People v. Anderson ( 2020 )

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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PEOPLE v. ANDERSON
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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PEOPLE v. ANDERSON
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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PEOPLE v. ANDERSON
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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PEOPLE v. ANDERSON
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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PEOPLE v. ANDERSON
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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PEOPLE v. ANDERSON
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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PEOPLE v. ANDERSON
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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PEOPLE v. ANDERSON
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
10
PEOPLE v. ANDERSON
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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PEOPLE v. ANDERSON
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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PEOPLE v. ANDERSON
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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Opinion of the Court by Kruger, J.
(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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Opinion of the Court by Kruger, J.
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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PEOPLE v. ANDERSON
Opinion of the Court by Kruger, J.
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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PEOPLE v. ANDERSON
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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PEOPLE v. ANDERSON
Opinion of the Court by Kruger, J.
“ ‘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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PEOPLE v. ANDERSON
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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PEOPLE v. ANDERSON
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
22
PEOPLE v. ANDERSON
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
23
PEOPLE v. ANDERSON
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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PEOPLE v. ANDERSON
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