Can Prosecutors Add New Charges Late in a Criminal Case? Understanding the Legal Limits in California
In California, criminal complaints are not always set in stone. Prosecutors may attempt to amend charges after the initial filing—but that power is not without limits. When the government seeks to add new offenses long after a case has begun, it must navigate a range of procedural rules designed to protect the fairness of the proceedings and prevent misuse of prosecutorial discretion. Skilled attorneys can identify angles of attack on these attempts to broaden or change the charges.
This post explores the legal boundaries on late amendments to criminal complaints under California law, including statutory authority, rules of joinder, statute of limitations issues, and how courts have interpreted them.
Legal Authority for Amendments: Penal Code § 1009
The starting point for any analysis is Penal Code section 1009, which governs the amendment of charging documents. The statute states:
“The court in which an action is pending may order or permit an amendment of an accusatory pleading, for any defect or insufficiency, at any stage of the proceedings... A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint.”
(Pen. Code, § 1009, emphasis added)
In other words, the prosecution may seek to correct clerical errors or clarify allegations, but it may not add new charges unless those charges are either:
Related to the original charges by class or commission, and
Not barred by the statute of limitations.
Courts retain broad discretion to approve or deny such amendments, especially if they are made late in the case or if they would prejudice the defense.
“Whether the prosecution should be permitted to amend an information is a matter within the sound discretion of the trial court and its discretion will not be overruled in the absence of a clear abuse thereof.”
— People v. Flowers (1971) 14 Cal.App.3d 1017, 1020
Joinder Limits: Penal Code § 954
When new charges are proposed in an amendment, the court must also assess whether those charges could have been joined in the original complaint under Penal Code § 954, which states:
“An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses.”
This provision limits the prosecution from grouping unrelated crimes together. For joinder to be proper, the new charge must either:
Belong to the same class of offenses, or
Be connected in their commission with the original charge.
For example:
Same class might include multiple theft offenses, or several sexual assault offenses.
Connected in commission might apply where multiple crimes are committed as part of a single scheme or event.
The California Supreme Court has clarified that “same class” means offenses that share essential characteristics.
“Offenses of the same class are offenses which possess common characteristics or attributes.”
— People v. Kemp (1961) 55 Cal.2d 458, 476
Similarly, crimes are “connected in their commission” when there is a common element of substantial importance that links them.
“Crimes are ‘connected together in their commission’ when they are linked by a common element of substantial importance.”
— People v. Lucky (1988) 45 Cal.3d 259, 276
Statute of Limitations and “Relation Back”
Even if new charges are properly joined under § 954, they must also be timely under California’s statute of limitations provisions.
Penal Code § 802(a) provides that misdemeanors must be charged within one year of the offense (two years for some offenses).
Felonies generally must be charged within three years, unless otherwise specified.
An amendment that adds a new and separate charge after the limitations period has expired is not permitted unless that charge “relates back” to the original complaint.
“[W]hen amending an information, a critical inquiry must be made: is the amendment to correct a defect or insufficiency in the original complaint, or is it to charge an offense not attempted to be charged by the original complaint? If the latter, and the statute of limitations has run, the charges are barred.”
— Harris v. Superior Court (1988) 201 Cal.App.3d 624, 627–628
The “relation back” doctrine only applies when the new charges are necessarily included in the original charge. If the new charge introduces new conduct or new victims—or is not a lesser-included offense—the statute of limitations continues to run, and the amendment is barred.
In Harris, the court rejected an attempt to add robbery and kidnapping charges where the original complaint involved only conspiracy. Because the new charges were not necessarily included in the original charge, the amendment was time-barred.
Tolling Under Penal Code § 803(b)
Prosecutors sometimes try to rely on Penal Code § 803(b) to toll the statute of limitations when amending a complaint. That section provides:
“The time during which prosecution of the same person for the same conduct is pending in a court of this state is not a part of a limitation of time prescribed in this chapter.”
But this provision is limited to situations where the exact same conduct underlies both the old and new charges.
“[Section 803(b)] was intended to ensure that if a pending prosecution is dismissed for a technical defect, the running of the statute of limitations will not bar reprosecution.”
— People v. Terry (2005) 127 Cal.App.4th 750, 768
In Terry, the court held that section 803(b) did not apply to new charges stemming from the same general timeframe or similar victim conduct. Only identical criminal acts qualify.
Thus, a prosecutor cannot revive expired claims by asserting that they arise from generally similar behavior. The new charges must rest on the same act or omission that formed the basis of a timely filed complaint.
Key Takeaways for Defense Attorneys and Defendants
If the government seeks to amend the complaint to add charges well into the case, several key questions must be answered:
Are the new charges of the same class or connected in commission to the original charges? If not, joinder is improper under Penal Code § 954.
Are the new charges time-barred? If the statute of limitations has passed and “relation back” does not apply, the court must reject the amendment.
Is the amendment supported by the same conduct as prior charges? If the answer is no, § 803(b) does not apply, and the amendment cannot be used to toll time.
Will the amendment prejudice the defense? Courts have discretion to deny even timely, joinable amendments if they are unfairly late, burdensome, or raise due process concerns.
How We Help
At Couzens Criminal Defense, we focus on vigorous pretrial litigation that holds the prosecution to its burden—not just of proving charges, but of charging them properly. Whether it’s a misjoined felony, a time-barred amendment, or improper joinder, we fight to ensure that your rights are protected at every stage of the case.
Based in Roseville, we serve clients across Placer County and Northern California.
📞 Call (916) 603-2000 to schedule a consultation.
