Colo. R. Crim. P. 7
Colo. R. Crim. P. 7
Annotation I. General Consideration. Law reviews. For note, "Preliminary Hearings-The Case for Revival", see U. Colo. L. Rev. 580 (1967). Means by which charges brought by district attorney. A district attorney may bring charges either by filing a complaint or direct information or by presenting a grand jury indictment in open court. Dresner v. County Court, 189 Colo. 374, 540 P.2d 1085 (1975). Applied in Bustos v. People, 158 Colo. 451, 408 P.2d 64 (1965); Lorenz v. People, 159 Colo. 494, 412 P.2d 895 (1966); Tyler v. Russel, 410 F.2d 490 (10th Cir. 1969); Rowse v. District Court, 180 Colo. 44, 502 P.2d 422 (1972); People v. Bergstrom, 190 Colo. 105, 544 P.2d 396 (1975); People v. Shortt, 192 Colo. 183, 557 P.2d 388 (1976); People v. Denn, 192 Colo. 276, 557 P.2d 1200 (1976); People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978); People v. Rice, 40 Colo. App. 374, 579 P.2d 647 (1978); People v. Kreiser, 41 Colo. App. 210, 585 P.2d 301 (1978); People v. Smith, 198 Colo. 120, 597 P.2d 204 (1979); People v. Driscoll, 200 Colo. 410, 615 P.2d 696 (Colo. 1980); Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); People v. Moody, 630 P.2d 74 (Colo. 1981); People v. Stoppel, 637 P.2d 384 (Colo. 1981); People v. Abbott, 638 P.2d 781 (Colo. 1981); J.T. v. O'Rourke ex rel. Tenth Judicial Dist., 651 P.2d 407 (Colo. 1982); People v. District Court, 652 P.2d 582 (Colo. 1982); People v. Anderson, 659 P.2d 1385 (Colo. 1983); Corr v. District Court, 661 P.2d 668 (Colo. 1983). II. Indictment. It is defendant's right to be informed with reasonable certainty of nature of changes against him by requiring that an indictment answer the questions of "who, what, wheres, and how" in cases where the acts constituting the offense are not adequately described by the statute. People v. Donachy, 196 Colo. 289, 586 P.2d 14 (1978); People v. Gable, 647 P.2d 246 (Colo. App. 1982). Indictment must clearly state essential facts which constitute the offense: Fundamental fairness requires no less. People v. Tucker, 631 P.2d 162 (Colo. 1981). Test of sufficiency of indictment is whether it is sufficiently definite to inform the defendant of the charges against him so as to enable him to prepare a defense and to plead the judgment in bar of any further prosecutions for the same offense. People v. Westendorf, 37 Col. App. 111, 542 P. 2d 1300 (1975); People v. Gable, 647 P.2d 246 (Colo. App. 1982). An indictment is sufficient so long as it is not so indefinite in its statement of a particular charge that it fails to afford defendant a fair opportunity to procure witnesses and prepare for trial. People v. Heller, 698 P.2d 1357 (Colo. App. 1984), rev'd on other grounds, 712 P.2d 1023 (Colo. 1986). When an indictment is procured by or with the assistance of a prosecuting attorney who is disqualified to conduct the prosecution, it is invalid. Once the disqualification of a district attorney is entered and the appointment of a special prosecutor becomes effective, the special prosecutor, and only the special prosecutor, is the authorized prosecuting attorney on the case. People v. Hastings, 903 P.2d 23 (Colo. App. 1994). Orderly sequence of statement of elements of offense should characterize indictment. Johnson v. People, 110 Colo. 283, 133 P.2d 789 (1943). The requirements of a criminal indictment by a grand jury are essentially twofold: First, it must give the defendant sufficient notice of the crime that has allegedly been committed so that a defense may be prepared; second, it must define the acts which constitute the crime with sufficient definiteness so that the defendant may plead the resolution of the indictment as a bar to subsequent proceedings. People v. Tucker, 631 P.2d 162 (Colo. 1981). Insufficient indictment does not legally charge crime or subject defendant to the jurisdiction of the court. People v. Westendorf, 37 Colo. App. 111, 542 P. 2d 1300 (1975). And jeopardy does not attach to indictment defective in substance. An indictment which is defective in substance merely prevents prosecution on the basis of that particular pleading. No jeopardy attaches, and the defendant may be charged be any appropriate and sufficient pleading. People v. Thimmes, 643 P.2d 780 (Colo. App. 1981). Recitation of statute may be insufficient. Where acts constituting an offense are not described by the statute, any indictment merely reciting the statutory words is insufficient. People v. Tucker, 631 P.2d 162 (Colo. 1981). Defendant may raise insufficiency for first time on appeal. Although defendant did not raise the insufficienty of the indictment at trial or in his motion for new trial, he is not thereby precluded from asserting that defect on appeal. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975). Date of offense is material allegation. Allegations specifying the date on which an accused allegedly committed an offense are always material when the offense charged is one which may be barred by an applicable statute of limitations. People v. Thimmes, 643 P.2d 780 (Colo. App. 1981). Because of the veil of secrecy surrounding most conspiracies, considerable latitude is allowed in drafting conspiracy indictment. People v. Gable, 647 P.2d 246 (Colo. App. 1982). III. Information. A. In General. District attorney has the authority to file a complaint or information in derogation of grand jury's true bill. Dresner v. County Court, 189 Colo. 374, 540 P.2d 1085 (1975). Practice of effecting charge through information is not unconstitutionally void as not affording the protection of a grand jury. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972). But if information fails to charge crime, court acquires no jurisdiction. People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980). If the information is not presented by a person authorized by law to prosecute the offense, it is technically insufficient and incorrect and if it is signed by an unauthorized person, it is invalid. People v. Hastings, 903 P.2d 23 (Colo. App. 1994). When an information is presented by a disqualified prosecuting attorney, it is invalid. Once the disqualification of a district attorney is entered and the appointment of a special prosecutor becomes effective, the special prosecutor, and only the special prosecutor, is the authorized prosecuting attorney on the case. People v. Hastings, 903 P.2d 23 (Colo. App. 1994). Count charged both the crime of sexual assault on a child and the sentence enhancer by clearly identifying each of the elements of both with sufficient particularity. People v. Melillo, 25 P.3d 769 (Colo. 2001). Amendment of information on date of trial was proper since the amendment went to the dates of the offenses and did not prejudice defendant. The date change was not substantive and there was no prejudice to defendant because previous informations had included the dates in the amendment, so defendant was on notice the charges could include those dates. People v. Walker, __ P.3d __ (Colo. App. 2011). Failure to include intent to seek discretionary indeterminate sentencing in information is not plain error. Defendant was aware he was charged with a crime in which indeterminate sentencing was a possibility. People v. Walker, __ P.3d __ (Colo. App. 2011). B. Affidavits. Law reviews. For article, "Confidential Informants To Disclose or Not to Disclose", see 19 Colo. Law. 225 (1990). Verification of an information is required under this rule. Scott v. People, 176 Colo. 289, 490 P.2d 1295 (1971). Technical defects in the form of an information do not require reversal unless substantial rights of the defendant are prejudiced. Information which omitted the words "against the peace and dignity of the People of the State of Colorado ", did not prejudice defendant's substantial rights. People v. Higgins, 874 P.2d 479 (Colo. App. 1994). Affiant's competency presumed. It is unnecessary for the affidavit to recite that affiant is "a competent witness to testify in the case", as his competency will be presumed until the contrary appears. Walt v. People, 46 Colo. 136, 104 P.2d 89 (1909), appeal dismissed, 223 U.S. 748, 32 S. Ct. 534, 56 L. Ed. 640 (1912); Hubbard v. People, 153 Colo. 252, 385 P.2d 419 (1963). As is credibility. An affiant's credibility as a witness is presumed until the contrary appears. Hubbard v. People, 153 Colo. 252, 385 P.2d 419 (1963). Signing affidavit before reading does not nullify affiant's credibility. Although it is extremely poor practice to sign without reading, such does not make affiant an uncredible, where he signed the affidavit as prepared and explained to him, believing he knew what it said. Williams v. People, 157 Colo. 443, 403 P.2d 436 (1965). Nor does minor factual discrepancy. A discrepancy in the amount of money taken and charged in the affidavit does not render affiant incompetent as a witness. Williams v. People, 157 Colo. 443, 403 P.2d 436 (1965). Affidavit complies with rule despite technical error. Where a defendant is charged with more than one crime, an affidavit which uses the word "offense" rather than "offenses" substantially complies with this rule. Martinez v. People, 156 Colo. 380, 399 P.2d 415, cert. denied, 382 U.S. 866, 86 S. Ct. 134, 15 L. Ed. 2d 104 (1965). And evidence adduced at preliminary hearing may cure defect in affidavit. Where defendants exercised their rights to a preliminary hearing and had the issue of probable cause determined against them by direct evidence, which would be sufficient to satisfy the requirements of this rule, the evidence adduced at the preliminary hearing cured a defect in the affidavit and rendered the issue of personal knowledge of the affiant on the information moot. People v. Weaver, 182 Colo. 221, 511 P.2d 908 (1973). Affidavit sufficient to meet requirements of this rule. Williams v. People, 157 Colo. 443, 403 P.2d 436 (1965); Coy v. People, 158 Colo. 437, 407 P.2d 345 (1965); Andrews v. People, 161 Colo. 516, 423 P.2d 322 (1967). Not denial of right of conformation where affiant does not testify at trial. A defendant is not denied his constitutional right of confrontation because an individual who verified the information and who was indorsed as a witness does not testify at the time of trial. Scott v. People, 176 Colo. 289, 490 P.2d 1295 (1971). IV. Direct Information. Prosecution's remedies upon dismissal in county court. The prosecution has one of two remedies available to it when a case is dismissed in the county court. If the case is dismissed before a preliminary hearing is held, the prosecution may appeal the order of dismissal to the district court. If the county court dismisses a charge after holding a preliminary hearing under Crim. P. 5(a)(4), the exclusive remedy available to the prosecution is to request leave to file a direct information in the district court. People v. Freiman, 657 P.2d 452 (Colo. 1983). There is no procedure for dismissing a felony complaint without prejudice. Once the filing of a felony complaint in county court is dismissed, the prosecution must either obtain a grand jury indictment or file an information directly in the district court. People v. Williams, 987 P.2d 232 (Colo. 1999). The purpose to be achieved by the district court consent requirement of subsection (c)(2) is to insure that the accused is not subject to oppressive and malicious prosecutions. People v. Elmore, 652 P.2d 571 (Colo. 1982). Consent of court cannot be perfunctory. People v. Swazo, 191 Colo. 425, 553 P.2d 782 (1976). As informed consent required. The logical application of section (c), requires informed consent. Otherwise, any real distinction between subsection (b)(3), and section (c) would be illusory. People v. Swazo, 191 Colo. 425, 553 P.2d 782 (1976). And exercise of discretion. The requirement of court consent implies a real application of discretion. People v. Swazo, 191 Colo. 425, 553 P.2d 782 (1976); People v. Elmore, 652 P.2d 571 (Colo. 1982); People v. Sabell, 708 P.2d 463 (Colo. 1985). In exercising its discretion in deciding whether to permit a direct filing of an information, the district court is required to balance the right of the district attorney to prosecute criminal cases against the need to protect the accused from discrimination and oppression. People v. Freiman, 657 P.2d 452 (Colo. 1983). There is no constitutional right to a preliminary hearing when a direct information is filed. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); Hervey v. People, 178 Colo. 38, 495 P.2d 204 (1972); Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972); People v. Moreno, 181 Colo. 106, 507 P.2d 857 (1973). As bringing charge by direct information is not in violation of either state or federal constitution. Habbord v. People, 175 Colo. 417, 488 P.2d 554 (1971). And whether a preliminary hearing shall be had is a procedural matter. De Baca v. Trujillo, 167 Colo. 311, 447 P.2d 533 (1968). Purpose behind requiring personal knowledge of affiant in direct information is to assure that there is probable cause to initiate the criminal proceeding, so as to safeguard the rights of innocent citizens. People v. Weaver, 182 Colo. 221, 511 P.2d 908 (1973). Authority to file direct information charging differently than true bill. Where a true bill was never filed in district court, the district attorney had the power and authority to file a complaint or direct information that included charges which were different than those allegedly set forth in the true bill returned by a grand jury. Dresner v. County Court, 189 Colo. 374, 540 P.2d 1085 (1975). No requirement of new evidence to support direct filing. There is no requirement that the district attorney establish that there exists new or additional evidence to support the direct filing of an information. The existence of such evidence is only one factor the district court may consider in exercising its discretion to determine whether to allow the direct filing. Holmes v. District Court, 668 P.2d 11 (Colo. 1983). Incompetent evidence acceptable at hearing. Hearsay evidence, and other evidence, which would be incompetent if offered at the time of trial, may be the bulk of evidence at a preliminary hearing. People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973). Prosecutor must apprise judge of prior dismissal of charges. For consent to be valid, there must be a sufficient evidentiary disclosure by the prosecutor to at least apprise the judge of a prior dismissal of the identical charges in county court and the reasons for the direct filing. People v. Swazo, 191 Colo. 425, 553 P.2d 782 (1976). And hearing in district court may be demanded even though such hearing was held in county court. After the filing of a direct information in the district court either the people or the defendant may demand a preliminary hearing in that court even where there has been a dismissal of a felony complaing by the county court following a preliminary hearing on the same charge. People v. Burggraf, 36 Colo. App. 137, 536 P.2d 48 (1975). Direct information not available after dismissal for failure to prosecute. Section (c) does not allow filing of a direct information in the district court if the charges, first filed in county court, are dismissed before a preliminary hearing for failure of the prosecution to comply with the 30-day rule in Crim. P. 5(a)(4)(I). Chavez v. District Court, 648 P.2d 658 (Colo. 1982). Court's discretion in filing direct information following dismissal. While under subsection (c)(2), the district attorney, with the consent of the court, may file a direct information in the district court if a preliminary hearing was held on the same charge in the county court and the accused was discharged, before the district court may properly exercise its discretion, there must be a sufficient evidentiary disclosure by the prosecution to apprise the district court of the earlier dismissal of the identical charges in the county court and the reasons for the requested refiling. When exercising its discretion in deciding whether to permit the direct filing of an information, the district court is required to balance the right of the district attorney to prosecute criminal cases against the need to protect the accused from discrimination and oppression. Holmes v. District Court, 668 P.2d 11 (Colo. 1983); People v. Sabell, 708 P.2d 463 (Colo. 1985). When the motion under subsection (c)(2) did not identify the county court's error and did not describe testimony at the preliminary hearing in detail, there was not sufficient evidentiary disclosure to allow refiling. Borg v. District Court, 686 P.2d 781 (Colo. 1984). Requirement of district court's consent for filing of direct information implies an exercise of court's discretion which will not be overturned unless there exists abuse of such discretion. People v. Stokes, 812 P.2d 712 (Colo. App. 1991). Trial court's denial of defendant's motion to dismiss, despite failure of prosecution to advise trial court of prior dismissal, was not error where consent by the court was obtained and the dismissed case involved separate and distinct charges. People v. Higgins, 874 P.2d 479 (Colo. App. 1994). Belief that county court erred in finding no probable cause existed for sexual assault charge does not constitute good cause for refiling charges by direct information as issue of adequacy of evidence may be addressed only upon appellate review. People v. Stokes, 812 P.2d 712 (Colo. App. 1991). District court's denial of consent for filing of direct information did not constitute abuse of discretion when prosecution did not present testimony of victim in county court proceedings for tactical reasons. People v. Stokes, 812 P.2d 712 (Colo. App. 1991). District attorney allowed to join offenses arising from criminal episode. This rule allows the district attorney, with the consent of the trial court, to file a direct information joining any or all offenses arising from a criminal episode. People v. District Court, 183 Colo. 101, 515 P.2d 101 (1973). V. Names of Witnesses. Compliance with this rule is mandatory for district attorney. People v. Bailey, 191 Colo. 366, 552 P.2d 1014 (1976). Purpose of supplying names of witnesses with the indictment or information is to advise defendants of the identity of those who might testify against them and to afford counsel an opportunity, where deemed advisable, to interview such witnesses. Reed v. People, 171 Colo. 421, 467 P.2d 809 (1970); People v. Bailey, 191 Colo. 336, 552 P.2d 1014 (1976). Allowance of late endorsements of prosecution witnesses is within discretion of trial court. People v. Muniz, 622 P.2d 100 (Colo. App. 1980); Corbett v. People, 153 Colo. 457, 387 P.2d 409 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1346, 12 L. Ed. 2d 302 (1964); People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972); People v. Wandel, 713 P.2d 398 (Colo. App. 1985). And no error unless defendant prejudiced. In order to constitute reversible error where there is a late endorsement of a witness, the defendant must show that he was prejudiced because the appearance of the witness surprised him and because he did not have adequate opportunity to interview the witness prior to trial. People v. Bailey, 191 Colo. 366, 552 P.2d 1014 (1976). Trial court did not abuse its discretion in allowing prosecution to endorse four witnesses on the day of the trial where defendant was familiar with testimony of three of the witnesses and did not request a continuance for the purpose of interviewing them, and where endorsement of the fourth witness was conditioned upon defendant having access prior to the witness' testimony. People v. Castango, 674 P.2d 978 (Colo. App. 1983). When failure to notify defendant of witness's change of address not reversible error. Failure to notify defendant of a change of address of a witness is not grounds for reversal where no surprise is shown when he testifies at the trial, no continuance has been sought on the grounds that there was no opportunity to interview him prior to trial, and no attempt has been made to ascertain his current address if defendant had sought to locate him for the purpose of interview. Reed v. People, 171 Colo. 421, 467 P.2d 809 (1970). Defense counsel's refusal to request continuance may be waiver of claim of prejudicial error due to late endorsement. People v. Bailey, 191 Colo. 366, 552 P.2d 1014 (1976). VI. Nature and Contents of Information. A specific crime must be alleged in the information. Gomez v. People, 162 Colo. 77, 424 P.2d 387 (1967); Henson v. People, 166 Colo. 428, 444 P.2d 275 (1968). But the name of the crime need not be mentioned in an information, if the crime is adequately described therein. Gallegos v. People, 166 Colo. 409, 444 P.2d 267 (1968). Rather, information is sufficient if it advises a defendant of the offense with which he is charged. Edwards v. People, 176 Colo. 478, 491 P.2d 566 (1971); People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973); People v. Flanders, 183 Colo. 268, 516 P.2d 418 (1973); People v. Gnout, 183 Colo. 366, 517 P.2d 394 (1973); People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980). And can be understood by the jury. An information is sufficient if the charge is in language from which the nature of the offense may be readily understood by the accused and jury. Tracy v. People, 65 Colo. 226, 176 P. 280 (1918); Sarno v. People, 74 Colo. 528, 223 P. 41 (1924); Albert v. People, 90 Colo. 219, 7 P.2d 822 (1932); Johnson v. People, 110 Colo. 283, 133 P.2d 789 (1943); Wright v. People, 116 Colo. 306, 181 P.2d 447 (1947); Ciccarelli v. People, 147 Colo. 413, 364 P.2d 368 (1961); Loggins v. People, 178 Colo. 439, 498 P.2d 1146 (1972); Olguin v. People, 179 Colo. 26, 497 P.2d 1254 (1972). So that defendant can defend against it. An information is sufficient if it advises the accused of the charge he is facing so that he can adequately defend against it. Gallegos v. People, 166 Colo. 409, 444 P.2d 267 (1968); Perez v. People, 176 Colo. 505, 491 P.2d 969 (1971); Loggins v. People, 178 Colo. 439, 498 P.2d 1146 (1972); People v. Flanders, 183 Colo. 268, 516 P.2d 418 (1973); People v. Gnout, 183 Colo. 366, 517 P.2d 394 (1973); People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980); People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981). And be protected from further prosecution for the same offense. An information is sufficient if it advises the defendant of the charges he is facing so that he can adequately defend himself and be protected from further prosecution for the same offense. People v. Warner, 112 Colo. 565, 151 P.2d 975 (1944); Ciccarelli v. People, 147 Colo. 413, 364 P.2d 368 (1961); People v. Allen, 167 Colo. 158, 446 P.2d 223 (1968); Loggins v. People, 178 Colo. 439, 498 P.2d 1146 (1972); Olguin v. People, 179 Colo. 26, 497 P.2d 1254 (1972); People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973). People v. Flanders, 183 Colo. 268, 516 P.2d 418 (1973); People v. Gnout, 183 Colo. 366, 517 P.2d 394 (1973); People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980); People v. Palmer, 87 P.3d 137 (Colo. App. 2003). Although great detail not needed as judgment, not information, constitutes bar. An information need not plead an offense in such detail as to be self-sufficient as a bar to further prosecution for the same offense; for the judgment constitutes a bar, and the extent of the judgment may be determined from an examination of the record as a whole. Mora v. People, 172 Colo. 261, 472 P.2d 142 (1970); Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972). Jeopardy does not attach if information is insufficient to sustain conviction. People v. Garner, 187 Colo. 294, 530 P.2d 496 (1975). Dimissal if defendant not fairly and reasonably informed of accusations. There must be a variance between the information and the proof to be offered constituting such an imperfection or inaccuracy that the defendant was not fairly and reasonably informed of the nature and cause of the accusations against him in order that a motion of dismissal be granted. People v. Allen, 167 Colo. 158, 446 P.2d 223 (1968). Each count of information must be independent. Absent a clear and specific incorporation by reference, each count of an information to be valid must be independent of the others, and in itself charge the defendant with a distinct and different offense. People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980); People v. Steiner, 640 P.2d 250 (Colo. App. 1981). But clear and specific incorporation by reference permitted. Any count in an information may, by proper reference, incorporate the allegations more fully set forth in another count, such reference must be clear, specific, and leave no doubt as to what provision is intended to be incorporated and this same rule is applicable to incorporating the caption. People v. Steiner, 640 P.2d 250 (Colo. App. 1981). Information is sufficient if it charges crime in the words of the statute. Williams v. People, 26 Colo. 272, 57 P. 701 (1899); Wright v. People, 116 Colo. 306, 181 P.2d 447 (1947); Gallegos v. People, 166 Colo. 409, 444 P.2d 267 (1968); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971); Perez v. People, 176 Colo. 505, 491 P.2d 969 (1971); Loggins v. People, 178 Colo. 439, 498 P.2d 1146 (1972); Olguin v. People, 179 Colo. 26, 497 P.2d 1254 (1972); People v. Palmer, 87 P.3d 137 (Colo. App. 2003). However, an information need not follow the exact wording of the statute. Sarno v. People, 74 Colo. 528, 223 P. 41 (1924); Albert v. People, 90 Colo. 219, 7 P.2d 822 (1932); Helser v. People, 100 Colo. 371, 68 P.2d 543 (1937); Ciccarelli v. People, 147 Colo. 413, 364 P.2d 368 (1961); Cortez v. People, 155 Colo. 317, 394 P.2d 346 (1964); Gallegos v. People, 166 Colo. 409, 444 P.2d 267 (1968); Perez v. People, 176 Colo. 505, 491 P.2d 969 (1971); Loggins v. People, 178 Colo. 439, 498 P.2d 1146 (1972); People v. Russell, 36 P.3d 92 (Colo. App. 2001). The charging of a defendant in the conjunctive where a statute defines a crime as being capable of being committed in diverse ways is proper. Rowe v. People, 26 Colo. 542, 59 P. 57 (1899); Hernandez v. People, 156 Colo. 23, 396 P.2d 952 (1964). And statutory reference is not material part of information, and, in the absence of any showing that the defendant is actually misled to his prejudice by such an inaccuracy, no error arises therefrom. Lucero v. People, 164 Colo. 247, 434 P.2d 128 (1967); People v. Marion, 182 Colo. 435, 514 P.2d 327 (1973); People v. Johnson, 644 P.2d 34 (Colo. App. 1980); People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981). Information need not specify lesser included offenses which may have been committed in commission of the described act. People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981). No information is deemed insufficient by any defect which does not tend to prejudice the substantial rights of the defendant on the merits. Albert v. People, 90 Colo. 219, 7 P.2d 822 (1932); Martinez v. People, 156 Colo. 380, 399 P.2d 415, cert. denied, 382 U.S. 866, 86 S. Ct. 134, 15 L. Ed. 2d 104 (1965). Date of offense is not material allegation of information. Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971). Where the defendant made no showing that he was impaired in his defense to the charge at trial or in his ability to plead the judgment as a bar to a subsequent proceeding, a variance between the specific date of the offense as alleged in the information and the date as proved at trial is not fatal. People v. Adler, 629 P.2d 569 (Colo. 1981). The prosecution is not required to specify a precise date of an alleged offense unless that date is a material element of the offense. People v. Salyer, 80 P.3d 831 (Colo. App. 2003). But failure to allege where offense committed makes information insufficient. When an information fails to allege where the offense was committed, and thus, that it occurred within the jurisdiction of the court, it fails to state facts sufficient to confer jurisdiction upon the district court of the county in which it is filed to try the defendant. People v. Steiner, 640 P.2d 250 (Colo. App. 1981). Separate allegation of place where offense was committed, which specifically referred to all previously alleged offenses, clearly advised defendant of claimed location of offenses, and was sufficient. People v. Brinson, 739 P.2d 897 (Colo. App. 1987). If the information is signed by an unauthorized person, it is invalid. People v. Hastings, 903 P.2d 23 (Colo. App. 1994). Information charging offense beyond statute of limitations. The trial court has jurisdiction to entertain a motion to amend an information which charges an offense committed outside of the statute of limitations. People v. Bowen, 658 P.2d 269 (Colo. 1983). When general statement of offense not error. Charging theft of "miscellaneous personal property" in information is sufficient where itemized list is furnished defense. Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972). And poor writing style not error where nature of charge clear. Where an information could have been written in far better style, but there can be no doubt that its meaning is clear, then defendants are adequately advised of the nature of the crime charged against them, and this is all section (c) requires. Covington v. People, 36 Colo. 183, 85 P. 832 (1906); Petty v. People, 156 Colo. 549, 400 P.2d 666 (1965). Sufficiency of information is matter of jurisdiction. People v. Garner, 187 Colo. 294, 530 P.2d 946 (1975). And such matter may be raised after trial by a motion in arrest of judgment. People v. Garner, 187 Colo. 294, 530 P.2d 496 (1975). VII. Amendment of Information. The purposes served by a criminal information are to advise the defendant of the nature of the charges against him, to enable him to prepare a defense, and to protect him from further prosecution for the same offense, and it is within the discretion of the trial court to allow the information to be amended as to form or substance any time prior to trial. People v. Thomas, 832 P.2d 990 (Colo. App. 1991). When the defendant had actual notice before trial that he was being charged with having committed three prior felonies under § 16-13-101(2) rather than two prior felonies under § 16-13-101(1), an amendment to the information to reflect that state of affairs was a matter of form and not of substance. People v. Butler, 929 P.2d 36 (Colo. App. 1996). Substance should prevail over form and cases generally should not be dismissed for technical irregularities that can be cured through amendment. People v. Hertz, 196 Colo. 259, 586 P.2d 5 (1978); People v. Cervantes, 677 P.2d 403 (Colo. App. 1983), aff'd, 715 P.2d 783 (Colo. 1986). An amended complaint that merely remedies an insufficient list of victims in the original complaint relates back to the date of the original and is not time-barred. People v. Higgins, 868 P.2d 371 (Colo. 1994). Where late amendment of information allowed. Where the court allowed the prosecution to amend the information one week before trial and then denied defendants' motions for continuance, there was no abuse of discretion where defendants' counsel knew of the amendment two weeks before trial, where the trial was reset so as to grant an additional week's continuance, where the amendment added nothing substantial to the original charge, and where there was no showing in the record that defendants were prejudiced by the denial. People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972). Defendant must request continuance to claim prejudice or surprise. Defendant who did not request continuance when amendments and deletions to information were made has no basis for claiming prejudice or surprise. People v. Marion, 182 Colo. 435, 514 P.2d 327 (1973); People v. Swain, 43 Colo. App. 343, 607 P.2d 396 (1979); People v. Cervantes, 677 P.2d 403 (Colo. App. 1983), aff'd, 715 P.2d 783 (Colo. 1986). No amendment of substance after prosecution presents evidence. An accused person is entitled to be tried on the specific charge contained in the information, and after a plea of not guilty has been entered and the state has submitted all the evidence which the prosecutor desires to present to sustain that charge, no amendment can be made thereto which changes entirely the substance of the crime which defendant is alleged to have committed. Skidmore v. People, 154 Colo. 363, 390 P.2d 944 (1964); People v. Jefferson, 934 P.2d 870 (Colo. App. 1996). A constructive amendment after completion of the evidence is per se reversible error. People v. Madden, 87 P.3d 153 (Colo. App. 2003), rev'd on other grounds, 111 P.3d 452 (Colo. 2005). Prosecution's theory that defendant concealed information to illegally obtain a controlled substance did not effect a constructive amendment to charge involving fraud, deceit, and misrepresentation. People v. Harte, 131 P.3d 1180 (Colo. App. 2005). And no substitution of statute prosecution conducted under. Where an information identifies with particularity the exact section of a statute upon which prosecution is based, no other statute can be substituted for the one actually selected as forming the subject matter of the prosecution. Casadas v. People, 134 Colo. 244, 304 P.2d 626 (1956); Skidmore v. People, 154 Colo. 363, 390 P.2d 944 (1964). Nor amendment to charge more serious offense. Where the amended information would charge a different and more serious offense than that which was originally charged, the amendment should not be permitted. People v. Johnson, 644 P.2d 34 (Colo. App. 1980). Language of information is controlling factor. The language of an information charging an offense is the controlling factor in determining whether the amendment was permissible after trial. People v. Johnson, 644 P.2d 34 (Colo. App. 1980). Section (e) is to be liberally construed to allow amendment of an information "as to form or substance at any time prior to trial", and it is within the trial court's discretion to permit the information to be amended. People v. Wright, 678 P.2d 1072 (Colo. App. 1984). Amendment which does not affect charge permitted prior to verdict. An amendment that does not charge an additional or different offense and does not go to the essence of the charge is one of form rather than substance, and it may be permitted at any time prior to verdict. Collins v. People, 69 Colo. 353, 195 P. 525 (1920); Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971). Where an information contains specific language of the offense underlying an habitual criminal count, a defendant is not prejudiced by amendment of the statutory reference thereto. People v. Ybarra, 652 P.2d 182 (Colo. App. 1982); People v. Stephens, 689 P.2d 666 (Colo. App. 1984). No amendment was necessary where the information was sufficient to provide the defendant notice of the charge and defendant's defense was applicable to the offense as stated in the jury instructions. The jury instruction stated that the victim was an at-risk adult, but the count did not specifically refer to § 18-6.5-101, which proscribes crimes against at-risk adults, and the information did not specifically identify the victim as an at-risk adult. However, no amendment was necessary because throughout the trial the prosecution demonstrated its intent to prosecute under the at-risk adult statute and defendant's theory of defense was applicable regardless of how the information stated the elements of the offense. People v. Valdez, 946 P.2d 491 (Colo. App. 1997), aff'd on other grounds, 966 P.2d 587 (Colo. 1998). It was not error to allow amendment of habitual criminal count prior to presentation of evidence but after jury was sworn in. People v. Wandel, 713 P.2d 398 (Colo. App. 1985). No abuse of discretion when court permitted district attorney to amend robbery count to add items taken from victim. The amendment did not result in new charges so there was no prejudice to defendant. People v. Al-Yousif, 206 P.3d 824 (Colo. App. 2006). No error committed by allowing the information to be amended on a matter of form. The amendment reduced the number of victims, thereby reducing the likelihood of criminal liability and benefitting the defendant. People v. Manzanares, 942 P.2d 1235 (Colo. App. 1996). Amendments of form. Changing name of owner of premises in information charging burglary is an amendment of form rather than substance. Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971). In prosecutions for larceny, amendments to an information changing the name or description of the owner of the property are of form, not substance, and are allowable during the trial. Collins v. People, 69 Colo. 353, 195 P. 525 (1920); Diebold v. People, 175 Colo. 96, 485 P.2d 900 (1971). An amendment of an information transposing the victim's first and last names is not prejudicial to the defendant, and is one of form rather than substance within the meaning of section (e). McKee v. People, 175 Colo. 410, 487 P.2d 1332 (1971). Amendment of information to add missing words so that defendant could be charged with second degree assault was one of form and was properly allowed by the court. People v. Cervantes, 677 P.2d 403 (Colo. App. 1983), aff'd, 715 P.2d 783 (Colo. 1986). And correction of immaterial errors does not require rearraignment. The mere correction of a clerical or other immaterial error in an indictment does not require a second arraignment and plea. Albritton v. People, 157 Colo. 518, 403 P.2d 772 (1965). Allegations of time are substantive in prosecutions under § 18-4-402(1)(b). Section 18-4-402(1)(b) (theft of rental property) proscribes only conduct which occurs after the expiration of the rental period specified in a rental agreement. In prosecutions commenced under § 18-4-402(1)(b), allegations of time are, therefore, substantive allegations-not mere matters of form which may be altered by amendment at any time prior to the rendering of a verdict in the absence of prejudice to the defendant. People v. Moody, 674 P.2d 366 (Colo. 1984). No abuse of discretion in granting motion to amend information where defendant was served with a copy of the written motion four days before trial, he understood the allegations of the amendment, he failed to request a continuance, and he made no showing of prejudice, misunderstanding, or surprise by reason of the time at which the amendment was made. People v. Thomas, 832 P.2d 990 (Colo. App. 1991). Amendment of information at close of evidence was permissible where amendment related to acts occurring within the statutory limitation period, date of offense was neither a material element nor an issue at trial, and the amendment did not involve an altered accusation or require a different defense strategy from the one defendant had chosen under the initial information. People v. Metcalf, 926 P.2d 133 (Colo. App. 1996). The people's failure actually to file an amended information after filing a written motion containing all of the allegations that would have been contained in any formal amendment to the information did not result in a lack of jurisdiction, nor was it an error so grave as to require a vacation of the conviction. People v. Thomas, 832 P.2d 990 (Colo. App. 1991). Court's decision to submit to the jury a burglary charge based on unlawful sexual contact instead of the underlying offense of sexual assault was not in error. In this case unlawful sexual contact is a lesser included offense of sexual assault based on sexual intrusion. People v. Loyas, 259 P.3d 505 (Colo. App. 2010). VIII. Surplusage. Averments which are not necessary to a sufficient description of the offense may be stricken as surplusage. Specht v. People, 156 Colo. 12, 396 P.2d 838 (1964). IX. Bill of Particulars. Bill not to disclose prosecution's evidence in detail. The purpose of a bill of particulars is not to disclose in detail the evidence upon which the prosecution expects to rely. Balltrip v. People, 157 Colo. 108, 401 P.2d 259 (1965); People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979). Rather, purpose of a bill of particulars is to define more specifically offense charged. Balltrip v. People, 157 Colo. 108, 401 P.2d 259 (1965). A bill of particulars calls for an exposition of the facts that the prosecution intends to prove and limits the proof at trial to those areas described in the bill. People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979). The purpose of a bill of particulars is to enable the defendant to properly prepare his defense in cases where the indictment, although sufficient to advise the defendant of the charges raised against him, is nonetheless so indefinite in its statement of a particular charge that it does not afford the defendant a fair opportunity to procure witnesses and prepare for trial. People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979). A bill of particulars must provide such information requested by defendant as is necessary for the defendant to prepare his defense and to avoid prejudicial surprise. However, a defendant is not necessarily entitled to receive all the information requested for a bill of particulars. The prosecution need not disclose in detail all evidence upon which it intends to rely. People v. Lewis, 671 P.2d 985 (Colo. App. 1983). It is within the trial court's discretion to grant or deny motions for bills of particulars, and its action will not be disturbed on writ of error in the absence of an abuse of discretion. Stewart v. People, 86 Colo. 456, 283 P. 47 (1929); Johnson v. People, 110 Colo. 283, 133 P.2d 789 (1943); Balltrip v. People, 157 Colo. 108, 401 P.2d 259 (1965); Self v. People, 167 Colo. 292, 448 P.2d 619 (1968); Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972); People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979); People v. Pineda, 40 P.3d 60 (Colo. App. 2001). Considerations in addressing motion for bill. When addressing motions requesting bills of particulars, the trial judge should consider whether the requested information is necessary for the defendant to prepare his defense and to avoid prejudicial surprise. People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979). Bill mandatory where crime charged in words of statute. Where the crime of theft is charged in the words of the statute, an order for a bill of particulars is mandatory upon the defendant's request. People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979). Bill may be denied where information sufficiently advises defendant. There is no abuse of discretion in denying a motion for a bill of particulars where the information sufficiently advises the defendant of the charge he is to meet. Johnson v. People, 110 Colo. 283, 133 P.2d 789 (1943); Balltrip v. People, 157 Colo. 108, 401 P.2d 259 (1965); Self v. People, 167 Colo. 292, 448 P.2d 619 (1968); Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972). Bill properly denied where, at the time defendant requested a bill of particulars, several preliminary hearings had already been conducted, and the prosecution had provided the defendant with much of the evidence that was later presented at trial. People v. Pineda, 40 P.3d 60 (Colo. App. 2001). Bill cannot aid fundamentally bad indictment. Although the purpose of a bill of particulars is to define more specifically the offense charged, a bill of particulars is not a part of an indictment nor an amendment thereto; it cannot in any way aid an indictment fundamentally bad. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975). A bill of particulars under section (g) cannot save an insufficient indictment. People v. Tucker, 631 P.2d 162 (Colo. 1981). Bill of particulars was sufficient where the defendant was given the specific incidents the prosecution would rely on and the general time frame when the sexual assaults occurred. People v. Graham, 876 P.2d 68 (Colo. App. 1994). X. Preliminary Hearing. Law reviews. For article, "Felony Preliminary Hearings in Colorado", see 17 Colo. Law. 1085 (1988). Primary purpose of the preliminary hearing is to determine whether probable cause exists to support the prosecution's charge that the accused committed a specific crime. People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973); People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974); People v. District Court, 186 Colo. 136, 526 P.2d 289 (1974); McDonald v. District Court, 195 Colo. 159, 576 P.2d 169 (1978); People in Interest of M.V., 742 P.2d 326 (Colo. 1987). Preliminary hearing is a screening device to determine whether probable cause exists. People v. Weaver, 182 Colo. 221, 511 P.2d 908 (1973); People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973); Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265 (1975); People v. Buhrle, 744 P.2d 747 (Colo. 1987). The preliminary hearing is a screening device, designed to determine whether probable cause exists to support charges that an accused person committed a particular crime or crimes. People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977); People v. Johnson, 618 P.2d 262 (Colo. 1980); Miller v. District Court, 641 P.2d 966 (Colo. 1982). The purpose of a preliminary hearing is to screen out cases in which prosecution is unwarranted by allowing an impartial judge to determine whether there is probable cause to believe that the crime charged may have been committed by the defendant. Rex v. Sullivan, 194 Colo. 568, 575 P.2d 408 (1978); People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974). Evidence to support a conviction is not necessary at a preliminary hearing. People v. District Court, 186 Colo. 136, 526 P.2d 289 (1974); People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977); People v. Johnson, 618 P.2d 262 (Colo. 1980); Miller v. District Court, 641 P.2d 966 (Colo. 1982). Result of finding probable cause. A finding by the district court that there is probable cause can only have the result that the court shall set the case for arraignment or trial. People v. District Court, 186 Colo. 136, 526 P.2d 289 (1974). This rule sets forth specific requirements which must be met by a defendant in order to obtain a preliminary hearing. People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974). And opening sentence of section (h) limits applicability of that section to those cases which are instituted in the district court by direct information filed under section (c). People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974). Proceeding with a preliminary hearing for the sole purpose of preserving the possibility of a direct filing is not good cause for such filing. People v. Stanchieff, 862 P.2d 988 (Colo. App. 1993). The preliminary hearing is not minitrial, but rather is limited to the purpose of determining whether there is probable cause to believe that a crime was committed and that the defendant committed it. Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265 (1975); Johns v. District Court, 192 Colo. 462, 561 P.2d 1 (1977); People v. Cisneros, 193 Colo. 380, 566 P.2d 703 (1977); McDonald v. District Court, 195 Colo. 159, 576 P.2d 169 (1978); Flores v. People, 196 Colo. 565, 593 P.2d 316 (1978); People in Interest of M.V., 742 P.2d 326 (Colo. 1987). The preliminary hearing is not intended to be a minitrial or to afford the defendant an opportunity to effect discovery. Rex v. Sullivan, 194 Colo. 568, 575 P.2d 408 (1978); McDonald v. District Court, 195 Colo. 159, 576 P.2d 169 (1978). And judge not trier of fact. In Colorado, the preliminary hearing is not a "minitrial", and the judge is not a trier of fact; rather, his function is solely to determine the existence or absence of probable cause. Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265 (1975). No consideration of probability of conviction. A preliminary hearing focuses upon a probable cause determination, rather than a consideration of the probability of conviction at the ensuing trial. Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265 (1975). Nor require examination of all prosecution witnesses and evidence. Preliminary hearing does not require that the prosecution lay out for inspection and for full examination all witnesses and evidence. People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973). Merely quantum necessary to establish probable cause. The prosecution need not produce all of its evidence against the defendant at the preliminary hearing, but only that quantum necessary to establish probable cause. Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265 (1975). The probable cause standard requires evidence sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that the defendant committed the crimes charged. People v. Johnson, 618 P.2d 262 (Colo. 1980); People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977); Miller v. District Court, 641 P.2d 966 (Colo. 1982); People in Interest of M.V., 742 P.2d, 326 (Colo. 1987). The prosecution is not required to produce at a preliminary hearing evidence that is sufficient to support a conviction. People in Interest of M.V., 742 P.2d 326 (Colo. 1987). It is not necessary that the prosecution show beyond a reasonable doubt that the defendant committed the crime; nor is it even necessary to show the probability of the defendant's conviction. People in Interest of M.V., 742 P.2d 326 (Colo. 1987). Prosecution may seek a grand jury indictment after dismissal by a county court on a preliminary hearing for lack of probable cause as an alternative to appealing to or filing a direct information in the district court. People v. Noline, 917 P.2d 1256 (Colo. 1996). Under subsection (h)(3), the burden of proof is on the prosecution, and the defendant need not testify, although he has the right to cross-examine the witnesses called by the People. Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265 (1975). Although trial judge may curtail the right to cross-examine and to introduce evidence in the preliminary hearing, he may not completely prevent inquiry into matters relevant to the determination of probable cause or disregard the testimony of a witness favorable to the prosecution unless such testimony is implausible or incredible as a matter of law. People v. Buhrle, 744 P.2d 747 (Colo. 1987). District court may not review county court's probable cause finding. It is not proper for the district court to review the county court's finding of probable cause. Blevins v. Tihonovich, 728 P.2d 732 (Colo. 1986). Rules of evidence and procedure relaxed. In light of its limited purpose, evidentiary and procedural rules in the preliminary hearing in Colorado are relaxed. Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265 (1975). Since the preliminary hearing is not a mini-trial, greater evidentiary and procedural latitude is granted to the prosecution to establish probable cause than would be permqtted at trial to prove the defendant committed the crime. People v. Buhrle, 744 P.2d 747 (Colo. 1987). But may not rely solely on hearsay. While the bulk of testimony at a preliminary hearing may be hearsay, the prosecution may not totally rely on hearsay to establish probable cause where competent evidence is readily available. Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265 (1975); McDonald v. District Court, 195 Colo. 159, 576 P.2d 169 (1978). Consideration of credibility of witnesses limited. A judge in a preliminary hearing has jurisdiction to consider the credibility of witnesses only when, as a matter of law, the testimony is implausible or incredible. Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265 (1975); Johns v. District Court, 192 Colo. 462, 561 P.2d 1 (1977); People in Interest of M.V., 742 P.2d 326 (Colo. 1987). Inferences to be made in favor of prosecution. When there is a mere conflict in the testimony, a question of fact exists for the jury, and the judge in a preliminary hearing must draw the inference favorable to the prosecution. Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265 (1975); Johns v. District Court, 192 Colo. 461, 561 P.2d 1 (1977); People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977); People v. Johnson, 618 P.2d 262 (Colo. 1980); Miller v. District Court, 641 P.2d 966 (Colo. 1982); People in Interest of M.V., 742 P.2d 326 (Colo. 1987). The right to cross-examine and to introduce evidence may be curtailed by the presiding judge consistent with the screening purpose of the preliminary hearing. Rex v. Sullivan, 194 Colo. 568, 575 P.2d 408 (1978). But judge may not completely curtail inquiry into matters relevant to the determination of probable cause. Rex v. Sullivan, 194 Colo. 568, 575 P.2d 408 (1978). When prohibiting defense from calling witness deemed abuse of discretion. Where an eyewitness is available in court during a preliminary hearing and where the prosecution is relying almost completely on hearsay testimony, it is an abuse of discretion to prohibit the defense from calling the witness. McDonald v. District Court, 195 Colo. 159, 576 P.2d 169 (1978). And witness' testimony may be used at trial. Where a defendant cross-examined an adverse witness during a preliminary hearing, that witness' recorded testimony might be used as evidence at trial, although the hearing merely determined the existence of probable cause and witness' credibility was not in issue. People v. Flores, 39 Colo. App. 556, 575 P.2d 11 (1977), rev'd on other grounds, 196 Colo. 565, 593 P.2d 316 (1978). Right to hearing founded in statutes, rules, and constitutions. Defendant in requesting and obtaining a preliminary hearing was exercising a right that was not only guaranteed him by statute and rule of court, but also one that has a constitutional foundation. Lucero v. District Court, 188 Colo. 67, 532 P.2d 955 (1975). Protects accused and benefits judiciary. A preliminary hearing protects the accused by avoiding an embarrassing, costly, and unnecessary trial, and it benefits the interests of judicial economy and efficiency. Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265 (1975). But does not alter proposition that accused entitled to trial on merits. Although a preliminary hearing provides the defendant with an early opportunity to question the government's case, it is not designed to alter the basic proposition that an accused is entitled to one trial on the merits of the charge. People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973). And deemed to be critical stage. A preliminary hearing is a critical stage in the prosecution of a defendant and should not be conducted in a "perfunctory fashion". McDonald v. District Court, 195 Colo. 159, 576 P.2d 169 (1978). Preliminary hearing is not intended to be mandatory procedural step in every prosecution. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974). When waiver occurs. If a defendant does not request a preliminary hearing, he is deemed to have waived the preliminary hearing and must be bound over for trial. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974). Effect of waiver. If the defendant elects to waive the preliminary hearing and to proceed to trial, the waiver operates as an admission by the defendant that sufficient evidence does exist to establish probable cause that the defendant committed the crimes charged. People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974). A defendant requesting preliminary hearing must appear. When a defendant requests a preliminary hearing, he has not only the constitutional right to be present, but is under an affirmative obligation and duty to appear at the hearing. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974). Unless the court permits defendant to waive his presence. The court may, when a timely request is made, permit the defendant to waive his presence at the preliminary hearing if the ends of justice would not be frustrated, but the tactical ploy of refusing to produce a defendant at the preliminary hearing to frustrate the prosecution's case should not be tolerated. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974). Refusal to appear constitutes implied waiver. Where the judge of the county court advised counsel that the failure of the defendant to appear would constitute a waiver, the defendant's subsequent refusal to appear constituted an implied waiver and extinguished the defendant's right to a preliminary hearing in the county court. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974). But application for deferred sentencing does not constitute waiver of the right to a preliminary hearing. Celestine v. District Court, 199 Colo. 514 610 P.2d 1342 (1980). Restoration of right once waived in county court. Under the Colorado Rules of Criminal Procedure and the statutes of this state, a district court is not vested with the power to restore a defendant's statutory right to a preliminary hearing once the defendant had waived that right in county court bind-over proceedings. People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974). Once a defendant knowingly waives his right to a preliminary hearing in the county court, the right is extinguished and may not be restored in the subsequent district court proceedings. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974). Authority to bind over on lesser included offense. The trial court which holds the preliminary hearing has the authority to bind over the defendant on a lesser included offense. People v. Hrapski, 658 P.2d 1367 (Colo. 1983). When juvenile not entitled to preliminary hearing in district court. A juvenile who was transferred to the district from the juvenile court, after a transfer hearing where probable cause as to the offenses charged was determined, was not entitled in the district court to another determination of probable cause in the form of a preliminary hearing. People v. Flanigan, 189 Colo. 43, 536 P.2d 41 (1975). Defendant cannot complain if he is committed to a state institution until he is competent to have a preliminary hearing, pursuant to a sanity proceeding, since subsection (h)(2), provides that the preliminary hearing "shall be held within 30 days of the day of the setting, unless good cause for continuing the hearing beyond that time be shown to the court", and the matter of the defendant's sanity is good cause. Schwader v. District Court, 172 Colo. 474, 474 P.2d 607 (1970). The bulk of evidence in a preliminary hearing may consist of hearsay evidence which would be inadmissible at the trial. People v. Buhrle, 744 P.2d 747 (Colo. 1987). Rehearing not provided. There is no provision in this rule for rehearing on, or reconsideration of, a ruling on completion of a preliminary hearing. People v. District Court, 186 Colo. 136, 526 P.2d 289 (1974). Where technical difficulties prevented defendant from obtaining a transcript of the preliminary hearing, the judge abused his discretion in denying defendant's motion for a second preliminary hearing. Such motion should have been granted because the testimony presented at the first preliminary hearing was directly relevant and significant to defendant's trial preparation, the prosecution was expected to rely on testimony presented at the preliminary hearing, and there was no alternative method of reconstructing the testimony from the preliminary hearing. Harris v. District Court, 843 P.2d 1316 (Colo. 1993).