William J. Jones v. M.L. Smith, Warden Attorney General State of California

CYNTHIA HOLCOMB HALL, Circuit Judge:

In this habeas corpus case we confront the question of whether, as of January 14, 1992, the omission of a premeditation charge from a state court attempted murder information combined with its inclusion in the jury instructions constituted a variance or an amendment to the information. We hold that because premeditation was a sentence enhancing provision under California law on the date Petitioner’s conviction became final, the discrepancy between the information and jury instructions was a variance subject to harmless error review. Since Petitioner had…