Does the Attorney General have authority to amend or amend information to allege a serious felony enhancement on counts 1 and 2?

California, United States of America


The following excerpt is from People v. Mitchell, F069782 (Cal. App. 2016):

The Attorney General's argument asks us to amend the second amended information to allege the five-year serious felony enhancement on counts 1 and 2, which the district attorney could have done. In doing so, the Attorney General is asking us to infringe on the prosecution's charging discretion. "'[T]he prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring. [Citations.] This prosecutorial discretion to choose, for each particular case, the actual charges from among those potentially available arises from "'the complex considerations necessary for the effective and efficient administration of law enforcement.'" [Citations.] The prosecution's authority in this regard is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch. [Citations.]' [Citation.]" (Manduley v. Superior Court (2002) 27 Cal.4th 537, 552.) We cannot simply amend the information to allege an enhancement the prosecutor chose not to charge.

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