People v. Anderson

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

VERNON ANDERSON,

Defendant and Appellant.

S253227

First Appellate District, Division Three

A136451

San Francisco City and County Superior Court

206013

July 23, 2020

Justice Kruger authored the opinion of the Court, in which Chief

Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,

Cuéllar, and Groban concurred.

PEOPLE v. ANDERSON

S253227

Opinion of the Court by Kruger, J.

A jury convicted defendant Vernon Anderson of several

offenses, including five counts of second degree robbery. As to

each of these five counts, the operative information alleged

personal firearm use enhancements that would have increased

Anderson’s sentence by three, four, or 10 years as to each count.

(Pen. Code, § 12022.53, subd. (b); id., § 12022.5, subd. (a).) But

after the close of evidence, the trial court instructed the jury on

a set of more serious, 25-year-to-life firearm enhancements

based on a different theory: that Anderson was vicariously

responsible for a coparticipant’s harmful discharge of a firearm

in the commission of a gang-related crime. (Id., § 12022.53,

subds. (d), (e).) One such vicarious firearm discharge

enhancement had been alleged in connection with a different

count of the information, but none had been alleged in

connection with the robbery counts. The jury returned true

findings, and the trial court enhanced Anderson’s sentence for

the robberies by five consecutive additional terms of 25 years to

life. The Court of Appeal affirmed.

We granted review to consider whether the trial court

properly imposed the five 25-year-to-life enhancements in

connection with counts as to which the enhancements had not

been alleged. The answer is no. Because Anderson did not

receive adequate notice that the prosecution was seeking to

impose this additional punishment on these counts, we reverse

and remand for resentencing.

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Opinion of the Court by Kruger, J.

I.

Anderson, together with a group of at least five other

young men, arrived at a house party in San Francisco. The host

asked them to leave. They left briefly but then returned to the

house with guns. Standing outside the house, the young men

began demanding money from several partygoers, trying to go

through their pockets and snatching their purses. One of the

men — it is not clear who — then began shooting. Five of the

bullets struck and killed Zachary Roche-Balsam, another

partygoer who had been standing in front of the house.

Anderson was charged by information with the first

degree murder of Roche-Balsam (Pen. Code, § 187) and active

participation in a street gang (id., § 186.22, subd. (a)). Based on

the robberies of other partygoers, Anderson was originally

charged with four counts of second degree robbery (id., § 212.5,

subd. (c)), including two completed robberies and two attempts

(id., §§ 664, 212.5, subd. (c)). Finally, Anderson was charged

with conspiracy to commit second degree robbery (id., §§ 182,

subd. (a)(1), 212.5, subd. (b)) and two counts of discharging a

firearm at an inhabited dwelling (id., § 246). During trial, the

prosecution successfully moved to amend the original

information to add another attempted robbery count, for a total

of five robbery counts. Other than the additional robbery count

(and the enhancements attached to it, which are described

further below), this first amended information was

substantively identical to the original.

For each of the substantive offenses charged, the

information alleged various sentence enhancements. This case

concerns firearm enhancements under Penal Code section

12022.53 (section 12022.53). That provision “imposes sentence

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Opinion of the Court by Kruger, J.

enhancements for firearm use applicable to certain enumerated

felonies. [Citations.] These enhancements vary in length,

corresponding to various uses of a firearm.” (People v. Garcia

(2002) 28 Cal.4th 1166, 1171.) In connection with the murder

count, which was count 1, the first amended information alleged

Anderson was subject to a 25-year-to-life enhancement based on

vicarious liability for the injurious discharge of a firearm by a

coparticipant in a gang-related offense. (§ 12022.53, subds. (d),

(e).) By contrast, in connection with each of the robbery counts,

which were counts 3 through 7, the information alleged two

personal use firearm enhancements — one a 10-year

enhancement (id., subd. (b)) and the other a three-, four-, or 10-

year enhancement (id., § 12022.5, subd. (a)). None of the five

robbery counts included a 25-year-to-life vicarious firearm

discharge enhancement allegation under section 12022.53,

subdivision (e) (section 12022.53(e)).

Before trial, the prosecution offered to strike all charges

and enhancements if Anderson pleaded guilty to second degree

murder with a 15-year-to-life penalty, as well as to one count of

robbery and one count of being an active participant in a street

gang. Anderson rejected the deal. At that time, the prosecutor

stated in open court that, by his calculations, Anderson, then

age 25, faced approximately “60 years to life or more” if he lost

at trial — a calculation apparently based on the premise that

Anderson faced only one 25-year-to-life enhancement, the

enhancement alleged in connection with the murder count.

At trial, the evidence connected Anderson to the robberies

outside the house party in San Francisco. No witness could

clearly identify the person who shot and killed Roche-Balsam,

but witnesses identified Anderson as one of several people

holding a gun and robbing partygoers. An expert witness opined

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Opinion of the Court by Kruger, J.

that Anderson was a member of a gang called Randolph Mob

and that the crimes were gang related.

The trial court instructed the jury that it could find that

the prosecution proved the elements of the 25-year-to-life

vicarious firearm discharge enhancements under section

12022.53(e) as to the robbery counts — even though they were

not alleged in the operative information — and approved verdict

forms to the same effect. The record does not show definitively

how this occurred, but it appears the prosecution requested this

instruction as to the robbery counts after the close of the

evidence. The jury convicted Anderson on all 10 counts and

returned true findings on all the enhancement allegations

contained in the verdict forms.

At the sentencing hearing the prosecution initially asked

the court to impose the less severe 10-year personal firearm-use

enhancements, which had been pleaded in the information, and

to “[i]mpose and stay” the 25-year-to-life vicarious firearm

discharge enhancements as to the robbery counts. Uncertain

whether the court had the authority to impose and stay the

enhancements, the defense asked the court to strike them

altogether. After a short recess to study the issue, the

prosecution pointed the court to People v. Palacios (2007) 41

Cal.4th 720, which held that Penal Code section 654 does not

preclude imposing multiple section 12022.53 enhancements,

even when the enhancements are based on a single shot fired at

a single victim. (Palacios, at pp. 723–733.) Based on Palacios,

the prosecution asked the trial court to impose the 25-year-to-

life enhancements as to the five robbery counts after all. The

defense objected on the ground that the prosecution’s

recommended sentence would constitute cruel and unusual

punishment. (See U.S. Const., 8th Amend.) The court overruled

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Opinion of the Court by Kruger, J.

the objection and sentenced Anderson to a total of 189 years to

life, including a total of 125 years to life for the enhancements

corresponding to the five robbery counts.

On appeal, Anderson argued for the first time that the

trial court erred in imposing the five unpleaded 25-year-to-life

enhancements because the enhancements had not been

adequately pleaded in the charging document. Anderson relied

on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), where

we held that a court could not impose a sentence under the “One

Strike” law (Pen. Code, § 667.61) based on a multiple-victim

circumstance not alleged in the accusatory pleading. (Mancebo,

at p. 739.)

The Court of Appeal rejected Anderson’s argument in a

footnote of its unpublished opinion (People v. Anderson (Nov. 19,

2018, A136451)), concluding “defendant was properly sentenced

in conformity with People v. Riva (2003) 112 Cal.App.4th 981.”1

In Riva, the Court of Appeal held that an information

adequately pleaded a section 12022.53, subdivision (d) (section

12022.53(d)) firearm enhancement as to one count by alleging

the enhancement as to other counts based on the same set of

facts. (Riva, at pp. 1000–1003.) The court distinguished

Mancebo on the ground that the enhancement at issue in that

case had not been pleaded as to any count, while in Riva the

relevant enhancement “was pled by number and description as

1

The Court of Appeal remanded the matter to the trial

court for it to exercise its newly acquired discretion under

section 12022.53, amended subdivision (h) (Stats. 2017, ch. 682,

§ 2), to strike the enhancements imposed under that section and

for Anderson to augment the record with information relevant

to his youth offender parole hearing, but otherwise affirmed.

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Opinion of the Court by Kruger, J.

to some of the counts in the information, just not the one on

which the trial court imposed it.” (Riva, at p. 1002.)

We granted review to decide whether the trial court erred

by imposing firearm enhancements under section 12022.53(e)

that were not pleaded in connection with the relevant counts.

II.

As a rule, all sentence enhancements “shall be alleged in

the accusatory pleading and either admitted by the defendant

in open court or found to be true by the trier of fact.” (Pen. Code,

§ 1170.1, subd. (e) (section 1170.1(e)).) Firearm enhancements

under section 12022.53(e) are no exception to this rule. Another

statutory pleading provision, specific to section 12022.53

enhancements, restates the same basic point: For any of the

firearm enhancements prescribed by section 12022.53 to apply,

“the existence of any fact required [by the relevant provision]

shall be alleged in the accusatory pleading and either admitted

by the defendant in open court or found to be true by the trier of

fact.” (§ 12022.53, subd. (j); see People v. Garcia, supra, 28

Cal.4th at p. 1175 [describing this provision as “simply a

restatement of section 1170.1[](e)”].) And still another statutory

provision, specific to the particular vicarious liability firearm

enhancement at issue here, sets out its own pleading

requirements: Section 12022.53(e) says the vicarious liability

enhancements shall apply only if the prosecution has both “pled

and proved” that the defendant committed a felony on behalf of

a street gang (see Pen. Code, § 186.22) and that a “principal in

the offense committed any act specified in subdivision (b), (c), or

(d)” — that is, an act that would trigger a firearm enhancement

had the defendant committed that act personally.

(§ 12022.53(e)(1).)

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Opinion of the Court by Kruger, J.

Beneath all three statutory pleading requirements lies a

bedrock principle of due process. “ ‘No principle of procedural

due process is more clearly established than that notice of the

specific charge, and a chance to be heard in a trial of the issues

raised by that charge, if desired, are among the constitutional

rights of every accused in a criminal proceeding in all courts,

state or federal.’ [Citations.] ‘A criminal defendant must be

given fair notice of the charges against him in order that he may

have a reasonable opportunity properly to prepare a defense and

avoid unfair surprise at trial.’ ” (People v. Toro (1989) 47 Cal.3d

966, 973 (Toro).) This goes for sentence enhancements as well

as substantive offenses: A defendant has the “right to fair notice

of the specific sentence enhancement allegations that will be

invoked to increase punishment for his crimes.” (Mancebo,

supra, 27 Cal.4th at p. 747.)

The question before us is whether the accusatory pleading

in this case gave Anderson adequate notice of the allegations

that were ultimately invoked to add at least 125 years to his

sentence. The information alleged a section 12022.53(e)

vicarious liability enhancement as to the murder count but not

as to the robbery counts. Both parties now agree that the

operative information did not provide Anderson with statutorily

adequate notice that the prosecution would seek to invoke

vicarious liability enhancements as to each of the robberies. We

agree as well.

The starting point for our inquiry is Mancebo. That case

concerned the pleading requirements under the One Strike law,

Penal Code section 667.61 (section 667.61), which provides an

alternative, more severe set of penalties for certain sex offenses

committed under certain enumerated circumstances. We held

in Mancebo that the trial court had erred by imposing a One

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Opinion of the Court by Kruger, J.

Strike sentence based on an unpleaded multiple victim

circumstance. (Mancebo, supra, 27 Cal.4th at pp. 739–754.) We

relied primarily on the plain language of section 667.61.

(Mancebo, at p. 743.) Section 667.61, subdivision (i), at the time,

read: “ ‘For the penalties provided in this section to apply, the

existence of any fact required under subdivision (d) or (e) shall

be alleged in the accusatory pleading and either admitted by the

defendant in open court or found to be true by the trier of fact.’ ”

(Mancebo, at p. 742, fn. 4, quoting § 667.61, former subd. (i), as

amended by Stats. 1997, ch. 817, § 6, p. 5577.) Section 667.61,

subdivision (f) further said that the “ ‘circumstances . . .

required for the punishment’ ” under the One Strike law had to

be “ ‘pled and proved.’ ” (Mancebo, at p. 742, fn. 4, quoting

§ 667.61, former subd. (f).) Even though the facts that would

establish the multiple victim circumstance (i.e., that the

defendant’s crimes involved multiple victims) were evident from

the information, nothing in the information revealed that the

prosecution sought to use the multiple victim circumstance as a

basis for One Strike sentencing.2 This, we held, violated “the

2

The information had alleged two qualifying circumstances

with respect to each victim. (Mancebo, supra, 27 Cal.4th at

pp. 742–743.) As to victim Y., it had alleged kidnapping and

firearm use circumstances. (Id. at p. 742.) As to victim R., it

had alleged firearm use and binding. (Id. at pp. 742–743.)

When it came to sentencing, the trial court imposed a One Strike

sentence but also a 10-year firearm use enhancement under

Penal Code section 12022.5, subdivision (a). (Mancebo, at

p. 744.) The relevant statute prohibited the court from using

the firearm use circumstances both as the basis for this 10-year

firearm-use enhancement and as the basis for One Strike

sentencing. (See § 667.61, subd. (f).) To get around this

problem, the trial court had substituted the unpleaded multiple

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Opinion of the Court by Kruger, J.

explicit pleading provisions of the One Strike law,” as well as

the due process principles underlying them. (Mancebo, at

p. 743; see id. at pp. 739, 753.) We explained that the

prosecution has the power to make discretionary charging

decisions, and the information was reasonably read to indicate

that the prosecution had chosen to exercise that discretion in not

charging a multiple victim circumstance. (Id. at p. 749.) The

information failed to provide the defendant with fair notice that

the prosecution would instead seek to rely on that allegation to

increase his punishment. (Id. at p. 753.)

Mancebo’s holding was limited to the pleading

requirements of section 667.1, subdivisions (f) and (i).

(Mancebo, supra, 27 Cal.4th at p. 745, fn. 5.) But Mancebo’s

reasoning was not so limited. California courts accordingly have

followed Mancebo’s lead in interpreting various other statutory

pleading requirements, including section 12022.53(e)’s

requirement that certain facts must be “pled and proved” in

connection with the defendant’s “offense.” In People v. Botello

(2010) 183 Cal.App.4th 1014, 1022–1026, for example, two

codefendants were charged with and convicted for their roles in

a gang-related shooting and the jury found true allegations

supporting an enhancement under section 12022.53(d) for

having personally discharged a firearm in the commission of the

offense, causing great bodily injury. On appeal, because no

evidence showed which of the two defendants was the shooter,

the People conceded the personal use enhancements could not

stand. (Botello, at p. 1022.) But the People asked the court

instead to impose vicarious liability enhancements under

victim circumstance for the pleaded firearm use circumstances.

(Mancebo, at pp. 738–739.)

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Opinion of the Court by Kruger, J.

section 12022.53(e), noting that all the necessary findings had

been made by the jury in connection with other charges.

(Botello, at p. 1022.) Citing Mancebo, the Court of Appeal

refused. (Botello, at pp. 1022–1027.) It explained that the

accusatory pleading had charged defendants only with personal

use enhancements, not vicarious liability enhancements. (Id. at

p. 1027.) Under Mancebo, “to apply section 12022.53,

subdivision (e)(1) for the first time on appeal would violate the

express pleading requirement of that provision, and defendants’

due process right to notice that subdivision (e)(1) would be used

to increase their sentences.” (Botello, at p. 1027.)

We now confirm that the reasoning of Mancebo applies

equally to a sentence enhancement imposed under section

12022.53 and hold that the information in this case did not

comport with the relevant statutory pleading requirements.

Anderson was entitled to a pleading that provided him with fair

notice that he faced 25-year-to-life enhancements under section

12022.53(e) as to each charged robbery offense if this was the

prosecution’s intent. The operative information here did not

allege that a coparticipant in the robbery offenses discharged a

firearm, causing great bodily injury or death; it alleged only that

Anderson personally used a firearm in the commission of those

crimes. The information therefore did not comply with the

applicable statutory pleading requirements, nor did it comport

with the due process principles underlying those requirements.

In concluding otherwise, the Court of Appeal relied on

Riva, which concerned the pleading of enhancements under

section 12022.53(d) for personally discharging a firearm. In

Riva, the defendant had fired a gun from inside his car at the

occupants of another car, injuring a nearby pedestrian. (People

v. Riva, supra, 112 Cal.App.4th at p. 986 (Riva).) The defendant

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Opinion of the Court by Kruger, J.

was charged by information with attempted voluntary

manslaughter, assault, and shooting at an occupied vehicle.

(Ibid.) The information also alleged a firearm enhancement

under section 12022.53(d) in connection with the attempted

voluntary manslaughter and assault counts. (Riva, at p. 1000.)

Although the information did not also allege a firearm

enhancement in connection with the shooting-at-an-occupied-

vehicle count, the verdict forms nonetheless asked the jurors to

determine whether the prosecution had proved the

enhancements as to all three counts, and the jury found them

true as to all three. (Ibid.) The trial court then imposed the

section 12022.53(d) enhancement only for the shooting-at-an-

occupied-vehicle count — the one count as to which the

enhancement was not pleaded. (Riva, at pp. 1000–1001.)

The Court of Appeal in Riva held that the information

satisfied the statutory pleading requirements, notwithstanding

this omission, because “the enhancement under section

12022.53[](d) was pled by number and description as to some of

the counts in the information, just not the one on which the trial

court imposed it.” (Riva, supra, 112 Cal.App.4th at p. 1002,

italics added.) The pleading, the court ruled, thus “complied

with the literal language” of section 12022.53, subdivision (j),

which requires that the accusatory pleading allege the facts

supporting any section 12022.53 firearm enhancement but does

not expressly require that the information allege those facts in

connection with a particular count. (Riva, at p. 1001.) The court

underscored that the information in that case did allege the

relevant facts supporting the enhancement in connection with

other counts of the information. (Ibid.) The court also reasoned

that the case raised no concerns about fair notice comparable to

those in Mancebo: The information put the defendant on notice

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Opinion of the Court by Kruger, J.

that he had to defend against the allegation that he personally

and intentionally discharged a firearm causing great bodily

injury in the course of the shooting because the allegation was

pleaded as to two other counts stemming from the defendant’s

same conduct. (Riva, at p. 1003.)

The Attorney General does not rely on Riva, instead

conceding that the prosecution was required to plead the

vicarious liability enhancements under section 12022.53(e) in

connection with the robbery counts if it wished for the court to

impose those enhancements as to those counts. We accept the

concession and, further, disapprove People v. Riva, supra, 112

Cal.App.4th 981. The statutory pleading requirements of

section 12022.53 and section 1170.1(e), read against the

backdrop of due process, require more than simply alleging the

facts supporting an enhancement somewhere in the

information. (Contra, Riva, at p. 1001.) The pleading must

provide the defendant with fair notice of the potential sentence.

A pleading that alleges an enhancement as to one count does not

provide fair notice that the same enhancement might be

imposed as to a different count. When a pleading alleges an

enhancement in connection with one count but not another, the

defendant is ordinarily entitled to assume the prosecution made

a discretionary choice not to pursue the enhancement on the

second count, and to rely on that choice in making decisions such

as whether to plead guilty or proceed to trial. (See People v.

Sweeney (2016) 4 Cal.App.5th 295, 301 [information alleging

gang enhancements under Pen. Code, § 186.22, subd. (b) did not

give the defendant adequate notice that enhancement under

Pen. Code, § 186.22, subd. (d) might apply].) Fair notice

requires that every sentence enhancement be pleaded in

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Opinion of the Court by Kruger, J.

connection with every count as to which it is imposed. (See

People v. Nguyen (2017) 18 Cal.App.5th 260, 267.)

The Riva court reasoned that the pleading failure there

did not interfere with the defendant’s ability to contest the

factual basis for the allegation at trial because the same

enhancement was pleaded as to other counts. (Riva, supra, 112

Cal.App.4th at p. 1003.) Given the specific circumstances of the

case, the defendant was “on notice he had to defend against the

allegation,” and it seemed unlikely the error “affected his

decision whether to plea bargain.” (Ibid.) These are not,

however, reasons to conclude that no pleading error occurred;

they are reasons to conclude the error was not prejudicial. The

Riva court erred by confusing the question whether the pleading

was adequate with the separate question whether the pleading

defect prejudiced the defendant (see pt. III, post).

Here the section 12022.53(e) vicarious firearm discharge

allegation as to the murder count failed to provide Anderson

with fair notice that the prosecution would seek additional

vicarious firearm discharge enhancements as to each of the five

robberies, with each enhancement carrying an additional

penalty of 25 years to life. Indeed, Anderson had reason to

believe the prosecution was exercising its discretion not to seek

the same 25-year-to-life enhancement as to the robbery counts:

With respect to those counts, the prosecution chose to allege

other, lesser enhancements for personal use of a firearm under

section 12022.53, subdivision (b) and Penal Code section

12022.5, subdivision (a). Insofar as the prosecution

nevertheless sought to impose the uncharged vicarious liability

enhancements as to the robbery counts, we agree with both

parties that the operative information failed to comply with the

relevant statutory pleading requirements.

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Opinion of the Court by Kruger, J.

We do not mean to suggest that an information that fails

to plead the specific numerical subdivision of an enhancement

is necessarily inadequate. (Mancebo, supra, 27 Cal.4th at

p. 753.) Neither the relevant statutes nor the due process clause

requires rigid code pleading or the incantation of magic words.

But the accusatory pleading must adequately inform the

defendant as to how the prosecution will seek to exercise its

discretion. Here the information had to inform Anderson that

he faced five additional 25-year-to-life enhancements in

connection with the five robbery counts. It failed to do so.

III.

Although the Attorney General acknowledges that the

information did not satisfy the applicable statutory pleading

requirements, he urges us to uphold Anderson’s sentence on the

ground that the jury instructions and verdict forms gave

Anderson sufficient notice that he faced the five 25-year-to-life

additional vicarious firearm discharge enhancements as to the

robbery counts. The Attorney General makes three arguments

in this vein. He first argues that, because Anderson failed to

object to the instructions or verdict forms submitting the

challenged vicarious firearm discharge enhancements to the

jury, he impliedly consented to an informal amendment of the

information. Alternatively, the Attorney General argues

Anderson’s failure to object forfeited his right to raise the issue

on appeal. Finally, the Attorney General argues Anderson

cannot show he was harmed by the pleading defect and has thus

failed to establish reversible error. We reject all three

arguments.

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Opinion of the Court by Kruger, J.

A.

As previously noted, although the information did not

plead vicarious firearm discharge enhancements with respect to

the five robbery counts, the jury instructions and verdict forms

nonetheless asked the jury to return findings that would

support these enhancements. The record does not reveal

precisely how this came to pass. But we know defense counsel

did not object to the instructions or verdict forms, instead

initialing the relevant documents and telling the court the

instructions “appear to be in order and complete.” The Attorney

General argues that, by failing to object, Anderson impliedly

consented to an informal amendment of the information to add

the additional enhancement allegations as to the robbery

counts.

Under the Penal Code, an accusatory pleading may be

amended for “defect or insufficiency, at any stage of the

proceedings.” (Pen. Code, § 1009.) After the defendant has

entered a plea, amending the accusatory pleading requires leave

of court, which may be granted or denied in the court’s discretion

provided the amendment does not “change the offense charged”

or otherwise prejudice the defendant’s substantial rights. (Ibid.;

People v. Birks (1998) 19 Cal.4th 108, 129.) Here the Attorney

General did not seek leave to amend the information, nor was

leave granted. But in certain limited circumstances, we have

recognized informal, unwritten amendments as effective. This

is what the Attorney General argues we should do here.

The Attorney General’s argument relies primarily on

Toro. In that case, we held that the defendant’s failure to object

on notice grounds to the inclusion of a lesser related offense on

the verdict form forfeited his inadequate notice claim on appeal.

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(Toro, supra, 47 Cal.3d at pp. 976–977.) We considered this

failure to object to be implied consent to treat the information

as informally amended to include the lesser offense. (Ibid.) But

our willingness to imply the defendant’s consent to amend from

his silence rested on considerations specific to that situation.

We emphasized that “submission of lesser related offenses to the

jury enhances the reliability of the fact-finding process to the

benefit of both the defendant and the People.” (Id. at pp. 969–

970, italics added; see also id. at p. 977 [“Lesser related offense

instructions generally are beneficial to defendants and in a

given case only the defendant knows whether his substantial

rights will be prejudicially affected by submitting a lesser

related offense to the jury”].) This was true in Toro itself, where

submission of the lesser related instruction to the jury permitted

the defendant to escape far more severe punishment for an

admitted act of violence. (Id. at pp. 970–971 [explaining that

the defendant, who had initially been charged with attempted

murder and assault with a deadly weapon, put on no defense at

trial and conceded he had stabbed the victim; court was entitled

to imply the defendant’s consent to submit lesser related charge

of battery with serious bodily injury for the jury’s

consideration].) We drew support from out-of-state cases

holding that “instructing on a nonincluded offense may not be

cited as error on appeal if the defendant had an opportunity to

object to the instructions but failed to do so and the offense is

lesser in degree and penalty than the charged offense.” (Id. at

p. 977, italics added, citing Ray v. State (Fla. 1981) 403 So.2d

956, 961.)

The situation in Toro, in which the jury was given the

option of convicting the defendant of a lesser offense, was quite

different from the situation we confront in this case. Unlike the

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defendant in Toro, Anderson derived no possible benefit from

submitting the unpleaded 25-year-to-life enhancements to the

jury. There is therefore no reason to presume from defense

counsel’s silence that Anderson consented to this procedure.

(Cf., e.g., People v. Ramirez (1987) 189 Cal.App.3d 603, 623

[“Conviction for an uncharged greater offense not only raises the

problem of notice but makes the inference of consent more

difficult, as there is no reason why a defendant should acquiesce

in substitution of a greater for a lesser offense.”]; People v.

Haskin (1992) 4 Cal.App.4th 1434, 1440 [applying same

principle in context of sentence enhancements].)

The reasoning of People v. Arias (2010) 182 Cal.App.4th

1009 is persuasive on this point. In that case the Court of

Appeal held that the defendant’s sentences for two attempted

murders violated the relevant statutory pleading requirements

because the prosecution failed to allege that the offenses were

committed willfully, deliberately, and with premeditation — a

fact that increased the defendant’s punishment. (Id. at

pp. 1016–1020; Pen. Code, § 664, subd. (a).) The People argued

the defendant impliedly consented to an informal amendment of

the information by approving jury instructions and verdict

forms that asked the jury to determine whether the defendant

acted willfully, deliberately, and with premeditation. (Arias, at

p. 1020.) The court rejected this argument, distinguishing Toro:

Unlike with lesser related offense instructions, the “defense will

generally have no tactical interest in presenting the jury with a

new avenue for imposing greater punishment. Had the

prosecution sought to amend the information to include the

missing allegations, the defense may well have objected. Of

course, it is the People’s burden to show implied consent by the

defense. Given the absence of anything in the record showing

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an amendment — and because the defense had no apparent

reason to consent to one — we decline to extend the Toro holding

to this situation.” (Arias, at p. 1021.)

Based on People v. Sandoval (2006) 140 Cal.App.4th 111,

132–134, the Attorney General argues courts may apply the so-

called informal amendment doctrine not just where it benefits

the defendant but also to allow for the addition of greater crimes

or additional enhancements. In Sandoval, the prosecution,

formally, in open court, and with the defendant and counsel

present, orally requested and was granted an amendment to the

information to allege a prior strike conviction that increased the

defendant’s sentence. (Id. at p. 134.) Defense counsel stated she

had no objection to the amendment. (Ibid.) The defendant then

admitted the strike in open court and signed a plea form

admitting the same. (Ibid.) The record there made clear that

the defendant “had reasonable notice of the prior strike

allegation and that any defect in the form of the allegation did

not prejudice [him].” (Ibid.) The oral amendment of the

information, therefore, provided the defendant with adequate

notice of the prior strike allegation. (Ibid.)

Sandoval makes clear that not every amendment to a

pleading — even one that increases the defendant’s potential

criminal liability — need be made in writing. But the problem

in this case is not just that there was no written amendment to

the information. Here, in contrast to Sandoval, there was no

hearing in open court where the prosecution asked to make an

oral amendment to the information to add the section

12022.53(e) enhancements as to the robbery counts, nor was

Anderson asked if he consented to the amendment, nor did the

trial court ever grant such a request.

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Opinion of the Court by Kruger, J.

All we are left with, then, is counsel’s failure to object to

certain jury instructions and verdict forms that presented a set

of issues to the jury that radically increased the potential

penalties Anderson faced. For all the record shows, the drafting

of the instructions and verdict forms may have simply been a

mistake the parties did not manage to catch before it was too

late. Under these circumstances, to treat defense counsel’s lack

of objection as acquiescence or consent would go a long way

toward eroding Anderson’s right to notice of the potential

penalties he faced. We conclude no informal amendment of the

information occurred here.

B.

The Attorney General next argues Anderson forfeited his

statutory notice claim by failing to raise it in the trial court. As

noted above, when it became clear, on the day of sentencing, that

the prosecution intended to ask the court to impose the 25-year-

to-life enhancements as to each of the five robbery counts,

defense counsel objected in writing and orally, but only on

Eighth Amendment cruel and unusual punishment grounds.

(See U.S. Const., 8th Amend.) She did not call the trial court’s

attention to any deficiency in the information as to these

enhancements. We conclude, however, that the pleading failure

here is the type of error we should address even though

Anderson did not bring it to the trial court’s attention.

As a general rule, a criminal defendant who fails to object

at trial to a purportedly erroneous ruling forfeits the right to

challenge that ruling on appeal. (People v. Smith (2001) 24

Cal.4th 849, 852.) But there are exceptions to this rule. (See In

re Sheena K. (2007) 40 Cal.4th 875, 881, fn. 2 (Sheena K.).)

Anderson argues his case falls into a “narrow exception” for

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“ ‘unauthorized sentence[s]’ ” or those entered in “ ‘excess of

jurisdiction.’ ” (People v. Scott (1994) 9 Cal.4th 331, 354.)

Anderson’s argument relies heavily on Mancebo, where we

reached the merits of the pleading deficiency issue even though

the defendant had not objected at the time of sentencing.

(Mancebo, supra, 27 Cal.4th at p. 749, fn. 7.) We explained: “In

People v. Scott[, supra,] 9 Cal.4th 331, we held that ‘complaints

about the manner in which the trial court exercises its

sentencing discretion and articulates its supporting reasons

cannot be raised for the first time on appeal.’ (Id. at p. 356.) We

distinguished as outside the scope of the rule nonwaivable

errors such as ‘legal error resulting in an unauthorized sentence

[that] commonly occurs where the court violates mandatory

provisions governing the length of confinement.’ (Id. at p. 354,

fn. omitted.)” (Mancebo, at pp. 749–750, fn. 7.) Because the One

Strike law precluded the trial court from imposing the

unpleaded enhancement, leaving no room for the exercise of

sentencing discretion, we held that “the waiver rule announced

in Scott is inapplicable here.” (Id. at p. 750, fn. 7.) Anderson

reads this footnote to mean that the imposition of an unpleaded

enhancement necessarily results in an unauthorized sentence.

Anderson is not alone in this reading. (See, e.g., Mancebo,

supra, 27 Cal.4th at pp. 755, 758 (dis. opn. of Brown, J.)

[criticizing the majority for its expansion of the unauthorized

sentence doctrine].) But as subsequent cases make clear,

Mancebo does not stand for the broad proposition that

imposition of an unpleaded enhancement necessarily results in

an unauthorized sentence that may be raised, and corrected, for

the first time on appeal.

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Opinion of the Court by Kruger, J.

The unauthorized sentence doctrine is designed to provide

relief from forfeiture for “obvious legal errors at sentencing that

are correctable without referring to factual findings in the

record or remanding for further findings.” (People v. Smith,

supra, 24 Cal.4th at p. 852.) It applies when the trial court has

imposed a sentence that “could not lawfully be imposed under

any circumstance in the particular case.” (People v. Scott, supra,

9 Cal.4th at p. 354.) Take, for example, a sentence in excess of

the statutory maximum. An appellate court would be required

to correct such an error even if raised for the first time on appeal,

since such a correction would require no fact-specific inquiry and

the sentence would be unlawful under any circumstances. (See

People v. Rivera (2019) 7 Cal.5th 306, 349.)

To impose unpleaded sentence enhancements is an error

of a different variety, a point we made clear in People v. Houston

(2012) 54 Cal.4th 1186, 1227 (Houston). In that case, a capital

defendant contended he was improperly sentenced to life

imprisonment for attempted murder, in addition to his death

sentence, because the indictment failed to allege that the

attempted murders were willful, deliberate, and premeditated.

(Id. at p. 1225.) Much as in this case, the defendant claimed the

omission violated an express statutory pleading requirement;

the relevant statute required that “ ‘the fact that the attempted

murder was willful, deliberate, and premeditated [must be]

charged in the accusatory pleading . . . .’ ” (Ibid., quoting Pen.

Code, § 664, former subd. 1, as amended by Stats. 1986, ch. 519,

§ 2, p. 1859.) We held that the defendant forfeited the claim.

(Houston, at pp. 1228–1229.) The trial court had, during trial,

given the defendant notice of his potential sentence on the

attempted murder count and asked the parties if they had

objections to instructions and verdict forms asking the jury to

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Opinion of the Court by Kruger, J.

determine whether the attempted murders were willful,

deliberate, and premeditated. (Id. at p. 1227.) We distinguished

a follow-on case to Mancebo — and, by implication, Mancebo

itself — on the ground that the court in Houston “actually

notified defendant of the possible sentence he faced before his

case was submitted to the jury, and defendant had sufficient

opportunity to object to the indictment and request additional

time to formulate a defense.” (Houston, at p. 1229.) By

affirming on forfeiture grounds, Houston effectively rejected the

notion that a pleading defect necessarily results in an

unauthorized sentence.

Even so, as Mancebo itself illustrates, we have the power

to reach the merits of Anderson’s claim here, notwithstanding

his failure to object below. It is well settled that an appellate

court may decide an otherwise forfeited claim where the trial

court has made an error affecting “an important issue of

constitutional law or a substantial right.” (Sheena K., supra, 40

Cal.4th at p. 887, fn. 7.) In Mancebo, the trial court made such

an error, and it was therefore within our discretion to correct it

notwithstanding the absence of a timely objection. The trial

court in this case made much the same sort of error, and we

address it for much the same reasons.

First of all, the error here is clear and obvious. The trial

court imposed five 25-year-to-life enhancements even though

they were never pleaded, in contravention of the express

pleading requirements of the relevant statutes. Second, the

error affected substantial rights by depriving Anderson of timely

notice of the potential sentence he faced. In this case — like

Mancebo and unlike Houston — there was no midtrial

discussion highlighting the prosecution’s intent to seek the more

serious vicarious firearm enhancements instead of the less

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Opinion of the Court by Kruger, J.

serious personal-use enhancements charged in the information.

Rather, as discussed in more detail below (post, pt. C), the

prosecution’s intentions did not become clear until the day of the

sentencing hearing. And finally, the error was one that goes to

the overall fairness of the proceeding. We thus conclude this is

a case where we should reach the merits of Anderson’s claim.

C.

The Attorney General’s final argument is that the

pleading error here was harmless because Anderson received

adequate notice before the trial court imposed the sentence

enhancements and could thus prepare his defense strategy

accordingly. (See Pen. Code, § 960.) We disagree. The record

does not support a conclusion that Anderson had adequate

notice of the prosecution’s intention to seek the additional

section 12022.53(e) enhancements as to the robbery counts,

notwithstanding the prosecution’s failure to plead those

enhancements in the information.

In the middle of trial, the prosecution filed proposed jury

instructions that listed the Judicial Council of California

Criminal Jury Instruction numbers for those instructions it

planned to request. The list included CALCRIM No. 1402 — the

citation for the vicarious firearm discharge instruction. But the

proposed instructions did not specify whether the prosecution

was asking the court to give that instruction as to the murder

count or as to the robbery counts. Based on the filed

information, the defense would reasonably have assumed that

the prosecution planned to request the 25-year-to-life

enhancement instruction only as to the murder count.

Then, the day before the parties rested, the prosecution

filed a written, amended information, which did not include any

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Opinion of the Court by Kruger, J.

vicarious firearm enhancements as to the robbery counts.

Again, it appeared the prosecution planned to exercise its

discretion not to pursue the 25-year-to-life enhancements as to

the five robbery counts.

After the parties rested, they reviewed the requested jury

instructions with the court. It is, again, unclear from the record

whether both parties knew at that time that the court intended

to give the vicarious firearm discharge instruction as to the five

robbery counts or only as to the murder count. In the end, the

instructions and verdict forms given to the jury included the

unpleaded enhancements as to the robbery counts. But even

after the jury convicted, the prosecution did not ask the court to

impose the vicarious firearm discharge enhancements in

connection with the robbery counts. In its first two (of three)

sentencing memoranda, the prosecution instead asked that the

court impose lesser firearm use enhancements that had been

pleaded. The prosecution’s intention to ask for the five

unpleaded, 25-year-to-life enhancements only became apparent

on the day of the sentencing hearing.

As Mancebo makes clear, the purpose of a statutory

pleading requirement is not simply to ensure the defendant has

notice of the potential sentence on the day of sentencing. It is

meant to give sufficient notice to permit the defense to make

informed decisions about the case, including whether to plead

guilty, how to allocate investigatory resources, and what

strategy to deploy at trial. (Mancebo, supra, 27 Cal.4th at

p. 752.) Here Anderson learned how many years he might

expect to serve only just before the jury left to deliberate on his

guilt, and the prosecution did not clarify its actual intentions

regarding the enhancements until midway through the

sentencing hearing. Indeed, on the day of sentencing, defense

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Opinion of the Court by Kruger, J.

counsel remarked that, up until that afternoon, she and her

client “were looking at it as if 50 to life on the murder charge

and the enhancement for the murder charge was the more

significant charge because we weren’t looking at the 12022.53

as it related to the other counts.” At that point, the damage was

done — it was by then too late to consider the prosecution’s

pretrial plea deal or reshape his trial strategy. This would be a

different case if the prosecution had told Anderson from the

outset that it planned to seek the section 12022.53(e)

enhancements as to the robbery counts but for some reason

failed to include them in the information. (See Houston, supra,

54 Cal.4th at pp. 1227–1228.) But no such discussion occurred

here. Here the notice given was too late to cure the defective

pleading. Anderson received inadequate notice of the potential

sentence he faced, and the deficiency was not harmless.

IV.

We reverse the judgment of the Court of Appeal and

remand with instructions to remand the case to the trial court

for resentencing.

KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

GROBAN, J.

25

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Anderson

__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 11/19/18 – 1st Dist., Div. 3

Original Appeal

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S253227

Date Filed: July 23, 2020

__________________________________________________________________________________

Court: Superior

County: San Francisco

Judge: Anne-Christine Massullo

__________________________________________________________________________________

Counsel:

John Ward, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala Harris and Xavier Becerra, Attorneys General, Gerald Engler, Chief Assistant Attorney General,

Edward C. DuMont, State Solicitor General, Jeffrey M. Laurence, Assistant Attorney General, Samuel P.

Siegel, Deputy State Solicitor General, Catherine A. Rivlin, Ann P. Wathen and Greg E. Zywicke, Deputy

Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

John Ward

Attorney at Law

584 Castro Street, No. 802

San Francisco, CA 94114

(415) 255-4996

Samuel P. Siegel

Deputy State Solicitor General

1300 I Street

Sacramento, CA 95819

(916) 210-6269