People v. Wilford, D069888

Defendant Johnny Wilford was convicted by a jury of aggravated assault (§ 245(a)(4)), battery with serious bodily injury (§ 243(d)), resisting an officer (§ 148(a)(1)), and two counts of corporal injury to a cohabitant (§ 273.5(a)); enhancements for great bodily injury and parole status were found true; prior strike/serious/prison priors were also found.
Facts: Wilford repeatedly assaulted the victim(s), including choking, kicking, punching (resulting in fractured nose, broken teeth, hospitalization), and earlier domestic-violence incidents; one victim initially lied to police but later reported injuries.
At trial the jury deadlocked on a criminal-threat count; convictions entered on the other counts and enhancement findings led to an aggregate 22-year term (some terms stayed).
During deliberations the jury asked whether it must unanimously acquit of the greater offense before considering a lesser included offense; the court answered that it could not consider the lesser until it had unanimously acquitted the greater.
The prosecutor sought increased terms on the § 273.5 counts after the jury returned verdicts, relying on § 273.5(f)(1) (higher triad) although the information alleged only § 273.5(h)(1) (15‑day minimum probation jail condition); the court imposed a doubled one‑year‑four‑month midterm (doubled for strike) on each § 273.5 count.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jury instruction about order of considering lesser included offenses	Court's answer was correct or harmless because convictions supported by overwhelming evidence	Error in telling jurors they could not consider lesser until unanimous not guilty on greater; counsel ineffective for not objecting	Instructional error acknowledged but harmless under People v. Watson given overwhelming evidence of aggravated assault; conviction on count 1 affirmed
Sentencing on counts 5 & 6 under § 273.5(f)(1) when information pled § 273.5(h)(1)	The information alleged all facts required for (f)(1); (f)(1) is a sentencing alternative and need not be separately pled; no prejudice	Due process violated because defendant lacked notice he faced the higher (f)(1) triad; prosecutor sought increased sentence only after verdict	Trial court erred: sentencing under § 273.5(f)(1) reversed for counts 5 & 6 and remanded for resentencing; due process requires adequate notice of increased punishment

People v. Kurtzman, 46 Cal.3d 322 (court may instruct jury it may consider greater and lesser offenses in any order) (clarifies lesser-include instruction law)
People v. Watson, 46 Cal.2d 818 (standards for prejudice from non-constitutional error) (Watson harmless-error test)
People v. Breverman, 19 Cal.4th 142 (Watson review focuses on what a reasonable jury likely would have done) (guidance on harmless-error analysis)
People v. Cross, 61 Cal.4th 164 (treats § 273.5(f)(1) as functionally an enhancement/alternative scheme) (limits distinction between sentencing scheme and enhancement)
People v. Tardy, 112 Cal.App.4th 783 (where pleading and prosecutorial notice apprised defendant of enhanced exposure, sentencing on alternative theory upheld) (discusses notice and plea/stipulation context)
People v. Mancebo, 27 Cal.4th 735 (defendant's right to fair notice of charges and enhancements to prepare defense) (due process/notice principles)