8 GCA CRIMINAL PROCEDURE CH. 55 RULES OF PLEADING 1 CHAPTER 55 RULES OF PLEADING § 55.10. Form of Indictment or Information; Procedu re for Criminal Forfeiture. § 55.15. Surplusage. § 55.20. Amending Indictment or Information. § 55.25. Information or Indictment; When Original i s Lost. § 55.30. @Bill of Particulars @ Provided For; Conditions. § 55.35. Charging Multiple Offenses. § 55.40. Prior Convictions to be Charged. § 55.10. Form of Indictment or Information; Procedu re for Criminal Forfeiture. (a) The indictment or the information shall be a pl ain, concise and definite written statement of the essential facts c onstituting the offense charged and shall be signed by the prosecuting atto rney. It need not contain a formal commencement, a formal conclusion or any oth er matter not necessary to such statement. Allegations made in on e count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committ ed the offense are unknown or that he committed it by one or more spec ified means. (b) The indictment or information shall state for e ach count the official or customary citation of the statute, rule, regulat nse are unknown or that he committed it by one or more spec ified means. (b) The indictment or information shall state for e ach count the official or customary citation of the statute, rule, regulat ion or other provision of law which the defendant is alleged therein to have viol ated. Error in the citation or its omission shall not be ground for dismissal o f the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. (c) When an offense charged may result in a crimina l forfeiture, the indictment or information shall allege the extent o f the interest or property subject to forfeiture. NOTE : Chapter 55 refers throughout to the Aindictment or information; @ however, § 15.10 makes clear that where a complaint serves as the accusatory pleading it is subject to all these same rules of pleading. Section 55.10 is substantively the same as Subdivis ions (c) and (d) of former Rule 7 and former § 582(c). See also Fed. R. Crim. P. 7(c) ; Cal. Pen. Code §§ 950-952. See generally 8 Moore, Federal Practice &7.04 (1974); B. Witkin, California Criminal Procedure Proceedings Before Trial §§ 184-200 (1963 , Supp. 1973). . R. Crim. P. 7(c) ; Cal. Pen. Code §§ 950-952. See generally 8 Moore, Federal Practice &7.04 (1974); B. Witkin, California Criminal Procedure Proceedings Before Trial §§ 184-200 (1963 , Supp. 1973). COL91320168 GCA CRIMINAL PROCEDURE CH. 55 RULES OF PLEADING 2 § 55.15. Surplusage. The court on motion of the defendant may strike any surplusage from the indictment or information. NOTE : Section 55.15 is identical to former Rule 7(e) an d former § 682(d). See also Fed. R. Crim. P. 7(d). See generally 8 Moore, Feder al Practice &7.05[1] (1974). § 55.20. Amending Indictment or Information. The court may permit an indictment or information t o be amended upon the application of the prosecuting attorney at any time before verdict or finding if no additional [or] different offense is charged and if substantial rights of the defendant are not prejudiced. COURT DECISIONS : SUPER.CT. 1982 The court is convinced that there is a typographical error in this Section reading Ano additional different offense @ and that the correct reading should be, and will be interpre ted by the court to be Ano additional or different offense. @ People v. Cruz, Cr. #94F-80. SUPER.CT. ng Ano additional different offense @ and that the correct reading should be, and will be interpre ted by the court to be Ano additional or different offense. @ People v. Cruz, Cr. #94F-80. SUPER.CT. 1982 AThe modern trend seems to be away from the strict s tandards imposed on indictments and common law. @ The subject matter of this motion is an information and the amendment requested by the peop le would not work a prejudice to the defendant. People v. Cruz, Cr. #94F-80. Section 55.20 is sufficiently broad to permit the p eople to amend the information to include the word Aintentionally @ within an indictment for the offense of kidnapping . People v. Atalig , Cr. #97F-81. D.C.GUAM: APP.DIV. 1983 Amendments to the indictmen ts should have been allowed, which amendment alleged and overt act occu rring in 1978, because such amendment would not charge Aan additional or different offense @ and the substantial rights of the defendant were not prejudiced. The am endment would not affect the nature of the crime charged, nor the defendants' de fense to these charges. The fact that the defendant may require discovery is a poor reaso n not to allow an amendment which would cure a supposed e nature of the crime charged, nor the defendants' de fense to these charges. The fact that the defendant may require discovery is a poor reaso n not to allow an amendment which would cure a supposed defect in the indictmen t. People v. Manibusan, D.C. Cr. #81-0053A. NOTE : Section 55.20 is substantively similar to former Rule 7(f) and former § 682(e) but also allows amendment of an indictment. See als o Fed. R. Crim. P. 7(e). See generally 8 Moore, Federal Practice 7.05 (1974); B. Witkin, California Criminal Procedure Proceedings Before Trial §§ 210-214 (1963 , Supp. 1973). § 55.25. Information or Indictment; When Original i s Lost. If the information or indictment in any criminal ac tion has heretofore been lost or destroyed, or shall hereafter be lost or destroyed, the court shall upon the application of the prosecuting attorney or of the defendant, order a copy of such pleading to be filed and substituted f or the original, and when filed and substituted, as provided in this Section, the copy shall have the COL91320168 GCA CRIMINAL PROCEDURE CH. 55 RULES OF PLEADING 3 same force and effect as if it were the original pl eading. n filed and substituted, as provided in this Section, the copy shall have the COL91320168 GCA CRIMINAL PROCEDURE CH. 55 RULES OF PLEADING 3 same force and effect as if it were the original pl eading. NOTE : Section 55.25 continues the substance of former § 810. See also Cal. Pen. Code § 973. § 55.30. 'Bill of Particulars' Provided For; Condit ions. Whether or not an indictment or information complie s with § 55.10, if it fails to specify the particulars of the offense suf ficiently to enable the defendant to prepare his defense, the court may, on motion of the defendant, require the prosecuting attorney to furnish the def endant with a clarification of the pleading containing such particulars as may be necessary for the preparation of the defense. COURT DECISIONS : SUPERIOR COURT, 1978. The purpose of the bill of particulars is to inform the defendant as to the cr ime for which he must stand trial, not to compel disclosure of how much the government can or cannot prove, nor to foreclose the government from using proof that may develop as trial approaches. People v. Mesa, et al., Sup. Ct. Cr. l, not to compel disclosure of how much the government can or cannot prove, nor to foreclose the government from using proof that may develop as trial approaches. People v. Mesa, et al., Sup. Ct. Cr. ##324F-77, 296F-77 and 327F-77 (Order , 01/24/78; Abbate, P.J.) NOTE: Section 55.30 is comparable to former Rule 7(g) an d former § 682(f). See also Fed. R. Crim. P. 7(f). See generally 8 Moore, Feder al Practice &7.06 (1974). The transcript of the grand jury proceedings or of the preliminary examination normally provides the defendant with all the information he needs in felony cases. In misdemeanor cases, discovery usually gives the same information. However, there may be cases where it is desirable to pinpoint the issu es and this Section will permit such a result. § 55.35. Charging Multiple Offenses. (a) Two (2) or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged are of the same or similar character or are based on th e same act or transaction or on two (2) or more acts or transactions connected t ogether or constituting parts of a common scheme or plan. rged are of the same or similar character or are based on th e same act or transaction or on two (2) or more acts or transactions connected t ogether or constituting parts of a common scheme or plan. (b) Two (2) or more defendants may be charged in th e same indictment or information if they are alleged to have particip ated in the same act or transaction or in the same series of acts or transa ctions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants ne ed not be charged on each count. NOTE : Section 55.35 is substantively the same as former § 954, former Rule 8 and Rule 8 of the Federal Rules of Criminal Procedure. See generally 8 Moore, Federal Practice &&8.01-8.07 (1974). See also Cal. Pen. Code § 954 com mented on in B. Witkin, California Criminal Procedure Proceedings B efore Trial §§ 206-209 (1963, COL91320168 GCA CRIMINAL PROCEDURE CH. 55 RULES OF PLEADING 4 Supp. 1973). For relief from joinder, see § 65.35 ( former Rule 14). For Acompulsory @ joinder for trial, see § 65.30. § 55.40. Prior Convictions to be Charged. L PROCEDURE CH. 55 RULES OF PLEADING 4 Supp. 1973). For relief from joinder, see § 65.35 ( former Rule 14). For Acompulsory @ joinder for trial, see § 65.30. § 55.40. Prior Convictions to be Charged. (a) A prior conviction may be alleged when the exis tence of such conviction changes the punishment which can be impo sed upon the defendant. Such conviction may be alleged by chargi ng: AThat the defendant, before the commission of the offense charged was co nvicted of the crime of [name of offense and statutory reference], a [felon y, misdemeanor or petty misdemeanor] in the [name of court] on or about [da te of conviction]. @ (b) When, prior to trial, it is discovered that an indictment or information does not allege all of the prior convic tions permitted pursuant to Subsection (a), the prosecuting attorney, upon appl ication to and order of the court, may amend the pleading to include such charg e. The defendant shall promptly be re-arraigned on such indictment or info rmation as amended and be required to plead thereto. NOTE : Section 55.40 replaces former §§ 969 and 969a. In contrast to former § 969, § 55.40 makes clear that the prosecuting attorney has the initial discretion ended and be required to plead thereto. NOTE : Section 55.40 replaces former §§ 969 and 969a. In contrast to former § 969, § 55.40 makes clear that the prosecuting attorney has the initial discretion to choose whether or not prior convictions should be charged. Where such convictions are charged, their relevance and importance for sentenc ing are then matters for the court to decide. See 9 GCA §§ 80.38, 80.40, (criteria for ex tended terms). Section 55.40 has also been revised in conformity with California Pen al Code § 969a to include a reference to indictments. ---------- COL9132016
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