People v. NashPeople v. Nash
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 the remittitur, Nash filed a new trial motion and petitioned for writ of habeas corpus. He claimed he received constitutionally ineffective assistance at trial and that newly discovered evidence pointed to his actual innocence. The court denied the new trial motion, concluding it exceeded the scope of the remittitur. It issued an order to show cause on the habeas pеtition on the narrow ground of ineffective assistance based on trial counsel‘s failure to investigate and present certain impeachment evidence.
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 rеjected that argument, defense counsel 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 reservations about the constitutionality of а life term, the trial court correctly concluded on remand that imposing a prison term of 15 years to life was mandated by this court‘s decision in Nash I.
” ‘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 following direct and indirect allegations with her parents who were concerned with the initial allegations.”3
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
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 injustice’ and not mere disagreement with the prior appellate determination.” (Searle, supra, 38 Cal.3d at p. 435; see People v. Stanley (1995) 10 Cal.4th 764, 787.) Nash fails to demonstrate that applying the doctrine here would result in an unjust decision. His argument rests on accepting his claim of factual innocence, which is not a sentencing court‘s role.
B. Where thе 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 section 667.61 because E.N. and K.T. were both under 14 years of age.4 As we explain, we reject this argument because the accusatory pleading did not give Nash fair notice that he faced exposure of 25 years to life on any lewd act count.
The One Strike law in section 667.61 ” ‘mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the
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 the accusatory pleading in this case gаve 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
Division Three of the Fourth Appellate District and Division Eight of the Second Appellate District have since 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 doсtrine of judicial estoppel. Ultimately, we
The amended 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 sрecified 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 |
Under each count, the amended information specified that Nash had committed a qualifying sex offense against more than one victim “within the meaning of PENAL CODE SECTION 667.61(b)(c)(e).” Nowhere did the pleading reference subdivision (j)(2) of section 667.61, although it provided the ages of the two alleged victims.
Vaquera and Zaldana suggest that the cross-reference to subdivision (j) contained in
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 enhancement associated with each count. As to the murder count, the information alleged a 25-years-to-life vicаrious 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 Haro transported more than 10 kilograms of methamphetamine, adding 10 years to her prison term. (
Evaluating this outcome under Mancebo and Anderson, this court concluded that imposing a 15-year enhancement violated due process. “Even though the accusatory pleading includes the allegation of facts from whiсh, 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 methamphetamine.” (Haro, supra, 68 Cal.App.5th at pp. 788‒789.) Quoting Anderson, we emphasized that the purpose of statutоry 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
DISPOSITION
The judgment is affirmed.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.