Can a prosecutor add an additional charge or allegation under section 739 of the Criminal Code to the criminal complaint of a defendant in a sexual assault case?

We note at the outset we are not reviewing the sufficiency of the evidence to justify a jury finding of the truth of the alleged special circumstance. Our only task is to determine whether there is sufficient evidence in the preliminary examination transcript to permit the district attorney to file such allegation and take the matter to trial. (See People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278.)

Although the special circumstance at issue was not in the criminal complaint before the magistrate, the district attorney in appropriate circumstances has the authority to add such allegation to the information filed in superior court. Section 739 permits a prosecutor to file in superior court "an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed." Such additional charge or allegation may be brought where there is sufficient evidence in the transcript of the preliminary examination to justify an added offense which occurred during the same transaction involved in the commitment order. (Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665, 94 Cal.Rptr. 289, 483 P.2d 1241.)