Quinones

Bonnie M. Dumanis, District Attorney, Catherine Stephenson, Laura E. Tanney, Craig E. Fisher and James E. Atkins, Deputy District Attorneys, for Real Party in Interest.

McCONNELL, P. J.

Petitioner Augustin Robert Quinones seeks a writ of prohibition restraining respondent court from proceeding further on torture and attempted murder counts, which the district attorney charged for the first time in an amended information filed approximately five months after the preliminary hearing. The primary question presented by this petition is whether these charges unfairly surprised Quinones and thus deprived him of substantial preliminary hearing rights. We conclude the torture charge unfairly surprised Quinones, but the attempted murder charge did not. Accordingly, we grant the petition as to the torture charge.

Following a road rage incident, the district attorney filed a felony complaint charging Quinones with assault with a deadly weapon by means of force likely to produce great bodily injury (assault). (Pen. Code, § 245, subd. (a)(1)). [1] The complaint also alleged Quinones had personally used a deadly weapon (his vehicle) (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)), personally…