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People v. Kozlowski3/4/2002
hether Lisa and Robyn suffered bodily harm when Kozlowski and Gatson kidnapped them and the jury specifically found that they did. However, the information did not allege the fact that Lisa and Robyn suffered bodily harm such that an increased penalty could be imposed for the kidnappings. On appeal, Kozlowski and Gatson contend that their constitutional rights to notice were violated because they were not charged with such an allegation in the information.
Preliminarily, the People argue that Kozlowski and Gatson may not raise this issue on appeal because they did not raise it in the trial court. When a defendant fails to object at trial to the adequacy of the notice given in the information, that objection is deemed to be waived. (People v. Bright (1996) 12 Cal.4th 652, 671, cert. den. sub nom. Bright v. California (1996) 518 U.S. 1006; People v. Carbonie (1975) 48 Cal.App.3d 679, 691.) As the record on appeal reveals no objection to the information on this ground, it appears that Kozlowski and Gatson have not preserved this issue for appeal.
Even if we assume arguendo that this issue was properly before us and reach the merits of this issue, we would find any deficiency in the information to be harmless. The purpose of the information is to provide a criminal defendant with notice of the charges he or she is expected to answer. (People v. Carbonie, supra, 48 Cal.App.3d at p. 691.) Due process requires notice in order to afford a criminal accused with a reasonable opportunity to prepare and present a defense such that the defendant is not surprised by the evidence offered at trial. (People v. Neal, supra, 159 Cal.App.3d at p. 72.) However, when an information puts a defendant on notice that an increased sentence will be sought and alleges the facts supporting the increased sentence, modification of judgment for errors or omissions in the information is required only when the defendant has been misled to his or her prejudice. (People v. Thomas (1987) 43 Cal.3d 818, 831; People v. Neal, supra, 159 Cal.App.3d at p. 73.)
Kozlowski and Gatson both had actual notice of alleged facts that could lead to a term of life imprisonment without possibility of parole. In Kozlowski's motion to set aside the information, his counsel acknowledged that the kidnapping charges were intended to subject Kozlowski and Gatson to a sentence of life imprisonment without possibility of parole. In Gatson's motion to set aside the information, he joined in Kozlowski's motion. Thus, both defendants had actual notice sufficient to satisfy Apprendi v. New Jersey, supra, 530 U.S. 466.
In this case, the information also alleged that during the commission of two counts of kidnapping for extortion, Kozlowski and Gatson personally inflicted great bodily injury on Lisa and/or Robyn for purposes of the sentence enhancement provision of section 12022.7, subdivision (a). Assuming arguendo that the terms "bodily harm" and "bodily injury" differ, we are satisfied that there is no meaningful difference between those terms for purposes of this issue. The multiple stab wounds and gunshot wounds provided overwhelming evidence of bodily harm at trial.
On appeal, Kozlowski and Gatson do not argue that they suffered any prejudice from the information's lack of a specific allegation that Lisa and Robyn each suffered bodily harm during their commission of kidnapping for extortion, nor can we see any in the circumstances of this case. (See People v. Thomas, supra, 43 Cal.3d at p. 831; People v. Neal, supra, 159 Cal.App.3d at p. 74.) As the information alleged the fact of bodily injury and Kozlowski and Gatson had actual notice that the information exposed them to a possible term of life imprisonment without
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