concurring:
I agree with the conclusion of the majority that the amendment to the information was a matter of form and not substance. I write separately, however, because the distinction which the majority finds between People v. Moody, 674 P.2d 366 (Colo.1984), and the present case is unpersuasive. While, at present, the case of People v. Moody is dispositive of the present issue, I concur rather than dissent because I believe Moody should be overruled.
I.
As the majority correctly states, the defendant in Moody was charged with having stolen rental property. The statute prohibiting the theft of such property made illegal only that conduct which occurred after the expiration of the rental period specified in the rental agreement. The prosecution filed an information which alleged that the day of the crime was the day on which the defendant rented the property; not the day following the seventy-two hour statutory period after the date on which the defendant was to have returned the item. The particular time at or during which allegedly criminal conduct by a lessee occurred was an essential element of the offense defined by the statute and must be proved by the prosecution beyond a reasonable doubt. Thus, the majority in Moody held that the allegations of time were substantive allegations, not merely matters of form, and affirmed the trial court’s dismissal of the criminal information.
That ease, however, was split four votes to three. The dissent noted that the majority opinion would encourage subtleties and hypertechnical refinements in the construction of informations that would bear no relationship to the constitutional and statutory purposes that informations were meant to serve. This result would permit “a defendant who was adequately advised of the charges against him to withhold his objection until jeopardy has attached and thereby thwart achievement of the legitimate purposes of the criminal justice system.” Moody, 674 P.2d at 371 (Lohr, J. dissenting). I agree.
If an information is somewhat ambiguous, the defendant has the right to demand the nature and cause of the accusation. Colo. Const., Art. II, §§ 16-25. This right is embodied in the requirements of Crim.P. 7(b)(2). Specifically, the offense must be set forth with such a degree of certainty that the court may pronounce judgment upon a conviction. Crim.P. 7(b)(2)(IV); § 16-5-202(l)(d), 8 C.R.S. (1978).
I agree with the dissent in Moody, that the information was sufficient. Because the time element was an essential one to be proved by the prosecution beyond a reasonable doubt, the majority held that the allegations of time were substantive and were, therefore, properly dismissed. However, we had previously held that there is no requirement that every element of the offense be alleged in the information. Moody, 674 P.2d at 370 (Lohr, J., dissenting) (citing People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973)).
Here, just as in Moody, the proposed amendment was an essential element to be proved by the prosecution beyond a reasonable doubt. The majority attempts to distinguish the information in Moody from the information in this case by arguing that the reasons for dismissing the information in Moody were more compelling than in the present case. This attempted distinction is unpersuasive. The majority argues that the information in Moody gave the defendant no indication of the time during which he allegedly violated the theft statute, while in the present case, the amendment added little to Cervantes’ knowledge of the charge against him. While I agree with *790the majority that the amendment did add little to Cervantes’ knowledge of the charge against him, I cannot agree with the majority that the defendant in Moody was prejudiced by the alleged ambiguity in the information. I agree with the dissenting opinion’s analysis in Moody which provided:
The prosecution’s evidence established that the defendant failed to return the trailer or inform the victim of its whereabouts within 72 hours after the return time specified in the rental agreement. The defendant does not allege that he was denied access to this evidence in discovery or at the pretrial conference. Indeed, he did not even raise the issue of any ambiguity in the information until long after it was issued, after jeopardy had attached and the state had rested its case in a jury trial. If the defendant is aware of a defect in the charge before trial, this reflects on whether he is prejudiced by it. See People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972). Without prejudice, it was an error of law to rule the alleged ambiguity fatal to the prosecution’s case.
674 P.2d at 370-71.
By refusing to overrule Moody, the majority is now creating conflicting case law with artificial distinctions. On the one hand, if the prosecution attempts to amend an information after jeopardy has attached and the information deals with a time element, which is essential for the prosecution to prove beyond a reasonable doubt, the amendment will be deemed a substantive one and the defendant’s motion to dismiss must be granted. On the other hand, if the prosecution attempts to amend an information after jeopardy has attached and the amendment goes to the defendant’s mental state and is essential for the prosecution to prove beyond a reasonable doubt, then the defendant’s motion to dismiss will be denied.
In my view, the key to determining whether an information is sufficient is who, what, where and how. Moody, 674 P.2d at 370 (Lohr, J., dissenting); People v. Tucker, 631 P.2d 162 (Colo.1981); People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974). In both Moody and Cervantes, the defendants knew the crime with which they were being charged prior to trial. If anything, the intent element was more important to the defendant’s knowledge of the crime with which he was being charged in the present case than was the time element in Moody. Because the specific subsection of the statute was missing and because the language missing from the information went to Cervantes’ knowledge that the person whom he had assaulted was a peace officer, one can conceive of an argument on behalf of Cervantes that he was unaware that the person he assaulted was a policeman. Under such a theory, Cervantes would argue that he had been charged under section 18-3-203(l)(a), 8 C.R.S. (1978), rather than section 18-3-203(l)(c). While such an argument is unpersuasive because the information tracked precisely the language of subsection (c), absent the omitted phrase, and because the trial judge told the prosecutor to lower the charge from first-degree assault to second-degree assault at the preliminary hearing, it counters persuasively the majority’s distinction that the reasons for dismissing the information in Moody were more compelling than in the present case.
The information was sufficient on its face to inform Cervantes of the crime with which he was being charged. I find the dissent in Moody persuasive, and I am now persuaded that Moody should be overruled so that the law in Colorado on this issue does not rest on a distinction without a difference.
I am authorized to say that Justice RO-YIRA joins me in this special concurrence.