People v. Rios CA5

Filed 3/7/22 P. v. Rios CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080424
Plaintiff and Respondent,
(Super. Ct. No. BF172063A)
v.
ABEL JOSE RIOS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Stephen D.
Schuett, Judge.
Candace Hale, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Defendant Abel Jose Rios stands convicted by jury of five counts of sex offenses
against two children under the age of 10 years. Relevant to this appeal, defendant was
charged under Penal Code section 288, subdivision (a)1 on counts 3 and 5 for lewd or
lascivious acts against a child under the age of 14 years. These counts also contained
special allegations that the underlying crime was a qualifying offense under
section 667.61, subdivision (c) of the “One Strike” law (§ 667.61 et seq.), and alleged
defendant had committed the qualifying offenses against more than one victim within the
meaning of section 667.61, subdivision (e)(4). 2
The jury convicted defendant on counts 3 and 5, and found true the additional One
Strike allegations. At sentencing, the trial court imposed terms of 25 years to life on both
counts pursuant to section 667.61(j)(2), a punishment provision under the One Strike law.
Section 667.61(j)(2) applies when the qualifying offense under section 667.61(c) is
committed against more than one victim within the meaning of section 667.61(e)(4), and
the victim is under the age of 14 years.
Defendant argues he did not have sufficient notice the harsher indeterminate term
under section 667.61(j)(2) would apply to him on counts 3 and 5 because that specific
subdivision was not expressly pleaded among the One Strike allegations. Defendant
maintains the imposition of indeterminate terms under section 667.61(j)(2) violates his
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Section 288, subdivision (a), section 667.61, subdivision (a), section 667.61, subdivision
(b), section 667.61, subdivision (c), section 667.61, subdivision (d), section 667.61,
subdivision (e) and (e)(4), section 667.61, subdivision (j), section 667.61, subdivision (j)(1) and
(j)(2), section 1170.1, subdivision (e) and section 12022.5, subdivision (a), are referred to in this
opinion as section 288(a) or § 288(a), section 667.61(a) or § 667.61(a), section 667.61(b) or
§ 667.61(b), section 667.61(c) or § 667.61(c), section 667.61(d) or § 667.61(d), section 667.61(e)
or § 667.61(e), section 667.61(e)(4) or § 667.61(e)(4), section 667.61(j) or § 667.61(j),
section 667.61(j)(1) or § 667.61(j)(1), section 667.61(j)(2) or § 667.61(j)(2), section 1170.1(e) or
§ 1170.1(e) and section 12022.5(a) or § 12022.5(a).
2.
federal constitutional due process right to fair notice and violates section 1170.1(e). For
the reasons discussed below, we are unpersuaded by these arguments and affirm the
judgment.
DISCUSSION
I. Background3
In April 2018, defendant was charged with two counts of oral copulation or sexual
penetration of a child 10 years of age or younger (§ 288.7, subd. (b); count 2, Jane Doe;
count 4, John Doe); one count of sexual intercourse or sodomy of a child who is 10 years
of age or younger (§ 288.7, subd. (a); count 1, Jane Doe); and two counts of lewd or
lascivious acts against a child who is under the age of 14 years (§ 288(a); count 3, Jane
Doe; count 5, John Doe).
As to counts 3 and 5 for lewd or lascivious acts under section 288(a), the
information included special allegations under the One Strike law. Counts 3 and 5
included the following allegation: “It is further alleged that in the commission of the
crime, Abel Jose Rios, the defendant has been convicted in the present case or cases of
committing an offense specified in section 667.61(c) of the Penal Code against more than
one victim, within the meaning of Penal Code section 667.61(e)(4).” (Full capitalization
omitted.)
At trial in 2019, the evidence showed that between January 2016 and April 2018, 4
defendant committed sexual offenses against Jane Doe (who was eight years old when
she testified at trial in 2019), and John Doe (who was six years old when he testified in
2019). The acts against Jane Doe included defendant sexually penetrating her with his
penis, and inducing her into oral copulation. The acts against John Doe included
3 We forego a detailed summary of the trial evidence as it is not relevant to the issues
raised on appeal.
4 The information was amended to allege the offenses occurred from January 1, 2016, to
April 26, 2018.
3.
defendant inducing him into acts of oral copulation. The jury convicted defendant on all
five counts, and found true the additional One Strike multiple-victim allegations under
counts 3 and 5.
The trial court imposed terms of 25 years to life on counts 3 and 5 pursuant to
section 667.61(j)(2), which provides, “[a] person who is convicted of an offense specified
in subdivision (c) under one of the circumstances specified in subdivision (e), upon a
victim who is a child under 14 years of age, shall be punished by imprisonment in the
state prison for 25 years to life.”
On appeal, defendant argues the information did not expressly plead the
applicability of section 667.61(j)(2) in its special allegations under the One Strike law.
As such, defendant argues he did not have adequate notice required under either state or
federal law of the 25-year-to-life terms the court imposed under section 667.61(j)(2) on
counts 3 and 5.
The People argue this claim has been forfeited for failure to object below, but even
considered on the merits, they maintain notice of the punishment provision under
section 667.61(j)(2) was sufficient under federal and state law and any error was
harmless.
II. The One Strike Law
The One Strike law sets forth an alternative and harsher sentencing scheme for
enumerated sex crimes committed under certain specified circumstances. (People v.
Mancebo (2002) 27 Cal.4th 735, 741 (Mancebo).) When it is triggered by specifically
pleaded and proven aggravating circumstances, the One Strike law mandates
indeterminate terms for sex crimes committed within its ambit, varying by the minimum
term for parole eligibility: 15 years to life; 25 years to life; and life without the
possibility of parole (LWOP).
The One Strike law’s sentencing structure provides escalating indeterminate terms
depending on the type and number of circumstances present, as identified and
4.
enumerated in section 667.61(d) and (e). 5 For example, when an enumerated sex crime
under section 667.61(c) is committed with no pleaded or proven circumstance under
section 667.61(d), and only one pleaded and proven circumstance under
section 667.61(e), the punishment is 15 years to life. (§ 667.61(b).) But, when a sex
crime enumerated under section 667.61(c) is committed with one or more pleaded and
proven circumstance(s) under section 667.61(d) or two or more pleaded and proven
circumstances under section 667.61(e), the punishment is 25 years to life. (§ 667.61(a).)
If the qualifying sex offense under section 667.61(c) is committed against a victim
under the age of 14 years, with the combination of pleaded and proven circumstances
described in section 667.61(a) or (b), the punishment is harsher still and ranges from
LWOP to 25 years to life. (§ 667.61(j)(1) & (j)(2).) Similarly, certain enumerated sex
offenses with pleaded and proven circumstances under section 667.61(d) and/or (e) that
are committed against minors ages 14 years or older invoke harsher sentences ranging
from LWOP to 25 years to life. (§ 667.61, subds. (l), (m) & (n).) In other words, the
One Strike law’s sentencing structure not only punishes enumerated sex crimes
committed under specific circumstances more harshly, those harsher punishments
increase further depending on the age of the victim.
III. Analysis
A. Fair Notice of Application of Section 667.61(j)(2)
Defendant argues the charging document did not provide fair notice that counts 3
and 5 would be sentenced under section 667.61(j)(2) because that provision was not
expressly pleaded among the One Strike allegations.
To be subjected to any of the harsher penalties under the One Strike law, due
process mandates a defendant be provided fair notice. “‘“No principle of procedural due
5 There are currently seven different circumstances identified under section 667.61(d), and
another seven circumstances identified under section 667.61(e). (§ 667.61(d)(1)–(7) & (e)(1)–
(7).)
5.
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.”’ [Citation.] 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.)” (People v.
Anderson (2020) 9 Cal.5th 946, 953.)
The One Strike law itself contains statutory pleading requirements—the
circumstances applicable under section 667.61(d) and/or (e) must be specifically pled and
proven. (§ 667.61, subd. (o) [“The penalties provided in this section shall apply only if
the existence of any circumstance specified in (d) or (e) is alleged in the accusatory
pleading pursuant to this section, and is either admitted by the defendant in open court or
found to be true by the trier of fact.”]; see Mancebo, supra, 27 Cal.4th at p. 751.)
Here, the charging document’s One Strike allegations identified counts 3 and 5
(for lewd or lascivious acts against a child under the age of 14 years; § 288(a)) as
qualifying under section 667.61(c) and pleaded the multiple-victim circumstance under
section 667.61(e)(4), that triggered application of the One Strike law. The information
did not, however, expressly plead the punishment provision (§ 667.61(j)(2)) the One
Strike law mandates for this combination of qualifying offense and aggravating
circumstance; defendant claims this omission resulted in constitutionally deficient notice
this punishment provision would apply at sentencing.
There is a split among the Courts of Appeal as to whether One Strike allegations
in a charging document must, in addition to identifying the qualifying offense and the
aggravating circumstances under section 667.61(d) and (e), expressly cite
6.
section 667.61(j)(2) to give fair notice of its application at sentencing. (Compare People
v. Jimenez (2019) 35 Cal.App.5th 373 (Jimenez) with In re Vaquera (2019) 39
Cal.App.5th 233, review granted Nov. 26, 2019, S258376 (Vaquera) & People v.
Zaldana (2019) 43 Cal.App.5th 527, review granted Mar. 18, 2020, S259731 (Zaldana).)
Defendant urges us to follow Jimenez. There, the defendant was charged with,
among other things, 13 sex crimes against more than one victim. (Jimenez, supra, 35
Cal.App.5th at pp. 377–378.) In expressly pleading a multiple-victim circumstance for
each of these 13 crimes, the charging document referred only to subdivisions (b) and (e)
of section 667.61. (Jimenez, supra, at p. 394.) The trial court sentenced the defendant to
terms of 25 years to life under section 667.61(j)(2) for nine of these crimes, which
involved children under the age of 14 years. (Jimenez, supra, at p. 378.) On appeal, the
defendant claimed the charging document referenced only section 667.61(b), and it did
not give him fair notice of the 25-year-to-life term imposed under section 667.61(j)(2) for
committing the qualifying offenses upon multiple victims, at least one of whom was
under the age of 14 years.6 Relying on the California Supreme Court’s decision in
Mancebo, the court held the sentences imposed under section 667.61(j)(2) could not be
based on a charging document that referred only to section 667.61(b) and (e) in pleading
a multiple-victim circumstance. (Jimenez, supra, at pp. 396–397.)
Two Courts of Appeal subsequently disagreed with Jimenez in published
decisions. In Vaquera, the defendant argued his due process rights were violated by the
trial court’s imposition of a 25-year-to-life sentence under section 667.61(j)(2) because
that subdivision was not expressly alleged in the information. (Vaquera, supra, 39
Cal.App.5th at p. 235, review granted.) Rather, the prosecution had alleged a
6 Jimenez pointed out section 667.61(j)(2) does not expressly state whether, in the
multiple-victim circumstance situation, all the victims must be under the age of 14 years or only
one of the victims must be under the age of 14 years. Here, all offenses alleged were necessarily
committed against a child under the age of 14 years and their ages were expressly pleaded; this
potential ambiguity is not relevant here. (See Jimenez, supra, 35 Cal.App.5th at p. 397, fn 4.)
7.
multiple-victim circumstance under section 667.61, former subdivision (e)(5), in
combination with section 667.61(b), just like in Jimenez. (Vaquera, supra, at p. 236.)
Unpersuaded by Jimenez, the court in Vaquera concluded the pleading complied
with due process principles and supplied the defendant with sufficient notice of the
harsher term of 25 years to life under section 667.61(j)(2). (Vaquera, supra, 39
Cal.App.5th at pp. 243–244, review granted.) Although the charging document cited
section 667.61(b), which provides for a term of 15 years to life, the court reasoned that
statutory reference put the defendant on notice he faced the hasher term under
section 667.61(j)(2). (Vaquera, supra, at p. 235.) By virtue of the facts alleged in the
information, the defendant was on notice the counts against him involved children under
the age of 14 years. Not only did the charges require the prosecution to prove the victims
were under the age of 14 years at the time of the offense, the information specifically
pleaded both children were under the age of 14 years at the time of the offenses.
(Vaquera, supra, 39 Cal.App.5th at pp. 235, 240–241.) Moreover, similar to People v.
Tennard (2017) 18 Cal.App.5th 476, 487–488, the court observed section 667.61(j)(2)
was expressly referenced in section 667.61(b), as an exception. (Vaquera, supra, at
pp. 241–242.) The court also concluded no prejudice had been shown. (Id. at p. 242.)
Finally, the court distinguished Mancebo. (Vaquera, supra, at pp. 242–244.)
Our colleagues in the Second District in Zaldana also declined to follow Jimenez,
finding Vaquera’s analysis more persuasive. (Zaldana, supra, 43 Cal.App.5th at p. 533,
review granted.) Like Jimenez and Vaquera, the charging document in Zaldana alleged
that “‘within the meaning of … section 667.61(b) and (e)(4) … [t]he defendant …
committed an offense specified in Section 667.61(c) against more than one victim.’”
(Zaldana, supra, at p. 535.) The Zaldana court concluded the reference to
section 667.61(b), in the pleading did not result in deficient notice of the harsher penalty
that would apply under section 667.61(j)(2) because subdivision (j)(2) is expressly
referenced in subdivision (b) as an exception to the shorter 15-year-to-life term provided
8.
in subdivision (b). (Zaldana, supra, at p. 535.) Because the information alleged that both
of the defendant’s victims were under the age of 14 years when he molested them, there
was no doubt he was on notice he could be subject to section 667.61(j)(2). (Zaldana,
supra, at p. 535.)
The Zaldana court rejected the defendant’s argument that by citing
section 667.61(b), the prosecutor must have been exercising charging discretion to select
the lower 15-year-to-life term provided in section 667.61(b), rather than the longer 25-
year-to-life term provided in section 667.61(j)(2). (Zaldana, supra, 39 Cal.App.5th at
pp. 535–536, review granted.) The court explained that subdivision (b) expressly states
that a sentence of 15 years to life is required “‘“[e]xcept as provided in subdivision …
(j) .…”’” (Id. at p. 536, quoting Vaquera, supra, 39 Cal.App.5th at p. 245, review
granted & § 667.61(b).) “‘Because the Legislature used the word “shall,” and because
the prosecution properly pleaded and proved multiple victim allegations for qualifying
sex offenses in which the victims were under 14 years of age, the trial court was required
to impose a 25-year-to-life sentence under section 667.61, the One Strike law.’”
(Zaldana, supra, at p. 536, quoting Vaquera, supra, at p. 245 & citing § 667.61,
subd. (f).)
Having granted review in Vaquera and Zaldana, our Supreme Court is now poised
to address the split among the Courts of Appeal on this issue. While we await our high
court’s decision, we find persuasive Vaquera’s and Zaldana’s reasoning that when the
multiple-victim circumstance under section 667.61(e)(4) is pleaded, proven, and found
true by the trier of fact, the situation is fundamentally different from Mancebo, where the
multiple-victim circumstance was unpleaded.
In Mancebo, the defendant had kidnapped two victims, both at gunpoint, at
different times, and committed multiple sex crimes against them. (Mancebo, supra, 27
Cal.4th at pp. 739–740.) The information alleged 10 sex crimes involving two victims.
(Id. at p. 740.) As to all counts, it was alleged the defendant personally used a gun within
9.
the meaning of section 12022.5(a). (Mancebo, supra, at p. 740.) As to six of those
counts, it was alleged the circumstances of kidnapping and gun use applied within the
meaning of section 667.61(a) and former subdivision (e); regarding two other sex offense
counts, gun use and tying/binding the victim circumstances were alleged under
section 667.61(a) and former subdivision (e)(4) and (e)(6). (Mancebo, supra, at p. 740.)
The information never expressly alleged a multiple-victim circumstance under section
667.61, former subdivision (e)(5), nor was the information ever amended to include such
an allegation. (Mancebo, supra, at p. 740.) The defendant was convicted of all counts,
and all enhancement allegations were found true. (Ibid.) In sentencing the defendant on
two of the counts under the One Strike law, the trial court substituted out the pleaded
gun-use circumstance under section 667.61(e), and replaced it with the unpleaded
multiple-victim circumstance under section 667.61(e), and imposed a 25-year-to-life term
under section 667.61(a). (Mancebo, supra, at pp. 738–740.) The trial court then used the
gun-use circumstance to impose the firearm enhancement under section 12022.5(a).
(Mancebo, supra, at p. 740.)
On appeal before our high court, “the narrow question presented [was] whether the
circumstance of gun use was available to support two section 12022.5(a) enhancements
when gun use had already been properly pled and proved as a basis for invoking One
Strike sentencing.” (Mancebo, supra, 27 Cal.4th at p. 738.) In conducting a close
examination of the pleading and proof requirements of the One Strike law, the court
concluded that imposition of the gun-use enhancement under section 12022.5(a) violated
section 667.61’s pleading and proof requirements, implicated the defendant’s due process
rights, and resulted in an unauthorized sentence. (Mancebo, supra, at p. 754.) Under the
plain language of section 667.61, subdivision (f) and former subdivision (i), the existence
of any factual circumstances under section 667.61(d) or (e) were to be alleged in the
accusatory pleading. None of the charging documents ever alleged a multiple-victim
circumstance under section 667.61, former subdivision (e)(5), so substituting the
10.
unpleaded multiple-victim circumstance for the first time at sentencing violated the
statute’s pleading requirements. (Mancebo, supra, at p. 751.)
Mancebo rejected the argument that notice of the multiple-victim circumstance
was adequate because the information alleged counts as to multiple victims. (Mancebo,
supra, 27 Cal.4th at pp. 744–745, 752.) The court “acknowledge[d] that where a
defendant is charged with and convicted of qualifying sex crimes against two or more
victims, it may be difficult to meaningfully contest the truth of a multiple victim
qualifying circumstance, whether or not that circumstance has been properly pled …
[b]ut section 667.61 makes no special exception for the multiple victim qualifying
circumstance—the statute’s pleading and proof requirements apply to all of the
qualifying circumstances enumerated in [section 667.61] subdivisions (d) and (e).” (Id.
at p. 752.)
Jimenez quoted this language in Mancebo and appeared to analogize that if the
unpleaded multiple-victim circumstance in Mancebo failed to supply notice that that
circumstance would be used at sentencing to increase the defendant’s punishment, the
failure to expressly plead section 667.61(j)(2) likewise does not supply a defendant
adequate notice this subdivision will be used at sentencing to impose a harsher
punishment. (Jimenez, supra, 35 Cal.App.5th at pp. 396–397.) Defendant too quotes this
language from Mancebo and urges us to follow Jimenez’s application of it.
We disagree that Mancebo extends this broadly. Mancebo considered a narrow
question about an unpleaded multiple-victim circumstance that is not the issue here.
(Mancebo, supra, 27 Cal.4th at p. 738.) That decision does not encompass whether,
beyond pleading the qualifying circumstances under section 667.61(d) and (e) that trigger
the law’s application, the particular corresponding sentencing penalties under the One
Strike law also must be expressly pleaded to provide sufficient constitutional notice of
their application.
11.
Mancebo explained that invoking One Strike sentencing based on unpleaded
circumstances violated the express pleading requirement of the statute. (Mancebo, supra,
27 Cal.4th at pp. 744–745.) In view of the express pleading requirement, the prosecutor’s
failure to include the allegation also could be reasonably interpreted as an act of charging
discretion by the prosecutor. (See id. at pp. 745, 749.) In addition to the defendant’s
potential reliance on what was expressly pled, it was impossible for the defendant to
know or predict the sentencing court would invoke One Strike sentencing based on an
unpleaded circumstance. (Id. at p. 752.) The court observed that in many instances fair
notice of the aggravating circumstances might be critical to the defendant’s ability to
contest the factual basis and truth of those circumstances at trial or to adequately assess
potential sentencing exposure to evaluate a plea. (Ibid.) Here, the absence of express
reference in the charging document to the applicable One Strike penalty provision does
not create any similar problems.
Once a prosecutor pleads particular combinations of aggravating circumstances
and qualifying offenses that necessarily involve victims of a certain age, the
corresponding One Strike penalty provision is exclusive and mandatory. The One Strike
law’s punishment provisions are set out in section 667.61, subdivisions (a), (b), (j), (l),
and (m). Section 667.61(a), states, “[e]xcept as provided in subdivision (j), (l), or (m),
any person who is convicted of an offense specified in subdivision (c) under one or more
of the circumstances specified in subdivision (d) or under two or more of the
circumstances specified in subdivision (e) shall be punished by imprisonment in the state
prison for 25 years to life.” Section 667.61(b), states “[e]xcept as provided in
subdivisions (a), (j), (l), or (m), a person who is convicted of an offense specified in
subdivision (c) under one of the circumstances specified in subdivision (e) shall be
punished by imprisonment in the state prison for 15 years to life.” By the subdivisions’
express terms, an offense that meets the criteria of section 667.61(a) may not be
sentenced under section 667.61(b), and an offense that meets the criteria of
12.
section 667.61(a) or (b) must be sentenced under one of those provisions “[e]xcept” when
(j), (l) or (m) apply. (§ 667.61(a) & (b).) There is no discretionary language under
section 667.61, subdivisions (j), (l), or (m), either. Each of these subdivisions states the
punishments therein “shall” apply if the particular qualifying offense is committed
against a certain-aged victim under specified aggravating circumstances.
As Vaquera and Zaldana explained, when, as here, the qualifying offenses under
section 667.61(c) necessarily require pleading and proving the victim was under the age
of 14 years at the time of the offense, the circumstances pled and proven under
section 667.61(d) and/or (e) will mandate the harsher sentences under section 667.61(j).
(Vaquera, supra, 39 Cal.App.5th at p. 245, review granted; Zaldana, supra, 43
Cal.App.5th at p. 536, review granted.) The language of the subdivisions does not
suggest the prosecutor or the sentencing court has discretion to plead or impose a
sentence under a different penalty provision. Unlike the defendant in Mancebo, the
charging document here expressly pleaded the one circumstance that would be used to
sentence defendant under the One Strike law if it were found true—defendant was not left
guessing until sentencing. And, because the qualifying offense involved pleading and
proving the victim was under the age of 14 years, the pleading gave defendant fair notice
of the only sentencing provision under section 667.61 that could apply.
Moreover, the multiple-victim circumstance here was pled differently from
Jimenez, Vaquera, and Zaldana. In this case, the special allegation invoking application
of the One Strike law does not cite section 667.61(b); instead, the information alleges that
in the commission of the underlying crime (§ 288(a); counts 3 & 5), defendant has been
convicted in the present case or cases of committing an offense specified in
section 667.61(c) against more than one victim within the meaning of
section 667.61(e)(4).
As discussed by Vaquera and Zaldana, even an inaccurate reference to
section 667.61(b), constitutes sufficient notice of the applicability of section 667.61(j)(2)
13.
because, as already discussed, section 667.61(b) expressly carves out section 667.61(j) as
an exception to its application. That carve-out gave notice that section 667.61(j)(2),
rather than section 667.61(b), would apply given that the relevant underlying offenses in
Vaquera and Zaldana necessarily involved children under the age of 14 years at the time
of the offense. (Vaquera, supra, 39 Cal.App.5th at p. 245, review granted; Zaldana,
supra, 43 Cal.App.5th at p. 536, review granted.)
We note that Zaldana agreed with Vaquera that the “key to adequate notice” was
the charging document’s reference to section 667.61(b), which expressly incorporates the
longer sentence under section 667.61(j). (Zaldana, supra, 43 Cal.App.5th at p. 535,
review granted [“We agree with Vaquera that was key to adequate notice—
[section 667.61(b)] specifically directed Zaldana to [section 667.61,] subdivision (j)(2)
and its longer prison term.”].)
The lack of reference to section 667.61(b), in the information here strikes us as
even more straightforward than the pleadings in Vaquera and Zaldana. In both of those
cases, the defendants argued reference to section 667.61(b) in the One Strike allegations
was essentially an exercise of the prosecutor’s charging discretion to select sentencing
under section 667.61(b), rather than section 667.61(j)(2). (Vaquera, supra, 39
Cal.App.5th at p. 244, review granted; Zaldana, supra, 43 Cal.App.5th at pp. 535–536,
review granted.) As we note above and as both Zaldana and Vaquera explained,
application of section 667.61(j)(2) is mandatory when the prosecutor properly pleads and
proves the multiple-victim circumstance for qualifying sex offenses in which the victims
are under the age of 14 years. (§ 667.61(b) & (j)(2); Zaldana, supra, at p. 536; Vaquera,
supra, at p. 245.)7
7 The mandatory applicability of section 667.61(j) is also logical and consistent. The One
Strike law’s framework of punishing even more harshly those qualifying offenses committed
against younger victims maintains the Legislature’s imposition of harsher penalties outside the
ambit of the One Strike law for sex offenses against younger victims. For example, section 289,
subdivision (a), criminalizes forcible acts of sexual penetration and provides harsher
14.
Without any citation to section 667.61(b), in the One Strike allegations for
counts 3 and 5 here, there is no basis on which defendant could mistakenly conclude the
prosecutor was making such an election. Since conviction on the qualifying offenses
under section 667.61(c) were all dependent on proving the expressly pleaded allegation
that each victim was under the age of 14 years, only section 667.61(j)(2) could apply if
the multiple-victim circumstance was found true.
Even without express citation to section 667.61(j)(2), the law cited and the facts
alleged under counts 3 and 5 gave fair notice that defendant necessarily faced the harsher
life term under section 667.61(j)(2) on those counts pursuant to the One Strike law if the
qualifying offenses and the multiple-victim circumstance under section 667.61(e)(4) were
all proven. Counts 3 and 5 necessarily required proving the victim was under the age of
14 years at the time of the offense—a fact expressly pleaded in both counts; the
information included special allegations under the One Strike law that each charged
crime was a qualifying offense under section 667.61(c) and the multiple-victim
circumstance applied under section 667.61(e)(4). The specific statutory pleading
requirements were met under section 667.61, subdivision (o), and under the express
language of the statute, only the punishment provision of section 667.61(j)(2) could apply
if defendant was convicted of the qualifying offenses and the aggravating circumstance
punishments based on the age of the victim: if the victim is under the age of 14 years, the
sentencing triad is “8, 10, or 12 years” (id., subd. (a)(1)(B)), if the victim is a minor over the age
of 14 years, the sentencing triad currently is “6, 8 or 10 years” (id., subd. (a)(1)(C)), and if the
victim is an adult, the sentencing triad is “three, six, or eight years” (id., subd. (a)(1)(A)). This
offense qualifies under and will trigger application of the One Strike law if aggravating
circumstances are pleaded and proven. (§ 667.61, subds. (c)(5) & (n)(4).) Without application
of the mandatory harsher penalties for younger victims under section 667.61, subdivisions (j), (l)
and (m), a section 289, subdivision (a), offense would not maintain a harsher punishment
structure under the One Strike law based on the age of the victim. In other words, without the
punishment provisions under section 667.61, subdivisions (j), (l) and (m), those who committed
this crime against adults would suffer the same punishment under the One Strike law as those
who offended against young children, which would be inconsistent with the punishment structure
of section 289, subdivision (a).
15.
alleged was found true. The One Strike allegations gave sufficient and fair notice
section 667.61(j)(2) would apply.
B. No Violation of Section 1170.1(e)
Similarly, we reject defendant’s argument that the One Strike law allegations were
deficient under section 1170.1(e). Section 1170.1(e) provides that “[a]ll 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.”
As explained above, the One Strike law is an alternative sentencing scheme.
(People v. Carbajal (2013) 56 Cal.4th 521, 534.) Its sentencing provisions are not
enhancements; thus, as the People note, section 1170.1(e) does not apply here. The One
Strike statute contains its own express pleading requirement under section 667.61,
subdivision (o), with which the charging document complied. The special allegations
under counts 3 and 5 pleaded the crimes were qualifying One Strike offenses under
section 667.61(c), and pleaded the multiple-victim circumstance under
section 667.61(e)(4). (§ 667.61, subd. (o).)
Further, even if section 1170.1(e) applied here, the One Strike allegations in
counts 3 and 5 invoked application of the One Strike law, alleged the underlying offenses
were qualifying under section 667.61(c), and that the multiple-victim circumstance under
section 667.61(e)(4) applied. Both counts also expressly alleged the victims were under
the ages of 14 years, and this fact was necessarily proven and found true by the jury as an
essential element of the underlying offenses. (§ 288(a).) The pleading was not deficient
merely because it did not cite the precise code section under the One Strike law that
supplied the applicable punishment. (See § 960 [“No accusatory pleading is insufficient,
nor can the trial, judgment, or other proceeding thereon be affected by reason of any
defect or imperfection in matter of form which does not prejudice a substantial right of
the defendant upon the merits.”].)
16.
C. No Prejudice
Finally, even assuming the failure to expressly plead section 667.61(j)(2)
constituted deficient notice that section 667.61(j)(2) would apply under the One Strike
law, there is no evidence of any prejudice. (People v. Thomas (1987) 43 Cal.3d 818,
830–832 [even where the accusatory pleading is defective, the defendant is still required
to demonstrate he or she was misled in a manner causing prejudice]; see People v.
Anderson, supra, 9 Cal.5th at p. 964 [concluding notice error was not harmless].)
Sufficient notice allows a defendant to make informed decisions about his case such as
whether to plead guilty, how to allocate investigatory resources, and what trial strategy to
employ. (Ibid.)
Nothing in the parties’ briefs or the record indicate defendant was offered and
refused a plea bargain that confusion over his maximum sentence exposure might have
influenced. Further, there is nothing to suggest defendant might have allocated
investigatory resources differently or presented any alternative type of defense had
section 667.61(j)(2) been expressly cited with the One Strike law allegations. The age of
the victims was necessarily at issue by virtue of the underlying offenses on counts 3 and
5: the age of the victims was expressly pleaded under each count and necessarily
considered and found true by the jury. Like Vaquera, we perceive no prejudice stemming
from any deficient notice of which indeterminate term would necessarily apply under the
One Strike law if the allegations were proven. (Vaquera, supra, 39 Cal.App.5th at
p. 242, review granted.)8
8 We agree with the People on the merits of this issue and, therefore, decline to address
their claim of forfeiture.
17.
DISPOSITION
The judgment is affirmed.
MEEHAN, J.
WE CONCUR:
LEVY, Acting P. J.
PEÑA, J.
18.