People v. Mancebo

BROWN, J.

I respectfully dissent.

The majority asserts “a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.” (Maj. opn., ante, at p. 747.) *755 Here, however, defendant was on notice he might be subject to sentence on a multiple victim circumstance under Penal Code 1 section 667.61, subdivision (e)(5) (section 667.61(e)(5)). The “One Strike” law was specifically referenced in the information. Moreover, the prosecution alleged, and the jury found, defendant committed qualifying crimes against multiple victims. Nor did defendant object in the trial court either when the prosecutor sought to have the multiple victim circumstance imposed or when sentence was pronounced. As the Attorney General notes, “If appellant’s trial counsel felt that the multiple-victim circumstance was not properly alleged pursuant to [section 667.61,] subdivision (i), he presumably would have objected to the application of the circumstance at trial. . . . The lack of any objection or even comment by any participant at sentencing in this case indicates that the application of the multiple-victim circumstance was of no surprise to appellant, trial counsel, the prosecutor or the trial court.”

Indeed, at oral argument in this case, defense counsel repeatedly asserted, “I’m not here arguing my client did not have sufficient notice. This is not a due process notice question.” “I don’t think that there is any valid notice issue this trial lawyer could [have] raised, saying, ‘Golly gee, I didn’t know there was more than one victim here.’ Of course he did.” “[I] [c]an’t say there was something I could have proven if I’d had the chance, or some fact I could have disputed if I’d known about it.” Any omission in the information “[d]id not affect the trial of the case.” What the majority refers to as a “clarification]” (maj. opn., ante, at p. 753) of defendant’s position occurred only after two justices strongly prodded defense counsel regarding his repeated assertion there was no due process question. Hence counsel’s response to such inquiry does not negate his earlier extended and categorical comments. 2

Rather, defendant argues that the section 667.61(e)(5) circumstance “must be specifically alleged in the accusatory pleading, either in the statutory language or by reference to the statutory subdivision.” The majority substantially agrees, concluding the Legislature intended the prosecutor to either specifically allege section 667.61(e)(5) or make a specific reference to the multiple victim circumstance. (Maj. opn., ante, at pp. 744-745.) In fact, the statutory language is otherwise. For the penalties provided in section 667.61 to apply, “the existence of way fact required under subdivision (d) or (e) shall be alleged in the accusatory pleading and either admitted by the defendant in *756 open court or found to be true by the trier of fact.” (§ 667.61, subd. (i), italics added.) Nothing in this language expressly requires an aggravating circumstance to be specifically pled by statutory number, or for the phrase “multiple victim” to be used. Rather, it requires the existence of the necessary facts to be alleged and found true. Here, the facts of the multiple victim circumstance were alleged in the information and found true. The prosecution alleged, and the jury found, defendant committed qualifying crimes a month apart and against different victims. Nothing further should be required to put defendant on notice he would be subject to sentence under the multiple victim circumstance of section 667.61(e)(5). 3

Accordingly, even if the majority is correct to conclude that there was error in the charging document in this case, it must concede defendant’s actual notice was more than adequate. While it may be better practice to include a more explicit reference to the multiple victim circumstance in the pleading, there can be no doubt under the circumstances of this case that notice was adequate. In concluding the Court of Appeal was correct to strike the gun-use enhancements, the majority exalts form over substance.

Indeed, by insisting the prosecutor specifically plead by statutory number, or use the phrase “multiple victim” in the information, the majority’s result is reminiscent of the rigid code pleading requirements the Legislature has repeatedly rejected. (§§ 958 [“Words used in a statute to define a public offense need not be strictly pursued in the accusatory pleading, but other words conveying the same meaning may be used”], 960 [ “No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits”]; People v. Schueren (1973) 10 Cal.3d 553, 558 [ 111 Cal.Rptr. 129 , *757 516 P.2d 833 ] [“sections 951 and 952, which specify the form and matters that must appear in an information, contain no requirement that the statute which the accused is charged with violating be designated by number”]; People v. Deas (1972) 27 Cal.App.3d 860, 863 [ 104 Cal.Rptr. 250 ] [“We know of no law that requires a criminal pleading to cite the code section applicable to facts properly pleaded”].)

Nor does the majority’s consideration of section 667.61, subdivision (i), in conjunction with subdivision (f) strengthen its conclusion. (Maj. opn., ante, at pp. 743, 744-745.) Subdivision (f) delineates which punishment scheme applies when only “the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved,” and when more than the minimum number of “circumstances specified in subdivision (d) or (e) have been pled and proved.” 4 As a preliminary matter, this subdivision arguably has nothing to do with the pleading and proof requirements because it does not come into play until after the relevant circumstances have been pled and proved. Even if it is applicable, nothing in the word “circumstances” compels the interpretation that a specific statutory section or language must be cited rather than “the existence of any fact required under subdivision (d) or (e),” as required by subdivision (i).

The majority notes that under section 667.61, subdivision (f), the trial court is prohibited from striking any circumstance pled and proved. (Maj. opn., ante, at p. 749, fn. 7; see id. at p. 751.) The purpose of this subdivision, however, is to make certain the trial judge does not accord the defendant undue leniency. Here, the trial court followed the clear directive of the One Strike law. First, use any applicable circumstances, which in this case included the multiple victim circumstance, to impose the harsh sentencing available under that law, unless another law provides for a greater penalty. Second, if there are leftover circumstances, such as the gun-use circumstance, use these to impose any further punishment or enhancement “authorized under any other law,” here section 12022.5, subdivision (a). (§ 667.61, *758 subd. (f).) The trial court did not violate but complied with the dictates of section 667.61, subdivision (f), by using the multiple victim circumstance to impose sentence under the One Strike law. Indeed, it is the majority’s conclusion that appears to violate subdivision (f), because it requires the trial court to ignore a circumstance that was pled and proved, and which the prosecutor requested the court to use.

Unable to escape defendant’s repeated concessions at oral argument that there is no due process issue here, the majority concludes either use of the multiple victim circumstance was waived by the prosecution, or the sentence was unauthorized, and hence any lack of prejudice is immaterial. (Maj. opn., ante, at pp. 743, 749, fn. 7.) Of course, use of the circumstance was not waived, given the prosecutor requested its use at sentencing, and the factual circumstances underlying the circumstance were set forth in the information and found true by the jury.

Nor was the sentence unauthorized. (Maj. opn., ante, at pp. 743, 749, fn. 7.) As Justice Baxter has previously thoughtfully explained, “a sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354 [ 36 Cal.Rptr.2d 627 , 885 P.2d 1040 ] (Scott).) The “‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal.” (Ibid.) By contrast, “claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Ibid.; People v. Jenkins (2000) 22 Cal.4th 900, 1000 [ 95 Cal.Rptr.2d 377 , 997 P.2d 1044 ] [general rule that an appellate court will not consider procedural defects or erroneous rulings when an objection could have been but was not presented to the lower court].)

In this case there is no question the sentence imposed was allowable under the relevant statutory scheme. In other words, the fact defendant committed certain sex crimes against multiple victims is a permissible circumstance under which to apply the One Strike law. (§ 667.61(e)(5).) The only issue, not preserved in the trial court and further waived at oral argument, is whether defendant received notice that the prosecutor intended to rely on the multiple victim circumstance. Given defendant’s failure to object at sentencing, and his repeated concessions in this court that the trial was unaffected by any lack of more specific pleading, even assuming the trial court erred by imposing sentence under the multiple victim circumstance when it was not alleged in the information by section number or by the term “multiple victim,” that error was waived. Here, as in Scott , “application of the waiver *759 rule helps avoid error and the need for appellate intervention in the first place.” (Scott, supra, 9 Cal.4th at p. 355.) Indeed, even if the claim had been preserved, given defendant’s repeated assertions the error had no effect on how the case was tried, any error was harmless. It is unlikely the Legislature intended the pleading and proof provisions of the One Strike law to punish a prosecutor and reward a defendant for something that had no tangible effect on the case.

The case law on which the majority relies necessarily only by “analogy” is distinguishable because in this case the information contained the requisite factual allegations and the jury necessarily found these facts to be true. (Maj. opn., ante, at p. 745; id. at pp. 745-748.) In People v. Hernandez (1988) 46 Cal.3d 194, 199 [ 249 Cal.Rptr. 850 , 757 P.2d 1013 ] (Hernandez) (abrogated by People v. King (1993) 5 Cal.4th 59, 78, fn. 5 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ], and superseded by statute as noted in People v. Rayford (1994) 9 Cal.4th 1, 8-9 [ 36 Cal.Rptr.2d 317 , 884 P.2d 1369 ]), the defendant was convicted of rape and kidnapping. Former section 667.8, which provided for a three-year additional term when the kidnapping was for the purpose of rape, was first mentioned in the probation report. This court concluded former section 667.8 required a “specific mental state which must be found to exist before the enhanced term may tie imposed,” and involved “a new fact not established merely by defendant’s conviction for rape and kidnapping.” (Hernandez, at p. 204.) Hence, this failure to plead and prove this mental state violated the defendant’s due process right. (Id. at pp. 205, 206, 208, 209, 211.) By contrast in this case,! the majority concedes the jury verdict “can be deemed an implied factual determination that defendant was convicted of ‘an offense specified in subdivision (c) against more than one victim.’ ” (Maj. opn., ante, at p. 746, quoting § 667.61(e)(5).)

In People v. Najera (1972) 8 Cal.3d 504, 508 [ 105 Cal.Rptr. 345 , 503 P.2d 1353 ] (disagreed with by People v. Wiley (1995) 9 Cal.4th 580, 587-588 [ 38 Cal.Rptr.2d 347 , 889 P.2d 541 ]), the People stipulated that a gun-use enhancement under section 12022.5 was inapplicable. This court nonetheless concluded that because the People failed to request an instruction on whether the defendant had used a gun within the meaning of section 12022.5, they had waived the application of that section. (Najera, at pp. 509, 512.) In People v. Haskin (1992) 4 Cal.App.4th 1434, 1439-1440 [ 7 Cal.Rptr.2d 1 ], the court simply concluded that because the information noted defendant had been convicted of burglary, but did not allege the burglary was of an inhabited dwelling or refer to former section 667, and because the defendant only admitted the “ ‘crime of burglary,’ ” imposition of a five-year enhancement under former section 667 for residential burglary was improper. Indeed, in Haskin , the court noted “reference to an incorrect penal statute can *760 be overcome by factual allegations adequate to inform the defendant of the crime charged.” (Haskin, at p. 1439.) Once again, by contrast here, as the majority acknowledges, the jury “at a minimum” implicitly determined that the factual basis for a section 667.61(e)(5) multiple victim circumstance existed. (Maj. opn., ante, at p. 746.)

More apt is People v. Karaman (1992) 4 Cal.4th 335 [ 14 Cal.Rptr.2d 801 , 842 P.2d 100 ] (limited on other grounds in People v. Howard (1997) 16 Cal.4th 1081, 1095 [ 68 Cal.Rptr.2d 870 , 946 P.2d 828 ]), a case not discussed by the majority and which preceded the enactment of section 667.61. In Karaman , this court reached a different conclusion interpreting substantially identical language in section 1203.06, subdivision (b)(1), which provides: “The existence of any fact which would make a person ineligible for probation under subdivision (a) shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt. . . .” In Karaman we noted, “The amended information does not include an allegation that defendant is ineligible for probation pursuant to section 1203.06, subdivision (a)(l)(ii), by reason of his personal use of a firearm during the commission of the robbery. Subdivision (b)(1) of section 1203.06 requires only that the accusatory pleading allege ‘any fact’ rendering the defendant ineligible for probation pursuant to subdivision (a), however, and does not require a reference to section 1203.06 itself. The personal-use allegation under section 12022.5 therefore was sufficient to invoke section 1203.06.” (Karaman, at p. 340, fn. 3.)

The majority sets forth a parade of horribles that will result if defendant in this case is held to a sentence allowable under the statute and to which he did not object. (Maj. opn., ante, at p. 752.) The majority notes, “In many instances, the fair notice afforded by [the] pleading requirement may be critical to the defendant’s ability to contest the factual bases and truth of the qualifying circumstances invoked by the prosecution in support of One Strike sentencing.” (Ibid.) That may be true in a different case, but as defendant has repeatedly conceded, it is not the situation here. The majority is also concerned that if a defendant is “not. . . informed in advance of trial or sentencing that the prosecution intends to rely on the fact of convictions of offenses against multiple victims in support of a harsher One Strike term,” he may be less inclined to plea bargain. (Ibid.) Given the terms of the One Strike law, such as the prohibition of the trial court striking any circumstance, a plea bargain seems unlikely. (§ 667.61, subd. (f).) Moreover, the defendant is free to object to imposition of the multiple victim circumstance if it indeed affects his decision to plea bargain; once again, defendant here did not object to such imposition. Finally, the majority queries how a defendant, who has waived a jury (or presumably other trier of fact) determination, would “ ‘admit[]’ ” (maj. opn., ante, at p. 752) in open court the *761 “existence of any fact required” for the multiple victim circumstance within the meaning of section 667.61, subdivision (i). At least one method is apparent. As was done in this case, the prosecutor would request that the multiple victim circumstance be imposed. The defendant then would admit that qualifying crimes were committed against more than one victim.

While engaging in such speculation based on facts not present here, the majority on the other hand seeks to limit the effect of its interpretation of the actual statutory language at issue. (Maj. opn., ante, at p. 745, fn. 5.) As both parties observe, substantially identical language to that in section 667.61, subdivision (i) is found in numerous other statutes. (See, e.g., §§ 190.05, subd. (c), 451.1, subd. (b), 452.1, subd. (b), 666.5, subd. (c), 667.10, subd. (b), 670, subd. (a), 1203.055, subd. (d)(1), 1203.06, subd. (b)(1), 1203.066, subd. (d), 1203.075, subd. (b)(1), 12022.53, subd. (j), 12022.6, subd. (c), 12022.9, subd. (a); see also 667.7, subd. (b), 667.16, subd. (a), 667.71, subd. (d), 667.75.) Thus, the majority’s conclusion in this case will necessarily have more far-reaching effect than defendant’s two 10-year gun-use enhancements.

I would reverse the Court of Appeal’s judgment.

George, C. J., and Moreno, J., concurred.

All statutory references are to this code.

Moreover, the majority’s characterization of defendant’s brief in this court is somewhat overstated. (Maj. opn., ante, at pp. 752-753.) Nowhere in his brief does defendant claim he lacked notice of the multiple victim circumstance. Indeed, in his brief defendant asserts there is no “ ‘standing’ ” issue here, and that “Mr. Mancebo is free to point to all potential constitutional problems, even if they could not arise in his case.”

The majority asserts, “The validity of the One Strike sentence imposed in this case is not contested. Rather, the narrow question presented is whether the circumstance of gun use was available to support two section 12022.5(a) enhancements when gun use had already been properly pled and proved as a basis for invoking One Strike sentencing.” (Maj. opn., ante, at p. 738, original italics.) Of course, the validity of the One Strike sentence imposed is the only issue in this case. If, as I assert under the circumstances of this case, the prosecutor may properly request at sentencing the trial court impose the One Strike sentence in part under the multiple victim circumstance, and the court does so, then there is no basis under the clear language of section 667.61, subdivision (f), for the defendant to challenge the trial court’s use of the now “leftover” gun-use circumstance as an enhancement. If, however, as the majority asserts, the prosecutor may not invoke the multiple victim circumstance, and the trial court may not impose sentence under the One Strike law for that circumstance, then the gun-use enhancements were improper because under section 667.61, subdivision (f), the gun use must first be used as a circumstance for the One Strike sentence. In short, defendant would not be challenging the imposition of the gun-use enhancements if there was no question about the appropriateness of using the multiple victim circumstance in the “the One Strike sentence.” (Maj. opn., ante, at p. 738.)

Section 667.61, subdivision (f), provides, “If only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law. Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e).”