Opposition Brief — Kyle Shirakawa Handley, Petitioner v. California

No. 21-6229

In the Supreme Court of the United States

KYLE SHIRAKAWA HANDLEY,

Petitioner,

v.

STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE CALIFORNIA

COURT OF APPEAL, FOURTH DISTRICT, DIVISION THREE

BRIEF IN OPPOSITION

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

LANCE E. WINTERS

Chief Assistant Attorney General

SUSAN SULLIVAN PITHEY

Senior Assistant Attorney General

JOSHUA A. KLEIN

Deputy Solicitor General

MICHAEL R. JOHNSEN

Supervising Deputy Attorney General

BLYTHE J. LESZKAY*

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6191

Blythe.Leszkay@doj.ca.gov

*Counsel of Record

i

QUESTION PRESENTED

Petitioner was tried for kidnapping, torturing, and committing

aggravated mayhem against one victim, and kidnapping a second victim. As

part of the torture and mayhem counts, the charging document specified that

the petitioner “inflict[ed] great bodily injury” and “intentionally and

unlawfully cause[d] [the first victim’s] permanent disability, disfigurement,

and deprivation of a limb, organ, and body member.” The paragraphs that

charged kidnapping under California Penal Code Section 209 did not specify

whether petitioner caused “bodily harm” to the first victim or caused the second

to be at substantial risk of death—circumstances that Section 209 provides

make a kidnapper subject to the increased penalty of life without parole.

Throughout the case, however, the prosecution made clear its intent to seek a

life-without-parole sentence; the parties agreed to submit the question of

bodily harm and substantial risk of death to the jury; and the jury unanimously

found those circumstances proven beyond a reasonable doubt. The court of

appeal held that the written charge had been informally amended with

petitioner’s acquiescence. The question presented is:

Whether the absence of explicit allegations of bodily harm and

substantial risk of death in the written charging document means that

petitioner’s constitutional rights were violated when he was sentenced based

on the jury’s verdict as to those facts.

ii

TABLE OF CONTENTS

Page

Statement ........................................................................................................1

Argument ....................................................................................................... 11

Conclusion...................................................................................................... 24

iii

TABLE OF AUTHORITIES

Page

CASES

Alleyne v. United States

570 U.S. 99 (2013) ........................................................................................ 15

Apprendi v. New Jersey

530 U.S. 466 (2000) .............................................................................. passim

B.O. v. Florida

25 So.3d 586 (Fla. Ct. App. 2009) .......................................................... 18, 19

Branzburg v. Hayes

408 U.S. 665 (1972) ...................................................................................... 14

Cole v. Arkansas

333 U.S. 196 ........................................................................................... 15, 16

Commonwealth v. King

234 A.3d 549 (Pa. 2020) ............................................................................... 20

Hurtado v. California

110 U.S. 516 (1884) ................................................................................ 13, 15

In re Oliver

333 U.S. 257 (1948) ...................................................................................... 15

Jones v. United States

526 U.S. 227 (1999) .......................................................................... 10, 13, 14

Lankford v. Idaho

500 U.S. 110 (1991) ...................................................................................... 16

People v. Anderson

9 Cal. 5th 946 (2020) ............................................................................ 8, 9, 17

People v. Britton

6 Cal.2d 1 (1936) .......................................................................................... 16

Sattazahn v. Pennsylvania

537 U.S. 101 (2003) ...................................................................................... 12

State v. Simuel

357 S.C. 378 (S.C. Ct. App. 2004) ................................................................ 19

iv

TABLE OF AUTHORITIES

(continued)

Page

United States v. Cotton

535 U.S. 625 (2002) .................................................................... 14, 18, 22, 23

Washington v. Recuenco

548 U.S. 212 (2006) ...................................................................................... 22

STATUTES

18 U.S.C. § 2119 ................................................................................................ 13

Cal. Penal Code § 205 .......................................................................................... 2

Cal. Penal Code § 206 .......................................................................................... 2

Cal. Penal Code § 207 .......................................................................................... 5

Cal. Penal Code § 209 ................................................................................ passim

Cal. Penal Code § 12022.7 ................................................................................... 6

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. V ................................................................................. 12, 13

U.S. Const., amend. VI ................................................................................ 12, 15

U.S. Const., amend. VIII ..................................................................................... 8

U.S. Const., amend. XIV ................................................................................... 14

OTHER AUTHORITIES

2021 Cal. Stat., Chapter 626, § 16 ...................................................................... 3

Witkin, California Criminal Law §§ 281, 292 (4th ed.) ..................................... 5

1

STATEMENT

1. Petitioner Kyle Handley was a marijuana vendor who supplied

dispensaries owned by Michael S. Pet. App. C 2. Michael traded in cash, and

petitioner saw evidence of Michael’s unbanked cash. Id. at 2-3 & n.2. One

night in 2012, Michael was awakened in his bedroom at midnight by two men

pointing a shotgun and flashlight at his face. Id. The men beat Michael,

gagged him, blindfolded him, and immobilized him with zip ties. Id. They also

gagged, blindfolded, and immobilized his housemate Mary B., although they

assured her that “[t]his isn’t about you.” Id. The men asked Michael where

his money was, saying they wanted a million dollars from him. Id. Michael

said he had just $2,000. Id. The men accused Michael of hiding money in the

desert, and they put him and Mary into a van whose back windows were

obscured with light-blocking “panda paper.” Id.

The two men in the back kept trying to get Michael to tell them where he

had a million dollars, while a third man drove the van into the Mojave Desert.

Pet. App. C 3-4. The men stomped and beat Michael, shocked him with a Taser,

and burned him with a blowtorch. Id. Finally, they took Michael and Mary

out of the van on a deserted road. Id. at 4. They cut off Michael’s penis while

taunting him with a song. Id. Then they poured bleach on him. Id.

The men drove away, leaving Michael and Mary in the desert, blindfolded

and zip-tied. Pet. App. C 4. Before departing, one of the men had tossed his

knife into the bushes, telling Mary that if she could find it to cut herself free

2

then it would be her “lucky day.” Id. Mary managed to shift her blindfold, find

the knife, and cut herself free. Id. She walked about a mile to a highway and

waved down a passing Sheriff ’s patrol.

Id.

Michael survived but was

permanently dismembered. Id. In addition to burns and bruises, his skin was

so damaged from the bleach that there were permanent imprints of his

assailants’ shoes in it. Id. at 4, 28.

One of Michael’s neighbors had happened to see a suspicious truck the

afternoon of the kidnapping and had written down the license plate number.

Pet. App. C 5.

The truck was registered to petitioner.

Id.

A search of

petitioner’s home and truck revealed zip ties like the ones used to bind Mary

and Michael, panda paper like that on the van, and the remnants of extensive

bleach use. Id. DNA on gloves and zip ties in the truck matched two of

petitioners’ friends, whose wives admitted to participating in the three men’s

scheme to kidnap and extort Michael. Id. at 4-8. Further evidence came from

records of petitioner’s truck in the vicinity of Michael’s house during the

planning of the crime, and from records and communications concerning

surveillance and GPS equipment used in the scheme. Id. at 5

2. a. Petitioner was charged with two counts of aggravated kidnapping

under California Penal Code Section 209(a), one count of aggravated mayhem

under Section 205, and one count of torture under Section 206. See CT 442-

3

444 (final information); CT 1-3, 134-136, 137-139, 211-213, 221-223 (prior

complaints and informations). 1

The version of Section 209(a) in effect at the time of the crime defined the

crime of aggravated kidnapping and listed two possible punishments:

Any person who . . . kidnaps . . . another person . . . for ransom,

reward or to commit extortion or to exact from another person any

money or valuable thing, or any person who aids or abets any such

act, is guilty of a felony, and upon conviction thereof, shall be

punished by imprisonment in the state prison for life without

possibility of parole in cases in which any person subjected to any

such act suffers death or bodily harm, or is intentionally confined

in a manner which exposes that person to a substantial likelihood

of death, or shall be punished by imprisonment in the state prison

for life with the possibility of parole in cases where no such person

suffers death or bodily harm.

Cal. Penal Code § 209(a) (2006). 2

With respect to the kidnapping charges, each iteration of the complaints

and information cited Section 209(a) and listed the elements of the offense; but

they did not specify whether “bodily harm” had resulted or whether a victim

had been exposed to a “substantial risk of death.” CT 1, 134, 137, 211, 221,

424. From the beginning, however, the prosecution made clear that it intended

at trial to prove crimes for which “the penalty if convicted is life without parole.”

1 CT

and RT refer to the trial court’s Clerk’s Transcript and Reporter’s

Transcript prepared for the appeal.

2 Section 209(a) was subsequently amended, but the current version retains

the same two punishments depending on the presence or absence of bodily

harm and substantial risk of death. See 2021 Cal. Stat., ch. 626, § 16.

4

Id. at 215 (People’s motion to consolidate). And harms to Michael’s body were

explicitly alleged, with various wording, in the charging documents’ listing of

the elements of the torture and mayhem charges. See infra pp. 22-23 & n.13.

b. Petitioner was tried separately from his co-defendants. Pet. App. C 6. 3

Michael, Mary, and other witnesses testified about Michael’s injuries, and

numerous photographs showed the damage to his body. RT 101-125, 182-217,

76-99. Petitioner did not dispute that the kidnapping of Michael had included

brutal abuse culminating in Michael’s penis being severed, or that, at the end

of the kidnapping, Mary had been left blindfolded and bound in the desert. Pet.

App. C 8. Petitioner’s defense was that there was insufficient evidence tying

him to those acts. Id.; see infra p. 23 & n.14 (discussing witness examination

and closing arguments); RT 563-564 (petitioner’s personal approval of counsel’s

strategy of arguing that petitioner “had nothing to do with this event” rather

than seeking instructions on lesser included offenses).

During the prosecution’s case in chief, the court held hearings about the

jury instructions.

The prosecution proposed instructing the jury with

California’s official pattern jury instruction on aggravated kidnapping, known

3 Co-defendant Ryan Kevorkian pleaded guilty.

See People v. Kevorkian, No.

13CF3394 (Orange Cty. Super. Ct.). Co-defendant Hossein Nayeri—who fled

the country but was eventually captured, see Pet. App. C 5—was convicted at

trial; his pending state-court appeal raises a claim similar to petitioner’s claim

here. See People v. Nayeri, No. G059610 (Cal. Ct. App.).

5

as “CalCrim No. 1202.” CT 460. 4 The instruction consisted of three parts: the

first setting forth the elements of kidnapping; the second listing possible

defenses (such as reasonable belief in consent); and the third stating that:

If you find the defendant guilty of kidnapping . . . , you must then

decide whether the People have proved the additional allegation

that the defendant (caused the kidnapped person to (die/suffer

bodily harm) / [or] intentionally confined the kidnapped person in

a way that created a substantial likelihood of death).

Cal. Judicial Council, Crim. Jury Instr. 1202 (2017); see also id. (continuing by

providing definitions of “bodily harm” and “substantial risk of death”).

The court had provided counsel with a packet of the instructions it

intended to deliver, RT 548, and asked counsel about each instruction in turn,

id. at 548-568.

Petitioner’s counsel stated he had “no objection” to the

kidnapping instruction. Id. at 559; see Pet. App. C 10. Petitioner’s counsel also

informed the court that he had no need for instructions on any lesser included

offense because his theory of the case was that appellant simply was not

4 Petitioner asserts that in California the term “aggravated kidnapping” means

kidnapping under Section 209(a) that includes bodily harm or risk of death,

and that a kidnapping under Section 209(a) that does not include those facts

is “simple kidnapping for ransom.” E.g., Pet. i-ii, 3-5. That is incorrect.

“Simple kidnapping” is the California term for the abduction of a person

without regard to motive, under Penal Code Section 207. “Aggravated

kidnapping,” as the court of appeal’s second opinion explained, refers to

kidnapping for a criminal purpose—such as ransom, reward or extortion (as in

the Section 209(a) charge here) or robbery or rape (under Section 209(b))—and

such a crime is “aggravated kidnapping” regardless of injury or risk of death.

See Pet. App. C 9-10; Witkin, California Criminal Law §§ 281, 292 (4th ed.).

6

involved in the kidnappings. Pet. App. C 10. Petitioner stated he agreed with

that strategy. Id. 5 Petitioner’s counsel had been provided with the proposed

verdict forms too, RT 578-579, and made no objection to them. The prosecution

clarified that, with respect to the kidnapping of Mary, it wanted only an

instruction about a substantial risk of death—not bodily harm. RT 580. The

defense confirmed that it had “no objection,” and the court stated that it would

modify that instruction accordingly. Id.

The instruction that the jury received followed what the parties had

agreed to: With respect to the kidnapping of Michael, the jury was instructed

that if it found the elements of kidnapping for ransom, reward, or extortion

met, it should go on to determine whether petitioner “caused [Michael] to suffer

bodily harm.” CT 571-572; RT 742-744. With respect to the kidnapping of

Mary, the jury was instructed that if it found the elements of kidnapping for

ransom, reward, or extortion met, it should determine whether petitioner

“intentionally confined [Mary] in a way that created a substantial risk of death.”

Id. On the verdict forms, the jury was asked to “find it to be TRUE/NOT TRUE”

In a later hearing on the instructions, the judge made reference to its

proposed instructions requiring a special finding as to “great bodily injury” in

connection with the kidnapping charges. RT 578-579. That language was

imprecise: the kidnapping statute (Penal Code Section 209(a)) uses the term

“bodily harm”; but the judge instead spoke in the language of a separate

enhancement (under a separate statute, Penal Code Section 12022.7), which

was alleged with respect to the torture charge and dismissed before the case

went to the jury. Pet. App. C 11. The verdict forms and the written and oral

instructions to the jury on kidnapping used Section 209(a)’s correct “bodily

harm” language. RT 742-743; CT 519-520, 571-572, 582.

5

7

that Michael “suffered bodily harm” in count 1 and that Mary was

“intentionally confined in a manner that exposed her to a substantial risk of

death” in count 2. CT 582-583. The instructions required that the jury could

find the circumstance true only if it unanimously determined that the

prosecution had proven it beyond a reasonable doubt. CT 572; see also id. at

524, 545, 549, 557.

The jury found petitioner guilty of all charges:

kidnapping Michael,

kidnapping Mary, torturing Michael, and committing aggravated mayhem

against Michael. Pet. App. C 12; CT 581-585. The jury also found beyond a

reasonable doubt that, in the kidnappings, Michael suffered bodily harm and

Mary was intentionally confined in a manner that created a substantial risk of

death. CT 582-583.

c. Petitioner filed no post-trial motions.

His sentencing brief

acknowledged that, given the jury’s findings, the statutorily provided sentence

for the kidnapping charges was life without parole. CT 596. Petitioner argued

against that sentence on the ground that it would constitute cruel and unusual

punishment in light of asserted shortcomings in the evidence that petitioner

had personally inflicted the injuries on Michael. Id. at 596-600. But neither

petitioner’s brief nor his counsel’s argument proposed that the sentence was

precluded because of any defect in the charging document, or any lack of notice.

Id.; RT 783-787.

8

The court rejected petitioner’s Eighth Amendment argument and

imposed consecutive sentences of life without parole for each count of

kidnapping. CT 208-209; RT 800-801. On the torture and mayhem counts, the

court imposed consecutive sentences of life with the possibility of parole after

seven years. CT 209; RT 801.

3. On appeal, petitioner contended for the first time that he should not

have been sentenced to life without parole because the information in his case

had not specifically alleged that the kidnapping caused “bodily harm.” The

court of appeal rejected that argument and affirmed petitioner’s conviction in

an unpublished decision. Pet. App. A. Although the court held that the new

claim was not forfeited under California law, id. at 12-13, it determined that

petitioner had had “ample notice” that, if convicted, he would be subject to the

charged statute’s increased punishment for those who commit bodily harm or

subject a person to risk of death, id. at 15.

The court reasoned that, in

discussing the jury instructions, petitioner “acquiesced to the prosecution’s

desire to include” the bodily harm and risk of death allegations, and the

“charges were effectively amended.” Id. at 16-17.

Petitioner filed a petition for review in the California Supreme Court,

which transferred the case back to the court of appeal for evaluation in light of

an intervening decision, People v. Anderson, 9 Cal. 5th 946 (2020). Pet. App.

B.

9

4. The court of appeal again affirmed, in the unpublished decision that

petitioner now asks this Court to review. Pet. App. C. The court of appeal

began by analyzing the effect of the Anderson decision. In that case, the

California Supreme Court concluded that a defendant had received inadequate

notice when a free-standing enhancement statute was alleged only in

connection with a murder charge, but the statute was applied at sentencing to

separate charges for robbery as well. Anderson, 9 Cal. 5th at 950-952; see also

Pet. App. C 14-15 (explaining that the defendant in Anderson was “blindsided”

by application of enhancements that had “no inherent relationship to the

underlying crime of robbery”). The court of appeal in this case noted that

“[h]ere, in contrast,” the crime (kidnapping) and the enhancement were

“embedded in [the] single statute, [S]ection 209(a),” with which petitioner was

charged. Id. at 15. And the California Supreme Court had previously stated

that a charge under what is now Section 209(a) “‘apprises the accused’” that

upon conviction he may face “‘any one’” of the sentences in that statute,

depending on what the jury finds. Id. (quoting People v. Britton, 6 Cal.2d 1, 5

(1936)).

The court also disagreed with petitioner’s argument that Apprendi v. New

Jersey, 530 U.S. 466 (2000), barred sentencing him on the basis of the jury’s

bodily harm and substantial risk of death findings because the original

charging document did not explicitly state those specific allegations. Pet. App.

C 16. The court acknowledged that Apprendi had quoted a statement from

10

Jones v. United States, 526 U.S. 227 (1999), that “[a]ny fact (other than prior

conviction) that increases the maximum penalty for a crime must be charged

in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”

Pet. App. C 16; see Apprendi, 530 U.S. at 476 (quoting Jones, 526 U.S. at 243,

n.6). But Apprendi focused on “proof requirements” rather than “pleading

requirements.” Id. at 16 (internal quotation marks and emphasis omitted). It

held that “the rights to trial by jury and proof beyond a reasonable doubt”

extend to “facts that can be used to increase a defendant’s punishment above

the statutory maximum,” but “expressly declined” to consider whether such

facts must also be included in an indictment. Id. (citing Apprendi, 530 U.S. at

477 n.3).

In any event, the court of appeal concluded that the charges in this case

were informally amended during the course of the proceedings to add the bodily

harm and substantial risk of death allegations. Pet. App. C 18-22. “[T]he

amended instructions and verdict forms in this case were talked about at

length before the close of evidence.” Id. at 20. There was “no dispute” that

Michael in fact sustained tremendous injuries—evidence of which was

presented as far back as the preliminary hearing. Id. And the prosecution had

discussed in open court its intent to prove that Mary had been confined in a

way that exposed her to a substantial risk of death and that Michael had

suffered bodily harm. Id. Given these circumstances, “there could have been

little doubt the prosecution was alleging both of the circumstances required to

11

sentence” petitioner to life without parole under Section 209 “if he was

convicted.” Id. Petitioner, who “consented to the inclusion of those allegations

in the jury instructions and verdict form,” acquiesced in the amendment of the

charges. Id. at 21; see id. (noting that the defense never “so much as suggested”

that it had lacked notice of petitioner’s exposure to the life-without-parole

sentence, and never suggested that its “plea decisions or trial strategy were

impacted by the manner in which the case was charged”).

The California Supreme Court denied review.

ARGUMENT

The charging documents in this case alleged two violations of California

Penal Code Section 209(a), which provides for a punishment of life without

parole upon a finding that a victim suffered bodily harm or was placed at

substantial risk of death. Petitioner assented to the jury being instructed that

it should determine whether the prosecution had proven those circumstances

beyond a reasonable doubt, and he received his sentence of life without parole

only after the jury made those determinations. That result complies with this

Court’s precedents and does not create any conflict with decisions of other

lower courts. And this case would be a poor vehicle in which to consider

petitioners’ proposal to expand the Apprendi rule, given that (among other

things) petitioner’s failure to raise his constitutional claim in the trial court

has deprived this Court of the kind of developed factual record that would

assist in reviewing that claim.

12

1. a. There is no merit to petitioner’s argument that his sentence

violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Pet. i-ii, 8-10. Apprendi

held, under “the Sixth Amendment’s jury-trial guarantee,” that “if the

existence of any fact (other than a prior conviction) increases the maximum

punishment that may be imposed on a defendant, that fact—no matter how

the State labels it—constitutes an element, and must be found by a jury beyond

a reasonable doubt.” Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003)

(summarizing Apprendi, 530 U.S. at 482-484, 490).

complied with that requirement.

Petitioner’s sentence

Section 209(a) prescribes a life-without-

parole sentence for defendants who cause a kidnapping victim “bodily harm”

or expose the victim to a “substantial risk of death.” Here, the jury expressly

found—unanimously and beyond a reasonable doubt—that petitioner had

caused bodily harm to Michael and had placed Mary at substantial risk of

death. See supra pp. 6-7. Petitioner’s sentence complies with Apprendi’s rule.

Petitioner asserts that Apprendi also stands for an additional rule: any

facts that render a defendant eligible for an increased sentence also must have

been specifically stated in the written charging document.

Pet. 8-13.

Petitioner primarily relies on this Court’s statement that “under the Due

Process Clause of the Fifth Amendment and the notice and jury trial

guarantees of the Sixth Amendment, any fact (other than prior conviction) that

increases the maximum penalty for a crime must be charged in an indictment,

submitted to a jury, and proven beyond a reasonable doubt.” Pet. i, 11 (quoting

13

Apprendi, 530 U.S. at 476). At a literal level, that statement has no application

to petitioner’s case, which proceeded by way of a criminal information instead

of any grand jury indictment. See supra pp. 2-3. But there are deeper flaws in

petitioner’s reasoning as well.

As the court of appeal below recognized, Pet. App. C 16, the words in

Apprendi on which petitioner relies quote United States v. Jones, 526 U.S. 227,

243 n.6 (1999). Jones did involve an indictment, which charged the defendant

with carjacking under 18 U.S.C. § 2119, a statute that generally prescribes a

15-year maximum prison term. Jones, 526 U.S. at 230. The jury found that

the defendant had committed carjacking as defined in the statute. Id. at 231.

At sentencing, however, the judge made an additional finding that the

carjacking had caused “serious bodily injury” to the victim, which under a

distinct subsection of the statute permitted a sentence of 25 years. Id. In

rejecting that sentence, this Court construed “serious bodily injury” as an

“element” of the offense, and stated that such “elements must be charged in

the indictment, submitted to a jury, and proven by the Government beyond a

reasonable doubt.”

Jones, 523 U.S. at 233.

The Court’s inclusion of the

indictment requirement in that list made sense: Jones was being prosecuted

by the federal government, so he could not be “held to answer for a[n] . . .

infamous crime, unless on a presentment or indictment of a Grand Jury.” U.S.

Const., amend. V. In contrast, this Court has held that no indictment is

required in state prosecutions. Hurtado v. California, 110 U.S. 516, 538 (1884);

14

see also Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972). And Jones did not

hold or imply that its statement about the need to include sentencing

allegations in an “indictment” would apply in state prosecutions. 6

Nor did Apprendi impose any such requirement. That case concerned the

requirements that apply to jury verdicts.

See Apprendi, 530 U.S. at 469

(stating that the issue was whether the Fourteenth Amendment “requires that

a factual determination authorizing an increase in the maximum prison

sentence . . . be made by a jury on the basis of proof beyond a reasonable doubt”).

The defendant did not “assert[] a constitutional claim based on the omission of

any reference to sentence enhancement or racial bias in the indictment,” and

the Court did “not address the indictment question.” Id. at 477 n.3.

Shortly after the Apprendi decision, this Court made clear in United

States v. Cotton, 535 U.S. 625 (2002), that there is a fundamental distinction

between jury-trial requirements (which apply to all prosecutions) and

charging-document requirements (which apply only to federal indictments). In

Cotton, the Court recounted Apprendi’s general rule about jury findings for

guilt, then explained that “[i]n federal prosecutions, such facts must also be

charged in the indictment.” Id. at 627 (emphasis added). The distinction rests

on a logical basis: where the Constitution allows the government to exercise

6 In support of its statement about the need for each element to appear in the

indictment, Jones cited only cases arising from federal prosecutions. See Jones,

533 U.S. at 223 (citing Hamling v. United States, 418 U.S. 87 (1974), and

United States v. Gaudin, 515 U.S. 506 (1995)).

15

its power against an individual only upon specific findings by a specific body,

the absence of a required finding prohibits the government from acting.

Although a grand jury’s finding of probable cause for the requisite facts is

constitutionally required for the federal government to place a defendant at

risk of receiving a statute’s increased charges, no similar requirement applies

to state prosecutions. See Hurtado, 110 U.S. at 538. Instead, defendants are

entitled more generally to notice of the charges for which they will be tried and

for which they could be punished. See infra pp. 15-16. That is the principle

under which petitioner’s claim must be evaluated. 7

b. A defendant is entitled to “reasonable notice of a charge against him,”

In re Oliver, 333 U.S. 257, 273 (1948), based on his general entitlement to due

process and his Sixth Amendment right “to be informed of the nature and cause

of the accusation,” U.S. Const., amend. vi; see generally Cole v. Arkansas, 333

U.S. 196, 201 (right to “notice of the specific charge”).

7 Petitioner’s argument is not advanced by Alleyne v. United States, 570 U.S.

99 (2013). See Pet. i-ii, 11. Alleyne described Apprendi not as setting a rule for

indictments but as holding that certain facts must be found by the “jury”

“beyond a reasonable doubt.” Alleyne, 570 U.S. at 111. Alleyne’s new rule

similarly concerned facts that must be “submitted to the jury and found beyond

a reasonable doubt.” Id. at 116; see id. at 118. Although petitioner quotes

statements in Alleyne that discussed indictments, that part of Alleyne did not

command a majority of the Court. Compare Pet. 11 (quoting Alleyne, 570 U.S.

at 109-111), and Pet. i (citing same), with Alleyne, 570 U.S. at 102 (Part III-A

of opinion was not for the Court). Finally, no part of Alleyne (which involved a

federal prosecution) suggested that Cotton’s recognition of different charging

requirements in federal versus state cases should be overruled.

16

Petitioner had notice from the beginning of his case that the State was

charging him with a violation of Section 209(a) and that it intended to prove

facts that would result in the life-without-parole sentence specified in the

statute. As petitioner acknowledges, see Pet. 12-13, California precedent has

long made clear that a charge of violating Section 209(a) authorizes the

prosecution to prove to the jury the bodily-harm and risk-of-death facts that

would result in a sentence of life without parole under that statute. See People

v. Britton, 6 Cal.2d 1, 5 (1936) (a charge of kidnapping under the predecessor

to Section 209(a) “apprises the accused” that “any of” the “several punishments”

in that statute may be imposed upon him). 8

Petitioner does not allege that the prosecution misled the defense by

disclaiming intent to prove those factors and obtain the resulting sentence. Cf.

Lankford v. Idaho, 500 U.S. 110, 114, 119-127 (1991) (reversing death sentence

that was imposed after prosecutor’s official disclaimer of any intent to seek

death sentence led defense counsel not to prepare for such issues in the

sentencing hearing). Nor did the prosecution mislead the defense by seeking

to apply a sentencing enhancement from a different statutory section, or to a

different charge, than what the charging document affirmatively specified. Cf.

Cole v. Arkansas, 333 U.S. 196, 197-198 (1948) (reversing conviction, where

information and jury charge concerned a violation of section 1 of a statute but

8 When

Britton was decided, Section 209 consisted only of one paragraph,

defining the offense that is now generally covered by Section 209(a).

17

state court held defendants convicted and punished under section 2 to avoid

constitutional issues with section 1); supra p. 9 (discussing People v. Anderson,

9 Cal. 5th 946 (2020), where California Supreme Court overturned an

enhancement that was alleged as to one count but applied at sentencing to

others).

And it is not credible here to suggest that the defense failed to appreciate

the meaning and implications of the Section 209(a) charges. The defense

expressed no surprise or objection when the trial court proposed and delivered

instructions and verdict forms requiring the jury to determine, with respect to

the Section 209(a) charges, whether the prosecution had proven beyond a

reasonable doubt that the defendant caused bodily harm to Michael and placed

Mary at a substantial risk of death. See supra pp. 4-7. And it expressed no

surprise when the judge sentenced petitioner to life without parole on the basis

of those findings. See supra pp. 7-8. Even on appeal, petitioner has not argued

that petitioner or his trial counsel actually lacked knowledge that the

prosecution intended to prove that Michael suffered bodily harm and that

Mary was exposed to a risk of death. See Pet. 1-13; Appellant’s Br. (Cal. Ct.

App.). Nor would any such argument be persuasive: From early in the case,

the prosecution stated that the charges it had brought would lead to a sentence

of life without parole. See supra pp. 3-4. And the most noteworthy aspects of

petitioner’s case were the striking and salacious type of bodily harm that

Michael had suffered, and the cruelty of leaving Mary, bound and blindfolded,

18

to die in the desert. Given this background, a claim based on actual lack of

knowledge that enhanced penalty provisions of Section 209(a) would be in play

would be beyond implausible. 9

2. Petitioner briefly alleges that other lower courts have required that

allegations that could lead to a higher sentence must be pleaded in the

charging document. Pet. 12. But most of the cited cases address federal

prosecutions, which are subject to a different rule than state prosecutions. See

supra pp. 13-15; Cotton, 535 U.S. at 627. And the few state cases petitioner

cites are not in conflict with the decision below.

In B.O. v. Florida, 25 So.3d 586 (Fla. Ct. App. 2009), after a juvenile pled

guilty to stealing a firearm, he received a heightened sentence under a

separate statute that enhances penalties for “use or possession of a firearm in

the commission of an offense.” Id. at 587-589. The appellate court’s reversal

of that sentence was indeed partly based on the fact that no violation of the

enhancement statute was alleged in the charging document. Id. But the

court’s federal constitutional analysis required no more than a straightforward

application of Apprendi’s right to beyond-a-reasonable-doubt findings at the

conviction stage:

because the defendant pleaded “guilty to the crimes as

9 Given the clarity of California precedent, any allegation that the defense did

not understand the import of the Section 209 charge could be considered under

the standards applying to ineffective assistance of counsel—which would allow

a court to consider evidence of what the prosecution in fact communicated to

defense counsel and what defense counsel communicated to his client. See also

infra pp. 22-23.

19

charged,” id. at 588, omission of the enhancement from the charging document

meant it was not something the juvenile pleaded guilty to and therefore not

something as to which he waived his right to a beyond-a-reasonable doubt

verdict.

To the extent B.O. mentioned requirements relating to charging

documents on their own, those were apparently requirements of Florida law.

See id. at 589 (“State law now recognizes a broadly applicable Constitutional

rule about punishment: the accused must be given notice in the charging

document of any fact on which a sentencing enhancement will be based.”)

(emphasis added).

In State v. Simuel, 357 S.C. 378 (S.C. Ct. App. 2004), an inmate convicted

of escape was sentenced to an increased term based on the escape statute’s

provision for those who are apprehended out-of-state. Id. at 380. Although the

appellate court reversed, it is not clear that the reversal turned on the contents

of the indictment. The defendant had been sentenced on an “enhancement

element” that “was neither charged in the indictment nor submitted to the jury.”

Id. at 379 (emphasis added); see id. at 481 (concluding that the sentence

violated “the holding of Apprendi,” after noting that the out-of-stateapprehension enhancement provision “was not submitted to the jury”). The

Simuel court did not state that it would also have reversed in a case where an

enhancement provision that was not expressly stated in the original charging

document had been submitted to the jury.

20

And in Commonwealth v. King, 234 A.3d 549 (Pa. 2020), the court

reversed an enhanced sentence “where the Commonwealth failed to provide

formal notice of its intent to seek the enhancement in the charging documents.”

Id. at 552. But that holding was not necessarily one of federal law. The court

noted that “Apprendi declined to address a constitutional claim regarding what

the charging document must say,” id. at 561, but that specific notice

requirements existed under a state rule of criminal procedure and the due

process aspects of “the Pennsylvania Constitution.” Id. at 561. “Whatever the

source of the notice guarantee,” id. at 561, the court held that “when the

Commonwealth intends to seek an enhanced sentence for attempted murder

resulting in serious bodily injury . . . the Commonwealth must include a

citation to the statutory provision as well as its language in the charging

documents,” id. at 563. King appears to depend largely on the requirements of

Pennsylvania law, and its interpretation of the limits of Apprendi agrees with

the lower court’s in this case. See supra pp. 9-10.

3. Finally, this case would be a poor vehicle in which to assess any

requirements that the federal constitution might place on state-court charging

documents, for three reasons.

First, petitioner did not object to the instructions or verdict forms that

submitted the challenged enhancements to his jury. See supra pp. 4-7. Nor

did he object to being sentenced to life without parole under Section 209(a)

based on the jury finding—beyond a reasonable doubt—that he had caused

21

bodily harm to Michael and had placed Mary at substantial risk of death. See

supra pp. 7-8. To be sure, the court of appeal held that the lack of an objection

did not prohibit petitioner from raising this issue on appeal. See supra p. 8.

But the lack of an objection still deprives this Court of a record by which to

judge petitioner’s claim of inadequate notice.

Without an objection, the

prosecution had no opportunity to submit information about public, official

statements or private communications with the defense bearing on the

prosecution’s intent to prove bodily harm and risk of death under the Section

209(a) charges. See also supra pp. 17-18 (noting that even on appeal, petitioner

does not contend that his counsel was actually unaware of the prosecution’s

intent to prove the penalty factors). 10

Second, petitioner’s argument about the need for sentencing allegations

to be charged has questionable relevance, given the lower court’s reasoning.

The court of appeal explained that California law allows a written charging

document to be orally amended where “the defendant received adequate notice

of the prosecution’s intent to charge him with a particular crime or

enhancement, and the defendant . . . acquiesced to the charge.” Pet. App. C

10 The defense’s actual knowledge may explain why it made no objection in the

first place. In any event, an objection would also have allowed the trial court

to ask counsel for concrete explanations of how the language in the charging

document affected the preparation and conduct of petitioner’s case—which

would allow this Court to make a decision based on more than the petition’s

vague assertion that lack of notice sometimes affects defendants’ investigatory

and plea decisions. See Pet. 13.

22

18. The court of appeal concluded that such an amendment happened here.

Id. at 20-21.

Although petitioner asserts that the information “was not

formally amended,” Pet. ii (emphasis added), petitioner does not challenge the

court of appeal’s conclusion that an informal amendment occurred under

California law, and does not explain why an informal amendment (in a case

with no indictment requirement) would not satisfy the requirement that

petitioner purports to find in Apprendi.

Third, petitioner would be unlikely to obtain meaningful relief regardless

of any constitutional rule that could be announced in this case. Apprendi

errors are subject to harmless-error analysis. Washington v. Recuenco, 548

U.S. 212 (2006). 11 As explained above, it is exceedingly implausible that the

defense was actually unaware of the prosecution’s intent to submit the bodily

harm and risk of death factors to the jury and of the resulting effect on his

sentence. 12 And the mayhem and torture charges informed the defense that

11 See also Cotton, 535 U.S. at 631-633 (affirming sentence where, although

drug-quantity was not alleged in the indictment, the evidence was

“‘overwhelming’ and ‘essentially uncontroverted,’” and omission from the

indictment did not “seriously affect the fairness, integrity, or public reputation

of [the] judicial proceedings”).

12 See supra pp. 15-18 (noting California precedent that charge under Section

209(a) allows prosecution to seek jury determination of those sentencing facts);

id. at 3-4 (noting that prosecution discussed the life-without-parole sentence

in its motion to consolidate petitioner’s trial with his co-defendants’); see also

CT 268-272, 280-283, 316-329 (preliminary hearing evidence of the injuries to

Michael’s body).

23

the injuries to Michael’s body would be a part of the case regardless of how the

defense interpreted the kidnapping charge. 13

Nevertheless, petitioner’s

defense throughout the trial was “mistaken identity.” Pet. App. A 16. Instead

of contesting that Michael suffered injury, the defense focused on reasons to

doubt petitioner’s involvement, and raised the possibility that the other

defendants had framed petitioner. 14 There is no reason to believe petitioner

would have followed a different approach if “bodily harm” had been specified

in the information’s kidnapping charges, and he does not suggest otherwise.

Trying to persuade a jury that the severing of a penis and the use of enough

bleach to permanently disfigure Michael’s skin was somehow not “bodily harm”

would have damaged the credibility of the defense. Nor is there any indication

that such an argument could have succeeded.

13 See CT 443 (alleging, as part of the elements of mayhem, that petitioner

caused Michael’s “permanent disability, disfigurement, and deprivation of [his]

limb, organ, and body member”); id. (alleging, as part of the elements of torture,

that petitioner “inflict[ed] great bodily injury” on Michael).

14 See, e.g., RT 674 (arguing that petitioner did not participate and Nayeri had

planted evidence to make him “the fall guy”); id. at 679-683 (arguing that there

was no evidence of petitioner being at certain key places at key times, and that

items found in petitioner’s home and truck that matched those in the

kidnapping were commonplace in the marijuana trade); id. at 687, 693

(arguing that prosecution relied on “circumstantial evidence” rather than

direct “evidence my client participated,” and emphasizing jury instruction

requiring special burdens for facts proven by circumstantial evidence); see also

RT 99, 126-146, 150, 168-172, 217-232, 238-240, 269-272, 336-342, 412-445,

510-529 (cross-examination of prosecution witnesses).

24

CONCLUSION

The petition for a writ of certiorari should be denied.

Dated:

March 3, 2022

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

LANCE E. WINTERS

Chief Assistant Attorney General

SUSAN SULLIVAN PITHEY

Senior Assistant Attorney General

JOSHUA A. KLEIN

Deputy Solicitor General

MICHAEL R. JOHNSEN

Supervising Deputy Attorney General

/s/Blythe J. Leszkay

BLYTHE J. LESZKAY

Deputy Attorney General