Summary
In Laanui, supra, 59 Cal.App.5th 803, our colleagues at the Second Appellate District concluded the Anderson court's concerns about fair notice to a defendant were not present in the context of a prior strike allegation under the Three Strikes law (§ 667).
Summary of this case from People v. SinigurOpinion
B297581
01-08-2021
The PEOPLE, Plaintiff and Respondent, v. Elliot Kimo LAANUI, Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication, with the exception of parts A, B, C, D, E, G, H, and I of the Discussion.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, Acting P. J.
Defendant Elliot Kimo Laanui appeals from the judgment after his conviction for six offenses committed between 1995 and 2017, including murder, solicitation of murder, and assault with a firearm. On appeal, defendant argues (1) the trial court abused its discretion by admitting into evidence an insufficiently redacted photograph of defendant shown to witnesses for purposes of identifying skin tone; (2) the prosecution committed misconduct during closing argument by appealing to the jury's sympathy for the murder victim and his family; (3) the trial court should have granted defendant a new trial in light of the erroneous admission of the photograph and the prosecutorial misconduct; (4) imposition of a restitution fine and court assessments violated defendant's right to due process; (5) defendant's counsel was ineffective to the extent he did not object to errors below; (6) the trial court erroneously doubled the sentence on one count based on an unpleaded prior strike conviction; (7) the trial court imposed a firearm enhancement under the wrong statute; (8) the trial court wrongly denied defendant presentence conduct credits; and (9) the minutes failed to state that the trial court struck five prior prison term enhancements. In the published portion of this opinion, we address defendant's sixth claim of error, and hold that the information adequately pleaded the prior strike as to all counts, and the trial court did not err in doubling the sentences of all eligible offenses.
In the unpublished portion of the opinion, we hold that the trial court did not abuse its discretion by admitting the photograph, nor was the admission unduly prejudicial. The contentions regarding prosecutorial misconduct and the imposition of fines and fees are forfeited, and also fail on the merits. In the absence of prejudicial error, defendant was not entitled to a new trial, nor did he demonstrate ineffective assistance of counsel for purposes of this direct appeal. The Attorney General agrees with defendant, as do we, that the trial court imposed a firearm enhancement under the incorrect statute, that defendant is entitled to conduct credits, and that the minutes do not reflect the trial court's striking of the prior prison term enhancements. We direct the trial court to correct the errors on which the parties agree, but otherwise affirm the judgment.
FACTUAL BACKGROUND
We limit our summary of the evidence to the facts relevant to the resolution of this appeal, and do not attempt to summarize all evidence presented at trial.
1. Prosecution evidence
a. Murder and solicitation of murder
i. Homicide and initial investigation
On November 11, 1995, Edward Emery (Emery) and his wife Jacqueline Emery went to a supermarket in Redondo Beach. After buying some groceries, they returned to their vehicle in the store parking lot. A man suddenly appeared, grabbed the front of the shopping cart, and began shooting a gun at Emery. Multiple bullets struck Emery, who fell to the ground. Emery died from his wounds.
Julia Lindman, who was in the parking lot at the time of the shooting, heard gunfire and saw a "dark-skinned male" pointing a gun in her direction and firing it.
Frank Dozier was in a coffee shop near the supermarket parking lot at the time of the shooting. Through the window of the coffee shop, Dozier saw a man shooting another man with a nickel or silver-colored revolver. The shooter then fired at other people in the parking lot. The shooter got into a dark-colored minivan, which drove away.
Annette Silas was loading groceries into her car when she heard gunshots. She did not see the shooter. Silas saw a dark Chevy Astro van, possibly navy blue, exit the parking lot.
Jacqueline Emery described the shooter as having skin tone of "[c]offee with cream, a lot of cream." She testified that after the shooting she was unable to find her husband's money clip. The prosecution suggested robbery as a likely explanation for the shooting.
Police investigating the crime scene found freshly deposited saliva on the window of a vehicle in the parking lot. The police collected samples of the saliva.
In 2011, John Skipper, a retired police captain investigating unsolved crimes for the Redondo Beach Police Department, had the saliva analyzed for DNA evidence. The DNA matched defendant's profile in a nationwide DNA database. After further investigation, Skipper determined that defendant matched the physical profile of the shooter, his residence at the time was about four miles from the crime scene, and a year before the murder he had been arrested driving a black Chevy Astro van.
According to Skipper, DNA analysis was not "commonplace" in 1995 when the murder occurred.
Corroborating Skipper's testimony, the prosecution presented evidence that the DNA in the saliva collected at the scene of the murder matched defendant's DNA. The prosecution also presented a police report indicating defendant was driving a black Chevy Astro van on August 17, 1994. A registration record from August 2000 to August 2001 indicated the van was registered to defendant.
ii. Defendant speaks with jailhouse informants
In 2012, Skipper learned that defendant had violated his parole and had him arrested. With the assistance of the Los Angeles County Sheriff's Department, Skipper and his partner, Detective Rick Peterson, arranged a "Perkins operation," in which two confidential informants, Jose and Raymond, were placed in a cell with defendant while wearing body wires.
In order to "stimulate conversation" about the murder between defendant and the informants, Skipper and Peterson interviewed defendant. They told him that they were investigating a murder from 1995, that they suspected he was involved, and that they had found his DNA at the crime scene. They mentioned Jonathan Ross, also known as "Never," a known confederate of defendant, along with other names, to see if that would provoke a reaction in defendant. Skipper testified he had no idea if Ross was involved in the homicide, but knew Ross and defendant had been arrested together twice before.
Back in the cell with the informants, defendant discussed the murder investigation with them. In that conversation, defendant never directly admitted committing the murder, and indeed appears to have denied it repeatedly. There was extensive discussion, however, about Ross and the possibility that he had informed on defendant, the relevant portions of which we summarize below.
Jose first suggested a "rat" had told the police that defendant was involved in the murder. Raymond confirmed with defendant that the police had mentioned Ross, whom Raymond referred to as Never. Jose said, "Anyone who was there with you and they were, that's your fucking mole." He continued, "There's only one way to deal with them. You're gonna have to get to them."
Later, defendant asked the informants what he should do. Raymond said that maybe the police had Ross and "the other fool." Jose said, "Eliminate the fucking rat and get rid of the problem." Raymond agreed "someone's telling on you," and "[i]t kinda looks like Never ...." Jose asked if defendant thought Ross was informing on him. Defendant said he had also heard from some "homies" that Ross was "a rata."
The "other fool" presumably was one of the other names mentioned by Skipper and Peterson when interviewing defendant. In a later recorded conversation with an undercover sheriff's deputy, defendant said the police "mentioned another name," but the person had been deported and defendant did not think that person would inform on him in any event.
Raymond said defendant could have Ross "whacked, but that's up to you." Jose said he and Raymond could find Ross.
Later, Jose again asked if defendant believed Ross "snitched" on him, and defendant said yes, because Ross had been "acting weird" as a result of defendant having sex with and eventually marrying Ross's girlfriend. Asked what defendant would do if he got out of custody, defendant said he would go to Ross and "grab him," and "get it out of him," presumably referring to finding out why Ross informed on him. After further discussion, Raymond asked, "What are we gonna do[,] homes? Fucking whack him?" Defendant said, "Yeah. I need you guys to, uh, help me out. A favor for a favor, it would be just like the movies."
Later, under the guise of wanting to make sure Ross was the correct person to kill, Jose asked if defendant was sure that Ross "knows what went down, and you know for a fact that it was him." Jose said, "Now, if you know that he's the fucking rat and he's the only one that knows, then you tell me that you know that it[’]s him ...." Defendant demurred, stating, "I can't say all that, ‘cause as far as I know, that shit never happened." He surmised from what the police had told him during his interview, however, that it was Ross who had informed on him. Jose said, "But at the same time, right, you want me to fucking take this fool out because he's a fucking witness, period, right?" Defendant said, "Yeah."
They discussed price, with Raymond saying he might ask for defendant's car and a "G," to which defendant did not object.
iii. Defendant communicates with an undercover deputy posing as a hitman
An undercover sheriff's deputy, Dylan Navarro, posed as a hitman and met with defendant at the county jail. Due to "human error," only Navarro's side of the conversation was recorded. At trial, Navarro testified as to what was said. Navarro intimated to defendant that he had been sent by Jose and Raymond. He asked if defendant still wanted to move forward with the plan discussed with Jose and Raymond, and defendant nodded yes. They discussed payment of $1,000 and an old car, and Navarro said if defendant was unable to pay, he could work for Navarro in a criminal capacity. Navarro testified he gave defendant multiple opportunities to change his mind and back out, but defendant "never swayed away from what he wanted, and that was for Jonath[a]n Ross to be killed."
Navarro asked defendant whether he committed the 1995 murder. At one point, defendant responded by holding his hand as if he was holding a gun. At another point, he said he did not commit the murder, but was smiling, nodding his head, and making air quotation marks with his fingers as he said it. Defendant said Ross was the only one who could "put him" at the scene of the crime. Defendant also said he (defendant) had gotten rid of the gun.
Because of the failed recording, Skipper and Peterson concocted a ruse to set up another meeting between defendant and Navarro. A detective from the Gardena Police Department visited defendant and told him, falsely, that Ross had been shot. The detective said Ross was in critical condition but would survive. The detective claimed to be visiting defendant because she had heard that both Ross and defendant had been interviewed by the Redondo Beach police, and she wanted to know if defendant knew anything about the attack on Ross.
Navarro then went to visit defendant in jail a second time. This encounter was recorded. Navarro told defendant that Navarro and an associate shot Ross six times in the chest. Defendant said the Gardena Police detective told him Ross was in critical condition but would live. Navarro said he was "going to try and handle this," "[b]ut I gotta know you're with this, you know?" Defendant said, "Yeah," and then proceeded to discuss payment, agreeing to pay Navarro $2,000 now instead of $1,000.
Later, Navarro said he would go find "that fool" and "make sure I finish this." He asked if defendant was "good with that," and defendant said, "Oh, yeah, yeah, yeah." Then, later, Navarro said, "As soon as I walk away[,] dawg, as soon as ... I hang up this phone, that fool Never is dead[,] dawg. You're good with that?" Defendant said, "Yes." Navarro made additional references to killing Ross throughout the conversation, and defendant continued to agree to the plan.
b. Assault with a firearm, assault on a peace officer, resisting, delaying, or obstructing a peace officer, and possession of a firearm by a felon
At some point, defendant was released from custody. On February 15, 2017, defendant went to the home of Andres Gonzalez. According to Gonzalez, he and defendant had been friends for about a year. Defendant wanted to collect $40 for some automobile parts Gonzalez had bought from him. Gonzalez told defendant he thought he had already resolved the debt. Defendant drew a gun and shot Gonzalez in the leg. Gonzalez described the gun as silver, and testified it looked like a gun he had seen defendant with before.
Later that day, police converged on defendant as he pulled his vehicle into the driveway of his apartment complex. A police sergeant ordered defendant to turn off his car and get out with his hands up. Defendant quickly accelerated his vehicle in reverse, colliding with a vehicle occupied by Detective Ryan Yee. Defendant then drove his vehicle forward towards the rear of the apartment complex, exited the vehicle, and fled on foot. Detective Edward Wenke and Sergeant Brian Messina caught up to defendant as he was trying to get inside his apartment. When he ignored their orders to stop, they used their tasers on him. Defendant fell to the ground but tried to get up to go inside. More police arrived and subdued defendant. Defendant had a silver revolver in his pocket.
2. Defense evidence
Defendant testified on his own behalf. The trial court permitted defendant to present his testimony as a "long narrative," with the trial court asking questions, because defense counsel had a "strong suspicion that he would suborn perjury if he were to direct specific questions" to defendant.
Defendant denied shooting Emery or having any involvement in that crime. He claimed it was the informants’ idea to harm Ross, and he felt "pressured" to go along with it. When Navarro met with him the second time, defendant had found out from his mother that Ross had not actually been shot, and he "was just playing the game with" the police when he spoke with Navarro.
Defendant acknowledged being with Gonzalez the day Gonzalez was shot, but testified it was another person who sought the $40 for the auto parts, and defendant left before there was any violence. He did not accelerate his car backwards towards Detective Yee; rather, he intended to go forward and his car rolled back slightly. At the time he did not know the occupants of the vehicle behind him were police officers.
PROCEDURAL BACKGROUND
An information charged defendant with assault with a firearm ( Pen. Code, § 245, subd. (a)(2) ) (count 1), assault upon a peace officer (Yee) ( § 245, subd. (c) ) (count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3), resisting, delaying, or obstructing a peace officer (Messina and Wenke) (§ 148, subd. (a)(1)) (count 4), murder of Emery (§ 187, subd. (a)) (count 5), and solicitation of murder of Ross (§ 653f, subd. (b) (count six).
Undesignated statutory citations are to the Penal Code.
During trial, the prosecution chose to proceed only as to Wenke.
On count 1, assault with a firearm, the information alleged enhancements for infliction of great bodily injury (§ 12022.7, subd. (a)) and personal use of a firearm (§ 12022.5, subds. (a), (d)). On counts 1, 2, and 3, the information alleged that defendant had suffered a prior conviction subjecting him both to sentencing under the "Three Strikes" law (§§ 667, subds. (b)–(j), 1170.12.) and a prior serious felony enhancement under section 667, subdivision (a)(1). The information further alleged five prior convictions subjecting defendant to enhancements under section 667.5. During trial, the trial court granted the prosecution's motion to amend the information to allege an additional firearm enhancement under section 12022.53 to count 1, assault with a firearm, and a firearm enhancement under section 12022.5, subdivision (a) to count 5, murder.
The minute order states that the trial court granted the prosecution's motion to amend the information to add a section 12022.53, subdivision (d) enhancement to the murder count, and does not mention any amendment to count 1. This does not reflect the trial court's oral pronouncement or the verdict forms.
The jury found defendant guilty of all six counts, and found the great bodily injury and firearm allegations true. Defendant waived jury trial on the prior conviction allegations. The prosecution opted not to proceed on the prior conviction allegations under section 667.5, and to prove only the prior serious felony conviction supporting sentencing under the Three Strikes law and the enhancement under section 667, subdivision (a)(1). The trial court asked if defendant had any objection to the prosecution not pursuing the section 667.5 enhancements, and defense counsel said no. The trial court then found that defendant had suffered a prior conviction in 2006 for purposes of the Three Strikes law and section 667, subdivision (a)(1).
At sentencing, the trial court denied defendant's motion for a new trial and motion to strike the prior strike conviction. The trial court then imposed both a determinate and indeterminate sentence. The determinate sentence consisted of the following: on count 1, the high term of four years doubled to eight years because of the prior strike, plus a three-year enhancement under section 12022.7, a five-year enhancement under section 667, subdivision (a)(1), "and an additional ten-year term which is the high term for the enhancement of [section] 12022.53"; on count 2, 32 months consecutive, which was one-third the midterm doubled; on count 3, two years, stayed pursuant to section 654; on count 4, 364 days consecutive; and on count 6, four years consecutive, which was one-third the midterm doubled.
The trial court also imposed a consecutive indeterminate life term on count 5, with minimum parole eligibility at 15 years. The trial court struck the firearm enhancement on count 5. Defendant's total sentence therefore was 47 years, 8 months, 364 days to life. The trial court awarded defendant 793 actual days of credit, but denied him conduct credits because of his murder conviction.
The trial court imposed a restitution fine of $3,000 under section 1202.4, subdivision (b), a parole revocation fine of $3,000 under section 1202.45, a court security fee of $240 under section 1465.8, and a criminal conviction assessment of $180 under Government Code section 70373. The court stated sua sponte that defendant had the ability to pay the fines and fees given the length of his sentence, "even with minimal prison earnings."
In its oral pronouncement of judgment, the trial court imposed a court security fee of $200 and a criminal conviction assessment of $150. This was incorrect. (See 1465.8, subd. (a)(1) [requiring fee of $40 for every criminal offense conviction]; Gov. Code, § 70373, subd. (a) [requiring fee of $30 per felony or misdemeanor].) As the parties agree, the amounts listed in the abstract of judgment are correct.
Defendant timely appealed.
Additional procedural background is provided in the relevant sections of our Discussion, post .
DISCUSSION
See footnote *, ante .
F. The trial court properly doubled the sentence on count 6 under the Three Strikes law
The information alleged that "prior to the commission of that offense or offenses alleged in Count 1, 2, and 3, the defendant ... had been convicted of the following serious and/or violent felony, as defined in Penal Code section 667(d) and Penal Code section 1170.12(b), and is thus subject to sentencing pursuant to the provisions of Penal Code section 667(b) – (j) and Penal Code section 1170.12," also known as the Three Strikes law. (See People v. Marcus (2020) 45 Cal.App.5th 201, 208, 258 Cal.Rptr.3d 508.) Accordingly, the information indicated that the sentences on counts 1 through 3 should be doubled, but did not so indicate for the other three counts. The prosecution's sentencing memorandum, however, filed two days before sentencing, recommended the trial court apply the Three Strikes law to count 6, solicitation of murder of Ross, as well as to counts 1 through 3. The trial court did so, doubling the sentences on those four counts.
We presume the prosecution did not pursue Three Strikes sentencing on count 4, resisting a peace officer, because it was a misdemeanor and on count 5, murder of Emery, because defendant committed the murder before he incurred the strike conviction. The sentences on those counts are not at issue in this appeal.
Defendant contends that because the information alleged the prior strike only as to counts 1 through 3, the trial court erred by doubling the sentence on count 6. The Attorney General argues defendant forfeited this challenge by not objecting below. On the merits, the Attorney General argues that so long as the information alleges a prior strike conviction, it need not be pleaded on a count-by-count basis. We conclude defendant's argument fails on the merits and do not reach the forfeiture question.
The purpose of the Three Strikes law is "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious or violent felony offenses." ( § 667, subd. (b).) By its own terms, it applies "in every case in which a defendant has one or more prior serious or violent felony convictions ...." (Id. , subd. (f)(1), italics added; see also § 1170.12, subd. (d)(1).) Indeed, despite the "general rule" that "the selection of criminal charges is a matter subject to prosecutorial discretion," "the Three Strikes law limits that discretion and requires the prosecutor to plead and prove each prior serious felony conviction." ( People v. Roman (2001) 92 Cal.App.4th 141, 145, 111 Cal.Rptr.2d 553 ( Roman ); see § 667, subd. (f)(1) ["The prosecuting attorney shall plead and prove each prior serious or violent felony conviction ...."], italics added; see also § 1170.12, subd. (d)(1).) The prosecution may move the court to dismiss the prior conviction allegation for insufficient evidence or "in the furtherance of justice" ( §§ 667, subd. (f)(2), 1170.12, subd. (d)(2) ), but may not "unilaterally strike" the allegation. ( Roman , at p. 145, 111 Cal.Rptr.2d 553.)
Because application of the Three Strikes law is based on "a defendant's prior conviction status," a status that "does not change from one count to another," our Supreme Court has described the Three Strikes law as "a single comprehensive and indivisible sentencing scheme that either does or does not apply." ( People v. Garcia (1999) 20 Cal.4th 490, 502, 85 Cal.Rptr.2d 280, 976 P.2d 831 ( Garcia ).) Accordingly, "it is appropriate to allege [defendant's prior conviction] status only once as to all current counts ...." ( Garcia , at p. 502, 85 Cal.Rptr.2d 280, 976 P.2d 831.)
Garcia held that courts nonetheless may strike prior conviction allegations on a count-by-count basis. (Garcia , supra , 20 Cal.4th at p. 502, 85 Cal.Rptr.2d 280, 976 P.2d 831.)
Defendant concedes "[t]here is no statutory requirement that a ... prior strike conviction be pleaded on a count-by-count basis." Defendant argues, however, as does the dissent, that "when a prior strike conviction is specifically alleged as to a particular count or counts in the information, but not as to all counts, the charging document necessarily has not provided the defendant with notice that the prosecution could seek to impose a sentence under the Three Strikes law as to any count other than those as to which the prior strike was alleged." In other words, by choosing to allege the prior strike only as to counts 1 through 3, the prosecution led defendant to believe he would not be sentenced under the Three Strikes law on count 6. We conclude the trial court properly doubled the sentence on count 6 under the Three Strikes law. In People v. Morales (2003) 106 Cal.App.4th 445, 130 Cal.Rptr.2d 800 ( Morales ), our colleagues in Division Five held that when the prosecution pleaded and proved a prior strike alleged as to one felony count, the strike applied to the two other felony counts in the information, although the prior strike had not been pleaded as to those counts. ( Morales , at pp. 447–448, 130 Cal.Rptr.2d 800.) Consistent with the principles we outlined above, the Morales court reasoned that "[p]rior conviction findings fall in the category of [enhancements] that describe the offender rather than the offense." ( Id. at p. 455, 130 Cal.Rptr.2d 800.) "In order for enhanced recidivist sentencing to occur, all that is necessary is that the defendant previously had been convicted of a ... violent felony such as occurred in this case." ( Ibid. )
The strike allegation in Morales read, " ‘It is further alleged pursuant to Penal Code sections 1170.12(a) through (d) and 667(b) through (i) as to count(s) 2 that said defendant(s), Manuel Morales, has suffered the following prior convictions of a serious or violent felony or juvenile adjudication ....’ " (Morales , supra , 106 Cal.App.4th at p. 450, 130 Cal.Rptr.2d 800, capitalization omitted.)
The court relied on language from section 667, including the language from section 667, subdivision (f) that the sentencing provisions " ‘shall be applied in every case in which a defendant has a prior felony conviction ....’ " ( Morales , supra , 106 Cal.App.4th at p. 455, 130 Cal.Rptr.2d 800, quoting § 667, former subd. (f)(1).) "Fairly construed, sections 667 and 1170.12 require enhanced sentencing once a prior violent felony conviction has been pled and found to be true, unless the court dismisses the prior conviction finding pursuant to section 1385, subdivision (a)." ( Morales , at p. 456, 130 Cal.Rptr.2d 800.) The appellate court therefore concluded the trial court erred by not doubling the sentences on the two counts to which the strike was not pleaded. ( Morales , at p. 456, 130 Cal.Rptr.2d 800.)
The appellate court remanded the case for the trial court to exercise its discretion whether to strike the strike as to either count. (Morales , supra , 106 Cal.App.4th at p. 457, 130 Cal.Rptr.2d 800.)
Morales is on point. Defendant argues, however, that Morales is no longer good law after our Supreme Court's recent decision in People v. Anderson (2020) 9 Cal.5th 946, 266 Cal.Rptr.3d 283, 470 P.3d 2 ( Anderson ). In Anderson , the court held that an information alleging a 25-year-to-life vicarious firearm enhancement under section 12022.53, subdivision (e) as to a single murder count did not provide adequate notice that the prosecution would seek the same enhancement on five robbery counts as to which the enhancement was not pleaded. ( Anderson , at p. 950, 266 Cal.Rptr.3d 283, 470 P.3d 2.)
The court cited the requirement in section 1170.1, subdivision (e) that sentence enhancements " ‘shall be alleged in the accusatory pleading,’ " a requirement mirrored in the firearm enhancement statute itself (§ 12022.53, subd. (j)), as well as the requirement in section 12022.53, subdivision (e) that the prosecution "ple[a]d and prove[ ]" the allegations underlying the vicarious firearm enhancement. ( Anderson , supra , 9 Cal.5th at p. 953, 266 Cal.Rptr.3d 283, 470 P.3d 2.) "Beneath all three statutory pleading requirements lies a bedrock principle of due process," namely that " ‘ "[a] criminal defendant must be given fair notice of the charges against him in order that he may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial." ’ [Citation.] This goes for sentence enhancements as well as substantive offenses: A defendant has the ‘right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.’ [Citation.]" ( Ibid. )
These "statutory pleading requirements ..., read against the backdrop of due process, require more than simply alleging the facts supporting an enhancement somewhere in the information." ( Anderson , supra , 9 Cal.5th at p. 956, 266 Cal.Rptr.3d 283, 470 P.3d 2.) "A pleading that alleges an enhancement as to one count does not provide fair notice that the same enhancement might be imposed as to a different count. When a pleading alleges an enhancement in connection with one count but not another, the defendant is ordinarily entitled to assume the prosecution made a discretionary choice not to pursue the enhancement on the second count, and to rely on that choice in making decisions such as whether to plead guilty or proceed to trial." ( Ibid. )
Thus, "[f]air notice requires that every sentence enhancement be pleaded in connection with every count as to which it is imposed." ( Anderson , supra , 9 Cal.5th at pp. 956–957, 266 Cal.Rptr.3d 283, 470 P.3d 2.) "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, 266 Cal.Rptr.3d 283, 470 P.3d 2.)
In our view, the notice concerns articulated in Anderson are not present here. The information in the instant case expressly invoked the Three Strikes law, and the plain language of that law provided adequate notice that it must apply to all eligible offenses unless the trial court exercised its discretion to strike the strike.
As discussed, a defendant's prior conviction status is not based on the circumstances of his current offense, and thus "does not change from one count to another." ( Garcia , supra , 20 Cal.4th at p. 502, 85 Cal.Rptr.2d 280, 976 P.2d 831.) The "single comprehensive and indivisible sentencing scheme" that is the Three Strikes law "either does or does not apply." ( Ibid. ) This is clear from the language of the Three Strikes law itself, stating it "shall be applied in every case in which a defendant has one or more prior serious or violent felony convictions ...." ( § 667, subd. (f)(1), italics added; see also § 1170.12, subd. (d)(1).) Pleading and proof of a prior strike allegation is sufficient to subject a defendant to Three Strikes sentencing on all eligible offenses, without alleging the strike on a count-by-count basis. (See Garcia , at p. 502, 85 Cal.Rptr.2d 280, 976 P.2d 831.)
Further, as discussed, the plain language of the Three Strikes law makes clear that the prosecution lacks discretion to allege prior strikes on some counts but not others. ( § 667, subd. (f)(1) ["The prosecuting attorney shall plead and prove each prior serious or violent felony conviction ....]; § 1170.12, subd. (d)(1) ; see Roman , supra , 92 Cal.App.4th at p. 145, 111 Cal.Rptr.2d 553.) Thus, although the prosecution drafted the information in the instant case inartfully, and purported to allege the prior strike only as to some eligible counts, it would be evident to defendant on the face of the Three Strikes law that the prior strike would apply to all eligible counts, unless the trial court dismissed the strike either on its own motion or in response to a motion by the prosecution or defense. (See §§ 667, subd. (f)(1)–(2), 1385.) In short, an information invoking the Three Strikes law and alleging a prior strike, in tandem with the language of the Three Strikes law itself, provides adequate notice that the prosecution is charging the defendant as a recidivist offender subject to the Three Strikes sentencing regime on all eligible offenses.
Division Three of this court has held that an information alleging a prior conviction without any reference to the Three Strikes law did not provide adequate notice the defendant was subject to Three Strikes sentencing. (People v. Sawyers (2017) 15 Cal.App.5th 713, 718, 721, 223 Cal.Rptr.3d 438.) In contrast, here, the information expressly invoked the Three Strikes law by citing sections 667, subdivisions (b) –(j) and 1170.12.
Anderson , in contrast, involved an enhancement under section 12022.53, subdivision (e), which imposes "a 25-year-to-life enhancement based on vicarious liability for the injurious discharge of a firearm by a coparticipant in a gang-related offense." ( Anderson , supra , 9 Cal.5th at p. 951, 266 Cal.Rptr.3d 283, 470 P.3d 2.) As a firearm enhancement, section 12022.53, subdivision (e) falls into the category of enhancements that "arise from the circumstances of the crime," and therefore are based "on what the defendant did when the current offense was committed." ( People v. Coronado (1995) 12 Cal.4th 145, 157, 48 Cal.Rptr.2d 77, 906 P.2d 1232, italics omitted [describing, inter alia, the firearm enhancement under section 12022.5].) Because a section 12022.53 enhancement speaks to the circumstances of a particular count, it follows that it must "be pleaded in connection with every count as to which it is imposed." ( Anderson , supra , 9 Cal.5th at pp. 956–957, 266 Cal.Rptr.3d 283, 470 P.3d 2.)
Section 12022.53, moreover, contains no language limiting the prosecution's discretion to plead or not plead the enhancement. Thus, it is permissible for the prosecution to plead a section 12022.53 firearm enhancement on one count but not another, and a defendant reading an information that does so has no reason to think the enhancement might apply to a count to which it is not pleaded. Rather, "the defendant is ordinarily entitled to assume the prosecution made a discretionary choice not to pursue the enhancement on the [other] count ...." ( Anderson , supra , 9 Cal.5th at p. 956, 266 Cal.Rptr.3d 283, 470 P.3d 2.)
A defendant has no basis to make such an assumption, however, when an information alleges a prior strike as to some eligible counts but not others. This is because, under the plain language of the Three Strikes law, it applies "in every case" in which a defendant has suffered a prior strike conviction ( §§ 667, subd. (f)(1) ; 1170.12, subd. (d)(1)), and, to borrow Anderson ’s language, the prosecution expressly cannot "ma[k]e a discretionary choice not to pursue" the Three Strikes alternative sentencing regime on all eligible counts. ( Anderson , supra , 9 Cal.5th at p. 956, 266 Cal.Rptr.3d 283, 470 P.3d 2.) Thus, despite the failure of the prosecution in this case to allege the strike on count 6, the language of sections 667 and 1170.12, both of which were cited in the information, provided adequate notice that count 6 also would be subject to a doubled sentence. In contrast, in Anderson , review of the applicable firearm enhancement statute would provide no notice that the enhancement would apply to counts to which the enhancement was not pleaded.
Defendant argues Anderson ’s holding extends to Three Strikes pleading because Anderson relied on the reasoning of People v. Mancebo (2002) 27 Cal.4th 735, 117 Cal.Rptr.2d 550, 41 P.3d 556 ( Mancebo ), a case involving the "One Strike" law (§ 667.61). (See Anderson , supra , 9 Cal.5th at pp. 954–955, 266 Cal.Rptr.3d 283, 470 P.3d 2 [discussing Mancebo ].) Defendant suggests the One Strike law and Three Strikes law are analogous for purposes of this case. As we explain, the One Strike law differs in key respects from the Three Strikes law, and Mancebo is not on point.
The One Strike law "sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force ...." ( Mancebo , supra , 27 Cal.4th at p. 741, 117 Cal.Rptr.2d 550, 41 P.3d 556.) "The section applies if the defendant has previously been convicted of one of [several] specified offenses, or if the current offense was committed under one or more specified circumstances." ( Id. at pp. 741–742, 117 Cal.Rptr.2d 550, 41 P.3d 556 ; § 667.61, subds. (a)–(b), (d)–(e).) In other words, the One Strike law is similar to the Three Strikes law in that it may be applied based on past convictions, but it is dissimilar in that it may also be applied based on the circumstances of the current offense. The One Strike law also differs from the Three Strikes law in that it does not restrict the prosecution's discretion whether to plead or not plead allegations justifying imposition of the sentencing regime; instead, "The penalties provided in [the One Strike law] shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading ...." (§ 667.61, subd. (o), italics added.)
The One Strike law requires the trial court to impose an indeterminate term of 25 years to life on defendants convicted of an offense "under two or more of the circumstances specified in subdivision (e)" of section 667.61. (§ 667.61, subd. (a).) Accordingly, the information at issue in Mancebo alleged two such circumstances for each victim—for the first victim, "Kidnap and Use of Firearm," and for the second victim, "Use of Firearm and Tie or Bind Victim." ( Mancebo , supra , 27 Cal.4th at pp. 742–743, 117 Cal.Rptr.2d 550, 41 P.3d 556 ; see 667.61, subds. (a), (e)(1), (3), (5).) Because the information alleged only two circumstances per victim, the "minimum number" required for indeterminate sentencing under section 667.61, subdivision (a), the One Strike law barred the prosecution from relying on the gun use circumstances also to support firearm enhancements under section 12022.5. ( Mancebo , at p. 743, 117 Cal.Rptr.2d 550, 41 P.3d 556 ; § 667.61, subd. (f).) The trial court, however, substituted an unpleaded multiple-victim circumstance for the firearm circumstance in order to meet the "minimum number" of qualifying circumstances for purposes of One Strike sentencing, "thereby making gun use available as a basis for imposing the section 12022.5(a) enhancements." ( Mancebo , at p. 740, 117 Cal.Rptr.2d 550, 41 P.3d 556.)
Our Supreme Court held it was error to impose the section 12022.5 firearm enhancements. ( Mancebo , supra , 27 Cal.4th at p. 744, 117 Cal.Rptr.2d 550, 41 P.3d 556.) The One Strike law requires that the circumstances supporting enhanced sentencing be pleaded and proved. ( Id. at pp. 744–745, 117 Cal.Rptr.2d 550, 41 P.3d 556, citing § 667.61, subd. (f).) Although the information pleaded, and the prosecution proved, that the defendant committed offenses against two victims, the information never alleged a multiple victim circumstance under section 667.61, subdivision (e). ( Mancebo , at pp. 744–745, 117 Cal.Rptr.2d 550, 41 P.3d 556.) "In other words, no factual allegation in the information or pleading in the statutory language informed defendant that if he was convicted of the underlying charged offenses, the court would consider his multiple convictions as a basis for One Strike sentencing under section 667.61, subdivision (a). Thus, the pleading was inadequate because it failed to put defendant on notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance to secure indeterminate One Strike terms under section 667.61, subdivision (a) and use the circumstance of gun use to secure additional enhancements under section 12022.5(a)." ( Mancebo , at p. 745, 117 Cal.Rptr.2d 550, 41 P.3d 556.)
The court concluded that the prosecution had made a "discretionary charging decision" to use the firearm allegations to support One Strike sentencing as opposed to section 12022.5 enhancements. ( Mancebo , supra , 27 Cal.4th at p. 749, 117 Cal.Rptr.2d 550, 41 P.3d 556.) "Because the People elected to plead the enhancement allegations in this manner, the express provisions of [section 667.61,] subdivision (f) restricted the trial court to this application." ( Mancebo , at p. 749, 117 Cal.Rptr.2d 550, 41 P.3d 556.)
Mancebo addressed the notice required when the prosecution makes a discretionary charging decision concerning enhancements based on the circumstances of the underlying offense . The enhancement in Anderson too was discretionary and based on the circumstances of the underlying offense. As in Anderson , review of the One Strike law would not have remedied any pleading defects by filling in the missing pieces in the information, and thus the Mancebo defendant had no way of knowing from the information that he would be subject to an unpleaded multiple-victim circumstance.
Mancebo , like Anderson , does not apply to the instant case, in which the information clearly alleged a sentencing regime that on its face is both nondiscretionary and based on the defendant's criminal history rather than the circumstances of his offenses. Citation to the Three Strikes law, along with an allegation of a prior strike, was sufficient to place defendant on notice that all eligible offenses would be subject to the Three Strikes sentencing scheme.
The dissent cites People v. Williams (2004) 34 Cal.4th 397, 404–405, 19 Cal.Rptr.3d 619, 98 P.3d 876 ( Williams ) for the proposition that the Three Strikes law does not draw any distinction between status enhancements, based on the defendant's record, and enhancements based on the circumstances of the current offenses. (Conc. & dis. opn. post , at p. 58–59.) Williams is not instructive as to the issue before us here.
Williams addressed whether, when a defendant is subject to multiple indeterminate Three Strikes sentences, the trial court should impose a prior conviction enhancement under section 667, subdivision (a) on each of the sentences, or only once on the total aggregate sentence. ( Williams , supra , 34 Cal.4th at pp. 400–401, 19 Cal.Rptr.3d 619, 98 P.3d 876 ). In the context of multiple determinate sentences, an earlier Supreme Court opinion had held that, under section 1170.1, prior conviction enhancements could be imposed only once on the total aggregate sentence, whereas offense-based enhancements such as firearm enhancements "enhance the several counts." ( People v. Tassell (1984) 36 Cal.3d 77, 90, 201 Cal.Rptr. 567, 679 P.2d 1, disapproved on other grounds by People v. Ewoldt (1994) 7 Cal.4th 380, 27 Cal.Rptr.2d 646, 867 P.2d 757.) Williams held that the rule for multiple determinate sentences under section 1170.1 and Tassell did not apply for purposes of imposing status-based enhancements on multiple indeterminate Three Strikes sentences, in part because "[t]he Three Strikes law, unlike section 1170.1, does not draw any distinction between status enhancements, based on the defendant's record, and enhancements based on the circumstances of the current offenses ...." ( Williams , at pp. 404–405, 19 Cal.Rptr.3d 619, 98 P.3d 876.) Thus, the trial court must apply the prior conviction enhancement "individually to each count of a third strike sentence." ( Id. at p. 405, 19 Cal.Rptr.3d 619, 98 P.3d 876.)
Williams concerned only the imposition of enhancements on Three Strikes sentences. It did not concern what is at issue in the instant case, namely the pleading requirements of the Three Strikes sentences themselves. Williams therefore does not suggest, as the dissent implies, that there is no difference between the pleading of status-based prior strike allegations and the pleading of offense-based allegations such as those at issue in Anderson .
In sum, the trial court did not err in doubling the sentence on count 6.
See footnote *, ante .
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DISPOSITION
The judgment is amended to strike the 10-year enhancement on count 1 under section 12022.53, subdivision (a); to impose a 10-year enhancement on count 1 under section 12022.5, subdivision (a); and to grant defendant 118 days in conduct credit in addition to the 793 days of actual credit already granted. As modified, the judgment is affirmed. The trial court shall forward the modified abstract of judgment to the Department of Corrections and Rehabilitation. The trial court also shall amend the minutes for the November 28, 2018 hearing to reflect the striking of the five section 667.5 enhancements.
I concur:
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
CHANEY, J., Concurring and Dissenting.
I would conclude that the trial court imposed an unauthorized sentence when it doubled Elliot Kimo Laanui's sentence on count 6 based on the "Three Strikes" law.
"As a rule, all sentence 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.’ " ( People v. Anderson (2020) 9 Cal.5th 946, 953, 266 Cal.Rptr.3d 283, 470 P.3d 2 ( Anderson ).) " ‘ "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal." [Citations.] "A criminal defendant must be given fair notice of the charges against him in order that he may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial." ’ [Citation.] This goes for sentence enhancements as well as substantive offenses: A defendant has the ‘right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.’ " ( Ibid. ) In Anderson , the Supreme Court explained that "[a] pleading that alleges an enhancement as to one count does not provide fair notice that the same enhancement might be imposed as to a different count. When a pleading alleges an enhancement in connection with one count but not another, the defendant is ordinarily entitled to assume the prosecution made a discretionary choice not to pursue the enhancement on the second count, and to rely on that choice in making decisions such as whether to plead guilty or proceed to trial." ( Anderson , supra , 9 Cal.5th at p. 956, 266 Cal.Rptr.3d 283, 470 P.3d 2.) "Fair notice requires that every sentence enhancement be pleaded in connection with every count as to which it is imposed." ( Id. at pp. 956–957, 266 Cal.Rptr.3d 283, 470 P.3d 2.)
In People v. Garcia (1999) 20 Cal.4th 490, 502, 85 Cal.Rptr.2d 280, 976 P.2d 831 ( Garcia ) the Supreme Court concluded that "it is appropriate to allege [application of the Three Strikes law] only once as to all current counts." Alleging Three Strikes treatment generally as to all applicable counts, however, is not the same as alleging that the Three Strikes law applies to specific counts and then requiring the defendant to assume the allegation is universal.
Requiring a defendant to assume that a Three Strikes law enhancement is pleaded as to expressly omitted counts because a prosecutor has no discretion to not plead Three Strikes enhancements is tantamount to requiring a defendant assume Three Strikes treatment on counts to which the enhancement would apply even if there is no Three Strikes allegation in the pleading. That a prosecutor has a duty to do something does not render it done; people who have duties to do things sometimes fail to comply with those duties. In addition to violating a defendant's due process, deeming an enhancement alleged as to all counts when it is expressly not alleged as to certain counts may well enable sloppy pleading at best and devious practice at worst. The consequence for a prosecutor's failure to perform a duty should not be borne by the defendant.
In 1984, our Supreme Court identified a distinction between "two kinds of enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense." ( People v. Tassell (1984) 36 Cal.3d 77, 90, 201 Cal.Rptr. 567, 679 P.2d 1, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 381, 401, 27 Cal.Rptr.2d 646, 867 P.2d 757.) The court identified that distinction based on language that was then in Penal Code section 1170.1. ( Tassell , at p. 91, 201 Cal.Rptr. 567, 679 P.2d 1.) In 2004, the Supreme Court clarified that this distinction does not apply to the Three Strikes law: "The Three Strikes law, unlike section 1170.1, does not draw any distinction between status enhancements, based on the defendant's record, and enhancements based on the circumstances of the current offenses, and the Three Strikes law generally discloses an intent to use the fact of recidivism to separately increase the sentence imposed for each new offense." ( People v. Williams (2004) 34 Cal.4th 397, 404–405, 19 Cal.Rptr.3d 619, 98 P.3d 876 ; People v. Sasser (2015) 61 Cal.4th 1, 12, 186 Cal.Rptr.3d 540, 347 P.3d 522.)
Garcia did not extend the distinction Tassell recognized or otherwise apply either of its section 1170.1-specific categories of enhancements to the Three Strikes law. Garcia identifies that the Three Strikes law "is a single comprehensive and indivisible sentencing scheme that either does or does not apply," and on that basis "it is appropriate to allege that status only once as to all current counts." ( Garcia , supra , 20 Cal.4th at p. 502, 85 Cal.Rptr.2d 280, 976 P.2d 831.) Garcia still acknowledges the reality that the effect of the Three Strikes law "may change from one count to another." ( Ibid. )
Garcia and Anderson are not mutually exclusive. And Tassell ’s offender-offense status distinction has no application here. Prosecutors may allege Three Strikes status as to all current counts in a single allegation. If they choose to specify counts to which the enhancement applies, however, they should be required to specify all counts for which the People allege application. I would therefore conclude that the trial court's decision to double Laanui's sentence as to count 6 constitutes an unauthorized sentence, and would reverse on that basis.
I concur with my colleagues’ opinion in all other respects.