They sometimes can, but the new charge must fit limits imposed by Penal Code section 739 and California case law. After a felony preliminary examination and commitment, the information may include an offense named in the holding order or another offense shown by evidence taken before the magistrate. For an added offense, the preliminary-hearing evidence must support it and link it to the same underlying transaction as a count the judge held for trial. The prosecutor cannot disregard the preliminary-hearing judge’s material factual findings. (Penal Code § 739; Jones v. Superior Court; People v. Superior Court (Mendella))
Compare the complaint, hearing, order, and information
Put the original complaint, preliminary-hearing transcript and exhibits, the magistrate’s holding order, and the filed information side by side. For each added count or enhancement, identify the element that was not in the original complaint, which preliminary-hearing evidence supports it, and how its underlying events connect to a count held for trial. Jones and Mendella explain that section 739 does not permit an unrelated new offense simply because evidence of it appeared somewhere in the hearing. (Jones; Mendella)
The magistrate’s factual findings also matter. A later charging decision may not ignore supported material findings, but a magistrate’s legal conclusion that evidence was insufficient is not the same as a factual finding. Counsel should read the exact findings and ruling rather than infer them from a count omitted from the holding order. An omitted charge is not automatically invalid, and a charge dismissed at the preliminary stage is not necessarily barred from every later lawful prosecution.
A section 995 challenge is record-specific
Penal Code section 995 allows a motion to set aside an information in specified circumstances, including when the defendant was not legally committed or the commitment lacked reasonable or probable cause. Section 995a allows limited correction of minor omissions, ambiguities, or technical defects that can be fixed promptly without rehearing a substantial part of the evidence; it is not a universal fix for a substantively unsupported new charge. The motion and record need to identify the legal defect and the count affected. (Penal Code § 995; § 995a)
Preserve the complaint, hearing transcript, exhibits, explicit factual findings, holding order, information, and counsel’s analysis of the new elements and related transaction. The comparison can show what the preliminary evidence did and did not support, but it does not predict whether a challenge will succeed.
The Law Offices of David S. Chesley represents people facing California felony charges. Explore the firm’s investigation and pretrial proceedings resources or call (800) 755-5174 to discuss a post-preliminary-hearing information and the record.