Can an adult defendant be prosecuted for an offence which has not been proven at the preliminary hearing?

In adult criminal proceedings, absent a showing of substantial prejudice to a defendant's rights, section 1009 authorizes a trial court to amend an information "for any defect or insufficiency" at "any stage" of the proceedings. ( 1009.) A trial court has broad discretion to permit amendments of accusatory pleadings in adult criminal proceedings. (In re Man J. (1983) 149 Cal.App.3d 475, 481 (Man J.).) However, amendments of accusatory pleadings have limitations, and "[a]n indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint." ( 1009.) An adult defendant may not be prosecuted for an offense which lacks evidence adduced at the preliminary hearing "or arising out of the transaction upon which the commitment was based." (People v. Burnett (1999) 71 Cal.App.4th 151, 165-166.)

Page 7