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Cervantes v. People, 715 P.2d 783

Facts

On May 5, 1979, Robert Cervantes went to his estranged wife's home to pick up their son, leading to an argument where he slapped her. After she called the police, Cervantes followed her and pushed her out of the neighbor's house, causing her to fall and injure her head. When police officers arrived, Cervantes shouted obscenities and assaulted Officer Tymkowych, leading to charges of second-degree assault against him. The prosecution initially charged him with first-degree assault, but after a preliminary hearing, the charge was amended to second-degree assault, which Cervantes contested after the jury was sworn.

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.

Issue

Did the trial court err in allowing the prosecution to amend the information charging Cervantes with second-degree assault after the jury had been sworn?

Cervantes appealed his conviction for second degree assault, challenging the propriety of the trial court's ruling allowing the amendment of the charge.

Rule

Under Crim.P. 7(e), an information may be amended as to form or substance at any time prior to trial, and may be amended as to form at any time before the verdict if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

Crim.P. 7(e) governs amendment of informations and provides as follows: The court may permit an information to be amended as to form or substance at any time prior to trial; the court may permit it to be amended as to form at any time before the verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

Analysis

The court determined that the amendment to the information was one of form rather than substance, as it did not change the nature of the charge against Cervantes. The original information, along with the context of the preliminary hearing, sufficiently informed Cervantes of the second-degree assault charge. The amendment merely clarified the language to align with the statutory requirements without altering the essential elements of the offense.

The present case involves the amendment of an information after the jury was chosen and sworn, not an amendment 'prior to trial.' Therefore, under the standards of Crim.P. 7(e), an amendment was permissible only if it was one of form, not substance, and if it charged no different offense and prejudiced no substantial rights of the defendant.

Conclusion

The Supreme Court of Colorado affirmed the judgment of the Court of Appeals, concluding that the trial court properly allowed the prosecution to amend the information charging second-degree assault after the jury had been sworn.

The judgment of the court of appeals is affirmed.

Who won?

The People (the prosecution) prevailed in the case because the court found that the amendment to the information was permissible and did not prejudice the defendant's rights.

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.

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