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Date: May 4, 2015 2015 #2- IPG (RODRIGUEZ - SASSER- SEDILLO –

February 5, 2016 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 1004-1010 are the statutes that govern demurrers. A demurrer is limited to the grounds identified in section 1004. 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: https://www.youtube.com/channel/UC5aiUCbAzLfrlQ8AdCF3GCA

2016-IPG#15: FEAR NOT THE DEMURRER

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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 10 6. The coin, number, or denominations of money in theft of money,

bank notes, stock certificates or securities 10 7. Language used or figures shown in obscenity case 10 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 950-952? 10

7. In assessing whether a felony information or indictment substantially conforms

to the notice provisions of section 950-952 and/or due process, can the preliminary hearing or grand jury transcript be taken into account? 13

8. 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? 14

9. 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

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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? 20

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 950-952 or due process? 21

11. 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? 22

12. Can a demurrer be used to challenge the validity of the statute identified in the

accusatory pleading on vagueness or other grounds? 26 13. Can a demurrer effectively be used to challenge joinder of offenses? 26 14. Can a demurrer be made orally? 27 15. When can or must a demurrer be filed and heard? 27 16. 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? 29

17. Once a demurrer is filed, can the People amend the complaint to address any

problem without leave of the court? 29 18. What happens if the defendant’s demurrer is denied? 30 19. What happens if the defendant’s demurrer is granted? Can the accusatory

pleading be refiled? 30 20. 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? 30 21. Can the People appeal the granting of a demurrer? 31 22. Can a demurrer be filed in a juvenile case? 31 23. Can a defendant file a demurrer to a petition to revoke parole or probation? 32

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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.

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.”

1. Wait! Before we start, what the heck is a demurrer anyway?

2. What statute identifies when demurrers may be filed?

*Editor’s note: An accusatory pleading “include[s] an indictment, an information, an accusation, and

a complaint.” (People v. Trujillo 2016 WL 280971, *2 citing to Pen. Code, § 691(c).)

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“The legal grounds for demurrer to an accusatory pleading are limited to those specifically

enumerated in Penal Code section 1004.” (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.

1091 citing to In re Berry (1968) 68 Cal.2d 137, 146; but see this IPG memo, section 6, at p.

10-12.)

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.)

“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.)

4. May a demurrer be used to challenge the sufficiency of the evidence underlying the accusatory pleading?

3. Can a demurrer be filed that is not based on one of the statutory grounds identified in Penal Code section 1004?

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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 950-952 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.”].)

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?

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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, 688-689 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.)

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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 950-952 even

though it does not identify specific dates, “unless time is a material element” of the offense.

(People v. Trujillo 2016 WL 280971, 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 . . . 6. 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].)

A. What does not have to be included in the accusatory pleading?

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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. 141-142; 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.”

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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.”

“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.)

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 950-952?

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As noted above, “[t]he legal grounds for demurrer to an accusatory pleading are limited to those

specifically enumerated in Penal Code section 1004.” (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 950-952. (See Peer v. Municipal Court

(1982) 128 Cal.App.3d 733, 737; Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 1056-

1057; 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. 1091.)

Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1091 [40 Cal.Rptr.2d 402, 892 P.2d 1145]

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As indicated, technical compliance with sections 950-952 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.)

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, 1182-1183.)

*Editor’s note: Penal Code section 938.1 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.”

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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

950-952 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 950-952, 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 950-952 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 950-952 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, 369–370 [“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 280971, 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 280971, at *2; accord People v. Marshall (1957) 48

7. In assessing whether a felony information or indictment substantially conforms to the notice provisions of section 950-952 and/or due process, can the preliminary hearing or grand jury transcript be taken into account?

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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 280971, 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, 369-370.)

In the recent case of People v. Trujillo 2016 WL 280971, 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.)

*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?

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.)

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

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. 21-22

16

waiver under Penal Code section 1012. 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.)

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 280971, *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.

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.

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?

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?

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, 737-738 [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 11550. 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

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, 737-738 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, 737-738 [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.

19

*Editor’s note (part I): Now, Penal Code section 1054.1 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, § 1054.1(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. 13-14.)

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.

1183.). 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

1054.1 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?

20

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 786 790. 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 11550 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”].)

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?

21

“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, 854–855 and People v. Clenney (1958) 165

Cal.App.2d 241, 253–254.)

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. 558-559.) 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. 560-561.)

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

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 950-952 or due process?

22

Lamadrid court held vehicular manslaughter was the kind of statute that “consisted in its

material elements of two or more specific statutes, ordinances or regulations” and that the broad

allegations of “unlawful act” and “lawful act which might produce death, in an unlawful manner,”

were insufficient to provide constitutionally adequate notice of the specific criminal conduct

defendant would be required to meet at trial. (Id. at p. 791 [and noting as well that the

defendant “was entitled to be advised with some particularity which of the several available

factual theories the People would rely upon”].)

In In re Rudolfo A. (1980) 110 Cal.App.3d 845, a minor demurred to a charge of “willfully and

unlawfully trespass[ing] upon the grounds of a public school ... thereby violating section 63.94 of

the Los Angeles Municipal Code.” (Id. at p. 853.) The Rudolfo court held the complaint

complied with the specificity required by Penal Code section 952 but found the complaint

violated the notice requirement of due process because it did not identify the type of criminal

trespass and “there are numerous diverse and separate kinds of conduct which are characterized

as criminal trespass in respect of school property.” (Id. at p. 857.)

In People v. Failla (1966) 64 Cal.2d 560, defendant was charged with burglary in that he

entered the victim’s apartments “with the intent ... to commit a felony and theft.” The court

commented that “[t]he information should have specified the particular felony intended” but did

not reverse because the defendant “waived any objection to that deficiency when he failed to

enter a demurrer.” (Id. at p. 568.)

In People v. Clenney (1958) 165 Cal.App.2d 241, the information alleged defendant “did drive

a vehicle while under the influence of intoxicating liquor and in so doing did an act forbidden by

law, which act proximately caused bodily injury to other persons . . . .”. (Id. at p. 245.) The

Clenney court reversed the denial of defendant’s demurrer to the complaint, stating that “the

particular section relied upon to supply the violated act or neglected duty should be pleaded or

the complaint is subject to a special demurrer.” (Id. at p. 254.)

Some statutes prohibit the possession or use of many different kinds of contraband. (See e.g.,

Health & Saf. Code, §§ 11550, 11350, 11378, former Pen. Code § 12020.) In order for the

11. 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?

23

complaint alleging a violation of these types of statutes, does the complaint have to identify the

specific type of contraband in order to meet the notice requirements of sections 950-952 or due

process?

In most circumstances, because the language of the statute itself does not identify a particular

substance, failure to identify the specific substance should not run afoul of sections 950-952.

However, there may be issues regarding whether such failure violates due process – especially

when the charging document is a misdemeanor complaint.

For example, in Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, multiple defendants

demurred to being charged with violations of Health and Safety Code section 11550 where the

complaint stated that the “defendant did unlawfully and wilfully use and was under the influence

of a controlled substance” but did not identify which controlled substance each defendant was

accused of using. (Id. at pp. 739-740.) The appellate court noted a person charged with using an

unidentified controlled substance under Health and Safety section 11550 “must be prepared to

defend against prosecutorial proof that he had used, or been under the influence of any one of

[about 120 individually proscribed drugs or substances], or its ‘isomers, esters, ethers, salts, and

salts of isomers....” and absent “information of the precise charge, he would be ill-prepared to

establish that he had not shown the symptoms or behavior attending use of the undisclosed

controlled substance.” (Id. at pp. 742-743.) Accordingly, the court held the lack of specificity

violated the defendants' due process rights. (Ibid.) The court in Sallas did, however, qualify its

conclusion by specifying that it was not holding or suggesting “that ... the charge must pinpoint

one of the many controlled substances of the statute. It may be that among them are families, or

classes, or chemical groupings, of such substances with substantially the same qualities,

symptoms and behavioral effects, and that constitutional demands would be satisfied by

charging use or abuse of one of the substances of that family, class or group.” (Id. at p. 744.)

On the other hand, the court in Ross v. Municipal Court of Los Angeles (1975) 49

Cal.App.3d 575, upheld the denial of a demurrer to a complaint that charged the defendant with

violating Health and Safety Code section 11550 –even though the complaint did not specify the

controlled substance defendant was alleged to be under influence of. (Id. at p. 577-578.) The

Ross court came to its conclusion after surmising that “the obvious reason why the People did

not identify in the accusatory pleading the exact controlled substance involved is that they had

no reasonably certain way of knowing what that substance was as they do have in possession and

24

sale cases from chemical tests of the substance involved.” (Id. at p. 578 [and noting 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].)

Ross issued before the decision in Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, but

several post-Sallas cases involving complaints where the particular controlled substance was

not identified have constricted the holding in Sallas. (See Ulloa v. Municipal Court (1981)

126 Cal.App.3d 1073, 1076; Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 1057.)

In Ulloa v. Municipal Court (1981) 126 Cal.App.3d 1073, the defendant was charged with a

misdemeanor violation of former Vehicle Code section 23105(a). The complaint stated that the

defendant “did wilfully and unlawfully operate a motor vehicle upon a highway while under the

influence of a drug.” However, “the ‘drug’ or ‘family of drugs’ relied upon as the basis for the

offense was undescribed and undesignated in the complaint.” (Id. at p. 1075.) The defendant

argued that the complaint did not give defendant sufficient notice of the offense to comply with

due process. The appellate court disagreed, finding the specific substance did not have to be

identified. The Ulloa court distinguished the case of Sallas. It noted that “the Sallas court

relied basically on two separate reasons in concluding that failure to apprise a Health and Safety

Code section 11550 defendant in the complaint against him of the particular substance or family

of substances would be burdensome to the defendant in preparing his defense.” (Ulloa at p.

1076.) First, in Sallas the question was solely whether defendant was under the influence.

Thus, failure to identify the controlled substance at issue left the defendant “ill prepared to

establish that he had not shown symptoms or behavior attending use of the undisclosed

substances.” (Id. at p. 1076 citing to Sallas at p. 743.) Second, in Sallas , if “the accused had

been lawfully ingesting an otherwise forbidden drug on a doctor’s prescription he might not

safely rely on that statutory defense, for the trial proof might be that he had used some other

controlled substance with different symptoms and effects.” (Ulloa at p. 1076.) The Ulloa court

said neither of these reasons are relevant where a defendant is being prosecuted under Vehicle

Code section 23105 (a). This is because, “[u]nder Vehicle Code section 23105 it is unlawful for a

person to drive under the influence of any drug. Therefore, it is of no use to the defendant to be

able to show that his actual symptoms or unusual behavior influencing driving were really

indicative of symptoms produced by a drug that is different from the drug on which he thinks the

prosecution will rely to prove the charge against him.” (Ulloa at pp. 1076-1077.) “The essence of

the Vehicle Code offense of driving under the influence of any drug is to prohibit driving where

25

there is a demonstrable impairment of physical or mental abilities. Under Vehicle Code section

23105, subdivision (a), it is no defense that defendant was driving under a drug lawfully

prescribed, although this is a proper defense to Health and Safety Code section 11550.” (Id. at p.

1077, emphasis added.)

A similar conclusion was reached in Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054. In

Byrd, defendants demurred to complaints charging them with driving “under the combined

influence of intoxicating liquor and drugs” in violation of former Vehicle Code section 23102 on

the ground they did not receive adequate notice because the complaints did not identify any

drug. The Byrd court held that even though many more substances are encompassed by the

term “drug” as used in Vehicle Code section 23102(a) [now 23152(a)] than are included as

“controlled substances” within the meaning of Health and Safety Code section 11550, and even

though the complaints did not specifically indicate the class of drugs allegedly consumed in

combination with liquor, the complaints still gave constitutionally adequate notice of charges

against which motorists would be required to defend. (Id. at pp. 1056-1059.) The Byrd court

distinguished the holding in Sallas the ground that when it comes to violations of section 11550,

the prosecution must “rely principally, if not entirely, on the evidence of the accuseds’

appearance, conduct, and symptoms.” (Byrd at p. 1057.) Since the observable symptoms of an

individual under the influence of one of the 120 different substances covered by section 11550

vary widely depending on which drug was used, the lack of knowledge of the drug would make it

difficult to prepare a defense without the drug being identified. (Id. at pp. 1057-1058.) But

“[u]nlike Health and Safety Code section 11550, Vehicle Code section 23102, subdivision (a),

places no penalty on simply being under the influence of alcohol or alcohol and drugs. Instead,

the penalty is attached to driving when under such influence.” (Id. at p. 1058.) In light of the

definition of “under the influence” for purposes of Vehicle Code 23102 (i.e., that “the liquor or

liquor and drug(s) must have so far affected the nervous system, the brain, or muscles as to

impair to an appreciable degree the ability to operate a vehicle in a manner like that of an

ordinarily prudent and cautious person in full possession of his faculties”), the Byrd held the

complaints “unequivocally notified the defendants that their ability to operate a vehicle is the

conduct or behavior which will be at issue.” (Id. at pp. 1058-1059, emphasis added by IPG.)

In the unpublished case of People v. Tuuhetoka 2009 WL 1668999, the case of Sallas was

distinguished for different reasons than used in Ulloa and Byrd. In Tuuhetoka, the

defendant claimed an “information charging him with willful and unlawful possession of ‘an

26

instrument or weapon of the kind commonly known as a knife in violation of Penal Code section

12020 [, subdivision] (a)’ failed to state a public offense because mere possession of a knife is not

a crime.” (Id. at p. *1.) The defendant relied primarily upon Sallas for the proposition that, to

state a public offense, the information had to specify the particular kind of knife or cite

paragraphs (1) and (4) of section 12020, subdivision (a). (Tuuhetoka at p. *4.) The

Tuuhetoka court distinguished Sallas primarily on the ground that the spectrum of weapons

potentially covered by section 12020(a) was much smaller than the list of drugs potentially

covered by Health and Safety Code section 11550: “Moreover, the information identified the

category or group of proscribed weapons defendant was charged with possessing by describing

the weapon in common language as ‘a knife.’ Even without specifically referencing paragraphs

(1) and (4), this description was adequate to put a person on notice that he was charged with

violating section 12020, subdivision (a) by carrying or possessing one of the six types of knives

described in subsection (1) or (4).” (Tuuhetoka at p. *5.)

A statute can thus be attacked on grounds the statute itself is facially vague and does not provide

adequate notice pursuant to a demurrer. In Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, the

California Supreme Court stated: We assume, and respondents do not contend otherwise, 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 on the ground that the court

lacks jurisdiction because the statute is invalid, the facts stated do not constitute a public offense,

and the complaint contains matter which constitutes a legal bar to the prosecution. (Id. at p. 1091

citing to Dillon v. Municipal Court, 4 Cal.3d 860, 865; In re Cregler (1961) 56 Cal.2d 308,

310; Mandel v. Municipal Court (1969) 276 Cal.App.2d 649, 652.)

Penal Code section 1004 specifically allows for a demurrer to be filed when it appears upon the face

of the accusatory pleading “[t]hat more than one offense is charged, except as provided in Section

954[.]” (Pen. Code, § 1004(3).)

12. Can a demurrer be used to challenge the validity of the

statute identified in the accusatory pleading on vagueness or

other grounds?

13. Can a demurrer effectively be used to challenge joinder of

offenses?

27

Penal Code section 954 states in relevant part: “An accusatory pleading may charge two or more

different offenses connected together in their commission, or different statements of the same

offense or two or more different offenses of the same class of crimes or offenses, under separate

counts....” (People v. Trujillo 2016 WL 280971, at *3.)

“The preferred method for challenging improper joinder is by demurrer pursuant to section 1004,

subdivision (3).” (People v. Barros (2012) 209 Cal.App.4th 1581, 1596, fn. 20 citing to People v.

Molano (1967) 253 Cal.App.2d 841, 846.) Although case law also “holds that misjoinder may be

raised for the first time in a motion to sever for purposes of severing the charges for trial.” (People

v. Barros (2012) 209 Cal.App.4th 1581, 1596, fn. 20 citing to People v. Kemp (1961) 55 Cal.2d

458, 474-475.)

A demurrer may not be made by way of oral motion. (See People v. Kinsley (1931) 118 Cal.App.

593, 596; People v. Bailey (1946) 72 Cal.App.2d Supp. 880, 88; People v. Bailey (1946) 72

Cal.App.2d Supp. 880, 884.) Penal Code section 1005 specifically states: “The demurrer must be

in writing, signed either by the defendant or his counsel, and filed.”

The demurrer must be filed at the time of arraignment – otherwise it may only be filed with

permission of the court. (See Pen. Code, § 1003 [“Both the demurrer and plea must be put in, in

open Court, either at the time of the arraignment or at such other time as may be allowed to the

defendant for that purpose.”].) However, while “the statute requires them to be asserted at

arraignment unless otherwise ordered (§ 1003), a rule of court allows them to be raised by

demurrer within seven days after arraignment (Cal. Rules of Court, rule 4.110(3).)” (People v.

Viray (2005) 134 Cal.App.4th 1186, 1198, fn. 6.)

This does not mean “a defendant must demur at the first opportunity,” nor are defendants

prevented from demurring to informations or indictments on notice grounds even if they did not

initially file a demurrer to the felony complaint. (People v. Trujillo 2016 WL 280971, at *4.)

Once the demurrer is filed, the demurrer must be heard immediately. Penal Code section 1006

provides: “Upon the demurrer being filed, the argument upon the objections presented thereby

15. When can or must a demurrer be filed and heard?

14. Can a demurrer be made orally?

28

must be heard immediately, unless for exceptional cause shown, the court shall grant a

continuance. Such continuance shall be for no longer time than the ends of justice require, and

the court shall enter in its minutes the facts requiring it.”

Generally, if the demurrer is not brought, it will be deemed waived unless the claim on appeal is

that the court had no jurisdiction to try the offense or that facts stated in the accusatory pleading

did not constitute a public offense. (See People v. Viray (2005) 134 Cal.App.4th 1186, 1198,

fn. 6 [“facial defects in the pleading must be raised promptly or they are waived”]; see also

(People v. Jennings (1991) 53 Cal.3d 334, 356–357; People v. Alvarez (2002) 100

Cal.App.4th 1170, 1176-1177.)

Penal Code section 1012 provides: “When 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, except that the objection to the jurisdiction of the court

and the objection that the facts stated do not constitute a public offense may be taken by motion

in arrest of judgment.”

Thus, claims that there is insufficient notice in the accusatory pleading will be deemed waived

unless brought by way of demurrer. (See People v. Sanders (1922) 188 Cal. 744, 752

[contention that pleading could be read to embrace threats under two different subdivisions of

section 519 was “at most a mere uncertainty” that is waived if not raised by demurrer].) So will

claims that the defendant was being prosecuted under the wrong statute (as opposed to being

prosecuted for a non-existent crime). (See People v. Booker (1994) 21 Cal.App.4th 1517,

1520–1521 [defendants who claimed penalty for their alleged crimes was governed by Unemp.

Ins.Code, § 2117 rather than Unemp. Ins.Code, § 2122 waived defect by failing to demur to

information]; cf., People v. Paul (1978) 78 Cal.App.3d 32, 42 [claim that charging document

does not state a public offense may be raised for first time on appeal].) Similarly, failure to raise

an objection that more than one offense is charged except as provided in section 954 is a

waivable ground for demurrer. (People v. Barros (2012) 209 Cal.App.4th 1581, 1596, fn. 20

[albeit also noting misjoinder may be raised for the first time in a motion to sever for purposes of

severing the charges for trial].)

16. If a demurrer is not filed, will any objection that might have

been the basis for the demurrer be waived?

29

Note also that even if the objection on grounds of lack of notice is properly raised and

improperly rejected in the trial court, if the defendant chooses to wait to raise the issue again

until after conviction (as opposed to taking a pre-conviction writ), the defendant will have to

show he was actually prejudiced by the defective pleading on appeal. This is because Penal Code

section 960 provides: “No accusatory pleading is insufficient, nor can the trial, judgment,

or other proceeding thereon be affected by reason of any defect or imperfection in matter of form

which does not prejudice a substantial right of the defendant upon the merits.” (Emphasis added

by IPG.)

In People v. Butte (2004) 117 Cal.App.4th 956, the court held that where a defendant has

waived preliminary examination, the defendant forfeits her right to demurrer to the information

on grounds the information violates due process on grounds it does not provide adequate notice.

(Id. at p. 958-959.) However, if the prosecution files an information that adds charges not

included in the original complaint after defendant waives preliminary examination, the

defendant will still be entitled to demurrer to the added charges. (See People v. Peyton

(2009) 176 Cal.App.4th 642, 654 [noting Penal Code section 1009 prohibits adding new charges

to an accusatory pleading after the defendant has waived his right to a preliminary hearing on

that pleading and when no preliminary hearing is held, the pleading cannot be amended to add

additional charges].)

Sometimes the defendant’s demurrer is warranted and the People will want to amend the

complaint. Once the demurrer is filed, the People may amend the complaint without leave of

the court, at any time to address the problem, so long as it is done before the defendant has

entered a plea or the demurrer is sustained. (See Pen. Code, § 1009 [“An indictment,

accusation or information may be amended by the district attorney, and an amended complaint

may be filed by the prosecuting attorney, without leave of court at any time before the defendant

pleads or a demurrer to the original pleading is sustained.”].)

A. If a defendant waives preliminary examination, can the defendant

still raise a claim of lack of due process notice to the information?

17. Once a demurrer is filed, can the People amend the complaint to

address any problem without leave of the court?

30

Penal Code section 1007, in pertinent part, states: “If the demurrer to an indictment or

information is overruled, the court must permit the defendant, at the defendant’s election, to

plead, which the defendant must do forthwith, unless the court extends the time.”

If a demurrer is granted, the People normally should be permitted to refile an amended charging

document to rectify any error in the original charging document.

Demurrer Granted as to Information or Indictment Penal Code section 1007, in pertinent part, provides: “If the demurrer is sustained, the court

must, if the defect can be remedied by amendment, permit the indictment or information to be

amended, either forthwith or within such time, not exceeding 10 days, as it may fix, or, if the

defect or insufficiency therein cannot be remedied by amendment, the court may direct the filing

of a new information or the submission of the case to the same or another grand jury.”

(Emphasis added by IPG.)

Demurrer Granted as to Complaint

Penal Code section 1007, in pertinent part, provides: “If the demurrer to a complaint is

sustained, the court must, if the defect can be remedied, permit the filing of an amended

complaint within such time not exceeding 10 days as it may fix.” (Emphasis added by IPG.)

The defendant is entitled to a dismissal if the demurrer is sustained and the prosecution does not

amend it within ten days. Penal Code section 1008 states: “If the demurrer is sustained, and no

amendment of the accusatory pleading is permitted, or, in case an amendment is permitted, no

amendment is made or amended pleading is filed within the time fixed therefor, the action

18. What happens if the defendant’s demurrer is denied?

19. What happens if the defendant’s demurrer is granted? Can

the accusatory pleading be refiled?

20. 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?

31

shall be dismissed, and, except as provided in Section 1010, the court must order, if the

defendant is in custody, that he be discharged or if he has been admitted to bail, that his bail be

exonerated, or, if money or other property has been deposited instead of bail for his appearance,

that such money or other property be refunded to him or to the person or persons found by the

court to have deposited such money or other property on his behalf.” (Emphasis added by IPG.)

In Williams v. Superior Court (2003) 111 Cal.App.4th Supp. 1, the court held that a court erred

in allowing an amended complaint to be filed more than 60 days after the demurrer was granted

where the defense counsel appeared to agree to the 60-day delay but the delay was even longer than

60 days and it was not clear the parties fully understood the governing statutory 10-day limit. The

court stated that the defendant did not waive his right to a dismissal just because he failed to

immediately object to the amended complaint upon its filing. (Id. at pp. 8-9.)

However, in Osman v. Appellate Div. of Superior Court of Los Angeles County (2005) 134

Cal.App.4th 32 found that defendant waived his right to a violation of the ten-day limit where the

prosecution was given 33 days to file an amended complaint after the demurrer was granted,

proceedings were continued to that belated date, and neither party objected to the belated date or

made any mention that the date was beyond the 10–day limit of section 1007. (Id. at p. 36.) The

Osman court disagreed with the holding in Williams that defendant did not waive or forfeit his

statutory right to the filing of an amended complaint within 10 days. The Osman court also

distinguished Williams on the ground that in Williams the People did not file an amended

complaint even within the 60–day period mistakenly permitted by the trial court. (Id. at pp. 37-41.)

Penal Code section 1238 specifically allows the People to take an appeal from “[a]n order sustaining

a demurrer to all or any portion of the indictment, accusation, or information.” (Pen. Code, §

1238(2).)

While there is no express statutory authorization for a demurrer in juvenile cases (In re Rottanak

K. (1995) 37 Cal.App.4th 260, 269), there is case law supporting the use of a demurrer in juvenile

cases. (See In re Jamil H. (1984) 158 Cal.App.3d 556, 560–561 [juvenile court should have

sustained minor's demurrer to § 602 petition on ground it failed to advise him adequately of charge

22. Can a demurrer be filed in a juvenile case?

21. Can the People appeal the granting of a demurrer?

32

against him]; In re Rudolfo A. (1980) 110 Cal.App.3d 845, 853–857 [juvenile court should have

sustained minor's demurrer on ground pleading was insufficient to advise him adequately of charge

against him]; see also In re Jesse P. (1992) 3 Cal.App.4th 1177, 1182 [“minor can seek pre-trial

review of the sufficiency of the petition by way of motion akin to a demurrer”].)

Penal Code section 1004 provides “The defendant may demur to the accusatory pleading at any

time prior to the entry of a plea . . . [].” (Pen. Code, § 1004.)

Although petitions to revoke probation or parole seem to fall outside some of the other statutes

governing demurrers, it is likely they would qualify as “accusatory pleadings” for purposes of

Penal Code section 1004. In People v. Osorio (2015) 235 Cal.App.4th 1408, the defendant

filed a demurrer to a petition to revoke parole on the ground that the petition did not meet the

“requirements of Penal Code section 3000.08, subdivision (f), and California Rules of Court, rule

4.541(e), in that the report [did] not ‘include the reasons for [the Department]’s determination

that intermediate sanctions without court intervention ... are inappropriate responses to the

alleged violations’.” (Id. at p. 1415.) The Osorio court held it was error for the trial court to

deny defendant’s demurrer to a petition to revoke parole. (Ibid.) However, while implicitly

accepting the right of the defendant to rile a demurrer, the Osorio court rejected the Attorney

General’s argument that even if defendant's demurrer had been sustained, the trial court would

have been required to give the Department 10 days to cure any defects pursuant to Penal Code

section 1007. The Osorio court stated that “[s]ection 1007 applies to a defendant’s response to

an indictment or information, not to a petition to revoke parole” and that “[e]ven if section 1007

did apply or there was some other basis to permit amendment of a petition for revocation after a

demurrer, there may be a problem of constitutional dimensions because of the time involved in

filing a petition, ruling on the demurrer to the petition, amending it, and holding another

hearing.” (Ibid.)

SPECIAL THANKS TO TORY POLIN FOR GUEST-HOSTING THE PODCAST ACCOMPANYING THIS HANDOUT.

NEXT EDITION ETA: FEBRUARY 17, 2016. AN UPDATE ON PROPOSITION 47.

Suggestions for future topics to be covered by the Inquisitive Prosecutor’s Guide, as well as any other comments or criticisms, should be

directed to Jeff Rubin at (408) 792-1065.

23. Can a defendant file a demurrer to a petition to revoke parole

or probation?