THE PEOPLE, Plaintiff and Respondent, v. CHAD MELVIN MANCEBO, Defendant and Appellant.
No. S086481
Supreme Court of California
Mar. 11, 2002
735
Kyle Gee, under appointment by the Supreme Court, for Defendant and Appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Assistant Attorney General, Margaret Venturi, William G. Prahl, Ward A. Campbell and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
BAXTER, J.—
INTRODUCTION
In this case we address a claim of sentencing error under
The trial court recognized, and the parties agree, that the One Strike law expressly mandated that the circumstance of gun use first be used in the calculation of the “minimum number of circumstances” necessary to impose the One Strike indeterminate terms. (See
On appeal defendant argued that the
For the reasons that follow, we agree with the conclusion of the Court of Appeal that given the express pleading and proof requirements of
FACTS AND PROCEDURAL HISTORY
The uncontested facts bearing on the single sentencing issue before us can be briefly stated as follows: In July 1995, defendant pointed a handgun at and ordered 16-year-old Y. into his truck. He drove Y. to a remote location, on the way forcing her to orally copulate him. Later he committed forcible rape twice, sodomy twice, and another act of oral copulation. In August 1995, after 18-year-old R. voluntarily rode with defendant to a remote location, he placed a gun to her head, tied her hands, forcibly penetrated her
The amended information charged defendant with 10 offenses arising from the sexual assaults against each victim on different dates. Specifically, he was charged with kidnapping with intent to rape (count 1;
Defendant pleaded not guilty and denied all enhancement allegations. A jury found him guilty as charged and found all enhancement allegations to be true. The trial court sentenced defendant to prison for two consecutive 35-year-to-life terms on counts 3 and 9 (25 years to life, plus a 10-year gun-use enhancement for each offense).2 The court imposed the
In the Court of Appeal, defendant argued that the One Strike law‘s pleading provision (
Respondent acknowledged the error but urged it was harmless because defendant was on notice he was being charged with crimes against two victims, and the jury convicted him of crimes against them both. The Court of Appeal disagreed, finding the fixed-term gun-use enhancements imposed under counts 3 and 9 unauthorized under the express provisions of the One Strike law and thus not subject to harmless error analysis. The court therefore ordered those enhancements stricken. Because this holding appeared to conflict with an earlier published decision in People v. Knox (1999) 74 Cal.App.4th 757 [88 Cal.Rptr.2d 432] (Knox), we granted respondent‘s petition for review.
DISCUSSION
The One Strike law
Approximately six months after the Legislature enacted the “Three Strikes” law as urgency legislation, it adopted
Sentencing error
The record establishes that only two circumstances enumerated in
On appeal, defendant noted that the One Strike allegations respecting the forcible sex crimes committed against the victims in counts 3 and 9 pleaded gun use as one of the two minimally required circumstances in support of the 25-year-to-life terms. He therefore contended that under
We agree with defendant and the Court of Appeal below. “In construing a statute, our first task is to look to the language of the statute itself. [Citation.] When the language is clear and there is no uncertainty as to the legislative intent, we look no further and simply enforce the statute according to its terms. [Citations.] Additionally, however, we must consider the [statutory language under scrutiny] in the context of the entire statute . . . and the statutory scheme of which it is a part. ‘We are required to give effect to statutes “according to the usual, ordinary import of the language employed in framing them.” [Citations.]’ [Citations.]” (DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387-388 [20 Cal.Rptr.2d 523, 853 P.2d 978].)
The plain wording of
Moreover,
The People had to plead and prove the alleged gun-use circumstances under counts 3 and 9 before the court could impose the 25-year-to-life indeterminate terms under those counts. They were in fact formally pleaded in the information. Use of those same circumstances to impose 10-year gun-use enhancements would not fall within the exception of “punishment authorized under any other law” that “provides for a greater penalty.” (
Respondent sought a way around this sentencing problem by arguing that the multiple victim circumstance found in
In essence, respondent is urging that the pleading and proof requirements of
In this case, with respect to the forcible rape and sodomy offenses against different victims charged in counts 3 and 9, the information neither alleged multiple victim circumstances nor referenced
The decisions in People v. Haskin (1992) 4 Cal.App.4th 1434, 1438-1440 [7 Cal.Rptr.2d 1] (Haskin), People v. Najera (1972) 8 Cal.3d 504, 512 [105 Cal.Rptr. 345, 503 P.2d 1353] (Najera), and People v. Hernandez (1988) 46 Cal.3d 194, 208 [249 Cal.Rptr. 850, 757 P.2d 1013] (Hernandez), all cited by the Court of Appeal below, by analogy support this conclusion.
In Haskin, the defendant admitted an allegation of a prior prison term under
Although the Court of Appeal below found Haskin distinguishable in that it involved an admission of the enhancement allegation rather than a true finding following a jury trial, such a substitution, without the defendant‘s consent, violates his right to adequate notice of the factual and statutory bases of sentence enhancement allegations brought against him. That logic should apply as well in a case, such as this one, where the substituted enhancement provision is neither alleged in the information nor found true by the jury through a separate finding.
In Najera, supra, 8 Cal.3d 504, the defendant was charged with robbery. The information further alleged the defendant was “‘armed with a deadly weapon, to-wit, a gun.‘” (Id. at p. 506.) The evidence established the defendant used a gun during a robbery. (Id. at p. 507.) However, the information did not include a
Najera is factually distinguishable from the instant case in that here, although the jury was not directly presented with the issue, its verdicts, at a minimum, can be deemed an implied factual determination that defendant was convicted of “an offense specified in subdivision (c) against more than one victim.” (
In Hernandez, supra, 46 Cal.3d 194, criticized on other grounds in People v. King (1993) 5 Cal.4th 59, 78, fn. 5 [19 Cal.Rptr.2d 233, 853 P.2d 27], this court addressed the issue of whether a judge could impose an additional
We explained in Hernandez that “In the present case, as noted above, no notice whatsoever, not just of the code section but of the mens rea required by
Hernandez, like Haskin and Najera, is factually distinguishable from this case; here the only mens rea or scienter requirements for the multiple victim circumstance are subsumed within the requirements of the underlying offenses, which were litigated and resolved against the defendant. Nevertheless, all three decisions acknowledge at the threshold that, in addition to the statutory requirements that enhancement provisions be pleaded and proven, a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.
Respondent urged below that a specific statutory enumeration is not a prerequisite for a valid pleading, citing People v. Thomas (1987) 43 Cal.3d 818, 826 [239 Cal.Rptr. 307, 740 P.2d 419]. Relying on Thomas, respondent argued, “[i]t is sufficient that the allegations in the pleadings placed appellant on notice that the facts underlying the multiple victim circumstance would be at issue.” As the Court of Appeal below observed, however, this was not our holding in Thomas. Rather, Thomas involved whether a person accused of a general charge of manslaughter, alleged as “wilfully, unlawfully and with/o[ut] malice aforethought,” could be convicted of involuntary manslaughter. (Id. at p. 827.) We held in Thomas that inclusion
Respondent‘s reliance on our decision in the automatic appeal People v. Marshall (1996) 13 Cal.4th 799 [55 Cal.Rptr.2d 347, 919 P.2d 1280] (Marshall) is also misplaced. In Marshall, the defendant was charged with three first degree murders, and a death sentence was sought under formally pled multiple-murder special-circumstance allegations. The trial court decided not to present the multiple-murder special-circumstance allegations to the jury, reasoning that if the jury found the defendant guilty of more than one of the murders charged, the special circumstances would be established without the need for any further finding. We found this procedure constituted error but was nevertheless harmless. (Id. at p. 850.) Marshall is distinguishable from this case in that here, the One Strike multiple victim circumstances were never expressly alleged in the information. In contrast, the defendant in Marshall was given express notice that the People would be seeking the death penalty based on the special circumstance of multiple murder.
Finally, respondent‘s reliance on Jones, supra, 58 Cal.App.4th 693, is unavailing. The information in Jones alleged a multiple victim circumstance, thereby putting the defendant on notice that he came within the harsher sentencing provisions of the One Strike law. (Id. at p. 706.) The Jones court found that the trial court‘s failure to instruct the jury sua sponte on the alleged circumstances that would qualify defendant for One Strike treatment was harmless beyond a reasonable doubt. (Id. at p. 709.) The court rejected the defendant‘s claim that the jury was required to make a finding, separate from the verdicts, that each multiple victim circumstance alleged was true. Citing Marshall, the Jones court found any error was harmless. (Id. at p. 712.) The Jones case simply did not present the due process lack of notice/pleading problems implicated here and in Haskin, Najera, and Hernandez. (See People v. Garcia (1998) 63 Cal.App.4th 820, 833 [73 Cal.Rptr.2d 893] [“The complete lack of notice . . . , which was the basis for the court‘s reversal in Hernandez, is not present in the instant case, and a different standard for assessing prejudice applies here,” because the defendant conceded he was on notice of the enhancement allegation].)6
We agree with the Court of Appeal below that, in light of the pleadings, it is reasonable to conclude the People made their charging decision by interpreting the various provisions of
We recognize one recent case has applied a harmless error analysis under circumstances factually similar to those presented here. (See Knox,
The information in Knox charged various sex offenses committed against three victims. Each count alleged a gun-use circumstance under
“Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial. (People v. Toro (1989) 47 Cal.3d 966, 973 [254 Cal.Rptr. 811, 766 P.2d 577], disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3 [76 Cal.Rptr.2d 239, 957 P.2d 928].) . . .
“We conclude that under the present circumstances, any error in failing to expressly plead the multiple victim circumstance and include it as a finding on the verdict form was harmless. Appellant had adequate notice of the charges against him and against which he had to defend. The facts establishing the multiple victim circumstance were alleged. Appellant knew he was charged with numerous sexual offenses, committed with use of a firearm, against multiple victims. If true, these crimes and circumstances require a 25-year-to-life sentence, and appellant was convicted as charged of the crimes against all 3 victims. Neither appellant nor the record suggests that he would have defended the case any differently if the multiple victim circumstances (
The Knox court‘s conclusion that the defendant knew he was charged with numerous sexual offenses committed with use of a gun against multiple victims, and that, if true, those crimes and circumstances required a 25-year-to-life sentence (Knox, supra, 74 Cal.App.4th at p. 764) is questionable. In actuality, Knox had notice only that the People were formally alleging gun use as a single subdivision (e) qualifying circumstance, and hence, that he faced 15-year-to-life indeterminate terms under subdivision (b), rather than the 25-year-to-life terms he ultimately received under subdivision (a) of the One Strike law. Moreover, Knox did not involve the postconviction substitution of an unpleaded subdivision (e) circumstance for a properly pleaded circumstance, in order that the properly pleaded circumstance might be available for use in imposing an enhancement authorized under a different law. In short, Knox did not involve a violation of the express provisions of
In construing the provisions of
Furthermore, in many instances a defendant‘s decision whether to plea bargain or go to trial will turn on the extent of his exposure to a lengthy prison term. Under the People‘s position, there would be less incentive to plea bargain since the defendant would not be informed in advance of trial or sentencing that the prosecution intends to rely on the fact of convictions of offenses against multiple victims in support of a harsher One Strike term.
Last, although in this case the jury determined the truth of the One Strike qualifying circumstances,
Our dissenting colleagues point to several statements made by appellate counsel during oral argument as calling into question whether defendant has preserved or even intended to pursue a due process notice claim in this court. (Dis. opn. of Brown, J., post, at pp. 755-756.) We believe that placing exclusive reliance on selected portions of counsel‘s oral argument presentation would be unfair to both defendant and appellate counsel. Defendant plainly argued in his brief before this court that adequate notice of the charges and potential penalties he faced was of constitutional dimension and
We have acknowledged that, as a matter of factual proof, it would be difficult for a defendant to contest the truth of a multiple victim circumstance where he has been convicted of offenses against multiple victims. Perhaps counsel‘s observation at oral argument that “[I] [c]an‘t say there was something I could have proven if I‘d had the chance, or some fact I could have disputed if I‘d known about it,” was simply recognition of that reality. But the observation only begs the fair notice question in this case. The pleading and proof requirements of
The dissent also suggests our analysis “is reminiscent of the rigid code pleading requirements the Legislature has repeatedly rejected.” (Dis. opn. of Brown, J., post, at p. 756.) To the contrary, we do not here hold that the specific numerical subdivision of a qualifying One Strike circumstance under
The dissent further relies on People v. Karaman (1992) 4 Cal.4th 335 [14 Cal.Rptr.2d 801, 842 P.2d 100], suggesting that in Karaman “this court reached a different conclusion interpreting substantially identical [pleading and proof] language in
In sum, we conclude the trial court erred at sentencing when it purported to substitute the unpled multiple victim circumstances for the properly pleaded and proved gun-use circumstances in support of the One Strike terms under counts 3 and 9. The gun-use enhancements were then improperly imposed under those counts in contravention of the provisions of
CONCLUSION
The judgment of the Court of Appeal is affirmed, and the matter remanded to that court for further proceedings consistent with the views expressed herein.
Kennard, J., Werdegar, J., and Chin, J., concurred.
BROWN, J.—I respectfully dissent.
The majority asserts “a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.” (Maj. opn., ante, at p. 747.)
Indeed, at oral argument in this case, defense counsel repeatedly asserted, “I‘m not here arguing my client did not have sufficient notice. This is not a due process notice question.” “I don‘t think that there is any valid notice issue this trial lawyer could [have] raised, saying, ‘Golly gee, I didn‘t know there was more than one victim here.’ Of course he did.” “[I] [c]an‘t say there was something I could have proven if I‘d had the chance, or some fact I could have disputed if I‘d known about it.” Any omission in the information “[d]id not affect the trial of the case.” What the majority refers to as a “clarifi[cation]” (maj. opn., ante, at p. 753) of defendant‘s position occurred only after two justices strongly prodded defense counsel regarding his repeated assertion there was no due process question. Hence counsel‘s response to such inquiry does not negate his earlier extended and categorical comments.2
Rather, defendant argues that the
Accordingly, even if the majority is correct to conclude that there was error in the charging document in this case, it must concede defendant‘s actual notice was more than adequate. While it may be better practice to include a more explicit reference to the multiple victim circumstance in the pleading, there can be no doubt under the circumstances of this case that notice was adequate. In concluding the Court of Appeal was correct to strike the gun-use enhancements, the majority exalts form over substance.
Indeed, by insisting the prosecutor specifically plead by statutory number, or use the phrase “multiple victim” in the information, the majority‘s result is reminiscent of the rigid code pleading requirements the Legislature has repeatedly rejected. (
Nor does the majority‘s consideration of
The majority notes that under
Unable to escape defendant‘s repeated concessions at oral argument that there is no due process issue here, the majority concludes either use of the multiple victim circumstance was waived by the prosecution, or the sentence was unauthorized, and hence any lack of prejudice is immaterial. (Maj. opn., ante, at pp. 743, 749, fn. 7.) Of course, use of the circumstance was not waived, given the prosecutor requested its use at sentencing, and the factual circumstances underlying the circumstance were set forth in the information and found true by the jury.
Nor was the sentence unauthorized. (Maj. opn., ante, at pp. 743, 749, fn. 7.) As Justice Baxter has previously thoughtfully explained, “a sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354 [36 Cal.Rptr.2d 627, 885 P.2d 1040] (Scott).) The “‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal.” (Id.) By contrast, “claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Id.; People v. Jenkins (2000) 22 Cal.4th 900, 1000 [95 Cal.Rptr.2d 377, 997 P.2d 1044] [general rule that an appellate court will not consider procedural defects or erroneous rulings when an objection could have been but was not presented to the lower court].)
In this case there is no question the sentence imposed was allowable under the relevant statutory scheme. In other words, the fact defendant committed certain sex crimes against multiple victims is a permissible circumstance under which to apply the One Strike law. (
The case law on which the majority relies necessarily only by “analogy” is distinguishable because in this case the information contained the requisite factual allegations and the jury necessarily found these facts to be true. (Maj. opn., ante, at p. 745; id. at pp. 745-748.) In People v. Hernandez (1988) 46 Cal.3d 194, 199 [249 Cal.Rptr. 850, 757 P.2d 1013] (Hernandez) (abrogated by People v. King (1993) 5 Cal.4th 59, 78, fn. 5 [19 Cal.Rptr.2d 233, 851 P.2d 27], and superseded by statute as noted in People v. Rayford (1994) 9 Cal.4th 1, 8-9 [36 Cal.Rptr.2d 317, 884 P.2d 1369]), the defendant was convicted of rape and kidnapping. Former
In People v. Najera (1972) 8 Cal.3d 504, 508 [105 Cal.Rptr. 345, 503 P.2d 1353] (disagreed with by People v. Wiley (1995) 9 Cal.4th 580, 587-588 [38 Cal.Rptr.2d 347, 889 P.2d 541]), the People stipulated that a gun-use enhancement under
More apt is People v. Karaman (1992) 4 Cal.4th 335 [14 Cal.Rptr.2d 801, 842 P.2d 100] (limited on other grounds in People v. Howard (1997) 16 Cal.4th 1081, 1095 [68 Cal.Rptr.2d 870, 946 P.2d 828]), a case not discussed by the majority and which preceded the enactment of
The majority sets forth a parade of horribles that will result if defendant in this case is held to a sentence allowable under the statute and to which he did not object. (Maj. opn., ante, at p. 752.) The majority notes, “In many instances, the fair notice afforded by [the] pleading requirement may be critical to the defendant‘s ability to contest the factual bases and truth of the qualifying circumstances invoked by the prosecution in support of One Strike sentencing.” (Id.) That may be true in a different case, but as defendant has repeatedly conceded, it is not the situation here. The majority is also concerned that if a defendant is “not . . . informed in advance of trial or sentencing that the prosecution intends to rely on the fact of convictions of offenses against multiple victims in support of a harsher One Strike term,” he may be less inclined to plea bargain. (Id.) Given the terms of the One Strike law, such as the prohibition of the trial court striking any circumstance, a plea bargain seems unlikely. (
While engaging in such speculation based on facts not present here, the majority on the other hand seeks to limit the effect of its interpretation of the actual statutory language at issue. (Maj. opn., ante, at p. 745, fn. 5.) As both parties observe, substantially identical language to that in
I would reverse the Court of Appeal‘s judgment.
George, C. J., and Moreno, J., concurred.
Notes
“(a) A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j). . . .
“(c) This section shall apply to any of the following offenses:
“(1) A violation of paragraph (2) of subdivision (a) of Section 261. . . .
“(5) A violation of subdivision (a) of Section 289.
“(6) Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. . . .”
“(e) The following circumstances shall apply to the offenses specified in subdivision (c):
“(1) Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 208, 209, or 209.5. . . .
“(4) The defendant personally used a dangerous or deadly weapon or firearm in the commission of the present offense in violation of Section 12022, 12022.3, or 12022.5.
“(5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.
“(6) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense. . . .
“(f) If only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law. Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e).
“(i) For the penalties provided in this section to apply, the existence of any fact required under subdivision (d) or (e) 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.”
Although