PEOPLE v. MANCEBO

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Chad Melvin MANCEBO, Defendant and Appellant.

No. F028473.

Decided: January 04, 2000

Kyle Gee, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Margaret Venturi and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

In the published portion of this opinion we address alleged sentencing errors under Penal Code 1 section 667.61, also known as the “One Strike” law.   Stated briefly, defendant was convicted by jury of various violent sex offenses committed on separate dates and against different victims, who we refer to as “R” and “Y.”

In July 1995, defendant pointed a handgun and ordered Y into his truck.   He drove Y to a remote location, on the way forced her to orally copulate him, and later he committed forcible rape twice, sodomy twice, and another act of oral copulation.   Pursuant to section 667.61, the information alleged these crimes were committed under the specified circumstances of kidnap and firearm use. (§ 667.61, subds. (e)(1) & (4).)   In August 1995, after R voluntarily rode with defendant to a remote location, he placed a gun to her head, tied her hands, and committed forcible sodomy upon her.   Pursuant to section 667.61, the information alleged these crimes were committed under the specified circumstances of firearm use and binding. (§ 667.61, subds. (e)(4) & (6).)

For reasons not disclosed by the record, the information did not allege a multiple victim circumstance pursuant to section 667.61, subdivision (e)(5), and the information was never amended to include this allegation.   Even so, the sentencing court applied this circumstance in imposing defendant's sentence.   Although the People argue the court committed harmless error, we hold the sentence was unauthorized under the circumstances, and therefore not subject to harmless error analysis.   In the unpublished portion of this opinion we reject defendant's remaining contentions, but remand for resentencing on the firearm-use enhancements pertaining to counts 4, 5 and 6, based on respondent's contention that the court imposed an unauthorized sentence on these counts.

PROCEDURAL HISTORY **

FACTUAL HISTORY **

DISCUSSIONI.-III. **IV. The firearm-use enhancements

Defendant contends the 10-year firearm-use enhancements were improperly imposed on counts 3 and 9 because his firearm-use also supported imposition of 25-year-to-life terms for those counts.   Respondent acknowledges there is a problem, but argues harmless error.

A. The One Strike law

Approximately six months after the Legislature enacted the Three Strikes law as urgency legislation, it adopted section 667.61 5 , the One Strike law.  (People v. Ervin (1996) 50 Cal.App.4th 259, 264, 57 Cal.Rptr.2d 728.)   This section sets forth an alternative sentencing scheme for certain sex crimes.   These include rape, foreign object penetration, sodomy and oral copulation, all by force.   The section “kicks in” if the defendant has previously been convicted of one of seven specified offenses or if the current offense was committed under one or more specified circumstances.   Subdivision (a) provides that if defendant has previously been convicted of an offense enumerated in subdivision (c) or if two of the circumstances specified in subdivision (e) apply to the current offense, then an indeterminate term of twenty-five years to life shall be imposed.   Subdivision (b) provides that if one of the circumstances specified in subdivision (e) applies, then an indeterminate term of 15 years to life shall be imposed.   The alternative sentencing scheme established by section 667.61 does not create a new crime.   The subdivision (e) elements are only sentencing factors.   The statute, however, requires the element(s) to be pled and proved to the trier of fact. (§ 667.61, subd. (i).)

B. Unauthorized sentence

Defendant asserts, and the record establishes, that only two circumstances enumerated in section 667.61, subdivision (e) (subdivision (e)) were specifically alleged and proved with respect to each victim.   Regarding victim Y, the information alleged “that within the meaning of Penal Code Sections 667.61(a) and (e), … the following circumstances apply:  KIDNAP AND USE OF FIREARM.”   With respect to victim R, the information alleged “that within the meaning of Penal Code Sections 667.61(a) and (e), … the following circumstances apply:  USE OF FIREARM AND TIE OR BIND VICTIM.”   Since both allegations included use of a firearm as an enumerated circumstance, defendant contends that under subdivision (f) of section 667.61, the firearm use enhancement under section 12022.5 was improper because this circumstance could only be used to impose the term provided in subdivision (a), “rather than being used to impose the punishment authorized under any other law .…” (§ 667.61, subd. (f).)  Based on the plain meaning of the statute's language, defendant is correct.   Under the pleadings as alleged in the information, the imposition of the firearm-use enhancement resulted in an unauthorized sentence.

C. Statutory construction

Respondent attempts to get around the problem by arguing the enumerated circumstance of conviction for offenses against more than one victim, as provided in subdivision (e)(5), was adequately pled and proven.   Respondent essentially asks us to substitute this circumstance for the use of the firearm circumstance so the firearm-use enhancement would no longer be in violation of section 667.61, subdivision (f).   We reject the contention that the subdivision (e)(5) circumstance was adequately pled and proven.   Since subdivision (e)(5) was not pled as a circumstance to bring defendant within the application of section 667.61, subdivision (a), the trial court was not authorized to rely on it for that purpose.

Respondent's argument is as follows:

“Although the information did not specifically allege the multiple victim circumstance by section number, it did allege the facts of the circumstance.   For a section 667.61, subdivision (e)(5) circumstance to apply, the jury must find that ‘[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.’   The pleading requirement of section 667.61 requires only that ‘the existence of any fact required under subdivision (d) or (e) shall be alleged in the accusatory pleading ….’ Here, the information alleged that appellant had committed, in count 3, forcible rape of [Y] and, in count 9, forcible sodomy of [R]. Both of the alleged offenses are listed in section 667.61, subdivision (c).   Thus, the information alleged all of the facts necessary to prove the multiple victim circumstance.”

 Respondent would have us construe the pleading and proof requirements of section 667.61 by reference only to the language in subdivision (i), i.e., that the “existence of any fact” be alleged.   However, when read in conjunction with subdivision (f) of that section, it is clear that for section 667.61 to apply, the information must allege not only facts, but also the “circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) .…” (See People v. DeSimone (1998) 62 Cal.App.4th 693, 696, 698, 73 Cal.Rptr.2d 73;  People v. Jones (1997) 58 Cal.App.4th 693, 709, 68 Cal.Rptr.2d 506.)

D. Sufficiency of the pleadings

 In this case, the information simply charged numerous offenses that involved two victims.   However, with respect to these offenses and two victims, section 667.61 was not referenced.   In other words, no factual allegation in the information, or pleading in the statutory language, informed defendant that if he were convicted of the underlying charged offenses, the convictions would be considered in connection with section 667.61, subdivision (a).   Thus, the pleading was inadequate because there was no notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance for purposes of section 667.61, subdivision (a) application.  (See, e.g., People v. Haskin (1992) 4 Cal.App.4th 1434, 1438-1440, 7 Cal.Rptr.2d 1;  People v. Najera (1972) 8 Cal.3d 504 512, 105 Cal.Rptr. 345, 503 P.2d 1353;  People v. Hernandez (1988) 46 Cal.3d 194, 208, 249 Cal.Rptr. 850, 757 P.2d 1013.)

In Haskin, supra, the defendant admitted an allegation of a prior prison term under section 667.5, subdivision (b), for a prior 1979 burglary conviction.   The information did not allege the burglary was of an inhabited dwelling.   Based on the People's exhibit containing proceedings of the 1979 burglary conviction, the court made a factual finding that it was a residential burglary after the defendant had admitted the enhancement allegation.   At sentencing, the court imposed an enhancement term of five years for the prior 1979 burglary under section 667.   It did so instead of imposing a one-year term as provided by section 667.5, subdivision (b), which was what the information had alleged and the defendant had admitted.   The Court of Appeal held “[b]ecause appellant was neither statutorily nor factually charged with, nor consented to, a substituted section 667 enhancement in conjunction with the 1979 offense, the trial court was without authority to impose a sentence greater than that authorized by section 667.5, subdivision (b), the charging statute which appellant admitted.”  (People v. Haskin, supra, 4 Cal.App.4th at p. 1440, 7 Cal.Rptr.2d 1.)  Haskin is distinguishable because it involved an admission rather than a conviction following a jury trial.

In People v. Najera, supra, 8 Cal.3d at p. 504, 105 Cal.Rptr. 345, 503 P.2d 1353, the defendant was charged with robbery.   The information further alleged defendant “was ‘armed with a deadly weapon, to-wit, a gun.’ ”   (Id. at p. 506, 105 Cal.Rptr. 345, 503 P.2d 1353.)   The evidence established the defendant used a firearm during a robbery.  (Id. at p. 507, 105 Cal.Rptr. 345, 503 P.2d 1353.)   However, the information did not allege a violation of section 12022.5.  (Id. at p. 509, fn. 4, 105 Cal.Rptr. 345, 503 P.2d 1353.) 6 The court first held the necessary firearm use finding had to be made by the jury, as trier of fact, and not simply by the trial judge.  (Id. at pp. 509-510, 105 Cal.Rptr. 345, 503 P.2d 1353.)   Since the prosecution failed to present the issue to the jury, the court concluded “the People waived application of section 12022.5 by failing to have the matter resolved at trial.”  (Id. at p. 512, 105 Cal.Rptr. 345, 503 P.2d 1353.)  Najera is distinguishable.   Here, although not directly presented with the issue, the jury's verdicts are at a minimum, an implied factual determination that defendant was convicted of “an offense specified in subdivision (c) against more than one victim.” (§ 667.61, subd. (e)(5).)

In People v. Hernandez, supra, 46 Cal.3d at page 194, 249 Cal.Rptr. 850, 757 P.2d 1013, the court resolved whether a sentencing judge may impose an additional three-year term under section 667.8 (kidnapping for purpose of rape) when a violation of that section was not pled or proven, and was mentioned for the first time in a probation report.  (Id. at p. 197, 249 Cal.Rptr. 850, 757 P.2d 1013.)   The court concluded that “such additional term may not be imposed, since a pleading and proof requirement should be implied as a matter of statutory interpretation and must be implied as a matter of due process.”   (Ibid.) The court explained:

“In the present case, as noted above, no notice whatsoever, not just of the code section but of the mens rea required by section 667.8, was given either in the information, arguments of counsel, or evidence produced at trial.   Mention that a three-year additional term would be added for kidnapping for the purpose of rape was first made in the probation report filed ten days before sentencing.   As a matter of due process, the enhancement under section 667.8 could not be imposed under these circumstances.  [Citation.]

The People, however, urge that the facts overwhelmingly establish that this kidnapping was for the purpose of rape.   They argue the jury must have so concluded, and any error in failing to plead, prove, or instruct on section 667.8 was therefore harmless.   It is unnecessary to articulate a particular standard of review and engage in a harmless-error analysis when defendant's due process right to notice has been so completely violated.  (People v. Hernandez, supra, 46 Cal.3d at pp. 208-209, 249 Cal.Rptr. 850, 757 P.2d 1013.)

Hernandez is distinguishable since there are no mens rea or scienter requirements for the multiple victim circumstance other than those subsumed within the requirements of the underlying offenses, which were litigated and resolved against defendant.

Respondent notes that a specific statutory enumeration is not a prerequisite for a valid pleading.  (Citing People v. Thomas (1987) 43 Cal.3d 818, 826, 239 Cal.Rptr. 307, 740 P.2d 419.)   Relying on Thomas, respondent argues “[i]t is sufficient that the allegations in the pleadings placed appellant on notice that the facts underlying the multiple victim circumstance would be at issue.”   However, this is not the holding in Thomas.   Rather, Thomas involved whether a person accused of a general charge of manslaughter, alleged as “ ‘wilfully unlawfully and witho[ut] malice aforethought,’ ” could be convicted of involuntary manslaughter.  (Id. at p. 827, 239 Cal.Rptr. 307, 740 P.2d 419.)   The court held the inclusion of the word “ ‘wilfully’ ” to the accusatory pleading did “not transmogrify the crime charged from manslaughter generally to voluntary manslaughter exclusively.”   (Id. at p. 828, 239 Cal.Rptr. 307, 740 P.2d 419.)   The court further noted the defendant had not demonstrated “he was prejudiced by the admittedly inartful wording of the information.”  (Ibid.)

Respondent's reliance on People v. Marshall (1996) 13 Cal.4th 799, 55 Cal.Rptr.2d 347, 919 P.2d 1280 is misplaced.   There, the defendant was charged with three first-degree murders, and a death sentence was sought by multiple-murder special-circumstances allegations.   The trial court decided not to present the issue of the multiple-murder special-circumstances allegation to the jury.   It reasoned that if the jury found defendant guilty of more than one of the murders charged, the special circumstances would be established without the need for any further finding.   The Supreme Court found this procedure constituted error, but was harmless.  (Id. at p. 850, 55 Cal.Rptr.2d 347, 919 P.2d 1280.)  Marshall is distinguishable from this case.   Here, the special circumstance of multiple victims was not alleged.   To the contrary, in Marshall, the defendant was given notice that the People would be seeking the death penalty based on the multiple-murder special circumstances allegation.

Finally, for a similar reason, People v. Jones, supra, 58 Cal.App.4th 693, 68 Cal.Rptr.2d 506, also relied upon by respondent, is distinguishable.   There, the information alleged defendant came within the purview of the “One Strike” law by alleging “a multiple victim circumstance.”  (Id. at p. 706, 68 Cal.Rptr.2d 506.)   The court found the failure of the trial court to instruct the jury sua sponte on the alleged circumstances was harmless beyond a reasonable doubt.  (Id. at p. 709, 68 Cal.Rptr.2d 506.)   Further, the court rejected the defendant's claim that the jury was required to make a finding, separate from the verdicts, that each multiple victim circumstance alleged was true.   Relying on Marshall, supra, the court found any error was harmless.  (Id. at p. 712, 68 Cal.Rptr.2d 506.)   The Jonescase simply did not present the lack of notice/pleading problem presented here and in Haskin, Najera, and Hernandez.  (See People v. Garcia (1998) 63 Cal.App.4th 820, 833, 73 Cal.Rptr.2d 893, [“The complete lack of notice …, which was the basis for the court's reversal in Hernandez, is not present in the instant case, and a different standard for assessing prejudice applies here,” since the defendant conceded he was on notice of the drive-by allegation].)

 In balancing the interests of the state against the constitutional rights of the defendant, respondent's request that a harmless error analysis be applied to the due process violation here, in the face of the holdings in Hernandez and Najera, must be carefully considered.   The language of the statute requiring the circumstances be pled and proved is plain.   The specific averments and reference to section 667.61 made by the prosecution in the information regarding the firearm use, kidnapping and binding circumstances evidences the prosecution was aware of the pleading requirements, and knew how to plead them.   The failure to include a multiple-victims circumstance allegation must therefore be viewed as a discretionary charging decision.   In fact, this conclusion is not only supported by the record, respondent does not even contend the failure to plead was based on mistake or other excusable neglect.   Under these circumstances, the doctrines of waiver and estoppel, rather than harmless error, apply.  (People v. Hernandez, supra, 46 Cal.3d at pp. 208-209, 249 Cal.Rptr. 850, 757 P.2d 1013 [“It is unnecessary to … engage in a harmless-error analysis when defendant's due process rights to notice has been completely violated”];  People v. Najera, supra, 8 Cal.3d at p. 512, 105 Cal.Rptr. 345, 503 P.2d 1353 [“We conclude that the People waived application of section [667.61, subd. (e)(5) ] by failing to have the matter resolved at trial”].)

In light of the pleadings, it is reasonable to conclude the prosecution made its charging decision by interpreting the various provisions of section 667.61 to authorize two consecutive 25-year-to-life sentences under the facts they intended to prove.   The two subdivision (e) allegations for each victim meant subdivision (a) would apply to both.   In addition, because there were two victims, the subdivision (a) offenses would run consecutively under subdivision (g), i.e., a subdivision (a) term would apply “once for any offense or offenses committed against a single victim during a single occasion.” (§ 667.61, subd. (g).)  Having pled them in this manner, the trial court was constrained to this application by the express provisions of subdivision (f).  As a result, the court gave an unauthorized sentence by sentencing defendant as though the prosecution had alleged an additional subdivision (e) circumstance for each victim based on the multiple victim circumstance under subdivision (e)(5).   There are no provisions that grant the trial court the discretion to add circumstances at the time of sentencing on its own motion.7

 Harmless error

 One very recent case has applied a harmless error analysis under circumstances that are factually indistinguishable from those here.  (See People v. Knox (1999) 74 Cal.App.4th 757, 88 Cal.Rptr.2d 432.)   However, the court analyzed the issue as an error in failing to expressly plead the multiple victim circumstance without considering waiver or unauthorized sentencing, and did not consider the sentencing directives of subdivision (f).

In Knox, supra, the information charged various sex offenses against three victims.   Each count alleged a deadly weapon use circumstance pursuant to section 667.61, subdivision (e)(4).  (People v. Knox, supra, 74 Cal.App.4th at p. 762, 88 Cal.Rptr.2d 432.)   The information failed to expressly allege the section 667.61, subdivision (e)(5) multiple victim circumstance.  (Id. at p. 761, 88 Cal.Rptr.2d 432.)   After distinguishing the Jones case, supra, the court resolved the issue as follows:

“Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial.  (People v. Toro (1989) 47 Cal.3d 966, 973, 254 Cal.Rptr. 811, 766 P.2d 577, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3, 76 Cal.Rptr.2d 239, 957 P.2d 928.) Except for lesser included offenses, an accused cannot be convicted of an offense for which he has not been charged, regardless of whether evidence at trial showed he committed the offense.  (Toro, supra, at p. 973, 254 Cal.Rptr. 811, 766 P.2d 577.)

“We conclude that under the present circumstances, any error in failing to expressly plead the multiple victim circumstance and include it as a finding on the verdict form was harmless.   Appellant had adequate notice of the charges against him and against which he had to defend.   The facts establishing the multiple victim circumstance were alleged.   Appellant knew he was charged with numerous sexual offenses, committed with use of a firearm, against multiple victims.   If true, these crimes and circumstances require a 25-year-to-life sentence, and appellant was convicted as charged of the crimes against all three victims.   Neither appellant nor the record suggests that he would have defended the case any differently if the multiple victim circumstances (§ 667.61, subd. (e)(5)) had been specifically alleged.   Since the jury found appellant guilty of all charges against all three victims, it rendered a de facto multiple victim finding thereby invoking the One Strike law.  (See, e.g., People v. Jones, supra, 58 Cal.App.4th at p. 712, 68 Cal.Rptr.2d 506.)”  (People v. Knox, supra, 74 Cal.App.4th at p. 764, 88 Cal.Rptr.2d 432.)

The Knox analysis only makes sense if it is proper to shift the burden to defendant to show prejudice on appeal.   We conclude the language of subdivision (f) qualifies the language in subdivision (e).   Thus, there must be an express pleading of subdivision (e) circumstances, and not simply a cryptic pleading of the existence of a fact required under subdivision (e).   Since this is an unauthorized sentence situation, a harmless error analysis cannot apply.   As a result, the firearm enhancements in counts 3 and 9 are ordered stricken.

V. The firearm-use enhancement sentence***

VI. The motion to disclose personnel records †

DISPOSITION

The judgment is modified by striking the sentences imposed for the firearm-use enhancements attached to counts 3 and 9. The matter is remanded for resentencing on the firearm-use enhancements in counts 4, 5 and 6.   In all other respects the judgment is affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise noted..  FN1. All statutory references are to the Penal Code unless otherwise noted.

FOOTNOTE.   See footnote *, ante.

5.   At the time of the offenses, section 667.61 provided, in relevant part:“(a) A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j).“․“(c) This section shall apply to any of the following offenses:“(1) A violation of paragraph (2) of subdivision (a) of Section 261.“․“(5) A violation of subdivision (a) of Section 289.“(6) Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.“․“(e) The following circumstances shall apply to the offenses specified in subdivision (c):“(1) Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 208, 209, or 209.5.“․“(4) The defendant personally used a dangerous or deadly weapon or firearm in the commission of the present offense in violation of Section 12022, 12022.3, or 12022.5.“(5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.“(6) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense.“․“(f) If only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty.   However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law.   Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e).“․“(i) For the penalties provided in this section to apply, the existence of any fact required under subdivision (d) or (e) 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.

6.   The defendant raised no objections to the adequacy of the information, and so the court merely noted that to afford fair notice, the better practice would be to set forth in the information whether application of section 12022.5 would be sought.   The court gave tacit approval of People v. Henderson (1972) 26 Cal.App.3d 232, 238, 102 Cal.Rptr. 670.  Henderson held that “[r]egardless of the fact that the evidence amply justified the [section 12022.5] finding, the lack of notice in the charge makes the finding impermissible” where only a section 12022 enhancement was alleged, “absent a most radical reinterpretation of the due process clause.”

7.   The converse is specifically provided for in subdivision (f), i.e., if pleaded and proved, “the court shall not strike any of the circumstances specified in subdivision (d) or (e).” (§ 667.61, subd. (f).)

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

WISEMAN, J.

DIBIASO, Acting P.J., and SILVEIRA, J.†† concur.