In re OSCAR MANUEL VAQUERA on Habeas Corpus
S258376
IN THE SUPREME COURT OF CALIFORNIA
February 5, 2024
Fоurth Appellate District, Division Three G056786; Orange County Superior Court 12NF0653
Justice Groban authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, Jenkins, and Evans concurred.
Justice Groban authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, Jenkins, and Evans concurred.
California‘s “One Strike” law, codified at
In connection with this count, the prosecutiоn alleged a multiple victim circumstance under subdivision (b) of the One Strike law, which provides for a sentence of 15 years to life “[e]xcept as provided in subdivision (a), (j), (l), or (m).” (
Vaquera contends the court‘s imposition of a 25-year-to-life sentence for count 2 violated due process guarantees because the information did not provide him fair notice of the prosecution‘s election to seek that sentence. He further contends that he is entitled tо be resentenced to 15 years to life on count 2 because the due process violation deprived him of the opportunity to
I. BACKGROUND
A. The One Strike Law
“[T]he One Strike law sets forth an alternative and harsher sentencing scheme for certain sex crimes . . ..” (People v. Anderson (2009) 47 Cal.4th 92, 107 (Anderson I).) The law applies when the prosecution pleads and proves specific factual circumstances in addition to the elements of the underlying sex offense. (Id. at p. 102.) When the prosecution is рursuing sentencing under the One Strike law, the jury decides first whether the prosecution has proved the elements of the charged offense; if the jury convicts, it then independently considers whether the prosecution has proved the circumstances alleged to support sentencing under the One Strike law. (Anderson I, at p. 102.)
If the prosecution has not pled and proved a One Strike law allegation, the usual, determinate sentence for the sex crime applies. (See
When, however, a jury has found true a One Strike law allegation, the offense generally will be punishable by an indeterminate sentence of either 15 years to life or 25 years to life. (See
This general scheme is subject to exceptions added by the Chelsea King Child Predator Prevention Act of 2010 (Stats. 2010, ch. 219, § 16) (Chelsea‘s Law), codified in subdivisions (j), (l), and (m). (See
B. Procedural History
In an interview conducted as part of a child pornography investigation, Vaquera made incriminating admissions to the police about his conduct toward two children.4 The prosecution charged Vaquera by information with two counts — a separate count as to each of the two children — of committing “a lewd and lascivious act upon and with the body” of “a child under the age of fourteen (14) years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the defendant and the child” in violation of
The information also contained a One Strike law allegation as to each of these two counts. The allegation concerning the count at issue here read in full: “As to count(s) 2, it is further alleged pursuant to
The One Strike law allegation as to count 2 did not include a citation to subdivision (j)(2) — the provision under which the trial court ultimately sentenced Vaquera to 25 years to life. Nor did the allegation specify that the victim was under 14 years old — the fact that would trigger application of subdivision (j)(2) to a crime otherwise punishable under subdivision (b). (See
The jury convicted Vaquera as charged and found true the One Strike multiple victim allegations as to both counts. In its initial sentencing brief, the prosecution asked the court to impose a sentence of 15 years to life for count 2, explaining: “Counts 1 and 2 are convictions for [section] 288(a) with a multiple victim ‘One Strike’ enhancement under
A few weeks later, just four days before the sentencing hearing, the prosecution filed a new sentencing brief. In this secоnd brief, the prosecution informed Vaquera for the first time that it was seeking a sentence of 25 years to life on count 2. The brief explained that Chelsea‘s Law — which had taken effect two years before the prosecution filed the information in Vaquera‘s case and almost four years before it submitted its second sentencing brief — had added subdivision (j)(2) to the One Strike law. The brief argued that this amendment increased the sentence for an offense specified in subdivision (c) involving multiple victims from 15 years to life to 25 years to life whenever the victim was under 14 years old. Because the conduct alleged in count 1 predated the Chelsea‘s Law amendments, the prosecution acknowledged that Vaquera could be sentenced only to 15 years to life on that count. As to the offense alleged in count 2, however, which occurred after the Chelsea‘s Law amendments took effect, the prosecution contended that the One Strike law required the trial court to impose a 25-year-to-life sentence. The prosecution‘s new brief urged the court to impose the sentences on the two counts consecutively and sentence Vaquera to “a minimum of 40 years to life” — 10 years longer than it requested in its initial sentencing brief.
The court sentenced Vaquera to 25 years to life on count 2 and 15 years to life on count 1, to be served concurrently, for a combined sentence of 25 years to life. Vaquera appealed but did not challenge the legality of his sentence. The Court of Appeal affirmed, and we denied review.
The following year, the Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court inquiring about Vaquera‘s sentence. The letter pointed out that although the information had alleged a multiple
Vaquera then filed a petition for writ of habeas corpus in the Court of Appeal, claiming the trial court unlawfully imposed the 25-year-to-life sentence for count 2 because he did not have fair notice that he faced 25 years to life on that count. The Court of Appeal summarily denied relief, Vaquera sought review in this court, and we granted the petition and transferred the case back to the Court of Appeal with directions to issue an order to show cause.
The Court of Appeal issued the order to show cause. In the return, the Attorney General deniеd that the information failed to provide Vaquera fair notice that he could be sentenced to 25 years to life on count 2 under the One Strike law. The parties agreed that no evidentiary hearing was necessary. After oral argument, the court denied relief in a published opinion, In re Vaquera (2019) 39 Cal.App.5th 233 (Vaquera).
The Court of Appeal rejected as “fundamentally mistaken” Vaquera‘s contention that “the People could have elected to pursue a prison term of 15 years to life under
The Court of Appeal expressly disagreed with People v. Jimenez (2019) 35 Cal.App.5th 373 (Jimenez). (See Vaquera, supra, 39 Cal.App.5th at p. 244.) In Jimenez, the court had held it violated due process to sentence a similarly situated defendant to 25 years to life under subdivision (j)(2) because “the information only informed [the defendant] he could be sentenced to terms of 15 years to life under
II. DISCUSSION
Vaquera contends here, as he did in the Court of Appeal, that his sentence for count 2 is unlawful because the information did not provide fair notice of the specific One Strike sentence he faced. He argues he had a constitutional right to notice that the prosecution was seeking a sentence of 25 years to life under subdivision (j)(2) based on the victim‘s age, rather than 15 years to life under subdivision (b) based on the multiple victim circumstance alone. He further contends he is entitled to be resentenced to 15 years to life on count 2 because the violation of this right deprived him of the opportunity to consider his exposure to additional prison time when making key decisions about how to conduct his defense. The Attorney General argues that the information provided Vaquera fair notice of the sentence he faced on count 2 by way of the cross-reference to subdivision (j) in the text of subdivision (b) and that if the prosecution erred in failing to plead the One Strike circumstance with greater specificity, Vaquera is not entitled to resentencing on that basis.
We begin by considering what constitutes fair notice in this context.
A. Criminal Defendants Have a Constitutional Right to Fair Notice of Their Sentencing Exposure and the Factual Basis for That Exposure
A defendant has a due process right to fair notice of any sentencing allegation that, if proven, will increase the punishment for a crime. (People v. Anderson (2020) 9 Cal.5th 946, 953 (Anderson II); People v. Mancebo (2002) 27 Cal.4th 735, 747 (Mancebo).) In the sentencing enhancement context, the touchstone of fair notice is whether the accusatory pleading enables the defense to predict the sentence the defendant faces if convicted. To enable a defendant to make this prediction, an accusatory pleading must provide the defendant with fair notice of the factual basis on which the prosecution is seeking an increased punishment and of “the potential sentence.” (Anderson II, at p. 956.)
When the prosecution has not alleged a particular sentencing enhancement in connection with a specific count, a “defendant is ordinarily entitled to assume the prosecution made a discretionary choice not to pursue the enhancement . . . and to rely on that choice in making decisions such as whether to plead guilty or proceed to trial.” (Anderson II, supra, 9 Cal.5th at p. 956.) Sinсe an accusatory pleading that fails to inform the defendant that the prosecution is pursuing a particular sentencing enhancement in connection
Like a sentencing enhancement allegation, a “One Strike allegation exposes a defendant to greater punishment than would be authorized by a verdict on the offense alone.” (Anderson I, supra, 47 Cal.4th at p. 108.) Without a true finding on a One Strike allegation, the court may not apply the lengthier sentences provided for in the One Strike law. (Anderson I, at p. 108, citing Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) [“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt“].) Accordingly, we have held the prosecution must provide the defendant “fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing.” (Mancebo, supra, 27 Cal.4th at p. 754.)
The One Strike law contains an express pleading requirement: “The penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (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.” (
The Attorney General argues that due process does not require the prosecution to notify the defendant of the specific One Strike sentence it is seeking. In his view, the prosecution provides fair notice so long as it alleges the facts that support the One Strike sentence somewhere in the charging document and generally apprises the defendant of the potential for an enhanced penalty. In support of this argument, he cites to People v. Thomas (1987) 43 Cal.3d 818 (Thomas), in which we held that a pleading that alleged a general charge of manslaughter put the defendant on notice that he could be convicted оf either voluntary or involuntary manslaughter. (Id. at p. 828.) The Attorney General reads Thomas as supporting his argument that due process does not require the prosecution to make clear that it is relying on facts alleged in support of a charged offense to also support a One Strike sentence.
We rejected a similar argument in Mancebo, supra, 27 Cal.4th at page 747, concluding that Thomas did not support the Attorney General‘s contention that it was sufficient for the accusatory pleading to place the appellant on general notice that the facts underlying the One Strike circumstance would be at issue at trial. In Mancebo, the defendant was charged with committing One-Strike-qualifying crimes against more than one victim, but the prosecution did not plead a One Strike multiple victim allegation. (Mancebo, at p. 743.) We acknowledged that the defendant‘s conviction of the charged crimes would have made it “difficult to meaningfully contest” the truth of a multiple victim circumstance had the prosecution alleged one. (Id. at p. 752.) Nevertheless, we held that it would be inconsistent with the One Strike law‘s express pleading requirement and with due process to base a One Strike sentence on that circumstance because the prosecution had not pled it. (Mancebo, at p. 752.) An information, we held, must allege “which qualifying circumstance or circumstances are being invoked for One Strike sentencing.” (Ibid.) This requirement, we explained, is dictated not only by the language of the One Strike law‘s express pleading requirement but also by due process, because the prosecution‘s failure to inform the defendant that it is invoking those circumstances in support of a particular One Strike sentence “violates [the defendant‘s] right to adequate notice of the factual and statutory bases of sentence enhancement allegations.” (Mancebo, at p. 746; see id. at p. 747 [“[A] defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment“].) In sum, to satisfy due process, an accusatory pleading must inform the defendant that the prosecution is relying on specific facts to support imposition of a particular One Strike sentence. (Mancebo, at pp. 746-747.) Our holding in Thomas is not to the contrary. (Mancebo, at pp. 747-748.)7
To be sure, as we have emphasized, due process does not require “rigid code pleading or the incantation of magic words.” (Anderson II, supra, 9 Cal.5th at p. 957.) An accusatory pleading need not specify the number of the pertinent sentencing statute, so long as it otherwise clearly notifies the
B. The One Strike Allegation on Count 2 Did Not Provide Vaquera Fair Notice That the Prosecution Was Seeking a 25-year-to-life Sentence Under Section 667.61(j)(2) Based on the Victim‘s Age
Applying these principles, we must determine whether the One Strike allegation as to count 2 provided Vaquera fair notice that the prosecution was seeking a sentence of 25 years to life under subdivision (j)(2) based on the victim being under the age of 14, rather than 15 years to life under subdivision (b) based on the multiple victim circumstance alone. As noted above, the allegation stated: “As to count(s) 2, it is further alleged pursuant to
At least on initial read, the allegation‘s citations to subdivisions (b) and (e)(4), combined with its invocation of the qualifying circumstance that Vаquera committed the covered offense “against more than one victim,” suggest the prosecution was seeking a sentence of 15 years to life based on the multiple victim circumstance. Subdivision (b) provides for a sentence of 15 years to life, and subdivision (e)(4) applies when a defendant is convicted in a single proceeding of committing a One Strike offense “against more than one victim.” Based on the underlying charges in this case, the prosecution had the choice of: (1) not including a One Strike allegation in the information and seeking a determinate sentence of three, six, or eight years (
Looking beyond the language of the One Strike allegation as to count 2, the way the prosecution framed the allegations as a whole further suggests it was not seeking sentencing under subdivision (j)(2). The Chelsea‘s Law amendments, by which the Legislature added subdivision (j) to the One Strike law, had taken effect two years before the prosecution filed the information. Under the prior version of the statute, subdivision (e)(4) pertained to the personal use of a firearm; the multiple victim circumstance was codified in former subdivision (e)(5). The information cites former subdivision (e)(5) in connection with the One Strike law allegation as to count 1, which was based on conduct predating the Chelsea‘s Law amendments. The allegation аs to count 2, by contrast, cites subdivision (e)(4) for the multiple victim circumstance. The prosecution‘s citation to subdivision (e)(4) rather than subdivision (e)(5) in connection with count 2, but not count 1, therefore suggests it was
We considered a somewhat similar issue in Anderson II, supra, 9 Cal.5th at page 957, where we concluded that the pleading of a vicarious firearm allegation carrying a 25-year-to-life sentence as to one count did not provide fair notice that thе prosecution would seek additional vicarious firearm enhancements as to other counts. We observed that the prosecution‘s choice “to allege other, lesser enhancements” on the counts at issue gave the defendant “reason to believe the prosecution was exercising its discretion not to seek the . . . 25-year-to-life enhancement” on those counts. (Id.) In this case, the framing of the One Strike allegation as to count 2, particularly when considered in juxtaposition to the framing of the One Strike allegation as to count 1, gave Vaquera reason to believe the prosecution was exercising its discretion not to seek sentencing under subdivision (j)(2) by pleading subdivision (b) and relying exclusively on the multiple victim circumstance rather than also pleading that the victim was under the age of 14.
In circumstances parallel to those of this case, the Court of Appeal in Jimenez, supra, 35 Cal.App.5th 373 held that the imрosition of 25-year-to-life sentences under subdivision (j)(2) violated the defendant‘s due process right to fair notice. (Jimenez, at p. 397.) In Jimenez, as here, a jury convicted the defendant of committing One-Strike-eligible offenses against multiple victims under the age of 14 and also found true a One Strike multiple victim allegation: that “Jimenez did ‘commit the offense on more than one victim within the meaning of
The Attorney General points out that subdivision (b)‘s initial clause states that a sentence of 15 years to life shall be imposed “[e]xcept as provided in subdivision . . . (j)” and that subdivision (j)(2), in turn, states that any “person who is convicted of an offense specified in subdivision (c)” — among which is the offense alleged in count 2 — “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.” (
We recognize, as the Court of Appeal emphasized and as Vaquera concedes, that the provisions of the One Strike law
generally are mandatory when properly pled and proved. (Vaquera, supra, 39 Cal.App.5th at p. 245.) If the prosecution had alleged under
However, the question before us is whether the information provided fair notice to Vaquera of thе One Strike sentence the prosecution was seeking and the factual basis on which it sought that sentence. To provide fair notice, an “accusatory pleading must adequately inform the defendant as to how the
prosecution of its obligation to provide fair notice to the defendant of the sentence it is seeking. The Court of Appeal therefore erred in concluding that because the jury found the facts that wоuld support sentencing under
The determination whether an accusatory pleading provides fair notice of a potential One Strike sentence requires a careful analysis of the language of the One Strike allegation. Here, the One Strike allegation specified that it was making “further” allegations “[as] to count 2.” It may be possible to read this language as not only specifying the count to which the allegation pertained but as also incorporating by reference the factual allegations in cоunt 2, including, as relevant here, that the victim was under the age of 14. However, to use a fact alleged in connection with the underlying offense to support a One Strike allegation, the prosecution must provide fair notice that it intends to use that fact for purposes of One Strike sentencing. (Cf. Anderson, supra, 9 Cal.5th at pp. 956–957 [“Fair notice requires that every sentence enhancement be pleaded in connection with every count as to which it is imposed“]; Mancebo, supra, 27 Cal.4th at p. 754 [upholding decision striking unpled multiple victim circumstances although charging document alleged One-Strike-qualifying offenses against multiple victims].) The prosecution did not provide fair
notice of its intent to rely on the allegation concerning the victim‘s age to seek a 25-year-to-life sentence under
There are various ways the prosecution could have provided fair notice of its intent to seek sentencing under
prosecution framed the allegation in either of these ways, due process would not have required it to expressly specify that it was seeking 25 years tо life on count 2, although doing so would have rendered the pleading even clearer as to Vaquera‘s sentencing exposure. Alternatively, had the prosecution specified in the One Strike allegation that it was seeking 25 years to life on count 2 and alleged the factual circumstances on which it was relying to support that sentence, that would have provided fair notice even without a citation to
The One Strike allegation as to count 2, however, did not specify that the prosecution was seeking 25 years to life on that count, cite to
Hаving determined that the imposition of a 25-year-to-life sentence under
We need not decide whether Mancebo‘s analysis applies in the present context because even assuming the due process violation is subject to a prejudice analysis, Vaquera is entitled to resentencing. In Anderson II, supra, 9 Cal.5th at page 964, we held that the defendant was entitled to resentencing where the prosecution‘s intent to seek the sentencing enhancements at issue only became clear on the day of the sentencing hearing — “too late to cure the defective pleading.” We reasoned that the purpose of a statutory pleading requirement is “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.” (Ibid.; see also Mancebo, supra, 27 Cal.4th at p. 752 [observing
that timely notice of a sentencing allegation may impact a defendant‘s decision “whether to plea bargain or go to trial“].) Because Anderson did not receive notice of the potential sentence he faced in time for him to take his sentеncing exposure into account in making those decisions, we concluded the pleading error was not harmless and he was entitled to resentencing. (Anderson II, at p. 964.) Nothing in the record here suggests Vaquera learned of his sentencing exposure on count 2 in time for him to take it into account in fashioning his defense strategy. Accordingly, the Attorney General has not met his burden to show the fair notice violation was harmless.
The Attorney General argues that Vaquera had actual notice that he faced a 25-year-to-life sentence on count 2 because the One Strike law required the court to impose a 25-year-to-life sentence. This argument rests on the erroneous premise that a 15-year-to-life sentence under
The Attorney General further argues that Vaquera is not entitled to resentencing because he should have been aware that the prosecution could seek sentencing under
months after the jury returned its verdict, that it first made clear its intent to seek 25 years to life under
This would be a different case if the prosecution had provided Vaquera timely actual notice that it was seeking a 25-year-to-life sentence on count 2 and the factual basis on which it was seeking that sentence, despite its failure to provide such notice in the information. (See People v. Houston (2012) 54 Cal.4th 1186, 1228 [finding the defendant forfeited on appeal due process claim based on indictment‘s failure to provide fair notice of sentencing exposure where the defendant “received adequate notice of the sentence he faced” before the case was submitted to
III. CONCLUSION
For the reasons given above, we reverse the judgment of the Court of Appeal and remand with instructions to grant Vaquera habeas corpus relief and to direct the trial court to
strike the 25-year-to-life sentence imposed under
GROBAN, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
EVANS, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Vaquera
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 39 Cal.App.5th 233
Review Granted (unpublished)
Rehearing Granted
Opinion No. S258376
Date Filed: February 5, 2024
Court: Superior
County: Orange
Judge: David A. Hoffer
Counsel:
Sharon Petrosino, Public Defender, Sara Ross, Assistant Public Defender, Miles David Jessup, Matthew Darling and Abby Taylor, Deputy Public Defenders, for Petitioner Oscar Manuel Vaquera.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Paige B. Hazard and James M. Toohey, Deputy Attorneys General, for Respondent the People.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Abby Taylor
Deputy Public Defender
801 Civic Center Drive West, Suite 400
Santa Ana, CA 92701
(657) 251-8607
Paige B. Hazard
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 540-0201