87 Cal.App.5th 483
Cal. Ct. App.2023Background
- Defendant Robert Nash was convicted of three counts of lewd acts on two children (ages 3 and 5); jury found One Strike allegations true.
- At initial sentencing the trial court imposed an aggregate term of 10 years, rejecting mandatory 15-years-to-life terms as cruel and/or unusual; People appealed.
- This court reversed in Nash I, holding 15-to-life under Penal Code § 667.61(b) was constitutional, and remanded for resentencing.
- On remand the trial court—despite expressing continued reservations—imposed concurrent 15-to-life terms as directed; Nash renewed his Eighth Amendment and newly discovered-evidence claims.
- The People argued for 25-to-life under § 667.61(j)(2) because both victims were under 14; the amended information, however, explicitly listed the One Strike “Allegation Effect” as "15 Yrs-Life."
Issues
| Issue | People’s Argument | Nash’s Argument | Held |
|---|---|---|---|
| 1. Does imposing 15-to-life violate the Eighth Amendment or state constitutional ban on cruel or unusual punishment? | 15-to-life is constitutional and was properly imposed (as this court held in Nash I). | New impeachment/newly discovered evidence and ineffective-assistance claims make a life term cruel/unusual now. | Denied — law of the case binds the resentencing court; Nash I already decided constitutionality. |
| 2. Could the trial court revisit the prior appellate determination on remand in light of new evidence/ineffective assistance claims? | The remand requires compliance with the appellate decision; sentencing court must follow law of the case. | The new evidence and counsel failures justify reconsideration on remand. | Denied — the law-of-the-case exception is narrow; Nash did not show manifest misapplication or substantial injustice. |
| 3. May the court impose 25-to-life under § 667.61(j)(2) though the amended information only alleged § 667.61(b),(c),(e) and stated the “Allegation Effect” as 15 Yrs–Life? | A 25-to-life term is authorized because victims were under 14 and § 667.61(b) cross-references subdivision (j). | The information did not give fair notice of 25-to-life exposure; judicial estoppel and due process bar increasing the exposure. | Denied — due process requires fair notice; where the pleading explicitly lists 15 Yrs–Life the defendant lacked fair notice of 25-to-life, so 25-to-life cannot be imposed on this record. |
Key Cases Cited
- People v. Mancebo, 27 Cal.4th 735 (establishes due-process/pleading notice requirement for sentencing enhancements)
- People v. Anderson, 9 Cal.5th 946 (a pleading alleging an enhancement as to one count does not provide fair notice that same enhancement may be applied to another count)
- People v. Jimenez, 35 Cal.App.5th 373 (held 25-to-life under § 667.61(j)(2) improper where information only put defendant on notice of § 667.61(b) exposure)
- In re Vaquera, 39 Cal.App.5th 233 (disagreed with Jimenez; held § 667.61(b) cross-reference could support 25-to-life)
- People v. Zaldana, 43 Cal.App.5th 527 (followed Vaquera on § 667.61(j)(2) notice issue)
- People v. Haro, 68 Cal.App.5th 776 (applied Anderson/Mancebo to reject imposition of greater enhancement where pleading did not give fair notice)
- Peracchi v. Superior Court, 30 Cal.4th 1245 (sentencing hearing follows verdict; court may not relitigate issues decided by jury)
- People v. Carbajal, 56 Cal.4th 521 (describes One Strike statute and its mandatory sentences)