Mr. Rogers was charged by complaint with felony domestic violence, PC 273.5, and felony false imprisonment, PC 236, with a conduct enhancement for use of a weapon, 12022(b)(1) and a status enhancement for having served a prior prison term, PC 667.5(b). Rogers and the state waived their respective rights to a preliminary examination and the state subsequently filed an information which tracked the complaint.
Four days prior to trial, the state moved to amend the information to add three felonies, assault likely to cause great bodily injury, PC 245(a)(4), assault with a deadly weapon, PC 245(a)(1), and making a criminal threat, PC 422. The state also moved to add a great bodily injury (GBI) enhancement to count one. Rogers' lawyer made no objection and the trial court granted the state's motion.
A jury convicted Rogers of the 2735, 236, and 245(a)(4) counts, finding true the great bodily injury enhancement attached to the 273.5 and the enhancement for having served a prior prison term, 667.5(b). Rogers received an eleven year, 8 month sentence. Rogers then appealed, arguing his lawyer was ineffective for failing to object to the amendment of the information after the waivers of a preliminary examination.
A Third District panel reverses the convictions for the 245(a)(4) and great bodily injury enhancements, affirms the 273.5 and 236 convictions and 667.5(b)(1) finding, and remands for resentencing.
The State concedes Roger's lawyer was ineffective in failing to object to the addition of the three substantive counts, admitting a waiver of preliminary hearing supports a holding order as to only those counts in the complaint. This leaves two contested issues. The first is whether the great bodily injury conduct enhancement could be added following a preliminary hearing waiver. The second issue concerns the remedy; Rogers wants all his convictions reversed while the state contends only those parts of the verdict pertaining to the improperly added counts need be reversed.
Rogers wins the first issue. The panel holds that conduct enhancements (distinguished from status enhancements) must be proven up at a preliminary examination and may not be added following a waiver. This means the GBI enhancement is reversed. The state wins the second issue. After examining the evidence presented at trial, the panel finds the evidence received as to the added counts and enhancements would have also been admissible in a trial limited to the original charges.
The result is the 245(a)(4) count and the GBI enhancement are reversed and the case is remanded to the trial court for resentencing on the affirmed counts and enhancement.
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