Cervantes v. People

715 P.2d 783, 1986 Colo. LEXIS 552
CourtSupreme Court of Colorado
DecidedMarch 17, 1986
Docket83SC426
StatusPublished
Cited by40 cases

This text of 715 P.2d 783 (Cervantes v. People) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cervantes v. People, 715 P.2d 783, 1986 Colo. LEXIS 552 (Colo. 1986).

Opinions

LOHR, Justice.

After a jury had been selected and sworn in Weld County District Court, the prosecution moved to amend a count of the criminal information charging the defendant, Robert Cervantes, with second degree assault. The trial court granted the motion. Thereafter, the jury found the defendant guilty of that charge as well as charges of third degree assault, resisting arrest and obstructing a peace officer. Cervantes appealed his conviction for second degree assault, challenging the propriety of the trial court’s ruling allowing the amendment of the charge. The Colorado Court of Appeals held the amendment permissible un[784]*784der Crim.P. 7(e) and sustained the judgment in People v. Cervantes, 677 P.2d 403 (Colo.App.1983). We granted certiorari and now affirm.

I.

The events that resulted in Cervantes’ conviction occurred on May 5, 1979. According to the evidence presented at the preliminary hearing and at trial, Cervantes went to the home of his estranged wife, Alice Cervantes, in Greeley to pick up his son and take him to a wrestling match in Denver. Alice Cervantes prepared some food for the defendant, and the two began arguing. The defendant slapped Alice Cervantes, and she ran to the house next door to call the police. The defendant followed her into the house, hung up the phone as she was trying to dial, and then pushed her out of the house. Alice Cervantes fell on the sidewalk as she was leaving the neighbor’s house, causing her to receive a large bump on her head. In assessing the cause of her fall, Alice Cervantes did not know whether the defendant pushed her or whether she tripped. She then returned to her own home with the defendant, where they continued arguing.

Shortly thereafter, two uniformed police officers, Joseph Tymkowych and Raymond Leffler of the Greeley Police Department, arrived at Alice Cervantes’ house. Tym-kowych approached the house first, and Robert Cervantes met him on the porch. According to Tymkowych, Cervantes began shouting obscenities at him. Tymkowych informed Cervantes that the police officers merely wished to make sure that Alice Cervantes was not harmed. After Tymkowych moved towards the door of the house in an effort to see Alice Cervantes, the defendant shouted more obscenities and then delivered a blow with his fist to Tymkowych’s chest. A scuffle involving both of the police officers and Cervantes ensued. During the scuffle, Cervantes called out to his wife’s dog, a German Shepherd-Saint Bernard mix. He told the dog, “Sic ’em, boy, get them. Kill them.” The dog proceeded to “grab” Tymkowych’s ankle and then his shoulder. Although the dog did not break Tymkowych’s skin, the grabbing left red marks on Tymkowych’s shoulder. Before the officers managed to handcuff and arrest Cervantes, he either intentionally or inadvertently bit Leffler on the hand.

As a result of this incident, an information was filed against Cervantes charging him with first degree assault1 on Officer Tymkowych, second degree assault2 on Officer Leffler, and third degree assault3 on Alice Cervantes. After the preliminary hearing, the trial court ruled that probable cause had not been established to support the first degree assault count. The court bound over that charge on second degree assault and directed the prosecution to file an amended information reflecting that lesser charge.

In response to the court’s order, the prosecution filed a motion to amend the first count of the information against Cervantes and attached an amended count alleging in pertinent part that:

[O]n or about the 5th day of May, 1979, at the said County of Weld, State of Colorado, ROBERT CERVANTES, with intent to prevent Joseph Tymkowych, whom he knew and reasonably should have known to be a peace officer, did unlawfully, feloniously, and intentionally cause bodily injury to Joseph Tymkow-ych.

The trial court granted the motion. The amended count one stated that the alleged conduct by Cervantes violated section 18-3-203, 8 C.R.S. (1978), which is the Colorado statute that defines the offense of second degree assault.4 The information did [785]*785not specify which subsection of the statute Cervantes had allegedly violated. In order to track more precisely the language of subsection (l)(c) of the statute, the information should have contained the phrase “from performing a lawful duty” following the words “whom he knew and reasonably should have known to be a peace officer.”

After the jury had been selected and sworn, Cervantes orally moved to dismiss the amended first count of the information on the grounds that it did not state a cause of action and did not allege a mental state. The trial court denied Cervantes’ motion and instead granted the prosecution’s motion to amend count one further by inserting the words “from performing a lawful duty.” The court stated its belief that the amendment was “just a matter of form” and that the information, together with the preliminary hearing, gave notice to Cervantes of the charge against him.

At the close of the prosecution’s evidence, the defendant moved for a judgment of acquittal on each count, reiterating the argument that the statement of the charge in amended count one was legally insufficient. The trial court reduced the charge of second degree assault on Leffler to one of third degree assault. The court refused, however, to render a judgment of acquittal as to the amended second degree assault charge involving Tymkowych or as to the charge of third degree assault on Alice Cervantes. Robert Cervantes was subsequently convicted of second degree assault on Tymkowych, third degree assault on Alice Cervantes, and of obstructing an officer and resisting arrest in connection with his conduct towards Leffler.

On appeal, Cervantes challenged only the second degree assault conviction concerning Tymkowych, contending that the trial court should have dismissed the amended first count and should not have allowed the prosecution to amend it further. The court of appeals, by a divided vote, determined that Cervantes was adequately advised of the second degree assault charge involving Officer Tymkowych before the prosecution moved to amend the information further after the jury was sworn, and therefore the additional amendment was one of form and was properly allowed by the trial court. We agree with this determination.

II.

“An information is sufficient if it advises the defendant of the charges he is facing so that he can adequately defend himself and be protected from further prosecution for the same offense.” People v. Albo, 195 Colo. 102, 106, 575 P.2d 427, 429 (1978). The notice given to a defendant of the charges against him should be sufficient to ensure that he is not taken by surprise by the evidence offered at trial. People v. Cooke, 186 Colo. 44, 46, 525 P.2d [786]*786426, 428 (1974). An information need not follow the exact wording of the statute that defines the offense charged in the information. Loggins v. People, 178 Colo. 439, 441, 498 P.2d 1146, 1147 (1972). However, an information that fails to charge an essential element of an offense is defective. People v. Bowen,

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Bluebook (online)
715 P.2d 783, 1986 Colo. LEXIS 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cervantes-v-people-colo-1986.