The opinion
BROUSSARD, J., Concurring and Dissenting.
I concur with the majority opinion that assault with a deadly weapon may constitute a “serious felony” within the meaning of Penal Code sections 667 and 1192.7 1 if the defendant *468 personally used a ¡dangerous or deadly weapon in the commission of the offense. I would reverse, however, on the ground that defendant did not receive adequate notice that the prosecution would rely upon his use of a dangerous and deadly weapon as the basis for the serious felony enhancement. I dissent from the holding that defendant’s failure to demur to the information bars him from asserting this issue.
The information in this case alleged that defendant was previously convicted of attempted robbery, a serious felony under sections 667 and 1192.7. It did not assert that defendant’s present offense, assault with a deadly weapon, was a serious felony, but since the status of defendant’s prior offense is irrelevant unless the present crime is also a serious felony, defendant was fairly on notice that the prosecution would seek to prove that point.
There are various circumstances under which an assault with a deadly weapon can be a serious felony. 2 The information did not expressly allege which circumstance formed the basis for the serious felony enhancement. It did, however, expressly allege that defendant inflicted great bodily injury upon the assault victim—one of the grounds for classifying an assault as a serious felony under section 1192.7—and made no mention of any other ground, including use of a dangerous or deadly weapon. The jury found that the prosecution had failed to prove the great bodily injury enhancement. The trial judge, however, found that defendant had personally used a dangerous and deadly weapon, and on that basis increased defendant’s sentence by five years.
The majority implicitly recognize that the pleading was insufficient to advise defendant that the prosecution would attempt to establish the enhancement on the basis of alleged personal use of a dangerous or deadly weapon. Relying, however, on People v. Thomas (1986) 41 Cal.3d 837, 843 [ 226 Cal.Rptr. 107 , 718 P.2d 94 ], they assert that the defect is merely one of “uncertainty,” which is waived by failure to demur. (See § 1012.)
Thomas , unlike the present case, was a true example of uncertain pleading. The information there charged that defendant had been previously convicted of “a serious felony, . . . burglary, . . . within the meaning of sections 667 *469 and 1192.7 of the Penal Code.” (41 Cal.3d at pp. 841-842.) Burglary, like assault with a deadly weapon, is not necessarily a serious felony under the cited statutes, and the information alleged no facts which would bring defendant’s conviction within the statutes. Such a pleading, we acknowledged, may leave defendant in doubt as to the basis for the enhancement. The “better practice” (p. 843) would be to allege specifically the basis for the enhancement. We concluded, however, that the defect in the Thomas pleading “is one of uncertainty only, and is waived by defendant’s failure to demur.” (Ibid.)
In the case at hand, however, the information did state facts which would make defendant’s present offense a serious felony within sections 667 and 1192.7. It charged that he had inflicted great bodily injury upon a person not an accomplice to the offense—the exact language of subdivision (c)(8) of section 1192.7.
Under the simplified criminal pleading in effect in this state since 1927, an information is adequate if it sets out “words sufficient to give the accused notice of the offense.” (§ 952; see Patterson v. Municipal Court (1971) 17 Cal.App.3d 84, 87-88 [ 94 Cal.Rptr. 449 ].) Under this standard, an information which gives notice that the prosecution intends to prove an offense is a serious felony under sections 667 and 1192.7, and which states facts which would bring that offense within the cited statutes, is not subject to demurrer for uncertainty. (Compare the informations held sufficient against demurrer in Isaac v. Superior Court (1978) 79 Cal.App.3d 260 [ 146 Cal.Rptr. 396 ] and Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054 [ 178 Cal.Rptr. 480 ].) If defendant had no ground for demurrer, he waived nothing by failing to demur.
In short, this is not a case of uncertainty, but one in which the prosecution alleged one basis for the serious felony enhancement but proved another. Under such circumstances, it does not matter that the evidence in fact proved the ground not alleged in the information. It is well settled that a person “cannot be convicted of an offense . . . not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense.” (In re Hess (1955) 45 Cal.2d 171, 174-175 [ 288 P.2d 5 ]; Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, 743 [ 150 Cal.Rptr. 543 ]; People v. Feldman (1959) 171 Cal.App.2d 15, 23 [ 339 P.2d 888 ].) The same principle applies to enhancements. As we stated in People v. Jackson (1985) 37 Cal.3d 826, 835 , footnote 12 [ 210 Cal.Rptr. 623 , 694 P.2d 736 ], “[t]he court could not impose an enhanced term for a subsequent serious felony without proof of each fact required for that enhancement, and principles of due process would require that defendant receive notice of the facts the prosecution intends to prove.” I conclude *470 that the defendant was not charged with a serious felony enhancement based upon his personal use of a dangerous or deadly weapon, and that the additional five-year sentence based upon that enhancement should be reversed.
Reynoso, J., concurred.
Appellant’s petition for a rehearing was denied October 2, 1986. Broussard, J., was of the opinion that the petition should be granted.
All statutory citations are to the Penal Code.
An assault with a deadly weapon would be a serious felony if the defendant inflicted great bodily injury upon any person other than an accomplice (§ 1192.7, subd. (c)(8)); personally used a firearm (id., see People v. Piper, post, p. 471 [ 229 Cal.Rptr. 125 , 722 P.2d 899 ]); committed the assault with intent to rape or rob (subd. (10)); assaulted a peace officer (subd. (11)); was a life prisoner assaulting a noninmate (subd. (12)); was an inmate (subd. (13)); employed a destructive device or an explosive with the intent to injure (subd. (15)) or murder (subd. (17)), or actually inflicted great bodily injury (subd. (23)); personally used a dangerous or deadly weapon (subd. (23)); or committed the assault in an attempt to commit any other crime listed in section 1192.7, subdivision (c).