Can Prosecutors Add Charges to My Case?
If you’ve been charged with a crime in California, you have constitutional rights that protect you throughout the criminal justice process. One of the most important—yet often misunderstood—is your right to receive proper notice of all charges against you. A recent California appellate decision shows how critical this protection is, and what can happen when prosecutors try to add serious charges after your preliminary hearing has concluded.
Our experienced criminal defense attorneys at Wallin & Klarich can guide you through the legal process. Call Wallin & Klarich today toll-free at (877) 466-5245 for your free consultation with one of our criminal defense attorneys near you.
Understanding the Preliminary Hearing
In California’s criminal justice system, the preliminary hearing serves as a checkpoint for felony cases. Often called a “probable cause hearing,” this proceeding occurs after you’ve been arrested and arraigned but before your trial begins. During this hearing, a judge examines the prosecution’s evidence to determine whether there’s sufficient probable cause to believe you committed the crimes charged.
The preliminary hearing isn’t just a formality—it’s a constitutional safeguard. It ensures that the state has at least some reasonable evidence before subjecting you to the stress, expense, and potential consequences of a full criminal trial. The judge must find that the evidence, if believed, would support a reasonable suspicion that you committed each charged offense.
Importantly, the preliminary hearing also serves another vital function: it establishes the boundaries of what you can be prosecuted for at trial. This is where your right to notice becomes very important.
Your Right to Notice of Criminal Charges
California law mandates that defendants receive clear notice of the charges they’re facing. This isn’t just a procedural technicality—it’s a fundamental aspect of due process. You have the right to know exactly what the state is accusing you of so you can prepare an adequate defense.
Generally, you cannot be prosecuted for any offense that wasn’t supported by evidence presented at your preliminary hearing. The preliminary hearing sets the charging framework for your case. If the prosecution wants to pursue additional charges, they typically need evidence from the preliminary hearing to support those charges. There are limited exceptions to this rule. Typically, the state must put its cards on the table at the preliminary hearing.
Real World Example: People v. Orozco
A recent case illustrates how courts protect this right to notice. The defendant was convicted of murder, attempted murder, and conspiracy to commit murder for his involvement in a gang-related shooting. Another individual was the actual shooter, firing the defendant’s gun from the defendant’s vehicle during the incident. After the shooting, police questioned the shooter for 70 minutes. However, they didn’t provide Miranda warnings until 15 minutes into the interrogation—by which point the shooter had already confessed to being the triggerman. At the defendant’s preliminary hearing, the judge suppressed this confession due to the Miranda violation.
Despite suppressing the confession, the judge found reasonable cause to believe the defendant was guilty of murder and attempted murder, and held him over for trial. However, before jury selection began, the prosecution moved to amend the charging document to add conspiracy to commit murder as an additional count. The defendant objected, arguing that this new charge wasn’t supported by evidence from the preliminary hearing. The trial court disagreed and allowed the amendment. The defendant was ultimately convicted on all counts and sentenced to 22 years to life in prison.
On appeal, the appellate court reversed the conspiracy conviction. The court explained that conspiracy to commit first-degree murder requires proof of an intent to agree and an actual agreement with others to kill intentionally and unlawfully. Because the shooter’s confession had been suppressed at the preliminary hearing, there was no evidence presented at that hearing to establish these essential elements of conspiracy. Therefore, the defendant could not lawfully be prosecuted for conspiracy to commit murder—the charge had been improperly added after the preliminary hearing without evidentiary support.
The Law on Amending Charges
California law allows prosecutors some flexibility to amend charging documents, but this flexibility has important limits. Prosecutors can correct technical defects, add or modify allegations, and even add charges—but only if the new charges are supported by evidence from the preliminary hearing.
The preliminary hearing is your opportunity to know what case you need to defend against. Courts have recognized that allowing last-minute charge amendments without preliminary hearing support would violate defendants’ due process rights.
Contact Wallin & Klarich Today
If you are facing criminal charges, you need to contact an aggressive defense attorney to fight for your freedom. With 40+ years of experience, our attorneys at Wallin & Klarich have helped many clients ensure they receive a fair trial in their criminal defense cases. We know the most effective strategies to argue on your behalf, and we will do everything in our power to help you achieve the best possible result in your case.At Wallin & Klarich, we have offices all over Southern California: Irvine, Pasadena, Riverside, San Bernardino, San Diego, Torrance, and Anaheim. Additionally, our law firm can handle many types of cases statewide. Discover how our team can assist you. Contact us today, toll-free at (877) 466-5245 for a free consultation with a skilled criminal defense attorney near you.
