THE PEOPLE, Plaintiff and Respondent, v. VERNON
S253227
IN THE SUPREME COURT OF CALIFORNIA
July 23, 2020
First Appellate District, Division Three, A136451; San Francisco City and County Superior Court, 206013
Justice Kruger authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu, Cuéllar, and Groban concurred.
Opinion of the Court by Kruger, J.
A jury convicted defendant Vernon Anderson of several offenses, including five counts of second degree robbery. As to each of these five counts, the operative information alleged personal firearm use enhancements that would have increased Anderson‘s sentence by three, four, or 10 years as to each count. (
We granted review to consider whether the trial court properly imposed the five 25-year-to-life enhancements in connection with counts as to which the enhancements had not been alleged. The answer is no. Because Anderson did not receive adequate notice that the prosecution was seeking to impose this additional punishment on these counts, we reverse and remand for resentencing.
I.
Anderson, together with a group of at least five other young men, arrived at a house party in San Francisco. The host asked them to leave. They left briefly but then returned to the house with guns. Standing outside the house, the young men began demanding money from several partygoers, trying to go through their pockets and snatching their purses. One of the men — it is not clear who — then began shooting. Five of the bullets struck and killed Zachary Roche-Balsam, another partygoer who had been standing in front of the house.
Anderson was charged by information with the first degree murder of Roche-Balsam (
For each of the substantive offenses charged, the information alleged various sentence enhancements. This case concerns firearm enhancements under
Before trial, the prosecution offered to strike all charges and enhancements if Anderson pleaded guilty to second degree murder with a 15-year-to-life penalty, as well as to one count of robbery and one count of being an active participant in a street gang. Anderson rejected the deal. At that time, the prosecutor stated in open court that, by his calculations, Anderson, then age 25, faced approximately “60 years to life or more” if he lost at trial — a calculation apparently based on the premise that Anderson faced only one 25-year-to-life enhancement, the enhancement alleged in connection with the murder count.
At trial, the evidence connected Anderson to the robberies outside the house party in San Francisco. No witness could clearly identify the person who shot and killed Roche-Balsam, but witnesses identified Anderson as one of several people holding a gun and robbing partygoers. An expert witness opined that Anderson was a member of a gang called Randolph Mob and that the crimes were gang related.
The trial court instructed the jury that it could find that the prosecution proved the elements of the 25-year-to-life vicarious firearm discharge enhancements under section 12022.53(e) as to the robbery counts — even though they were not alleged in the operative information — and approved verdict forms to the same effect. The record does not show definitively how this occurred, but it appears the prosecution requested this instruction as to the robbery counts after the close of the evidence. The jury convicted Anderson on all 10 counts and returned true findings on all the enhancement allegations contained in the verdict forms.
At the sentencing hearing the prosecution initially asked the court to impose the less severe 10-year personal firearm-use enhancements, which had been pleaded in the information, and to “[i]mpose and stay” the 25-year-to-life vicarious firearm discharge enhancements as to the robbery counts.
On appeal, Anderson argued for the first time that the trial court erred in imposing the five unpleaded 25-year-to-life enhancements because the enhancements had not been adequately pleaded in the charging document. Anderson relied on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), where we held that a court could not impose a sentence under the “One Strike” law (
The Court of Appeal rejected Anderson‘s argument in a footnote of its unpublished opinion (People v. Anderson (Nov. 19, 2018, A136451)), concluding “defendant was properly sentenced in conformity with People v. Riva (2003) 112 Cal.App.4th 981.”1 In Riva, the Court of Appeal held that an information adequately pleaded a
We granted review to decide whether the trial court erred by imposing firearm enhancements under section 12022.53(e) that were not pleaded in connection with the relevant counts.
As a rule, all sentence 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.” (
Beneath all three statutory pleading requirements lies a bedrock principle of due process. ” ‘No principle of procedural due 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.’ ” (People v. Toro (1989) 47 Cal.3d 966, 973 (Toro).) 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.)
The question before us is whether the accusatory pleading in this case gave Anderson adequate notice of the allegations that were ultimately invoked to add at least 125 years to his sentence. The information alleged a section 12022.53(e) vicarious liability enhancement as to the murder count but not as to the robbery counts. Both parties now agree that the operative information did not provide Anderson with statutorily adequate notice that the prosecution would seek to invoke vicarious liability enhancements as to each of the robberies. We agree as well.
Mancebo‘s holding was limited to the pleading requirements of section 667.1, subdivisions (f) and (i). (Mancebo, supra, 27 Cal.4th at p. 745, fn. 5.) But Mancebo‘s reasoning was not so limited. California courts accordingly have followed Mancebo‘s lead in interpreting various other statutory pleading requirements, including section 12022.53(e)‘s requirement that certain facts
We now confirm that the reasoning of Mancebo applies equally to a sentence enhancement imposed under section 12022.53 and hold that the information in this case did not comport with the relevant statutory pleading requirements. Anderson was entitled to a pleading that provided him with fair notice that he faced 25-year-to-life enhancements under section 12022.53(e) as to each charged robbery offense if this was the prosecution‘s intent. The operative information here did not allege that a coparticipant in the robbery offenses discharged a firearm, causing great bodily injury or death; it alleged only that Anderson personally used a firearm in the commission of those crimes. The information therefore did not comply with the applicable statutory pleading requirements, nor did it comport with the due process principles underlying those requirements.
In concluding otherwise, the Court of Appeal relied on Riva, which concerned the pleading of enhancements under section 12022.53(d) for personally discharging a firearm. In Riva, the defendant had fired a gun from inside his car at the occupants of another car, injuring a nearby pedestrian. (People v. Riva, supra, 112 Cal.App.4th at p. 986 (Riva).) The defendant was charged by information with attempted voluntary manslaughter, assault, and shooting at an occupied vehicle. (id.) The information also alleged a firearm enhancement under section 12022.53(d) in connection with the attempted voluntary manslaughter and assault counts. (Riva, at p. 1000.) Although the information did not also allege a firearm enhancement in connection with the shooting-at-an-occupied vehicle count, the verdict forms nonetheless asked the jurors to determine whether the prosecution had proved the enhancements
The Court of Appeal in Riva held that the information satisfied the statutory pleading requirements, notwithstanding this omission, because “the enhancement under section 12022.53[](d) was pled by number and description as to some of the counts in the information, just not the one on which the trial court imposed it.” (Riva, supra, 112 Cal.App.4th at p. 1002, italics added.) The pleading, the court ruled, thus “complied with the literal language” of
The Attorney General does not rely on Riva, instead conceding that the prosecution was required to plead the vicarious liability enhancements under section 12022.53(e) in connection with the robbery counts if it wished for the court to impose those enhancements as to those counts. We accept the concession and, further, disapprove People v. Riva, supra, 112 Cal.App.4th 981. The statutory pleading requirements of section 12022.53 and section 1170.1(e), read against the backdrop of due process, require more than simply alleging the facts supporting an enhancement somewhere in the information. (Contra, Riva, at p. 1001.) The pleading must provide the defendant with fair notice of the potential sentence. A pleading that alleges an enhancement as to one count does not provide fair notice that the same enhancement might be imposed as to a different count. When a pleading alleges an enhancement in connection with one count but not another, the defendant is ordinarily entitled to assume the prosecution made a discretionary choice not to pursue the enhancement on the second count, and to rely on that choice in making decisions such as whether to plead guilty or proceed to trial. (See People v. Sweeney (2016) 4 Cal.App.5th 295, 301 [information alleging gang enhancements under
The Riva court reasoned that the pleading failure there did not interfere with the defendant‘s ability to contest the factual basis for the allegation at trial because the same enhancement was pleaded as to other counts. (Riva, supra, 112 Cal.App.4th at p. 1003.) Given the specific circumstances of the case, the defendant was “on notice he had to defend against the allegation,” and it seemed unlikely the error “affected his decision whether to plea bargain.” (id.) These are not, however, reasons to conclude that no pleading error occurred; they are reasons to conclude the error was not prejudicial. The Riva court erred by confusing the question whether the pleading was adequate with the separate question whether the pleading defect prejudiced the defendant (see pt. III, post).
Here the section 12022.53(e) vicarious firearm discharge allegation as to the murder count failed to provide Anderson with fair notice that the prosecution would seek additional vicarious firearm discharge enhancements as to each of the five robberies, with each enhancement carrying an additional penalty of 25 years to life. Indeed, Anderson had reason to believe the prosecution was exercising its discretion not to seek the same 25-year-to-life enhancement as to the robbery counts: With respect to those counts, the prosecution chose to allege other, lesser enhancements for personal use of a firearm under
We do not mean to suggest that an information that fails to plead the specific numerical subdivision of an enhancement is necessarily inadequate. (Mancebo, supra, 27 Cal.4th at p. 753.) Neither the relevant statutes nor the due process clause requires rigid code pleading or the incantation of magic words. But the accusatory pleading must adequately inform the defendant as to how the prosecution will seek to exercise its discretion. Here the information had to inform Anderson that he faced five additional 25-year-to-life enhancements in connection with the five robbery counts. It failed to do so.
III.
Although the Attorney General acknowledges that the information did not satisfy the applicable statutory pleading requirements, he urges us to uphold Anderson‘s sentence on the ground that the jury instructions and verdict
A.
As previously noted, although the information did not plead vicarious firearm discharge enhancements with respect to the five robbery counts, the jury instructions and verdict forms nonetheless asked the jury to return findings that would support these enhancements. The record does not reveal precisely how this came to pass. But we know defense counsel did not object to the instructions or verdict forms, instead initialing the relevant documents and telling the court the instructions “appear to be in order and complete.” The Attorney General argues that, by failing to object, Anderson impliedly consented to an informal amendment of the information to add the additional enhancement allegations as to the robbery counts.
Under the Penal Code, an accusatory pleading may be amended for “defect or insufficiency, at any stage of the proceedings.” (
The Attorney General‘s argument relies primarily on Toro. In that case, we held that the defendant‘s failure to object on notice grounds to the inclusion of a lesser related offense on the verdict form forfeited his inadequate notice claim on appeal.
(Toro, supra, 47 Cal.3d at pp. 976–977.) We considered this failure to object to be implied consent to treat the information as informally amended to include the lesser offense. (id.) But our willingness to imply the defendant‘s consent to amend from his silence rested on considerations specific to that situation. We emphasized that “submission of lesser related
The situation in Toro, in which the jury was given the option of convicting the defendant of a lesser offense, was quite different from the situation we confront in this case. Unlike the defendant in Toro, Anderson derived no possible benefit from submitting the unpleaded 25-year-to-life enhancements to the jury. There is therefore no reason to presume from defense counsel‘s silence that Anderson consented to this procedure. (Cf., e.g., People v. Ramirez (1987) 189 Cal.App.3d 603, 623 [“Conviction for an uncharged greater offense not only raises the problem of notice but makes the inference of consent more difficult, as there is no reason why a defendant should acquiesce in substitution of a greater for a lesser offense.“]; People v. Haskin (1992) 4 Cal.App.4th 1434, 1440 [applying same principle in context of sentence enhancements].)
The reasoning of People v. Arias (2010) 182 Cal.App.4th 1009 is persuasive on this point. In that case the Court of Appeal held that the defendant‘s sentences for two attempted murders violated the relevant statutory pleading requirements because the prosecution failed to allege that the offenses were committed willfully, deliberately, and with premeditation — a fact that increased the defendant‘s punishment. (Arias, at pp. 1016–1020;
Based on People v. Sandoval (2006) 140 Cal.App.4th 111, 132–134, the Attorney General argues courts may apply the so-called informal amendment doctrine not just where it benefits the defendant but also to allow for the addition of greater crimes or additional enhancements. In Sandoval, the prosecution, formally, in open court, and with the defendant and counsel present, orally requested and was granted an amendment to the information to allege a prior strike conviction that increased the defendant‘s sentence. (Sandoval, at p. 134.) Defense counsel stated she had no objection to the amendment. (id.) The defendant then admitted the strike in open court and signed a plea form admitting the same. (id.) The record there made clear that the defendant “had reasonable notice of the prior strike allegation and that any defect in the form of the allegation did not prejudice [him].” (id.) The oral amendment of the information, therefore, provided the defendant with adequate notice of the prior strike allegation. (id.)
Sandoval makes clear that not every amendment to a pleading — even one that increases the defendant‘s potential criminal liability — need be made in writing. But the problem in this case is not just that there was no written amendment to the information. Here, in contrast to Sandoval, there was no hearing in open court where the prosecution asked to make an oral amendment to the information to add the section 12022.53(e) enhancements as to the robbery counts, nor was Anderson asked if he consented to the amendment, nor did the trial court ever grant such a request.
All we are left with, then, is counsel‘s failure to object to certain jury instructions and verdict forms that presented a set of issues to the jury that radically increased the potential penalties Anderson faced. For all the record shows, the drafting of the instructions and verdict forms may have simply been a mistake the parties did not manage to catch before it was too late. Under these circumstances, to treat defense counsel‘s lack of objection as acquiescence or consent would go a long way toward eroding Anderson‘s right to notice of the potential penalties he faced. We conclude no informal amendment of the information occurred here.
The Attorney General next argues Anderson forfeited his statutory notice claim by failing to raise it in the trial court. As noted above, when it became clear, on the day of sentencing, that the prosecution intended to ask the court to impose the 25-year to-life enhancements as to each of the five robbery counts, defense counsel objected in writing and orally, but only on Eighth Amendment cruel and unusual punishment grounds. (See
As a general rule, a criminal defendant who fails to object at trial to a purportedly erroneous ruling forfeits the right to challenge that ruling on appeal. (People v. Smith (2001) 24 Cal.4th 849, 852.) But there are exceptions to this rule. (See In re Sheena K. (2007) 40 Cal.4th 875, 881, fn. 2 (Sheena K.).) Anderson argues his case falls into a “narrow exception” for
” ‘unauthorized sentence[s]’ ” or those entered in ” ‘excess of jurisdiction.’ ” (People v. Scott (1994) 9 Cal.4th 331, 354.)
Anderson‘s argument relies heavily on Mancebo, where we reached the merits of the pleading deficiency issue even though the defendant had not objected at the time of sentencing. (Mancebo, supra, 27 Cal.4th at p. 749, fn. 7.) We explained: “In People v. Scott[, supra,] 9 Cal.4th 331, we held that ‘complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.’ (Id. at p. 356.) We distinguished as outside the scope of the rule nonwaivable errors such as ‘legal error resulting in an unauthorized sentence [that] commonly occurs where the court violates mandatory provisions governing the length of confinement.’ (Id. at p. 354, fn. omitted.)” (Mancebo, at pp. 749–750, fn. 7.) Because the One Strike law precluded the trial court from imposing the unpleaded enhancement, leaving no room for the exercise of sentencing discretion, we held that “the waiver rule announced in Scott is inapplicable here.” (Id. at p. 750, fn. 7.) Anderson reads this footnote to mean that the imposition of an unpleaded enhancement necessarily results in an unauthorized sentence.
Anderson is not alone in this reading. (See, e.g., Mancebo, supra, 27 Cal.4th at pp. 755, 758 (dis. opn. of Brown, J.) [criticizing the majority for its expansion of the unauthorized sentence doctrine].) But as subsequent cases
The unauthorized sentence doctrine is designed to provide relief from forfeiture for “obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings.” (People v. Smith, supra, 24 Cal.4th at p. 852.) It applies when the trial court has imposed a sentence that “could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott, supra, 9 Cal.4th at p. 354.) Take, for example, a sentence in excess of the statutory maximum. An appellate court would be required to correct such an error even if raised for the first time on appeal, since such a correction would require no fact-specific inquiry and the sentence would be unlawful under any circumstances. (See People v. Rivera (2019) 7 Cal.5th 306, 349.)
To impose unpleaded sentence enhancements is an error of a different variety, a point we made clear in People v. Houston (2012) 54 Cal.4th 1186, 1227 (Houston). In that case, a capital defendant contended he was improperly sentenced to life imprisonment for attempted murder, in addition to his death sentence, because the indictment failed to allege that the attempted murders were willful, deliberate, and premeditated. (Houston, at p. 1225id., quoting