927 F2d 610 Miller v. Rowland K

927 F.2d 610

Unpublished Disposition

Reginald Darrell MILLER, Petitioner-Appellant,
v.
James ROWLAND, John K. Van De Kamp, Superior Court of the
State of California, Respondents-Appellees.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

No. 90-55858.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 13, 1990.*
Decided March 8, 1991.

Appeal from the United States District Court for the Central District of California, No. CV 88-6676-CMB(K); Consuelo B. Marshall, District Judge, Presiding.

D.C.Cal.

AFFIRMED.

Before BRUNETTI, FERNANDEZ and THOMAS G. NELSON, Circuit Judges.

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1

MEMORANDUM**

2

Reginald Miller ("Miller"), a California state prisoner, appeals pro se the dismissal of his habeas corpus petition challenging his state court conviction. Specifically, Miller alleges that the government's amendment to Miller's information is defective because it was not verified under oath as required by California Penal Code section 1009.

3

We affirm.

BACKGROUND FACTS

4

The Los Angeles District Attorney filed an information charging Miller with two counts of burglary in violation California Penal Code Sec. 459. The District Attorney later amended the information to allege six prior felony convictions. Miller was sentenced to four years on the burglaries and to two five year consecutive sentences on two California prior convictions.

5

Miller's habeas petition alleges that because the amendment charging the prior convictions was not verified, there was a lack of a proper charge under California Penal Code Sec. 1009. Section 1009 requires that an amendment be verified to be valid. Therefore, he argues, the government's noncompliance with section 1009 renders the ten years that he received for the two prior convictions a violation of his sixth and fourteenth amendment rights.

6

The district court held that the government failed to properly verify the amended complaint in compliance with section 1009. However, the district court denied Miller's habeas petition.

JURISDICTION AND STANDARDS OF REVIEW

7

The decision whether to grant or deny a habeas corpus petition is reviewed de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir.1989). Allowing amendment of an information under Sec. 1009 is within the trial court's discretion. People v. Witt, 53 Cal.App.3d 154, 165 (1975). cert. denied, 425 U.S. 916, 96 S.Ct. 1518, 47 L.Ed.2d 768 (1976).

DISCUSSION

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8

Miller's argument that the information was defective because it was not verified can not sustain his habeas corpus claim since his constitutional rights were not violated. To comply with constitutional standards, an information need only state with sufficient clarity the elements of the offenses charged in order to apprise the defendant of what he must be prepared to defend against. Givens v. Housewright, 786 F.2d 1378, 1380 (9th Cir.1986). Here, Miller knew about the charges of the priors, since at trial he argued their validity. Although the state did not verify the amended information, its noncompliance was technical since Miller was on notice of the charges against him. Therefore, Miller's habeas claim lacks merit. Of course, a mere violation of state law does not itself constitute a violation of the United States Constitution. See Prantil v. State of California, 843 F.2d 314, 317-18 (9th Cir.), cert. denied, 488 U.S. 861, 109 S.Ct. 158, 102 L.Ed.2d 129 (1988); Givens, 786 F.2d at 1381.

9

AFFIRMED.

*

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3