Filed 8/25/14 P. v. Allen CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----



THE PEOPLE,                                                                               C071251

                   Plaintiff and Respondent,                                 (Super. Ct. No. 62-108383)

         v.

CASEY SCOTT ALLEN,

                   Defendant and Appellant.




         A jury found defendant Casey Scott Allen guilty of causing bodily injury while
driving under the influence of alcohol and while driving with a blood-alcohol level of
0.08 percent or higher. Due to a prior strike conviction, the trial court doubled the base
term of defendant’s prison sentence. On appeal, he contends the trial court abused its
discretion by permitting an amended information to be filed during trial to allege the prior
strike conviction pursuant to Penal Code section 969a.1 We find the trial court did not



1 Undesignated statutory references are to the Penal Code.



                                                             1
abuse its discretion in permitting the People to amend the information during trial and
shall affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Given the limited nature of defendant’s appeal, we recite only the facts pertinent to
our analysis of the amendment to the information authorized by the trial court.

       Defendant was charged with causing bodily injury while driving under the
influence of alcohol and causing bodily injury while driving with a blood-alcohol level of
0.08 percent or higher. (Veh. Code, § 23153, subds. (a) & (b), respectively.) It was also
alleged that defendant drove with a blood-alcohol level of 0.20 percent or higher (Veh.
Code, § 23538, subd. (b)(2)), that he caused bodily injury to more than one victim (Veh.
Code, § 23558), and that he had suffered a prior felony conviction (Super. Ct. Placer Co.,
2004, No. 62-042093—Pen. Code, §§ 273.5, 236, 136.1) for which he had been in prison
less than five years prior to the commission of the instant charged offense (Pen. Code,
§ 667.5, subd. (b)).2

       On March 22, 2012, prior to the start of trial, counsel for defendant, the prosecutor
and the judge met in chambers regarding a potential settlement of the case.3 Defendant
rejected an offer of an aggregate sentence of two years four months, i.e., “the low term of
16 months for a guilty plea to [either count] with an additional [one] year for a prison
prior . . . ,” an offer that the court was prepared to approve.




2 We note that the record contains numerous instances of transposing the docket number
of defendant’s 2004 prior, using No. 62-042903 rather than the correct No. 62-042093,
which is properly indicated on the abstract of judgment.
3 The record on appeal does not include a reporter’s transcript of this chambers
conference. Consequently, this summary is taken from the settled statement, which has
been filed in conjunction with this appeal.


                                               2
       Trial began on March 26, 2012. On the second day of trial, outside the presence
of the jury, the prosecution moved to amend the information to clarify that the previously
charged conviction (case No. 62-042093) involved a violation of section 136.1,
subdivision (c)(1),4 which renders the conviction a strike pursuant to section 1192.7,
subdivision (c)(37). On March 19, 2012, the prosecution had obtained defendant’s
certified prison records disclosing that the conviction was pursuant to subdivision (c)(1),
and provided the records to defense counsel the same day. However, the prosecution did
not review the records (or note the additional implication of the conviction) until after the
jury was sworn.

       The prosecution argued that amending the information would not change the facts
of the case or any witness’s testimony, and that the prior strike allegation would not be
addressed until the penalty phase of the bifurcated trial. Defendant objected to the
motion because trial had already commenced, and because it appeared the prosecution
had not ordered or reviewed defendant’s prison records timely or diligently. However,
when asked what prejudice defendant would suffer if the motion were granted, defense
counsel argued only that it increased the potential penalties defendant would face.
Defense counsel submitted the issue to the court with no further argument.

       The court granted the motion to amend the information, finding that though the
strike could increase defendant’s potential punishment, defendant would suffer no
“substantial prejudice.” The court further noted it has discretion to permit the filing of an
amended information during trial, and that defendant was “on notice of the prior



4 Section 136.1 makes it a crime to knowingly and maliciously dissuade or attempt to
dissuade a victim or witness from testifying. (§ 136.1, subds. (a) & (b).) Subdivision
(c)(1) applies where the act is accomplished by threat of force or violence, in furtherance
of a conspiracy, for pecuniary gain, or by a person previously convicted of dissuading a
witness or victim. (§ 136.1, subd. (c)(1).)


                                              3
conviction or at least aware of its existence” and had been provided a copy of his prison
records revealing the conviction.

       A jury found defendant guilty of causing a bodily injury while driving under the
influence and while driving with a blood-alcohol level of 0.08 percent or higher, and
found true the special allegation that defendant drove with a blood-alcohol level of 0.20
percent or higher.5 Thereafter, defendant admitted the charged prior conviction. The
court sentenced defendant to an aggregate term of 44 months in state prison, comprised
of 32 months on count one (the low term of 16 months doubled due to defendant’s prior
strike admission); an identical sentence on count two stayed pursuant to section 654; and
an additional consecutive 12 months based on defendant’s prior prison term pursuant to
section 667.5, subdivision (b).

                                        DISCUSSION

       Defendant contends the trial court abused its discretion by granting the
prosecution’s request to amend the information to charge the prior strike because “there
was an inadequate reason for the late amendment” and the lateness of the amendment
detrimentally impacted defendant’s “decisionmaking during plea negotiations.” We find
the trial court did not abuse its discretion.

       A trial court may, within its discretion, permit an amendment to the information to
charge prior felonies at any time while the information is pending. (People v. Valladoli
(1996) 13 Cal.4th 590, 606 (Valladoli).) As provided in section 969a, “Whenever 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, said
indictment or information may be forthwith amended to charge such prior conviction or


5 The jury did not conclude whether defendant had caused bodily injury to more than
one victim.


                                                4
convictions, and if such amendment is made it shall be made upon order of the court, and
no action of the grand jury (in the case of an indictment) shall be necessary. Defendant
shall promptly be rearraigned on such information or indictment as amended and be
required to plead thereto.”

       Defendant would have us find the court abused its discretion because (1) the
People did not present a sufficient reason for their delay in seeking the amendment, and
(2) defendant turned down an offer of a negotiated disposition prior to the amendment of
the information. While those are two factors to be weighed by the trial court in deciding
whether to allow the amendment, they are not the only factors to be weighed. Rather,
courts are asked to weigh “(i) the reason for the late amendment, (ii) whether the
defendant is surprised by the belated attempt to amend, (iii) whether the prosecution’s
initial failure to allege the prior convictions affected the defendant’s decisions during plea
bargaining, if any, (iv) whether other prior felony convictions had been charged
originally, and (v) whether the jury has already been discharged.” (Valladoli, supra,
13 Cal.4th. at pp. 607-608.)

       Here, defendant was on notice of the prior conviction before trial because it was
charged as the basis of the prior prison term enhancement in the information. The
amended information added an allegation of a prior strike based on the same conviction;
that it was a strike was not discovered by the prosecutor until defendant’s prison records
were obtained and reviewed. It was those records that disclosed the specific subdivision
of section 136.1 that defendant had violated. While defendant may be correct that the
prosecutor was not diligent in obtaining or reviewing those prison records, he did so
before the jury was discharged and before the portion of defendant’s bifurcated trial
devoted to his prior convictions began. Thus, the reason for the late amendment is not
dispositive. Additionally, the prosecutor provided the records to defense counsel prior to
the March 22, 2012 plea negotiations and prior to trial, and defendant did not indicate any


                                              5
surprise, regret at declining the settlement offer, or other prejudice when the prosecution
moved to amend the information. And even though defense counsel indicated he did not
have an argument prepared, he submitted the issue to the trial court without requesting a
continuance to prepare an argument. Thus, there is nothing in the record to suggest any
surprise by the belated attempt to amend or that defendant’s decisionmaking during plea
negotiations was detrimentally affected by the late amendment. On these facts, we find
the court did not abuse its discretion in granting the amendment of the information.

                                     DISPOSITION

       The judgment is affirmed.




                                                        BUTZ                  , J.



We concur:



      HULL                  , Acting P. J.



      ROBIE                 , J.




                                             6
