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Court of Appeal, Fourth District, Division 3, California.

Mark SIMS, Petitioner & Defendant, v. SUPERIOR COURT, Orange County, Respondent & Plaintiff. PEOPLE of the State of California, Real Party in Interest.

G 000461.

Decided: May 31, 1984

Cecil Hicks, Dist. Atty., Orange, Michael R. Capizzi, William W. Bedsworth, Steven B. Bickel, Deputy Dist. Attys., for real party in interest. No appearances for respondent.


Petitioner Mark Sims seeks a writ of mandate to compel the Orange County Superior Court to grant his motion to set aside an information (Pen.Code § 995) 1 charging him with three counts of oral copulation with a minor by a person over 21 years of age (§ 288a, subd. (b)(2)) 2 and one count of sodomy with a minor by a person over 21 years of age (§ 286, subd. (b)(2)).3  The sole issue presented is whether the trial court properly remanded the instant felony prosecution to the committing magistrate to correct minor errors pursuant to section 995a, subdivision (b).4


At petitioner's preliminary examination, the victim testified to facts sufficient to charge oral copulation and sodomy with a minor (§§ 288a, subd. (b)(1) and 286, subd. (b)(1)) as the complaint then exclusively charged.   The prosecution did not offer evidence of petitioner's age, nor did petitioner, since it was not relevant to those offenses.

In superior court, real party filed an information charging oral copulation and sodomy with a minor by a person 21 years of age or older.5  The latter statute contains an additional element, the defendant's age over 21, carries far greater punishment, and eliminates potential prosecution as a misdemeanor.

Petitioner sought to dismiss the information (§ 995) arguing there was no evidence of petitioner's age in the record.   Real party conceded age was an element of the crime (People v. Greenberg (1980) 111 Cal.App.3d 181, 168 Cal.Rptr. 416) and petitioner's age had not been demonstrated at the preliminary examination, but requested the court remand the cause to the committing magistrate to correct the error.   No explanation for the failure to allege the charges filed in the information in the complaint or prove the defendant's age at the preliminary hearing was given.   When the matter was ordered remanded, petitioner sought a writ of mandate.   We stayed proceedings and issued an alternative writ.


As we noted in Tharp v. Superior Court (1984) 154 Cal.App.3d 215, 201 Cal.Rptr. 131, the starting point in evaluating the procedure authorized by section 995a, subdivision (b) is to identify the type of error committed.   In Tharp, we determined the exclusion of admissible evidence, although resulting in the omission of critical evidence, “․ was not ‘of an omission’ as required by section 995a” (id., at p. 220, 201 Cal.Rptr. 131) since the error “was the result of volitional decisions [lodging an objection], unequivocal in nature.”  (Ibid.)

 Here we must decide whether the failure to attempt to prove an element of an offense not charged in the complaint is a minor omission as required by section 995a.   In the context of these facts, we conclude it is not.

  A defendant charged with a felony has a number of rights at the preliminary examination, including the right to confrontation, the right to present a defense, and the right to have the magistrate cull out groundless charges.  (People v. Brice (1982) 130 Cal.App.3d 201, 207, 181 Cal.Rptr. 518.)   Although the complaint serves notice of the charges, it is “the totality of the evidence produced at the preliminary hearing which notifies the defendant of the potential charges he may have to face in the superior court.”  (Id., at p. 207, 181 Cal.Rptr. 518, emphasis added.)

In the present case the prosecution neither filed a complaint alleging the more serious offenses nor offered all the evidence to support them.   Petitioner, without notice before the preliminary examination, lacked knowledge of those charges, the ability to fully prepare for them and was effectively denied the right to present a defense.   To permit a second hearing to correct either an error in judgment or an initial decision not to pursue the heightened charges would not comport with the meaning of “minor omission” as contained in section 995a, subdivision (b).

Undoubtedly, proof of a defendant's age will not always be of such major consequence that a remand pursuant to section 995a is required.6  However, where the defense is without notice the prosecution intends to allege crimes where petitioner's age is an element and no evidence is even presented as to his or her age, the error cannot be considered minor.

The alternative writ is discharged.   Let a peremptory writ of mandate issue directing the superior court to rule on the motion to set aside the information accordingly.


1.   All statutory references are to the Penal Code unless otherwise stated.

2.   Section 288a, subdivision (b)(2) states:“(a) Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person.  [¶] (2) Except as provided in Section 288, any person over the age of 21 years who participates in an act of oral copulation with another person who is under 16 years of age shall be guilty of a felony.”

3.   Section 286, subdivision (b)(2) states:“(a) Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person.  [¶] (2) Except as provided in Section 288, any person over the age of 21 years who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony.”

4.   Section 995a, subdivision (b) states:“(1) Without setting aside the information, the court may, upon motion of the prosecuting attorney, order further proceedings to correct errors alleged by the defendant if the court finds that such errors are minor errors of omission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence.   The court may remand the cause to the committing magistrate for further proceedings, or if the parties and the court agree, the court may itself sit as a magistrate and conduct further proceedings.   When remanding the cause to the committing magistrate, the court shall state in its remand order which minor errors it finds could be expeditiously cured or corrected.  [¶] (2) Any further proceeding conducted pursuant to this subdivision may include the taking of testimony and shall be deemed to be a part of the preliminary examination.  [¶] (3) The procedure specified in this subdivision may be utilized only once for each information filed.   Any further proceedings conducted pursuant to this subdivision shall not be deemed to extend the time within which a defendant must be brought to trial under Section 1382.”

5.   The significance is in sentencing.   Sections 288a, subdivision (b)(1) and 286, subdivision (b)(1) are alternative felony/misdemeanors, which allow misdemeanor sentencing in the court's discretion.  (§ 17.)   Sections 288a, subdivision (b)(2) and 286, subdivision (b)(2) must be prosecuted and punished as felonies.

6.   An example might be where the defendant claims in superior court the prosecution failed to prove he was not a minor at the time of the offense.

 SONENSHINE, Associate Justice.

WALLIN, Acting P.J., and CROSBY, J., concur.