THE PEOPLE, Plаintiff and Respondent, v. ROBERT NASH, Defendant and Appellant.
D079539
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 1/13/23
CERTIFIED FOR PUBLICATION; (Super. Ct. No. SCE371032)
Patrick Morgan Ford for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Convicted of three lewd acts on two young girls, defendant Robert Nash was originally sentenced to an aggregate prison term of 10 years after the trial court determined that a 15-years-to-life sentence on each count under the One Strike law (
The People further contend on appeal that prison terms of 15 years to life were unauthorized because
FACTUAL AND PROCEDURAL BACKGROUND
An amended information charged Nash with one lewd act (
Among the arguments on appeal, the People challenged Nash‘s sentence as unauthorized. They argued the trial court should have imposed 15-years-to-life prison terms that were mandated by the One Strike law (
Following issuance of thе remittitur, Nash filed a new trial motion and petitioned for writ of habeas corpus. He claimed he received constitutionally
The resentencing hearing took place on August 19, 2021. Nash‘s counsel argued that circumstances had changed since Nash I, with new evidence making the case “even thinner for the prosecution” and pointing to “factual innocence.” He faulted Nash‘s trial counsel for failing to hire an investigator to challenge the credibility of Nash‘s ex-wife Joy, who testified for the prosecution. Acknowledging that the request was a difficult one to make in light of the prior ruling in Nash I, counsel nonetheless urged the court to conclude that a prison term of 15 years to life would amount to cruel and/or unusual punishment. To the extent the court rejected that argument, defense сounsel asked it to run the life terms concurrently.
The court remarked that “there is nothing that the 4th DCA is ever going to say that is going to convince me that these sentences that I will be imposing are not cruel and/ . or unusual under both the US constitution and our state constitution.” It nevertheless rejected Nash‘s claim that the evidence supported his factual innocence. Ultimately, “[a]t the direction of the 4th DCA,” it imposed a 15-years-to-life prison term on count 1 and concurrent 15-years-to-life prison terms on counts 2 and 3.
DISCUSSION
Appealing his sentence for a second time, Nash suggests that imposing 15-years-to-life prison terms on his lewd act convictions violates state and federal constitutional prohibitions on cruel and/or unusual punishment (
A. The law of the case doctrine precluded a finding that a prison term of 15 years to life was cruel and/or unusual punishment.
Nash challenges his sentence as unconstitutionally cruel and/or unusual, faulting the trial court for not considering new evidence that purportedly demonstrated his factual innocence. We find no error. Despite its continued
“The doctrine of ‘law of the case’ deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491 (Morohoshi).) “The primary purpose served by the law-of-the-case rule is one of judicial economy. Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding.” (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 435 (Searle).)
At the time of resentencing, Nash I, supra, D073427, directed the trial court to resentence Nash under
Nash claims that newly discovered evidence changed the calculus at resentencing by impeaching key prosecution witnesses and demonstrating his factual innocence. He points to two pieces of impeachment evidence involving Nash‘s ex-wife Joy, the prosecution witness who reported the incident involving Nash‘s three-year-old niece E.N. A man who Joy dated after leaving Nash stated in a declaration that Joy falsely accused him of molesting their young daughter to secure custody. Nash likewise suggests that his trial counsel failed to interview witnesses who would have corroborated the trial testimony of a defense witness that Joy planned to leave Nash and take custody of their children. Nash separately suggests there was additional impeachment evidence as to five-year-old K.T., who testified at trial about two molestation events. He faults his trial counsel for failing to confer with a suggestibility expert “who would have explained how the second accuser would have made such allegations after learning about the first incident, and
Although potentially relevant to his claim for habeas relief based on ineffective assistance of trial counsel, the People are correct that this “new evidence” impugning the jury‘s verdicts was irrelevant to the trial court‘s inquiry at resentencing. “Far from being a proceeding at which the trier of fact resolves the issues raised in the case, the sentencing hearing—or resentencing hearing—follows the entry of the verdict and the discharge of the jury, and constitutes the occasion on which the court pronounces the judgment arising from the verdict.” (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1254.) While the sentencing court may resolve factual matters to select the appropriate sentence, it “resolves those issues in light of what occurred at trial, including its own impressions of matters such as the defеndant‘s demeanor and conduct at trial.” (Id.) Consequently, “[t]he parties at an ordinary resentencing hearing do not . . . proffer new evidence on the issues decided by the verdict, nor does the court disregard the original verdict.” (Id. at p. 1257.)
In upholding the constitutionality of a 15-years-to-life prison term, Nash I highlighted the vulnerability of the young victims, Nash‘s abuse of a position of trust, and his status as an able-functioning adult. These same factors were present at resentencing. The trial court was therefore bound by this Court‘s determination in Nash I under the law of the case doctrine; it had no discretion to determine at resentencing that a sentence of 15 years to life amounted to cruel or unusual punishment. (Sandoval, supra, 194 Cal.App.3d at p. 487 [law of the case doctrine precluded trial court from finding the mandatory minimum sentence to be cruel or unusual on remand where appellate court had found that sentence constitutional on the same facts].)
As Nash notes, the law of the case doctrine may not be applied where its application would result in an unjust decision. (Morohoshi, supra, 34 Cal.4th at pp. 491-492.) But this exception is a narrow one—it “must rest on ‘a manifest misapplication of existing principles resulting in substantial
B. Where the accusatory pleading expressly states that the “effect” of a sentencing allegation exposes the defendant to 15 years to life in prison, due process does not permit a sentence of 25 years to life.
In their respondent‘s brief, the People assert for the first time that the 15-years-to-life sentence (the one they sought in Nash I and at resentencing) is unauthorized. They urge this Court to impose prison terms of 25 years to life under section (j)(2) of
The One Strike law in
Due process requires that a defendant be given “fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.” (People v. Mancebo (2002) 27 Cal.4th 735, 747 (Mancebo).) This bedrock rule is reflected in various statutes.
The question before us is whether thе accusatory pleading in this case gave Nash fair notice that he faced exposure of 25 years to life on each count under the One Strike law. (Anderson, supra, 9 Cal.5th at p. 953.) “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.” (Id. at p. 957.) The “statutory pleading requirements of [
There is a split of authority as to whether an accusatory pleading that alleges only a subdivision (b) enhancement under
Division Three of the Fourth Appellate District and Division Eight of the Second Appellate District have sincе disagreed with Jimenez. (See Vaquera, supra, 39 Cal.App.5th 233, review granted; Zaldana, supra, 43 Cal.App.5th at p. 532, review granted.)6 Vaquera distinguished Mancebo on the basis that the multiple victim allegation had been pleaded as statutorily required, unlike in Mancebo. (Vaquera, at p. 244; see
The People urge us to follow Zaldana and Vaquera and reject Jimenez as wrongly decided. Nash, for his part, urges us to reject the People‘s belated argument wholesale under the doctrine of judicial estoppel. Ultimately, we need not take a side in the Jimenez/Vaquera/Zaldana conflict to resolve the matter. Based on the specific text contained in the accusatory pleading here, Nash was not on fair notice that he faced exposure of 25 years to life.
The amеnded information included a charge summary on its first page. Beside each lewd act count, “Special Allegations” referenced One Strike allegations under “PC667.61(b)(c)(e).” The next column specified the corresponding “Allegation Effect,” listing potential exposure of “15 Yrs-Life.”
CHARGE SUMMARY
| Count | Charge | Issue Type | Sentence Range | Special Allegations | Allegation Effect |
|---|---|---|---|---|---|
| 1 | PC288(a) NASH, ROBERT CHRISTOPHE | Felony | 3-6-8 | PC667.61(b)(c)(e) | 15 Yrs-Life |
| 2 | PC288(a) NASH, ROBERT CHRISTOPHE | Felony | 3-6-8 | PC1203.066(a)(8) PC667.61(b)(c)(e) | No Probation 15 Yrs-Life |
| 3 | PC288(a) NASH, ROBERT CHRISTOPHE | Felony | 3-6-8 | PC667.61(b)(c)(e) | 15 Yrs-Life |
Vaquera and Zaldana suggest that the cross-reference to subdivision (j) contained in subdivision (b) of
Our conclusion finds support in Anderson. Defendant Vernon Anderson was convicted as charged of murder and five robberies at a San Francisco house party. (Anderson, supra, 9 Cal.5th at p. 950.) The accusatory pleading alleged a firearm enhanсement associated with each count. As to the murder count, the information alleged a 25-years-to-life vicarious firearm discharge enhancement under
People v. Haro (2021) 68 Cal.App.5th 776 (Haro) is also instructive. Defendant Alicia Haro was convicted as charged of trafficking methamphetamine during two trips across the United States-Mexico border. She transported 19.5 kilograms on her first trip, and 17.5 kilograms on her second trip. (Id. at pp. 779-780.) The amended information alleged two separate conspiracies. Attached to each count was the allegation that
Evaluating this outcome under Mancebo and Anderson, this court concluded that imposing a 15-year enhancement violated due process. “Even though the accusаtory pleading includes the allegation of facts from which, if found true, one could conclude that more than 20 kilograms of methamphetamine were at issue in the offenses for which Haro was charged, the pleading itself did not provide Haro with fair notice that the People intended to exercise their discretion to pursue a sentencing enhancement based on a conspiracy to transport more than 20 kilograms of methamрhetamine.” (Haro, supra, 68 Cal.App.5th at pp. 788-789.) Quoting Anderson, we emphasized that the purpose of statutory pleading requirements was to give a defendant sufficient notice to permit informed decisions about defense strategy. (Haro, at p. 790, citing Anderson, supra, 9 Cal.5th at p. 964.)
There are several differences between the firearm and drug weight enhancements at issue in Anderson and Haro and the One Strike law provisions at issue here. But we draw from those cases a more general principle that we must look at the specific language in the operative accusatory pleading to assess whether it placed the defendant on fair notice of the exposure sought by the prosecution. Applying this principle, we conclude that where a pleading explicitly recites an exposure of 15 years to life as the sentencing effect of allegations under subdivisions (b), (c), and (e) of
The judgment is affirmed.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.