*715A jury convicted defendant and appellant Brian Alonzo Sawyers of first degree murder, three counts of attempted premeditated murder, and two counts of shooting at an occupied dwelling. The offenses all arose from an incident in which Sawyers and one or more companions fired numerous shots into a house occupied by rival gang members and their family. The trial court sentenced Sawyers to 75 years to life in prison pursuant to the "Three Strikes" law. Sawyers contends sentencing under the Three Strikes law was unauthorized because the information failed to allege *441his prior offense was a strike. In the published portion of the opinion, we conclude that because the information failed to give Sawyers notice that he faced sentencing under the Three Strikes law, and because the "informal amendment" doctrine does not apply, his sentence must be vacated. In the unpublished portion, we reject Sawyers's contention that the evidence was insufficient to support two of the attempted murder charges. We also agree *716with the People that the trial court erred by awarding conduct credits. We therefore vacate the sentence, remand for resentencing, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
a. Background information
Eighty-four-year-old Thomas Dunbar and his wife, Mary Dunbаr, lived with their daughter, Linda McCarter, at a house located on South Northwood Avenue in Compton. McCarter's twin sons, Kionte and Dionte McCarter, lived there as well.
The residence was located in an area claimed as the territory of the Nutty Block Crips criminal street gang. Kionte and Dionte were both Nutty Block Crip gang members, as were other family members and the twins' friend, Brandon Frison. The Dunbar residence was known as a Nutty Block hangout.
Another Crip gang, ATF, was comprised of three Crip gangs that had joined forces: Acacia Block, Spooktown, and Farm Dogs. ATF claimed territory bordering that claimed by Nutty Block, and the two gangs were rivals. In July 2013 the Nutty Block and ATF gangs were engaged in a gang war. Sawyers was an admitted member of the Spooktown gang, and bore gang tattoos, including "NBK" for "Nutty Block killer."
b. The shooting
On the morning of July 25, 2013, at approximately 10:00 a.m., Frison was waiting for the McCarter twins on the front porch of the Dunbar residence, talking on the phone, while the twins changed clothes inside the house. Mary was inside, asleep in one of the front bedrooms, and Linda had just lain across the foot of Mary's bed. Thomas was in the other front bedroom, closest to the front door.
A silver Audi A4 and a charcoal gray Toyota Corolla travelled slowly down Northwood. Two Black men were seated inside each vehicle. As one of the vehicles approached the Dunbar residence, the two men inside fired over 20 *717gunshots at the house. Frison fled into the Dunbar house as soon as the shooting began. Thomas was shot three times, including a shot to his head that later proved fatal; he had also been hit by bullet fragments. Paramedics transported him to the hospital, where he died of his injuries.
c. The investigation
The police investigation of the crimes revealed that at least three guns were *442used in the shooting, including a semiautomatic rifle capable of firing shots that could penetrate walls. In an undercover ruse operation, Sawyers made inculpatory statements indicating he fired the rifle. A witness told detectives that a week prior to the shooting, one or both of the McCarter twins had beaten Sawyers. On the morning of the shooting, the witness observed Sawyers, armed with a large gun, set off with other gang members in two cars to kill the McCarter twins.
2. Procedure
Trial was by jury. Sawyers was convicted of the first degree murder of Thomas ( Pen. Code, § 187, subd. (a) );
*718DISCUSSION
[[ 1. Sufficiency of the evidence
2. Sentencing under the Three Strikes law
Sawyers asserts that the trial court improperly sentenced him under the Three Strikes law because the information did not allege his prior burglary conviction was a strike, and he did not admit the conviction constituted a strike within the meaning of the Three Strikes law. This contention has merit.
a. Additional facts
An information filed on January 22, 2015, alleged Sawyers had suffered two prior convictions, one for first degree burglary and one for receiving stolen property. First, the information alleged Sawyers had served a prior prison term for both prior convictions within the meaning of section 667.5, subdivision (b), and stated that if proven, these convictions could each add a one-year term to Sawyers's sentence. Second, the information alleged, as to the first degree burglary: "as to count(s) 1, 2, 3, 4 and 5 ... an executed sentenсe for a felony pursuant to this subdivision shall be served in state prison pursuant to Penal Code section 1170(h)(3)in that the defendant(s), Brian Alonzo Sawyers, has suffered the following prior conviction(s) of a serious felony described in Penal Code section 1192.7 or a violent felony described *443in Penal Code section 667.5(c) or is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Penal Code section 290 ) of Title 9 of Part 1." (Italics added, capitalization omitted.) Nowhere did the information expressly reference the Three Strikes law and its alternative sentencing scheme. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
On June 5, 2015, prior to trial, over a defense objection, the People were permitted to amend the information to add section 12022.53, subdivision (d) and (e)(1) firearm allegations. The prosecutor did not state that the information was being amended to add an allegation that the prior burglary was a strike, nor did the parties or the trial court discuss such an amendment. The trial court's minute order merely states the information was amended "to add *719special allegations."
On June 18, 2015, immediately after the jury retired for deliberations, the trial court and the parties discussed the amendments to the section 12022.53 allegations, in the context of the final verdict forms. The prosecutor confirmed that she had made amendments at the start of the trial, "to add (d)" to the section 12022.53 allegations. The trial court then asked defense counsel how he wished to handle the "bifurcated priors," and counsel stated he expected defendant to admit the priors if convicted. The trial court stated that the information "also alleged some priors," and specifically referred to page 8 of the information (the page that contained the section 667.5, subdivision (b) and the section 1170, subdivision (h)(3) allegations). The trial court stated that the information alleged "a prior strike in the VA case, that was the 459 from August 2013 and in addition to that there's another prior conviction of a 496, a nonstrike. They were bifurcated." The trial court advised Sawyers of his Boykin / Tahl rights
After the jury rendered its verdict on June 19, 2015, defense counsel stated he anticipаted a waiver on the prior conviction allegations. At the request of the defense, the matter was continued until August 6, 2015. On July 9, 2015, the People filed a sentencing memorandum requesting that Sawyers's sentence be doubled pursuant to the Three Strikes law. Sawyers filed a sentencing memorandum requesting concurrent terms. He did not object to application of the Three Strikes law.
On August 6, 2015, Sawyers indicated he wished to admit the prior conviction allegations. The trial court obtained Sawyers's waivers and then accepted Sawyers's admission, as follows: "[D]o you ... admit that you suffered a prior conviction in case VA130808 and that was for P.C. 459 in the first degree аnd that was on or about *444August 16th, 2013?" Sawyers replied, *720"Yes."
b. Legal principles
The Three Strikes law requires that prior felony convictions be pleaded and proved. (§§ 667, subd. (c), 1170.12, subd. (a); People v. Blackburn (1999)
The "Penal Code permits accusatory pleadings to be amended at any stage of the proceedings 'for any defect or insufficiency' (§ 1009), and bars reversal of a criminal judgment 'by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits' (§ 960)." ( People v. Whitmer (2014)
*721( People v. Sandoval , supra , at pp. 132-133,
*445c. Application here
Sawyers argues that he cannot be sentenced under the Three Strikes law despite his admission of the prior conviction, because he lacked adequate notice that he was subject to the Three Strikes sentencing scheme. The People, on the other hand, suggest we can infer from the record that "the amended information added a Three Strikes allegation as to the prior burglary conviction," and therefore it was not deficient. They point out that during the discussion in which Sawyers agreed to a bench trial on the prior conviction allegations, the trial court stated that one of the priors alleged was a strike. In the People's view, because there was no objection at that point, or later when the trial court imposed sentence pursuant to the Three Strikes law, the amended information must have included the Three Strikes allegation. Alternatively, they contend that even if the information was not so amended, Sawyers had fair notice the prior would be treated as a strike. They point out that the information alleged the prior burglary was a serious or violent felony within the meaning of sections 667.5 and 1192.7, and first degree burglary is a strike as a matter of law; at the June 18 procеeding the trial court stated that the burglary was a strike; and the failure to specify a statute by number can be overcome by factual allegations adequately informing the defendant of the sentencing allegation charged. (See People v. Haskin , supra ,
In our view, Sawyers's argument carries the day. Given the record, we cannot infer the information was actually amended to allege that the burglary was a strike. The fact the court file does not contain an amendеd information and the People failed to produce one in response to the superior court clerk's inquiry suggests no written amended information was prepared. The record likewise does not suggest the prosecutor orally amended the information to allege the burglary was a strike. The only amendment discussed on the record at the June 5 proceeding was the addition of section 12022.53, subdivision (d)
*722and (e)(1) allegations. Defense counsel objected to that addition, but not to any other amendment, suggesting no other amendment was offered. The prosecutor never stated that she was amending to allege a strike. At the sаme proceeding, the trial court observed that the information contained two "one-year prior allegations," that is, the section 667.5, subdivision (b) prior prison term allegations; it did not mention a strike allegation. The trial court's statement was consistent with the original information - which contained only the section 667.5, subdivision (b) and section 1170, subdivision (h)(3) allegations - rather than with a purported amendment to add a strike allegation.
Nor can we conclude the informal amendment doctrine applies. As noted, under that doctrine "a defendant's conduct may effect an informal amendment of an information without the People having formally filed a written amendment to the *446information." ( People v. Sandoval , supra ,
The instant matter is distinguishable from the foregoing authorities. The "touchstone of determining the adequacy of an accusatory pleading is whether the defendant had adequate notice of the charges against him." ( People v. Sandoval , supra ,
The first mention of the Three Strikes law was at the June 18, 2015 proceeding, in which the trial court stated in passing that one of the priors was a strike. The defense did not object. But this statement lacked meaningful context, as there was no indication that Sawyers faced the possibility of Three Strikes sentencing. Instead the trial court stated, "[y]ou and your attorney made the decision to bifurcate those" priors. The bifurcated priors had been previously characterized as "one-year prior allegations," that is, alleged as the basis for section 667.5, subdivision (b) prior prison term enhancements. When Sawyers waived his Boykin / Tahl rights on the bifurcated priors and agreed to a court trial, there was no mention of Three Strikes sentencing. The sole reference to one of the bifurcated priors as a prior strike, in this context, was insufficient to give Sawyers notice that he was subject to Three Strikes sentencing.
The first explicit reference to Three Strikes sentencing was in the People's sentencing memorandum, filed July 9, 2015, after Sawyers had waived his right to a jury trial on the prior conviction allegations. When Sawyers admitted his priors, he was not advised that the prior burglary was a strike.
*724Neither the trial court nor the prosecutor advised that the admission could result in Three Strikes sentencing. Indeed, the minute order states only that Sawyers admitted the priors pursuant to section 667.5, subdivision (b). While the People are correct that defense counsel never objected to the prosecution's sentencing memorandum or to the trial court's imposition of a second strike sentence, on these facts we cannot conclude from those omissions alone that the informal amendment doctrine applies.
Thus, lacking a written, oral, or informal amendment, Three Strikes sentencing was impermissible. Several authorities compel this conclusion. In Mancebo , supra ,
In People v. Arias (2010)
In People v. Botello (2010)
Most recently, People v. Wilford (2017)
The foregoing authorities compel the conclusion that Sawyers cannot be subjected to Three Strikes sentencing. Similar to the One Strike sentencing scheme at issue in Mancebo , the Three Strikes scheme includes a pleading and proof requirement. (§§ 667, subd. (c); 1170.12, subd. (a).) As explained above, Sawyers had notice that the burglary was alleged to be a serious or violent felony for purposes of section 1170, subdivision (h)(3). But, because the information did not allege section 667, subdivisions (b) through (i) or section 1170.12, subdivisions (a) through (d), or otherwise reference the Three Strikes law, Sawyers had insufficient notice that the People would seek sentencing under the Three Strikes law if he admitted the prior, a "critical shortcoming." ( People v. Wilford , supra ,
The People also contend that Sawyers's failure to object to the imposition of а Three Strikes sentence forfeited his claim that he lacked adequate notice. But it is the People's burden to properly plead enhancement allegations, not the defendant's responsibility to ferret them out. A similar argument was rejected in Mancebo , which concluded that imposing a sentence based on an unpleaded gun-use circumstance resulted in an unauthorized sentence not subject to the forfeiture doctrine. ( Mancebo , supra , 27 Cal.4th at pp. 749-750, fn. 7,
The People's reliance on People v. Houston in support of their forfeiture argument is unavailing. There, the defendant argued he was improperly sentenced to life imprisonment for each of 10 counts of attempted murder, because the indictment had failed to alleged the attempted murders were willful, deliberate, and premeditated, as required by section 664, subdivision (a). ( People v. Houston, supra,
*7283. Custody credits
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing consistent with the opinions expressed herein. In all other respects, the judgment is affirmed.
We concur:
EDMON, P. J.
LAVIN, J.
Notes
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
For ease of reference, and with no disrespect, where family members share the same last name we sometimes refer to them by their first names.
In addition to this gang-related evidence, the People presented the testimony of a gang expert. Because Sawyers does not challenge the sufficiency of the evidence to support the gang enhancements, we do not detail this additional testimony.
We discuss this evidence in more detail where relevant in the unpublished portion of the opinion.
All further undesignated statutory references are to the Penal Code.
See footnote *, ante.
The record on appeal does not contain a copy of an amended information. The superior court clеrk has certified that she was unable to locate such a document in the superior court's files. She requested that the district attorney's office search their files as well, but they were unable to locate a copy.
Boykin v. Alabama (1969)
Sawyers also admitted suffering the prior conviction for receiving stolen property. He does not challenge the validity of that admission on appeal.
That the amendment did not include a strike allegation was further evidenced by the fact that the only case cited, People v. Oates (2004)
Like the Three Strikes law, the One Strike law is an alternative sentencing scheme. (People v. Carbajal (2013)
In light of our conclusion, we do not reach the parties' arguments regarding ineffective assistance of counsel.
See footnote *, ante.