Opinion
C039718.
10-9-2003
THE PEOPLE, Plaintiff and Respondent, v. HENRY GUTIERREZ, Defendant and Appellant.
A jury convicted defendant of several felonies arising out of two separate assaults on his live-in girlfriend, the victim. He was convicted of corporal injury on a cohabitant with great bodily injury (Pen. Code, § 273.5, subd. (a); § 12022.7, subd. (d); all further unspecified section references are to the Penal Code), assault with a deadly weapon (§ 245, subd. (a)(1)), and making criminal threats (§ 422) based on the assault of December 23, 2000. The jury also convicted defendant of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)) and corporal injury on a cohabitant (§ 273.5, subd. (a)), both while released on bail (§ 12022.1), based on the assault of February 11, 2001. The trial court found defendant had served a prison term (§ 667.5, subd. (a)) and had a prior conviction that was a strike (§ 667, subds. (d) & (e); § 1170.12, subds. (b) & (c)).
Sentenced to 22 years in prison, defendant appeals. He contends he was denied a defense when certain evidence was excluded; it was error to deny his motion for a new trial; there was instructional error; and there was insufficient evidence of making a criminal threat. We find no merit in any of these contentions. Defendant also contends it was error to impose an enhancement under section 667, subdivision (a) (section 667(a)) because the enhancement was not alleged in the information. We agree and shall strike the enhancement and remand the case for resentencing.
FACTS
T.S. lived next door to defendant and the victim. Early in the morning of December 24, 2000, she heard a disturbance. A woman at her back door yelled, "`Help me." T.S. called 911.
Officers arrived and found the victim in the front yard. She was hysterical and screaming, "`Hes going to kill me." She said defendant struck her with a 12-inch crescent wrench. Her hair was wet and she was shaking. The victim said the assault started in the garage. Defendant slapped her and then hit her with the wrench. The assault damaged her right eye and knocked out her false teeth. Defendant knocked her to the ground and jumped on top of her; she lost consciousness.
When she woke up, defendant was dragging her across the kitchen floor. He made her take a cold shower. Then he took a needle and tried to drain blood from her eye. Defendant made her get on her hands and knees and tapped her on the head with the wrench. He dragged her into the bedroom and threw her on the bed. He walked around for an hour, hitting her with the wrench. When defendant thought he heard a knock, the victim ran to the bathroom. She jumped out the window and ran to the neighbors house.
The victim told Officer DeVries she had written defendant a note that she was leaving him. She could tell by the tone of his voice that defendant was going to beat her. She said defendant threatened her in the garage. "`I ought to just fucking kill you." He told her he would take her to the railroad tracks and let a train run over her. The victim told the officer she was crying and begging for her life. Defendant had beat her several times in the past.
The officers searched the house for evidence to corroborate the victims story. The victims false teeth were found in the floor of the garage next to the washing machine. They appeared to have blood on them. The victim had a bruise on her right side that she said was from a prior beating. The officers did not find a wrench. The bathroom door was locked and there were wet clothes inside.
Defendant was stopped and arrested a mile and a half away. No blood was on his clothing and there was no wrench in his car. Deputy McCleary was on duty at the substation at 4:35 in the morning on February 13, 2001. The victim arrived sobbing and hysterical. She had redness, swelling and bruising all over her body. The injuries were consistent with being hit with a stick or similar object. The victim said defendant was high on crank and that was when he was most dangerous. Defendant was arrested that day and a blood sample was taken. To McClearys knowledge, there was no evidence that defendant was under the influence of a controlled substance.
The victim testified defendant was her boyfriend and she lived with him in December 2000. She moved out after defendant was released from jail, but moved back in on February 10 or 11, 2001. The victim claimed her injuries came from men she met while engaged in prostitution. She was injured on December 23 and 24, 2000, when she fell down the stairs "with this guy." She had a black eye from where he backhanded her. She was sore and had bruises all over. She locked the bathroom door because she thought the "trick" was going to come back; she thought he was there. She climbed out the window and fell. She had got wet in the bathtub because she felt dirty. She denied she told the officer she had written defendant a note that she was leaving or that she could tell by defendants tone of voice when he would beat her. She denied defendant threatened to kill her.
On February 13, 2001, she went to a sheriffs substation and told Deputy McCleary that defendant had assaulted her with a curtain rod. He held her down and sprayed pepper spray on her. Defendant told her to take a shower and wash away the blood. She gave the officer the pepper spray and the curtain rod, with blood on it. At trial she identified numerous pictures of her injuries.
The victim said she lied about defendant beating her. Actually she was beaten in a peach orchard by a Hindu man. She lied and told the defense investigator that she fell off a ladder because she did not want defendant to know about it. What she told McCleary was what another man had done to her in 1986. The victim told her friend Wendy about the Hindu man in the orchard.
On cross-examination the victim testified she hooked up with a man at the Long Branch Saloon on December 23 and took him back to the house and had sex with him. He hit her when she asked for money. She said that Glen Garner had threatened to kill her. After the attack on December 23, she had memories and recalled an incident with Glen Garner. Garner made statements threatening to kill her. Garner was a man who used to beat her up and put her in the bathtub.
The injuries she reported on February 13 occurred five days earlier. She was hit by a Hindu man with a peach branch in an orchard. He hit her because he wanted her to have anal sex with him and she refused.
It was stipulated that the victim visited defendant in jail eight times between May 26 and July 28, 2001.
Donald Stembridge, an expert in battered woman syndrome, testified about the syndrome. It was characterized by a cycle of violence, beginning with a tension building phase, escalating to acute battering, and followed by a loving contrition or honeymoon phase. It was very typical for a battered woman to recant and protect her batterer. It was also typical for the woman to visit the incarcerated batterer after awhile.
Cindy Alexander, the defense investigator, interviewed the victim. The victim first told her she received the injuries in February from falling off a ladder. In a second version, the victim told Alexander she was hit by a peach branch in an orchard.
W.F. testified under a grant of immunity. She testified the victim wrote a letter of what she was to say about the February incident and offered her $100 to lie.
Two officers testified for the defense that the victim told them she lied to officers about defendant beating her. L.B. testified he saw the victim at the Long Branch Saloon on December 23. He saw her get into a car with someone at 9:00 p.m.
Paul Wuehler, a psychologist, testified the victim suffered from serious psychological disorders. Based on testing and an interview, he diagnosed her with schizo-affective disorder, bipolar disorder, and mixed personality disorder. Her recantations could be based on her confusion as to reality. Someone with her disorders would have potential difficulty in recognizing what is real, and difficulty in perceiving, recollecting and reporting events. Wuehler found nothing in Stembridges testimony that was incorrect.
DISCUSSION
I
The major issue in this case was the victims credibility, and specifically, which version of events of the assaults was true. The victim initially reported to police that defendant beat her in both December and February. At trial she testified those reports were lies and other men had beaten her. The prosecutions theory was that she recanted as part of the Battered Womens Syndrome; during the honeymoon phase a woman will recant and attempt to protect her batterer.
In a hearing pursuant to Evidence Code section 402, Dr. Wuehler testified it was his opinion that the victim changed her story based on a recollection of past events, such that she was not sure if her initial statement was triggered by the past events or something else. The victim told Dr. Wuehler she had been beaten in the past by Glen Garner. Her description of those beatings, particularly that when it was over he put her in the bathtub and washed off the blood, was strikingly similar to the story she told about defendant beating her. In Dr. Wuehlers opinion, the victim may have repressed the memory about Garner beating her. The memory was triggered by the subsequent traumatic event.
The trial court ruled that Dr. Wuehler could not recount any history given him by the victim because such history would be so unreliable. He could testify about the testing and his diagnoses. Dr. Wuehler could not testify about repressed memory as that was part of the victims history.
Defendant contends the trial court deprived him of the constitutional right to present a defense by preventing Dr. Wuehler from testifying as to an alternative reason why the victim recanted her initial allegations that defendant beat her. Dr. Wuehler should have been allowed to explain the phenomenon of repressed memory and how it might have been involved in the presentation of a false accusation against defendant and the victims subsequent attempt to retract her initial account.
The defense did not dispute that the victim was beaten in December and February; the dispute was who did it. Dr. Wuehler failed to explain why a repressed memory of Garners beating the victim would cause her to incorrectly identify defendant as her assailant. Dr. Wuehlers testimony at the hearing focused on the similar stories of the victim being forced to take a bath and wash off the blood after the beatings. This element of the victims initial report of the December 23 beating was corroborated by physical evidence. When the police arrived she was in her bathrobe and her hair was wet. Her wet clothes were found in the bathroom. While there was no corroborating evidence that defendant forced her to shower after the February incident, the victims basic story was corroborated by her injuries and the curtain rod and pepper spray she gave the police. At most, the repressed memory theory could refute minor details in the victims initial stories, but not that she had been beaten or her identification of defendant as her assailant.
"The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." (Taylor v. Illinois (1988) 484 U.S. 400, 410 [98 L.Ed.2d 798, 811].) Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Relevant evidence is that which has a tendency in reason to prove or disprove a disputed fact of consequence. (Evid. Code, § 210.) Certainly, the victims credibility was a disputed fact of consequence. Dr. Wuehler was able to testify that the victim suffered from several serious mental disorders that might affect her ability to recognize reality and perceive, recollect, and report events. He was unable, however, to explain how the victims possible repressed memory of beatings by Garner caused her to wrongly identify defendant as her assailant. Since the testimony about a possible repressed memory was both speculative and irrelevant, the trial court did not err in excluding it.
II
After the jury returned its verdict, defendant moved for a new trial on the basis that the jury received evidence out of court. (Former § 1181, subd. (2).) A letter from Dr. Wuehler to defense counsel, that had not been admitted into evidence, was found in the jury room. The letter had been given to the jury along with evidence introduced at trial. In the letter, Dr. Wuehler set forth his impressions, opinions, and conclusions to which he would testify. Dr. Wuehler noted that the victim "has been in a number of domestic violent relationships as well as being beaten by men with whom she had no endearing relationship." The defense argued a new trial was necessary because defendant had been prejudiced by this information of the victims propensity to engage in domestic violent relationships. This information lessened the prosecutions burden of proof because the jury could conclude the victim only entered relationships with abusive partners, therefore defendant was abusive.
The trial court denied the motion for a new trial, finding no jury misconduct and no prejudice. Defendant contends the court erred in both findings.
A trial courts ruling on a new trial motion is reviewable for an abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 667.) We find no abuse of discretion in denying the motion for a new trial.
"When, as in this case, a jury innocently considers evidence it was inadvertently given, there is no misconduct." (People v. Cooper (1991) 53 Cal.3d 771, 836.) Rather, it is ordinary error, similar to an incorrect evidentiary ruling. (Ibid.) Ordinary error is reversible only if it is reasonably probable that a result more favorable to defendant would have resulted in the absence of the error. (Ibid.; People v. Clair, supra, 2 Cal.4th 629, 668.)
The jurys receipt of Dr. Wuehlers letter was not prejudicial error. First, the letter was defense evidence and, if anything, aided the defense by casting further doubt on the victims credibility. The letter also set forth Dr. Wuehlers theory "that [the victims] allegations of beating by the present defendant could have been a repressed memory unrelated to the defendant which was occurring in the police interview." Second, nothing in the letter provided additional evidence that defendant was her assailant or undercut the defense theory of the case. While Dr. Wuehler noted the victims propensity to become involved in abusive relationships, he also noted she was abused by those with whom she had no relationship. It is not probable that without the letter a result more favorable to defendant would have resulted. (People v. Cooper, supra, 53 Cal.3d at p. 836.)
III
The defense theory of the case was that men other than defendant beat the victim. This defense was based on the victims trial testimony. Although the defense did not request an instruction, defendant contends the jury should have been instructed on how to evaluate third party culpability. Specifically, the jury should have been instructed defendant need not prove beyond a reasonable doubt a third party was culpable, but that he was entitled to acquittal if the third party evidence raised a reasonable doubt as to his guilt. Defendant contends the trial court had a duty to instruct sua sponte on third party culpability. If the instruction was not required sua sponte, he contends counsel was ineffective in failing to request it. Neither point has merit.
"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.]" (People v. St. Martin (1970) 1 Cal.3d 524, 531.) The jury was instructed that defendant was presumed innocent and the People had the burden of proving him guilty beyond a reasonable doubt. The jury was further instructed on the statutory definition of reasonable doubt.[] (§ 1096.) Nothing in this instruction would permit a jury to require defendant to prove his innocence beyond a reasonable doubt. When this instruction is given, no other instruction on reasonable doubt or the presumption of innocence is required. (§ 1096a.)
The jury was instructed in the language of CALJIC No. 2.90 as follows: "A defendant in a criminal action is presumed to be innocent until the contrary is proved. And in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
Despite section 1096a, a defendant is entitled to an instruction that pinpoints the crux of his defense, provided he requests the instruction. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) An instruction on third party culpability is such a pinpoint instruction that need be given only upon request. (See People v. Earp (1999) 20 Cal.4th 826, 887; People v. Kegler (1987) 197 Cal.App.3d 72, 80.) Since defendant did not request a third party culpability instruction, the trial court did not err in failing to give one.
Nor was counsels failure to request the instruction ineffective assistance of counsel. "A defendant claiming ineffective assistance of counsel under the federal or state Constitution must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 414.) In People v. Earp, supra, 20 Cal.4th 826, the Supreme Court assumed it was error not to give an instruction on third party culpability. It found the error harmless because the jury was properly instructed under CALJIC 2.90 that the prosecution had to prove defendants guilt beyond a reasonable doubt, and from defense argument the jury knew the defense theory that someone other than defendant had committed the crimes. "Under these circumstances, it is not reasonably probable that had the jury been given defendants proposed pinpoint instruction, it would have come to any different conclusion in this case. [Citation.]" (Id. at p. 887.)
The same reasoning applies here. The jury was properly instructed on reasonable doubt and defense counsel argued there was a reasonable doubt defendant committed the crimes, pointing out both the lack of corroboration for the victims initial version that defendant was the assailant and the evidence supporting a version that someone else was, as well as generally attacking the victims credibility. Under these circumstances it is not reasonably probable that if counsel had requested a third party culpability instruction, and the court had given it, the jury would have reached a different conclusion.
IV
At the close of the prosecutions case, defendant moved for a judgment of acquittal under section 1118.1 on the charge of making criminal threats (§ 422). This charge was based on Officer DeVriess testimony that the victim told him defendant threatened to kill her. Defendant said he ought to kill her, he would take her to the railroad tracks and let a train run over her. The victim was crying and begging for her life.
The trial court initially granted the motion, finding no evidence the victim was in sustained fear or that the threat was unconditional and immediate. The prosecution asked the court to reconsider in light of People v. Franz (2001) 88 Cal.App.4th 1426. The court reviewed the case and reversed its decision.
Defendant contends the trial court erred in reversing its decision and the conviction under section 422 must be reversed because there is no substantial evidence to support it. Section 422 makes it a crime to "willfully threaten[] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, . . ." Defendant contends there was no evidence the threat was unconditional or immediate or that the victim was in sustained fear.
In People v. Franz, supra, 88 Cal.App.4th 1426, this court found sufficient evidence of making a criminal threat where defendant told two minors "sh" or "shush" and slid his finger across his throat. The threat was made while defendant was in the presence of a police officer, just before he was escorted away. We found section 422 does not require an absolutely unconditional threat, but only one "`so unconditional as to convey gravity of purpose and immediate prospect of execution." (Id. at p. 1448.) The threat, although made in the presence of a police officer, met the requirement of immediacy because the minors did not know when they would next see defendant, and defendant was in a rage and had already hit a former girlfriend and struck and threatened one of the minors. The threat was a reminder that the officer would not always be there to protect the minors. (Id. at p. 1449.)
There is substantial evidence defendant threatened to kill the victim in violation of section 422. "[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone." (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) Defendant made the threat in the course of beating the victim. While he did not make an attempt to take her to the railroad tracks, he beat her until unconscious and knocked out her false teeth. When she came to, he continued the beating, stopping only when he thought someone else was present. In these circumstances, the threat was "so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat[.]" (§ 422.)
There is also substantial evidence the victim was in sustained fear. She told Officer DeVries she was crying and begging for her life. She jumped out of a bathroom window to escape defendant. When the officers arrived, she was shaking, hysterical, and screaming, "`[h]es going to kill me."
V
The informations alleged defendant had suffered a prior conviction of section 288, subdivision (a), which was alleged to be a violent felony, and had served a prison term within the meaning of section 667.5, subdivision (a). They further alleged his prior conviction was a strike under section 667, subdivisions (d) and (e) and section 1170.12, subdivisions (b) and (c). A five-year enhancement under section 667(a) was first mentioned in the probation report. At sentencing, the trial court, following the probation report, imposed a five-year consecutive sentence under section 667(a).
Defendant contends the trial court erred in imposing a five-year consecutive term for a prior serious felony under section 667(a) because such an enhancement was not alleged in the information. The Attorney General responds the enhancement was properly imposed, even though not specifically alleged, because the fact of a prior conviction for section 288, subdivision (a) was alleged and found true. Under the reasoning of People v. Hernandez (1988) 46 Cal.3d 194 (disapproved on another point in People v. King (1993) 5 Cal.4th 59, 78, fn. 5), and People v. Mancebo (2002) 27 Cal.4th 735, defendant has the better argument.
Section 667(a) provides for a five-year enhancement for a defendant currently convicted of a serious felony who has previously been convicted of a serious felony. Corporal injury on a cohabitant with a great bodily injury enhancement (§ 273.5, § 12022.7, subd. (d)), is a serious felony. (§ 1192.7, subd. (c)(8).) A violation of section 288, subdivision (a) is also a serious felony. (§ 1192.7, subd. (c)(6).) The information did not allege either the current or prior convictions as serious felonies (the prior was alleged to be a violent felony for purposes of section 667.5, subd. (a)), and there was no allegation that the People sought a five-year enhancement under section 667(a).[] "All 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." (§ 1170.1, subd. (e).)
Section 969f sets forth the proper way to allege a serious felony.
In People v. Hernandez, supra, 46 Cal.3d 194, the Supreme Court held a sentencing court could not impose a three-year enhancement under section 667.8 (kidnapping for purposes of rape) when violation of that section was not pled or proven and was mentioned for the first time in the probation report. The court held a pleading and proof requirement should be implied as a matter of statutory interpretation and due process. (Id. at p. 197.) The enhancement required not only a rape during a kidnapping, but a specific intent to kidnap for that purpose. (Id. at pp. 203-204.) The court rejected the Peoples argument that the facts overwhelmingly established a kidnapping for purposes of rape because defendant was not given notice of either the enhancement or the mens rea required for it. (Id. at p. 208.) "It is unnecessary to articulate a particular standard of review and engage in a harmless-error analysis when defendants due process right to notice has been so completely violated." (Id. at pp. 208-209.)
The Attorney General contends People v. Hernandez, supra, 46 Cal.3d 194, is distinguishable because no separate mens rea is required for the section 667(a) enhancement. There was nothing for the trier of fact to find beyond the fact that defendant had a prior conviction for section 288, subdivision (a), and that finding was made. In light of People v. Mancebo, supra, 27 Cal.4th 735, the Attorney General reads Hernandez too narrowly. In Mancebo, the court read Hernandez to "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." (People v. Mancebo, supra, at p. 747, italics added.) Here defendant had no notice he would have his punishment increased by five years for having a current and a prior serious felony conviction.
In People v. Mancebo, supra, 27 Cal.4th 735, the Supreme Court addressed a sentencing error arising from the failure to comply with pleading and proof requirements under the One Strike law (§ 667.61). Defendant was sentenced under the One Strike law for forcible sex offenses against two victims; he also received gun use enhancements under section 12022.5, subdivision (a). The One Strike law provides for a sentence of 25 years to life if two of certain circumstances are met. (§ 667.61, subd. (a).) It also provides that if only the minimum number of circumstances are pled, they shall first be used to impose a One Strike sentence rather than to impose another enhancement. (§ 667.61, subd. (f).) This provision would make the gun use unavailable for use as an enhancement under section 12022.5, subdivision (a). To impose a 25-year to life sentence, "the existence of any fact required . . . 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." (§ 667.61, subd. (i).) In sentencing defendant, the trial court believed it could substitute the multiple victim circumstance for the gun use circumstance, thus freeing up the gun use for an enhancement. The multiple victim circumstance had not been specifically pled, but defendant was convicted of sex offenses against two victims. (People v. Mancebo, supra, at pp. 739-740.)
The Supreme Court disagreed. It held that given the express pleading and proof requirements of the One Strike law, gun use must be used as one of the circumstances for One Strike sentencing and was not available for use as an enhancement. (People v. Mancebo, supra, 27 Cal.4th at p. 739.) The People argued the multiple victim circumstance could be substituted for gun use under the One Strike law; although not specifically alleged, the facts of the circumstance were alleged and found true by the trier of fact. (Id. at p. 744.) The high court found that insufficient as it failed to put defendant on notice that the People would use the multiple victim circumstance for the One Strike law. (Id. at p. 745.) The court declined to apply a harmless error analysis, finding the doctrines of waiver and estoppel applied to the Peoples failure to allege the multiple victim circumstance. (Id. at p. 749.)
The court recognized that where defendant is convicted of qualifying sex offenses against two or more victims, it would be difficult to contest the multiple victim circumstance whether or not it was properly pled. This fact did not permit the sentencing court to substitute the multiple victim circumstance for the gun use circumstance. There was no exception to the pleading and proof requirements for the multiple victim circumstance. The lack of notice of the full length of sentence defendant faces may affect a defendants willingness to plea bargain. Finally, if the circumstance need not be specifically pled, how could a defendant admit it if he chose to waive trial? (People v. Mancebo, supra, 27 Cal.4th at p. 752.)
The court found the pleading and proof requirements of the One Strike law, "and defendants due process rights, were violated here — not because defendant was never afforded notice that he was being charged with crimes against two victims; he obviously was, and not because defendant was never afforded notice that the One Strike law would apply to his case; again, he was. Sentencing error occurred because defendant was given notice that gun use would be used as one of the two pleaded and minimally required circumstances in support of the One Strike terms, whereafter, at sentencing, the trial court used the unpled circumstance of multiple victims to support the One Strike terms, and further imposed two 10-year section 12022.5(a) enhancements that could otherwise not have been imposed but for the purported substitution." (People v. Mancebo, supra, at p. 753, italics in original.)
We recognize that the Mancebo court emphasized its holding was limited to the One Strike law; it did not necessarily apply to other statutes that use the "`pled and proved" or "`alleged and found true" language. (People v. Mancebo, supra, 27 Cal.4th at p. 745, fn. 5.) Nonetheless, we find its reasoning as to the due process requirements of pleading applicable here. Unlike in Mancebo, where defendant had notice the People sought punishment under both the One Strike law and the gun use enhancement, here, defendant had no notice that the People sought an enhancement under section 667(a). As in Mancebo, the allegation at issue would be difficult to contest, but without a specific allegation, defendant had no notice of the extent of his exposure to a lengthy sentence and could not admit the enhancement.[]
Defendant was offered and rejected an offer to plead to a violation of section 273.5, subdivision (a), and admit a great bodily injury enhancement and the strike prior. No mention was made of the possible 667.5, subdivision (a) enhancement.
While defendant was given notice that the People alleged he had a prior conviction for violating section 288, and that the prison term for that violation would be used to impose a three-year enhancement under section 667.5 and the prior would be used as a strike to double his sentence, he was not given notice that the prior would be used to impose a five-year enhancement. This lack of notice is similar to that in Mancebo that the circumstance of multiple victims would be used to support One Strike sentencing so he could also receive gun use enhancements. In using the section 288 prior to impose a five-year enhancement, both the pleading and proof requirements of section 1170.1 and defendants due process rights were violated. (People v. Mancebo, supra, 27 Cal.4th at p. 753.)
DISPOSITION
The judgment is reversed. The enhancement under section 667(a) is stricken and the case is remanded to the trial court for resentencing.
We concur: NICHOLSON, Acting P.J. and RAYE, J.