PEOPLE v. VALLADOLI (1995)

Pedro Valladoli appeals from the judgment entered following a jury trial that resulted in his conviction of sale of a controlled substance (Health & Saf.Code, § 11352, subd. (a)), and possession for sale of a controlled substance (Health & Saf.Code, § 11351), and true findings with respect to two prior prison term enhancements (Pen.Code, § 667.5) and two prior convictions of offenses enumerated in Health & Safety Code section 11370.2.   He was sentenced to 12 years in prison and makes a single contention:  that the 7–year portion of his sentence attributable to prior conviction enhancements must be stricken because the trial court improperly permitted an amendment adding the prior conviction enhancement allegations to the information after the jury had reached its verdict on the underlying offenses.   We affirm the judgment.

On October 12, 1993, a Los Angeles undercover police officer gave Debbie Alvarez a pre-recorded $20 bill to purchase some “black and white”—street vernacular for tar heroin and powdered cocaine.   While under continuous police surveillance, Alvarez purchased two toy balloons containing cocaine and heroin from appellant.   Appellant was immediately arrested with the pre-recorded $20 bill and an additional $142 in U.S. currency still in his pants pocket.

On October 28, 1993, a felony complaint was filed charging appellant with the underlying drug sale and possession offenses as well as assorted enhancements based on his prior convictions for possession of a controlled substance, sale, transportation or offer to sell a controlled substance, and receiving stolen property.   On November 17, 1993, an information was filed charging appellant with the same allegations as set forth in the complaint.   On November 30, 1993, an amended felony complaint was filed generally incorporating the allegations set forth in the original complaint and information, except that the references to appellant's prior convictions were crossed out on one page of the complaint.   Finally, on December 14, 1993, an amended information was filed charging appellant with the same underlying drug offenses, but omitting any charging allegations in connection with the prior felony convictions.¹

Both parties proceeded to trial on the assumption that there were prior conviction enhancements charged in the final amended information.   Appellant requested and respondent did not object to bifurcating the trial on the underlying offenses from the trial of the prior conviction enhancements.   After jury verdicts were rendered finding appellant guilty of sale of a controlled substance, and possession for sale of a controlled substance, the prosecutor immediately moved to amend the information to add the prior felony enhancements, explaining that they had been omitted from the information because of an “oversight.”   The trial court allowed the amendment over appellant's objection.   Evidence proving appellant's three prior felony convictions was then presented to the yet undischarged jury, resulting in true findings on two prior prison term and two prior drug-related conviction enhancements.²

The sole issue on appeal is whether the trial court exceeded its jurisdiction by allowing amendment of the information to add the sentencing enhancement allegations after the jury had reached a verdict on the underlying counts.   We find that the court acted properly.

Prior to 1931, Penal Code section 969a ³ allowed the amendment of a felony accusatory pleading to charge all prior felony convictions “[w]henever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this state or elsewhere, ․”  The original version of the statute also allowed the filing of a supplemental information or indictment to allege prior felony convictions “[w]henever after sentence, and before the sentence has expired, it shall be discovered that the indictment or information on which defendant was convicted did not charge all felonies of which defendant had theretofore been convicted, either in this state or elsewhere, ․”  At least one pre–1931 appellate court decision construed the “pending” indictment or information language of the original section 969a as allowing amendment of an accusatory pleading to charge priors in the period after verdict and before sentencing.  (See People v. Grimes (1928) 94 Cal.App. 238, 270 P. 1000.)

Since its amendment in 1931, section 969a has provided for amendment to allege uncharged prior felony convictions “[w]henever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this State or elsewhere, ․”  (§ 969a;  as amended by Stats.1931, ch. 485, p. 1060, § 1.)   The current version of the statute is substantially different from the former version only in that it makes no provision for filing a supplemental indictment or information adding prior felony conviction allegations “after sentence, and before sentence has expired.”  (50A West's Ann.Pen.Code (1985) § 969a, Historical Note, pp. 187–188.)   The 1931 amendment made no change affecting the court's discretion to allow an amendment charging prior convictions anytime up to the pronouncement of judgment.

Appellant cites several cases purporting to stand for the proposition that, since the 1931 amendment of section 969a, a felony accusatory pleading may not be amended to charge prior convictions after a verdict has been rendered on the underlying offenses.  (See People v. Morton (1953) 41 Cal.2d 536, 543, 261 P.2d 523 [Morton ];  People v. Louviere (1939) 34 Cal.App.2d 62, 64, 93 P.2d 179 [Louviere ];  People v. Houston (1937) 24 Cal.App.2d 170, 171, 74 P.2d 517 [Houston ].)  Two cases decided in the 1930s held, without any analysis whatever, that post-verdict amendments to an information or indictment were improper.  (See, e.g., Louviere, supra, 34 Cal.App.2d at p. 64, 93 P.2d 179;  Houston, supra, 24 Cal.App.2d at pp. 170–171, 74 P.2d 517.)   Several years later, the Supreme Court cited Louviere and Houston for the proposition that, as amended in 1931, section 969a “relates only to the amendment of a pending indictment or information to add new prior conviction charges before verdict.”  (Morton, supra, 41 Cal.2d at p. 543, 261 P.2d 523.)   In Morton, the Supreme Court also observed that the 1931 statutory change meant that “all charges made before [verdict] would of course be tried by the same jury that tried the primary offenses charged.”  (Ibid.)

Morton did not involve a direct challenge to a post-verdict amendment of an accusatory pleading.   The quoted language of that case is therefore dicta to the extent it is cited for the proposition that post-verdict amendments to charge prior convictions are prohibited by statute.   The purpose of Morton ' s discussion of section 969a was merely to explain that the legislative intent underlying the 1931 amendment, to fix a time after which no further prior conviction charges could be brought, “has no bearing on the procedure to be followed on appeal when the evidence is found insufficient to support a finding that there was a prior conviction.”  (Morton, supra, 41 Cal.2d at p. 543, 261 P.2d 523.)

This is not a case wherein the jury was discharged before the prosecutor's charging error was discovered;  appellant's right to have the same jury decide the underlying criminal charges and the prior conviction enhancements was not impinged by the tardy amendment of the information.  (See § 1164, subd. (b);  People v. Saunders (1993) 5 Cal.4th 580, 587–597, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)   Neither Morton nor Louviere nor Houston interprets the post–1931 statutory language of section 969a in the context of a bifurcated trial wherein all parties believed that the information alleged the prior convictions, and the absence of such allegations from the information was discovered and corrected before the discharge of the jury, or sentencing of the defendant.   Therefore, none of these cases is controlling here.

In People v. Martin (1978) 87 Cal.App.3d 573, 151 Cal.Rptr. 141, the Court of Appeal interpreted the current version of section 969a as prohibiting amendment of an accusatory pleading solely to charge prior convictions “once a defendant has been found guilty and sentenced on the substantive charges.”  (Id. at p. 579, 151 Cal.Rptr. 141, emphasis added.)   In a case such as this where the jury has not been discharged, we think Martin's construction of section 969a, allowing amendment of a felony accusatory pleading to charge prior convictions after verdict and up until the defendant has been sentenced, is correct.  “[I]t clearly appears, especially since the amendment of section 969a in 1931, that the intent of these statutes is that the charge of prior convictions shall be passed upon in connection with the new offense charged and by the same jury.”  (People v. Ysabel (1938) 28 Cal.App.2d 259, 263, 82 P.2d 476, disapproved on other grounds in People v. Thomas (1959) 52 Cal.2d 521, 534, 342 P.2d 889.)   Here, of course, the same jury was available to decide the prior conviction charges.   Accordingly, the trial court did not err in permitting the prosecution to amend the information to charge appellant with the prior prison term and prior serious felony enhancements after the verdict but before the jury was discharged.   The judgment is affirmed.

FOOTNOTES

1.   The appellate record does not reveal the reasons why a second complaint and information were filed in this case.

2.   According to the proof, appellant was previously convicted of receiving stolen property (Pen.Code, § 496.1) on September 1, 1992, in case No. BA058679, and served a separate term in state prison for that offense.   Appellant was also convicted of possession for sale of a controlled substance (Health & Saf.Code, § 11351) on January 26, 1990, in case No. A986923, and served a separate term in state prison for that offense.   Finally, appellant sustained a prior conviction of sale or transportation of a controlled substance (Health & Saf.Code, § 11352) on February 15, 1990 in case No. BA008202.

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

FUKUTO, Associate Justice.

BOREN, P.J., and GATES, J., concur.