In re Vaquera
California’s “One Strike” law, codified at Penal Code section 667.61, is an alternative sentencing scheme that applies when the prosecution pleads and proves specific aggravating circumstances in connection with certain sex offenses.1 The prosecution charged Oscar Manuel Vaquera by information with two counts of an offense covered by the One Strike law — committing a lewd act on a child under the age of 14 — and a jury convicted him on both counts. (
In connection with this count, the prosecution alleged a multiple victim circumstance under subdivision (b) of the One Strike law, which prоvides 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 to be resentenced to 15 years to life on count 2 because the due process violation dеprived him of the opportunity to consider his exposure under subdivision (j)(2) when making key decisions about his defense. The Attorney General argues that the information provided Vaquera fair notice and that to the extent the information was ambiguous as to the prosecution’s intent to seek sentencing under subdivision (j)(2), Vaquera is not entitled to resentencing on that basis. We agree with Vaquera and direct the trial court to strike his 25-year-to-life sentence on count 2 and resentence him to 15 years to life on that count.
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 pursuing sentencing under the One Strike law, the jury decides first whether the prosecution has proved the elements of the chargеd offense; if the jury convicts, it then independently considers
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 section 288, subdivision (a).5
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 Penal Code sections 667.61(b)/(e)(4), that in the commission of the above offense, defendant OSCAR MANUEL VAQUERA committed an offense specified in Penal Code section 667.61(c) against more than one victim.” As noted above, subdivision (b) of the One Strike law prescribes a 15-year-to-life sentence for a conviction of one of the offenses listed in subdivision (c) when the jury finds true one of the circumstances specified in subdivision (e). The offense of
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 Penal Code section 667.61(b)/(e)(4) and (5). The penalty for each count is an indeterminate sentence of 15 years to life, with the court holding the option to run the counts concurrently or consecutively to each other.” The prosecution requested that Vaquera be sentenced to “a minimum of 30 years to life” on all counts.
A few weeks later, just four days before the sentencing hearing, the prosecution filed a new sentencing brief. In this second brief, the prosecution infоrmed 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
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 denied that the information failed to provide Vaquera fair notice that he could bе 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 section 667.61, subdivision (b), rather than a prison term of 25 years to life under section 667.61, subdivision (j)(2).” (Vaquera, supra, 39 Cal.App.5th at pp. 244–245.) It observed that “[s]ection 667.61, subdivision (b), requires a sentence of 15 years to life
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 Penal Code section 667.61, subdivisions (b) and (e) for committing the alleged offenses against multiple victims.” (Jimenez, at p. 397.)
We granted Vaquera’s petition for review to resolve this split of authority.
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
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
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 of either voluntary or involuntary manslaughter. (Id. at p. 828.) The Attorney General reads Thomas as supporting his argument that due process doеs not require the prosecution
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
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 accused of the factual basis on which it is seeking a longer sentence and the information necessary to calculate sentencing exposure. (
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 Penal Code sections 667.61(b)/(e)(4), that in the commission of the above offense, [Vaquera] committed an offense specified in Penal Code section 667.61(c) against more than one victim.” The first subdivision of the One Strike law cited in the allegation, subdivision (b), states: “Except as provided in
At least on initial read, the allegation’s citations to subdivisions (b) and (e)(4), combined with its invocation of the qualifying circumstance that Vaquera committed the covered offense “against more than one victim,” suggest the prosecution was seeking a sentence of 15 years tо 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 as 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
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 the prosecution would seek additional vicarious firearm enhancements as to other counts. We observed that the prosecution’s choice “to allege other, lessеr 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. (Ibid.) 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.
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
We recognize, as the Court of Appeal emphasized and as Vaquera concedes, that the provisions of the One Strike law
However, the question bеfore us is whether the information provided fair notice to Vaquera of the 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 will seek to exercise its discretion.” (Anderson II, supra, 9 Cal.5th at p. 957.) As we have explained, a prosecutor has the discretion to charge any provision of the One Strike law supported by the facts or, indeed, to elect not to invoke the One Strike law at all; nothing requires the prosecutor to charge the One Strike provision that carries the longest sentence. (See Anderson II, at p. 957; see People v. Villegas (2023) 97 Cal.App.5th 253, 367–368.)10 The fact that the trial court must impose a One Strike sentence when a One Strike allegation is properly pled and proved does not relieve the
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 thе count to which the allegation pertained but as also incorporating by reference the factual allegations in count 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
There are various ways the prosecution could have provided fair notice of its intent to seek sentencing under subdivision (j)(2). The prosecution could have briefly alleged in the One Strike law allegation the factual circumstances on which it was relying (Vaquera having been convicted in the present case of committing violations of
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 subdivision (j)(2), or otherwise make clear that the prosecution was seeking a longer sentencе based on the victim‘s age. Because the allegation did not inform Vaquera of the prosecution‘s intent to invoke the One Strike law circumstance on which the trial court ultimately sentenced him, the allegation failed to provide him fair notice.
Having determined that the imposition of a 25-year-to-life sentence under subdivision (j)(2) on count 2 violated Vaquera‘s due process right to fair notice, we now consider whether he is entitled to resentencing. Vaquera argues, citing Mancebo, that he is entitled to be resentenced to 15 years to life on count 2 because the prosecution waived its right to seek a 25-year-to-life sentence under subdivision (j)(2) by pleading subdivision (b) and not seeking to amend the information. (See Mancebo, supra, 27 Cal.4th at p. 749 [“doctrines of waiver and estoppel, rather than harmless error, apply” where the prosecution‘s failure to plead a One Strike allegation reflects a “discretionary charging decision“].) Alternatively, citing Anderson II, supra, 9 Cal.5th at pages 963 to 964, Vaquera contends that he is entitled to be resentenced to 15 years to life on count 2 because the Attorney General has not demonstrated that the prosecution‘s failure to provide fair notice was harmless.
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 tо allocate investigatory resources, and what strategy to deploy at trial.” (Ibid.; see also Mancebo, supra, 27 Cal. 4th at p. 752 [observing
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 thе court to impose a 25-year-to-life sentence. This argument rests on the erroneous premise that a 15-year-to-life sentence under subdivision (b) would be unauthorized in the context of this case. As we have observed, subdivision (j)(2) requires the court to impose a 25-year-to-life sentence only when it has been properly pled and proved. As the Attorney General would have us read the statute, the prosecution‘s only options would be to omit a One Strike allegation entirely (i.e., not seek application of the One Strike scheme at all) or to seek the maximum sentence permitted under the One Strike law based on the facts proved in conjunction with the underlying sex offense (here, 25 years to life). As we have explained, this reading is incorrect: The prosecution may opt to allege a One Strike law circumstance that supports imposition of a 15-year-to-life sentence even when it alleges facts that would support imposition of a longer sentence elsewhere in the accusatory pleading.
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 the jury and had sufficient opportunity to request additional time to prepare a defense but “did not raise an objection in the trial court“].) Here, however, the Attorney General does not attempt to demonstrate that Vaquera received such notice by any means other than the information. In the return to the оrder to show cause, the Attorney General did not allege that Vaquera had actual notice the prosecution intended to seek a 25-year-to-life sentence under subdivision (j)(2) on count 2 at a time when Vaquera could have taken the prosecution‘s election into account in formulating his defense strategy. Nor did the return state facts or provide any ” ‘documentary evidence, affidavits, or other materials’ ” that would support a finding that Vaquera had timely actual notice. (People v. Duvall (1995) 9 Cal.4th 464, 476.) Vaquera therefore is entitled to resentencing on count 2.
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
GROBAN, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
EVANS, J.