in those cases of assault where further specificity is reasonably possible, such should be provided ]; People v. Gordon (1945) 71 Cal.App.2d 606, 610 [indictment sufficient despite omission of the names of the intended victims of the conspiracy - considering that defendant is entitled to testimony given before grand jury].) Penal Code section 956 also provides: When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, or of the place where the offense was committed, or of the property involved in its commission, is not material. 9

10 5. Pleadings, records, or proceedings related to oath or authority of court or person before whom perjury was committed Penal Code section 966 provides: In an accusatory pleading for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court and before whom the oath alleged to be false was taken, and that the court, or the person before whom it was taken, had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the accusatory pleading need not set forth the pleadings, records, or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed. (Emphasis added by IPG.) 6. The coin, number, or denominations of money in theft of money, bank notes, stock certificates or securities Penal Code section 967 provides: In an accusatory pleading charging the theft of money, bank notes, certificates of stock or valuable securities, or a conspiracy to cheat or defraud a person of any such property, it is sufficient to allege the theft, or the conspiracy to cheat or defraud, to be of money, bank notes, certificates of stock or valuable securities without specifying the coin, number, denomination, or kind thereof. 7. Language used or figures shown in obscenity case Penal Code section 968 provides: An accusatory pleading charging exhibiting, publishing, passing, selling, or offering to sell, or having in possession, with such intent, any lewd or obscene book, pamphlet, picture, print, card, paper, or writing, need not set forth any portion of the language used or figures shown upon such book, pamphlet, picture, print, card, paper, or writing; but it is sufficient to state generally the fact of the lewdness or obscenity thereof. 6. Can a defendant base a demurrer on the ground that the accusatory pleading does not comply with the notice required by due process even if the pleading is technically in compliance with the requirements of sections ? Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. (People v. Thomas (1987) 43 Cal.3d 818, 823; Ex parte Hess (1955) 45 Cal.2d 171, 175; accord People v. Stone (2009) 46 Cal.4th 131, 141.) 10

11 As noted above, [t]he legal grounds for demurrer to an accusatory pleading are limited to those specifically enumerated in Penal Code section (People v. Biane (2013) 58 Cal.4th 381, 388.) Moreover, section 1004 does not specify that a demurrer may be used to raise a constitutional challenge to an accusatory pleading based on a claim that the accusatory pleading is insufficient to meet the notice requirement of due process. Nonetheless, courts have allowed such a challenge to be made by way of demurrer even when there had been compliance with the statutory requirements outlined in sections (See Peer v. Municipal Court (1982) 128 Cal.App.3d 733, 737; Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, ; Lamadrid v. Municipal Court (1981) 118 Cal.App.3d 786, 790; In re Rudolfo A. (1980) 110 Cal.App.3d 845, 853; People v. Jordan (1971) 19 Cal.App.3d 362, 369.)* *Editor s note: Why is this? It probably has more to do with the fact that there exists no other mechanism to bring a due process challenge based on lack of notice at an early stage of the proceedings to statutes that are inherently vague at least if the defendant is not being held in custody. (See Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1091, fn. 10 [grounds other than those specified in Penal Code section 1004 may not be urged in support of a common law demurrer raising constitutional and other attacks on the sufficiency of an accusatory pleading. ]; cf., In re Peppers (1922) 189 Cal. 682 [challenge to statute on vagueness grounds made by defendant in custody by way of habeas petition].) In other words, if the accusatory pleading, in conformity with section 952, uses the language of the statute, but the language of the statute itself is vague, how can the defendant obtain a dismissal on due process grounds before too much effort has to be expended in defending against a charged offense? (See Lamadrid v. Municipal Court (1981) 118 Cal.App.3d 786, 790 [rejecting argument that since defense had adequate remedy on appeal, demurrer was not proper vehicle because defendant sought notice in order to prepare for trial and it would have been wholly futile to have required him to go to trial without such minimum notice. ].) That being said, an argument can be made that when the challenge is solely to lack of due process notice in the particular complaint, the defendant should not be allowed to bring the challenge by way of demurrer. In People v. Jackson (1985) 171 Cal.App.3d 609, the court relied on all the cases cited above (i.e., the cases allowing a due process challenge to be brought on grounds the specific complaint was deficient), as well as a few others, in support of its claim that there existed a long tradition of the non-statutory, common law demurrer as a vehicle for constitutional and other attacks on the sufficiency of an accusatory pleading. (Id. at p. 615.) However, while the California Supreme Court in Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069 recognized that if a statute under which a defendant is charged with a crime is invalid, the complaint is subject to demurrer under subdivisions 1, 4 and 5 of Penal Code section 1004, the Tobe court expressly overruled People v. Jackson (1985) 171 Cal.App.3d 609, finding that that grounds other than those specified in Penal Code section 1004 may not be urged in support of a common law demurrer raising constitutional and other attacks on the sufficiency of an accusatory pleading. (Tobe at p ) 11

12 As indicated, technical compliance with sections will not always meets due process concerns. (See Peer v. Municipal Court (1982) 128 Cal.App.3d 733, 737 [ sometimes literal compliance with Penal Code section 952 may give insufficient notice of the charged offense to satisfy due process standards ]; Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 1057 [ literal compliance with Penal Code section 952 may be insufficient to withstand a demurrer, where the language of the statute fails to give the accused constitutionally adequate notice of the offense with which he is charged ]; Lamadrid v. Municipal Court (1981) 118 Cal.App.3d 786, 790 [ a pleading which satisfies section 952 will not invariably, when tested by demurrer, satisfy due process notice requirements ]; People v. Jordan (1971) 19 Cal.App.3d 362, 369 [ Compliance with section 952 does not necessarily overcome a due process attack ]; see also People v. Schoonover (1970) 5 Cal.App.3d 101, 105 [finding allegation in the statutory language sufficient under section 952 (when reviewed on appeal) if the defendant has chosen not to demur]; People v. Johnson (1964) 230 Cal.App.2d 80, 85 [same]; People v. Clenney (1958) 165 Cal.App.2d 241, 254 [same].) However, while sometimes literal compliance with Penal Code section 952 may give insufficient notice of the charged offense to satisfy due process standards, [i]n the usual case, an accusation pleaded in compliance with section 952, when viewed in light of the transcript [of the grand jury proceedings or the preliminary hearing], provides sufficient notice to the defendant to withstand constitutional attack. (Peer v. Municipal Court (1982) 128 Cal.App.3d 733, 737 citing to People v. Jordan (1971) 19 Cal.App.3d 362, 369, 371, emphasis added by IPG; accord People v. Mosher (1969) 1 Cal.3d 379, 399; Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, 742; People v. Hathaway (1972) 27 Cal.App.3d 586, 595; Patterson v. Municipal Court (1971) 17 Cal.App.3d 84, 87 88; see also People v. Johnson (1964) 230 Cal.App.2d 80, 86.) *Editor s note: Penal Code section requires the provision of the transcript of the testimony at the grand jury to the charged defendant. Penal Code section 870 requires transcription of the testimony of each witness in cases of homicide, and in other cases upon the demand of the prosecuting attorney, or the defendant, or his or her counsel. A similar rule applies in juvenile cases where the question of whether a petition provides sufficient due process notice is viewed in light of, inter alia, the fact the juvenile is entitled to a transcript of the detention hearing. (See In re Jesse P. (1992) 3 Cal.App.4th 1177, ) 12

13 7. In assessing whether a felony information or indictment substantially conforms to the notice provisions of section and/or due process, can the preliminary hearing or grand jury transcript be taken into account? The answer to this question is nuanced. Prosecutors must make sure to ascertain whether the defense is basing the demurrer on grounds the accusatory pleading fails to comply with sections or if it fails to supply the notice required by due process. In assessing whether an information or indictment substantially conforms to the notice provisions of section , the preliminary hearing or grand jury transcript is not actually viewed as part of the information or indictment itself. In other words, prosecutors would probably not be able to argue that an information that does not accurately state a public offense substantially conforms to sections just because the public offense could be accurately stated based on the evidence to be elicited or elicited at the preliminary hearing. However, when the question is whether an information or indictment that literally conforms to sections violates the notice requirements of due process, a court does have to take into account the fact that defendants generally get adequate notice of the criminal acts with which they are charged by way of a preliminary hearing or grand jury transcript. (People v. Jordan (1971) 19 Cal.App.3d 362, [ Since the constitutional application of section 952 relies in part upon notice afforded by the transcript, it follows a demurrer under section 1004 for failure of the indictment to substantially conform to section 952 contemplates testing the adequacy of the notice to defendant by allegations in the language of the statute when viewed in light of the transcript. ]; People v. Trujillo 2016 WL , at *3 [same]; People v. Tolbert (1986) 176 Cal.App.3d 685, 690 [When the demurrer attacks the pleading for failure to give the accused constitutionally adequate notice of the offense,... the adequacy of notice given by allegations in the language of the statute is tested in the light of the transcript of the preliminary hearing or grand jury proceedings ]; Shortridge v. Municipal Court (1984) 151 Cal.App.3d 611, 616, fn. 5 [same].) (Emphasis added to all by IPG.) [I]n modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend. (People v. Jones (1990) 51 Cal.3d 294, 317, emphasis added by IPG; People v. Trujillo 2016 WL , at *2; accord People v. Marshall (1957) 48 13

14 Cal.2d 394, 399, fn. 5; People v. Washington (1971) 17 Cal.App.3d 470, 475.) The information plays a limited but important role it tells a defendant what kinds of offenses he is charged with and states the number of offenses that can result in prosecution. However, the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript. (People v. Trujillo 2016 WL , at *2 citing to People v. Jeff (1988) 204 Cal.App.3d 309, 342, emphasis added by IPG; accord People v. Butte (2004) 117 Cal.App.4th 956, 959.) Similarly, the sufficiency of the notice to defendant provided by [an] indictment must be tested not only in the light of the indictment itself, but also against the transcript of evidence presented to the grand jury. (People v. Hathaway (1972) 27 Cal.App.3d 586, 595; see also People v. Tolbert (1986) 176 Cal.App.3d 685, 690; Shortridge v. Municipal Court (1984) 151 Cal.App.3d 611, 616, fn. 5; People v. Jordan (1971) 19 Cal.App.3d 362, ) *Editor s note: A trial court is not, however, authorized to determine the jurisdictional sufficiency of an accusatory pleading by resort to the preliminary hearing transcript. (People v. Tolbert (1986) 176 Cal.App.3d 685, 690; Shortridge v. Municipal Court (1984) 151 Cal.App.3d 611, 616, fn. 5.) 8. In assessing whether a felony complaint comports with the notice requirements of due process, can the preliminary hearing be taken into account? In the recent case of People v. Trujillo 2016 WL , the court addressed the question of whether the fact that a defendant will be given additional details of the charges at the preliminary hearing is something that can be taken into consideration in assessing whether to grant a defendant s demurrer to a felony complaint (i.e., a document filed before the preliminary examination) on grounds the complaint violates the notice requirements of due process. In Trujillo the People filed a felony complaint alleging multiple violations of various statutes relating to the defendants underreporting of employee wages. In response to rulings of the trial court, the People made changes to the original felony complaint and supplied lengthy spreadsheets that gave the defendants more specific information. Ultimately, the People provided copies of an amended complaint, now reflecting 1,104 counts, but maintained they were not required to file it and did not do so. The trial court sustained the demurrer on grounds the previously filed complaint still lacked specificity. The People appealed. (Id. at pp. *1-2.) 14

15 The Trujillo appellate court began its analysis by noting that [w]ith respect to the adequacy of notice for due process purposes, the authorities direct us to review the allegations in the accusatory pleading in conjunction with the preliminary hearing transcript, but are silent as to how to proceed when the preliminary hearing has not occurred yet. (Id. at p. *3.) Nevertheless, the Trujillo court held that even before the preliminary hearing is heard a court ruling on the demurrer still must consider the preliminary hearing s role, relative to notice; namely, to provide sufficient information to satisfy due process concerns. (Ibid.) The court held felony procedural considerations govern felony proceedings, even at the early stages and that while there was a dearth of authority on pre-preliminary hearing demurrers in felony proceedings this was not surprising, given the function of the preliminary hearing in providing notice and the ability to demur to the information. (Id. at p. *4 [and finding, as well, that it should be assumed that the information regarding the specific dates in the unfiled complaint would be provided at the preliminary examination].) In light of the fact the preliminary hearing would provide more specific information, the appellate court reversed the trial court and held the complaint was sufficient for notice purposes. (Id. at p. *4.) The defense in Trujillo cited to Lamadrid v. Municipal Court (1981) 118 Cal.App.3d 786 for the proposition that, in general, a court could not rely on later-provided information in assessing the sufficiency of a complaint. The Trujillo did not opine on whether the defense characterization of what Lamadrid stood for was correct, but simply noted Lamadrid was distinguishable since it arose in the context of a misdemeanor case where no transcript of preliminary examination or grand jury proceedings [would] be available (as it would be in felony proceedings) to augment the allegations of the pleading. (Trujillo at p. *4 citing to Lamadrid at p. 790.) Editor s note: The case of Lamadrid is discussed in greater detail in this IPG memo, section 9-A at p. 18 and section 10 at pp The Trujillo court also rejected the defendant s argument that statutory timing rules require them to demur to the felony complaint prior to the preliminary hearing or risk waiving their notice argument. (Id. at p. *4.) The Trujillo court stated that even assuming a demurrer to a felony complaint generally must be made prior to the preliminary hearing, it would not change their analysis because a defendant can demur to the information. (Ibid.) Finally, the Trujillo court rejected the defense claim that the failure to demur to the complaint would constitute a 15

16 waiver under Penal Code section The Trujillo court noted that section 1012 simply provides that [w]hen any of the objections mentioned in Section 1004 appears on the face of the accusatory pleading, it can be taken only by demurrer, and failure so to take it shall be deemed a waiver thereof. ( 1012.) It does not state a defendant must demur at the first opportunity, nor prevent defendants from demurring to informations or indictments on notice grounds (as the cases reflect they do). (Trujillo at p. *4.) 9. Are the rules governing a demurrer to a misdemeanor complaint different than the rules governing a demurrer to a felony complaint when the demurrer is based on a claim that the complaint does not meet the notice provisions of due process? The law regarding when a due process challenge is made by way of demurrer to a misdemeanor complaint is a little different than when a due process challenge is made by way of a demurrer to a felony accusatory pleading. This flows from the fact that in misdemeanor prosecutions no transcript of preliminary examination or grand jury proceedings will be available (as it would be in felony proceedings) to augment the allegations of the pleading. (People v. Trujillo 2016 WL , *4; Lamadrid v. Municipal Court (1981) 118 Cal.App.3d 786, 790; accord Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, 742.) Thus, a misdemeanor complaint may need to provide more specific information than a felony complaint in order to overcome a due process claim the complaint provides insufficient notice. A. Can the fact that a defendant will be provided police reports in discovery suffice to meet due process concerns in the same way that a preliminary examination or grand jury transcript can be counted on to give adequate notice of the charges facing a defendant? In trying to answer the question of whether police reports may be considered in deciding if a misdemeanor complaint has met the notice requirements of due process, a distinction must be drawn between police reports (or statements of probable cause) that have been attached and incorporated into the misdemeanor complaint and those that have not been attached and incorporated. 16

17 Under the current state of the law, it is likely, but not certain, that a sufficiently detailed police report or probable cause declaration that is physically attached to a misdemeanor complaint and expressly incorporated into the complaint may be referenced in determining whether a defendant has received adequate due process notice of the charges he is facing. (See Lamadrid v. Municipal Court (1981) 118 Cal.App.3d 786, 791 [recognizing it had suggested in Mandel v. Municipal Court (1969) 276 Cal.App.2d 649, 653 that in ruling on a demurrer claiming due process was violated by lack of notice in the misdemeanor complaint, courts could take into account a crime report attached to a complaint and incorporated therein by reference ]; see also Peer v. Municipal Court (1982) 128 Cal.App.3d 733, [assuming, without deciding, that a misdemeanor complaint can be adequate if it actually physically incorporates police reports, at the very least the complaint served must also provide the allegedly incorporated exhibits. ].) However, if the police report is not attached and incorporated into the misdemeanor complaint, it is an open question whether the fact a defendant is entitled to receive police reports pursuant to the prosecutor s statutory discovery obligations can be considered in assessing whether a complaint complies with the due process notice requirement (i.e., in the same way the fact that a defendant is entitled to a preliminary hearing or grand jury transcript may be considered when there is a demurrer to an information or indictment). So far, no published California decision has directly held that police reports (that are not incorporated into the complaint by reference) may be considered in assessing whether a misdemeanor complaint has provided defendant adequate due process notice of the charges. One case has indirectly indicated police reports could be consulted. In Ross v. Municipal Court (1975) 49 Cal.App.3d 575, the defendant was charged with a violation of Health and Safety Code section The complaint stated that defendant committed a misdemeanor, namely, a violation of Health and Safety Code section 11550, in that he did then and there willfully and unlawfully use and be under the influence of a controlled substance as defined in Chapter 2 of the California Uniform Controlled Substances Act but did not identify the specific substance. (Id. at p. 577.) The Ross court held the complaint provided adequate notice because inter alia, unless the accused happens to be a frequent user of several controlled substances, he would already have good reason to know the identity of the controlled substance involved and because he has the remedy of pretrial discovery. (Id. at p. 579, emphasis added by IPG; see also In re Jesse P. (1992) 3 Cal.App.4th 1177, 1183 [minor received adequate due process from 17

18 juvenile petition because, inter alia, he was entitled to copies of the police, arrest and crime reports relating to the pending matter].) On the other hand, at least five published pre-proposition 115 appellate court opinions have directly or indirectly rejected the suggestion in Ross that the existence of discovery procedures that would result in the disclosure of the police report upon which the complaint is based is the equivalent of the existence of the right to a preliminary hearing or grand jury transcript. (See Peer v. Municipal Court (1982) 128 Cal.App.3d 733, Gaylord v. Municipal Court (1987) 196 Cal.App.3d 1348, 1351; Lamadrid v. Municipal Court (1981) 118 Cal.App.3d 786, 790; and Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, 742.) The leading case on the principle is Lamadrid v. Municipal Court (1981) 118 Cal.App.3d 786. In Lamadrid, the court stated [n]either discovery nor an assumption that the accused has pertinent knowledge may be relied upon to furnish the notice required by due process. (Id. at p. 790, emphasis added by IPG; accord Gaylord v. Municipal Court (1987) 196 Cal.App.3d 1348, 1351 [quoting Lamadrid]; Peer v. Municipal Court (1982) 128 Cal.App.3d 733, [referencing Lamadrid].) Thus, the Lamadrid court held a police report on fatal vehicular accident could not cure defects in manslaughter complaint against the driver of the vehicle where the police report was neither attached to nor mentioned in complaint. (Ibid.) In support of this approach, the Lamadrid court relied on Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, 742.) In Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, the court stated that patently, the procedures for criminal discovery will not substitute for the due process requirement of notice to an accused of the charge against him. The constitutional right of a criminally accused to be adequately advised of the charge against him is absolute, while one s entitlement to discovery is addressed to the trial court s discretion. (Id. at p. 742, emphasis added by IPG; accord In re Rudolfo A. (1980) 110 Cal.App.3d 845, 856.) Editor s note (part I): That being said, the rule in Sallas was premised on the no longer valid claim that while the constitutional right of a criminally accused to be adequately advised of the charge against him is absolute, a defendant s entitlement to discovery is addressed to the trial court s discretion. (Id. at p. 742; emphasis added by IPG.) Sallas, Lamadrid, and Gaylord came out before Proposition 115, which imposed non-discretionary mandatory statutory discovery obligations on the People. 18

19 *Editor s note (part I): Now, Penal Code section requires, inter alia, the disclosure of: [r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial; [t]he statements of all defendants; [a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged; and [a]ny exculpatory evidence. (Pen. Code, (a)-(e).) In light of these obligations, prosecutors might want to consider making the argument that the information provided by police reports under the current discovery rules will afford a misdemeanor defendant practical notice of the criminal acts against which he must defend (People v. Jones (1990) 51 Cal.3d 294, 317) in a manner comporting with due process in the same way preliminary examinations and grand jury transcripts give a felony defendant practical notice of criminal acts in a manner comporting with due process. (See this IPG memo at section 7 at pp ) Support for this argument can be found in In re Jesse P. (1992) 3 Cal.App.4th 1177, which upheld a juvenile petition over a claim the minor was not provided adequate due process notice because, inter alia, a juvenile rule of court (Rule 1420) required the prosecution to provide discovery to the minor. (Id. at p ). Indeed, the Jesse P. court specifically distinguished the holding in Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, on the ground that, unlike in Sallas, which involved a defective pleading and discretionary discovery, the petition in Jesse P. was not defective per se and the right to discovery in a juvenile matter is not discretionary with the court. (Jesse P. at p. 1183, fn. 2.) The discovery that the juvenile rule of court requires be provided to the minor is similar to the discovery that Penal Code section requires be provided to the defendant in adult court. Additional support for consideration of discovery procedures also potentially derives from language in People v. Jones (1990) 51 Cal.3d 294. In Jones, the California Supreme Court stated given the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony does not, of itself, result in a denial of a defendant's due process right to fair notice of the charges against him. (Id. at p. 318; see also People v. Salvato (1991) 234 Cal.App.3d 872, 880 [noting the opinion in Jones suggests that contemporary procedures preliminary hearings and pretrial discovery have eroded or eliminated the earlier concerns for proper notice of the specific charges ].) (Emphasis added by IPG].) However, whether the language in Jones should be construed as endorsing consideration of discovery procedures when the question arises in the context of ruling on a demurrer claiming the charging document does not comport with due process obligations is somewhat questionable since Jones also refers to the fact that the existence of the demurrer itself helps alleviate due process concerns. This is because if the language in Jones can be viewed as setting out the rules that apply when a demurrer is filed based on a claim of lack of due process notice, then a mental Möbius strip is created: can a court consider the fact that the availability of a demurrer itself helps provide due process notice in deciding to grant a demurrer claiming lack of due process notice? 19

20 B. Can the fact that a defendant should reasonably be aware of what he is charged with be taken into consideration in assessing whether a charging document meets due process concerns? Whether any assumptions can be drawn about the defendant s knowledge of the crime in assessing whether a complaint provides adequate notice is somewhat disputed though the weight of authority indicates such assumptions may not be drawn. The same cases holding that police reports may not be considered in assessing whether a complaint provides adequate notice for due process also hold that an assumption that the accused has pertinent knowledge may not be relied upon to furnish the notice required by due process. (See Gaylord v. Municipal Court (1987) 196 Cal.App.3d 1348, 1351; Lamadrid v. Municipal Court (1981) 118 Cal.App.3d The case of Ross v. Municipal Court (1975) 49 Cal.App.3d 575 seems to hold to the contrary. (Id. at p. 579 [rejecting claim defendant did not receive adequate notice where defendant was charged with being under the influence of a controlled substance in violation of Health and Safety Code section without the specific controlled substance being identified because, inter alia, unless the accused happens to be a frequent user of several controlled substances, he would already have good reason to know the identity of the controlled substance involved ].) Note: On appeal following conviction, when a claim is raised that the defendant did not receive adequate notice, it appears that courts may draw reasonable inferences about what the defendant would have known regarding the charges. (See People v. Paul (1978) 78 Cal.App.3d 32, 44 [finding there was a technical error in pleading because of the failure to properly allege an overt act, but the error was not prejudicial since the defendant was fully aware of all the overt acts; the crime took place in one evening in his presence and he had the benefit of discovery and was aware of the evidence against him ]; In re Jesse P. (1992) 3 Cal.App.4th 1177, 1184 [declaring a disbelief that minor was unaware that the defective petition alleged both first and second degree murder or that he was prejudiced by the failure to specifically allege first degree murder]; see also Pen. Code, section 960 [ No accusatory pleading is insufficient... by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits ].) 20

21 10. When a statute defines a material element of an offense by a reference to another statute, is charging in the language of the overarching statute sufficient to meet the requirements of section or due process? When a statute defines a material element of an offense by a reference to other forbidden acts, the accusatory pleading must be more specific than the statute. In other words, when a violation of a statute depends on a violation of another statute, the language of the first statute is in itself not sufficient to define the offense. The offense consists of violating two statutes, and both must be set out in the accusatory pleading. (In re Jamil H. (1984) 158 Cal.App.3d 556, 559 citing to In re Rudolfo A. (1980) 110 Cal.App.3d 845, and People v. Clenney (1958) 165 Cal.App.2d 241, ) For example, in In re Jamil H. (1984) 158 Cal.App.3d 556, the defendant was charged with violating Penal Code section 626.8, a misdemeanor, in that he did willfully and unlawfully enter a school building and come upon a school ground... without lawful business thereon, and did interfere by his presence and acts with the peaceful conduct of the school activities, and did disrupt the school,... and did remain thereon and did return for an unlawful purpose within seventy-two hours after being asked to leave... (Id. at pp ) Subdivision (c)(2) of section 626.8, however, defined lawful business as a reason for being present upon school property which is not otherwise prohibited by statute, by ordinance, or by any regulation adopted pursuant to statute or ordinance. (Id. at p. 559.) The Jamil H. court held that the minor was not given proper notice of the charges because the petition failed to state the specific statute, ordinance, or regulation upon which the prosecution intended to rely in order to establish that he initially entered the school ground without lawful business and there were a potentially infinite number of statutes, ordinances, or regulations that defendant might have intended to violate. (Id. at pp ) In Lamadrid v. Municipal Court (1981) 118 Cal.App.3d 786, the defendant was charged with vehicular manslaughter. The complaint alleged that defendant did, while driving a vehicle, unlawfully and without malice kill Mark Lackie, in the commission of an unlawful act not amounting to a felony without gross negligence, and in the commission of a lawful act which might produce death, in an unlawful manner without gross negligence. (Id. at p. 789.) The 21