PEOPLE v. MILLER (1993)

In this appeal we are asked to decide whether a five-year sentence enhancement may be imposed for conviction of a prior serious felony where the specific factual predicate alleged in the information for finding the present conviction to be a serious felony of great bodily injury is found not true by the jury.   We conclude principles of due process preclude the imposition of punishment for an uncharged offense and strike the serious felony sentence enhancement.

FACTS AND PROCEEDINGS BELOW

Defendant, Shawn Miller, was employed by the furniture moving company, Starving Students, as a truck driver and trainer of other employees.   On Monday morning, August 15, 1988, defendant's supervisor, Daryl Lawrence Hale, learned defendant had violated company policy by failing to collect on a recent moving job and by scheduling a job outside that office's territory.   Hale referred the scheduled job to the proper territory and ordered defendant to immediately collect the moving charges he had failed to collect earlier.

Defendant became angry and upset and began yelling at Hale.   The discussion became heated as Hale insisted he would have to collect the money and that two other employees would take over defendant's assigned job for that day.   Defendant began stomping about the office and accused Hale of screwing up his life.   He then shoved Hale in the chest and dared Hale to take a punch at him.   Hale told defendant he was out of line and to cool off.   Hale then went into his office.

Defendant followed Hale into his office and accused him of ruining his life.   Defendant picked up a barbell Hale kept in his office, held it with both hands over his head and threw the barbell onto Hale's head.   The barbell weighed more than 50 pounds and hit the front left side of Hale's head.   Hale was thrown backward in his chair and fell to the floor.   When he regained consciousness he was lying on his back with his right shoulder pinned under the edge of the desk.   Defendant was on top of him, sitting on his chest and hitting Hale's face with his fists.   Defendant ran out of the office when Hale began screaming for someone to call the police.

Hale sustained a four-centimeter laceration which extended to his scalp.   The laceration required 40 stitches and subsequent cosmetic surgery to repair the skin tissue.

Defendant was charged with assault with a deadly weapon (a 50–pound barbell) with force likely to inflict great bodily injury.  (Pen.Code, § 245(a)(1).)   The information also alleged defendant personally inflicted great bodily injury (Pen.Code, § 12022.7), causing the offense to become a serious felony.  (Pen.Code, § 1192.7(c)(8).)   The information further alleged defendant had suffered a prior serious felony of assault with a deadly weapon within the meaning of Penal Code section 667, subdivision (a) subjecting defendant to an enhanced sentence of five years.

The matter was tried to a jury.   Defendant did not testify.   However, a defense witness testified defendant acted in self-defense and suggested Hale's injury was a result of hitting his head on the edge of his desk.

The jury found defendant guilty of “assault great bodily injury or with deadly weapon in violation of Penal Code section 245 (a)(1).”   It found not true, however, the special allegation defendant personally inflicted great bodily injury.

After the verdict, defendant waived the right to a jury trial on the prior serious felony conviction allegation.   The court admitted into evidence certified copies of documents from the Los Angeles County Sheriff's Department pertaining to defendant's prior felony conviction.   Upon request, the trial court also took judicial notice of the court file in the prior conviction.   The trial court found defendant had personally used a knife when he committed the prior assault with a deadly weapon, making the prior offense a serious felony.  (Pen.Code, § 1192.7(c)(23).)   The trial court sentenced defendant to a high term of four years on the present conviction plus five years pursuant to Penal Code section 667, subdivision (a) for the prior serious felony conviction.

Defendant challenges the propriety of the five-year sentence enhancement.

DISCUSSION

I. FAILURE TO OBJECT BELOW DID NOT WAIVE DEFENDANT'S OBJECTION TO THE TRIAL COURT'S FINDING THE PRESENT OFFENSE WAS A SERIOUS FELONY.

Defendant contends it was error to find the present offense constituted a serious felony because the specific fact on which the serious felony allegation was predicated—personal infliction of great bodily injury—was found not true by the jury.   He therefore contends he was not convicted of a serious felony in the present offense and the five-year sentence enhancement pursuant to Penal Code section 667 must be reversed.¹

In order to enhance a defendant's sentence pursuant to section 667, certain factual circumstances must be pleaded and proved.  (§ 1170.1(f);  People v. Jackson (1985) 37 Cal.3d 826, 835, fn. 12, 210 Cal.Rptr. 623, 694 P.2d 736.)   First, defendant must have a prior conviction of a serious felony.   Second, the offense for which defendant is being sentenced must also be a serious felony.²

Section 1192.7, subdivision (c) defines “serious felonies.”  Section 1192.7, subdivision (c)(8) describes a serious felony as “any other felony in which the defendant personally inflicts great bodily injury on any person.”   Section 1192.7, subdivision (c)(23) describes a serious felony as “any felony in which the defendant personally used a dangerous or deadly weapon.”

The information in the present case alleged the present assault was a serious felony because defendant personally inflicted great bodily injury.   The information did not also allege defendant's personal use of a deadly weapon also caused the present offense to be a serious felony.   Thus, because the jury found the special allegation of great bodily injury not to be true, defendant contends the People failed to plead and prove the present felony conviction was a serious offense and, despite the lack of objection in the trial court, the five-year enhancement under section 667 must be stricken.

Both sides agree the Supreme Court's decision in People v. Equarte (1986) 42 Cal.3d 456, 229 Cal.Rptr. 116, 722 P.2d 890, controls the proper disposition of this issue.   In that case the jury convicted defendant of assault with a deadly weapon but found the special allegation he personally inflicted great bodily injury not true.   Although the complaint alleged the present offense was a serious felony within the meaning of section 667, it did not specifically allege any factual basis for such a finding.   The trial court found defendant, acting without an accomplice, had personally used a deadly weapon in the present offense and imposed a five-year serious felony enhancement after finding the prior serious felony conviction allegation to be true.   The Court of Appeal affirmed the conviction but struck the enhancement.

The Supreme Court reversed the Court of Appeal's judgment insofar as it reversed the section 667 enhancement and affirmed in all other respects.   First the court rejected defendant's contention use of a deadly weapon could not be considered for enhancement purposes when it also constituted an element of the offense for which he was convicted.  (Id. at pp. 464–465, 229 Cal.Rptr. 116, 722 P.2d 890.)   The court also rejected defendant's contentions the trial court erred in imposing the five-year enhancement because the complaint failed to allege, and the jury never found, the defendant personally used a dangerous or deadly weapon, necessary prerequisites to a finding of a serious felony under section 1192.7, subdivision (c)(23) under the facts of that case.

The court acknowledged personal use of a deadly weapon is not a necessary element of the crime of assault with a deadly weapon because one could be convicted of the offense as an accomplice or aider and abettor.   The court also acknowledged simple assault with a deadly weapon was not among the felonies defined as a serious felony in section 1192.7, subdivision (c).  The court nevertheless found the complaint gave adequate notice the five-year serious felony enhancement was being sought and that any uncertainty in the complaint as to the basis for the People's claim the present offense constituted a serious felony was waived by the defendant's failure to demur.   “As noted in the earlier statement of facts, while the complaint in this case alleged that defendant's prior attempted robbery conviction was a serious felony under section 667 and section 1192.7, subdivision (c)(25)—and thus placed defendant on notice that a five-year enhancement under section 667 was being sought—it did not inform him of the basis on which the prosecution claimed that his current offense was a serious felony for purposes of section 667.   Because simple assault with a deadly weapon is not one of the offenses specifically named in section 1192.7, subdivision (c), the complaint left it uncertain as to which of the more general categories of section 1192.7, subdivision (c) the prosecution intended to rely on.   We agree with defendant that, under these circumstances, he was entitled to more specific notice of the facts the prosecution intended to prove to justify the section 667 enhancement.  (See People v. Jackson, supra, 37 Cal.3d at p. 835, fn. 12, 210 Cal.Rptr. 623, 694 P.2d 736.)

“Nonetheless, as we explained in our very recent decision in People v. Thomas, supra, [1986], 41 Cal.3d 837, 843 [226 Cal.Rptr. 107, 718 P.2d 94], defendant's remedy for obtaining more specific notice in this regard is provided by the special demurrer procedure authorized by section 1012, and, having failed to invoke that remedy, defendant may not urge the point on appeal.   As Thomas observes, because ‘[t]he defect in the pleading ․ is one of uncertainty only, [it] is waived by defendant's failure to demur.’   (Ibid.)”  (42 Cal.3d at p. 467, 229 Cal.Rptr. 116, 722 P.2d 890.)

However, the court noted in a footnote “We do not suggest that where an information charges that an offense qualifies as a serious felony by virtue of a specific subdivision of section 1192.7, the prosecution is free to change its theory at trial and attempt to sustain the enhancement on the basis of a different subdivision.   In light of the clarification provided by Thomas and the present decision, we trust that in the future the prosecution will afford defendants adequate notice of the specific subdivision or subdivisions of section 1192.7 on which it is relying to establish that both the current and prior offenses are serious felonies for purposes of section 667.”  (42 Cal.3d at p. 467, fn. 13, 229 Cal.Rptr. 116, 722 P.2d 890.)

Finally, based on the evidence presented in the case, the Supreme Court held the trial court could properly find the prosecution had proved defendant's personal use of the weapon.  (Id. at p. 467, 229 Cal.Rptr. 116, 722 P.2d 890.)

Thus, as in the present case, the defendant was convicted of assault with a deadly weapon.   Also, as in this case, the special allegation defendant personally inflicted great bodily injury was found not true by the jury.   Similarly, the issues of the prior serious felony and the propriety of an enhancement for a subsequent conviction of a serious felony were tried to the court in both cases.   However, unlike the situation in Equarte, the information in the present case specifically alleged the factual basis for a finding the present offense was a serious felony—great bodily injury.   The jury in the present case found that allegation not true.   Defendant does not dispute the prosecution could have included personal use of a deadly weapon as a factual justification for finding the present felony conviction to be a “serious felony.”   This factual predicate, however, was not alleged in the information.

 Relying on Equarte, the People contend defendant waived any uncertainty in the pleading by failing to demur.  (§ 1012.)   However, the pleading defect in this case was not one of uncertainty.   According to the complaint, the People intended to prove defendant's offense was a serious felony on the basis he personally inflicted great bodily injury.  (§ 1192.7(c)(8);  compare, People v. Failla (1966) 64 Cal.2d 560, 568, 51 Cal.Rptr. 103, 414 P.2d 39 [information charged defendant with burglary with the intent to commit a “felony”];  People v. Thomas (1986) 41 Cal.3d 837, 843, 226 Cal.Rptr. 107, 718 P.2d 94 [prior burglary conviction alleged to be serious felony without stating residential nature of burglary];  People v. Equarte, supra, 42 Cal.3d 456, 466, 229 Cal.Rptr. 116, 722 P.2d 890 [assault with deadly weapon charge alleged to be “serious felony” without pleading factual basis].)   Because defendant had no grounds for a demurrer on the basis of uncertainty, he waived nothing by failing to demur.

Alternatively, the People contend defendant waived any error in finding his present offense to be a serious felony by failing to claim surprise and by failing to object to any alleged lack of notice the trial court would rely on proof defendant personally used a deadly weapon to support the serious felony claim.

 As a general rule, a defendant may not contend on appeal the trial court committed error unless the defendant has tendered an objection to the trial court on the ground later asserted on appeal.  (See People v. Rogers (1978) 21 Cal.3d 542, 547–548, 146 Cal.Rptr. 732, 579 P.2d 1048.)   “[T]he rationale underlying the rule requiring objection below as a prerequisite to complaint on appeal regarding some error by the trial court is predicated on the premise that, in its absence, the People would be deprived of the opportunity to cure the defect in the trial court and the defendant would be allowed to gamble on a favorable result—secure in the knowledge that if he did not prevail there, he would be able to prevail on appeal.  [Citation.]”  (People v. Jones (1980) 111 Cal.App.3d 597, 605, 169 Cal.Rptr. 28.)

 The rationale for the rule of waiver, however, is inapplicable where the People could not have cured the error upon objection by the defendant in any event.  (See, e.g., People v. Jones, supra, 111 Cal.App.3d 597, 605, 169 Cal.Rptr. 28 [lack of objection did not waive trial court's failure to state reasons for its sentencing choice].)   As noted above, the People could have alleged defendant's present offense constituted a serious felony on the basis of both personal infliction of great bodily injury (§ 1192.7(c)(8)) and personal use of a dangerous or deadly weapon (§ 1192.7(c)(23)).   Section 1009 authorizes amendment to pleadings “at any stage of the proceedings.”   However, amendments after the defendant has entered a plea to the charges against him are within the discretion of the trial court.³  While cases decided under that statutory provision have permitted amendments to the pleadings right up to the time the case is submitted to the jury, no case we are aware of would condone amendment of an information after return of a verdict by a jury.  (See, e.g. People v. Witt (1975) 53 Cal.App.3d 154, 165–166, 125 Cal.Rptr. 653 [no abuse of discretion in allowing amendment during closing arguments to allege new overt act to support conspiracy charge];  People v. Roth (1934) 137 Cal.App. 592, 607–608, 31 P.2d 813 [defendant's substantial rights not violated by amendment of information at close of evidence to properly state charges].)

Because it does not appear any alleged defect in the pleadings could have been cured by amendment after the jury had returned its verdict, defendant did not waive any error by failing to object at the later sentencing hearing to the variance between pleading and proof at trial.

Thus, we must determine whether any substantial rights of defendant were prejudiced by the variance between the pleading and proof of the factual basis for finding the present offense was a serious felony in this case.

II. PRINCIPLES OF DUE PROCESS PRECLUDE IMPOSITION OF PUNISHMENT FOR AN UNCHARGED OFFENSE.

 While most decisions discussing variances between pleading and proof at trial are in the context of convictions of primary offenses, the principles those decisions announce should apply with equal force to enhancements as well.   This is especially true where, as here, the potential penal consequences are more severe for the enhancement than for the underlying felony.

In In re Hess (1955) 45 Cal.2d 171, 288 P.2d 5, the Supreme Court reversed a conviction for contributing to the delinquency of a minor because that offense was not charged in the information and was not a necessarily included offense of the charged offense of forcible rape.   In reversing, the court explained:  “Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.  (In re Oliver, 333 U.S. 257, 273 [68 S.Ct. 499, 507, 92 L.Ed. 682];  Cooke v. United States, 267 U.S. 517, 536–537 [45 S.Ct. 390, 394–395, 69 L.Ed. 767];  In re Digiuro, 100 Cal.App.2d 260, 261 [223 P.2d 263, 873];  see also People v. Robinson, 107 Cal.App. 211, 217 [290 P. 470].”  (45 Cal.2d at p. 175, 288 P.2d 5.)

The court found the defendant's substantial rights had been violated by the lack of notice the People would be seeking a conviction of an offense not charged in the information.   The court further held it would violate principles of due process to uphold a conviction for an uncharged offense, even though the evidence presented at trial would support a conviction for that offense.  “A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense.  [Citations.]”  (In re Hess, supra, 45 Cal.2d at pp. 174–175, 288 P.2d 5.)

 On the other hand, insignificant variances between pleading and proof may not impair the substantial rights of a defendant if they do not mislead him or her in preparing a defense or if they do not cause unfair surprise.   For example, in People v. Williams (1945) 27 Cal.2d 220, 163 P.2d 692, the information charged defendant with committing a burglary at 3299 Sixteenth Street.   When one of the two complaining witnesses testified their burglarized business was located instead at 3297 Sixteenth Street, the defendant claimed his conviction of burglary had to be reversed due to the variance between the pleading and proof at trial.   The court disagreed the variance was fatal but noted “Of course, it is elementary that every fact or circumstance necessary to constitute the crime charged must be alleged and proved, and the proof must correspond with the allegations in the pleading.   But technical or trifling matters of discrepancy will not furnish ground for reversal.   Under the generally accepted rule in criminal law a variance is not regarded as material unless it is of such a substantive character as to misled the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense.  [Citations.]”  (27 Cal.2d at pp. 225–226, 163 P.2d 692.)

Similarly, in People v. LaMarr (1942) 20 Cal.2d 705, 128 P.2d 345, an information charged defendant with a bigamous marriage to C while still lawfully married to B.   In defense of the charge, the defendant offered evidence he was not only married to B at the time he contracted to marry C but was also still married to A.   On appeal from his conviction for bigamy defendant contended there was a fatal variance between the pleading and proof at trial.   The Supreme Court disagreed.   The court explained the crime alleged was the unlawful marriage to C while still validly married to someone else.   To prove the crime it was necessary to prove all the details of defendant's marriage to C as alleged, and to prove when the marriage to C occurred, another valid marriage existed.   The court found it was not necessary for proof of the bigamous marriage to also prove any of the details of defendant's prior marriages beyond the fact some prior valid marriage occurred and continued through the marriage to C.

The court, however, took pains to point out the People were not free to change their theory of the offense based on evidence presented at trial.  “It is not to be implied from what we have said that the state could allege as the lawful marriage a defendant's marriage to B and a subsequent bigamous marriage to C;  and then upon proof by the defendant, or otherwise, that he had in fact previously married A and that the marriage to B took place during the existence of the marriage to A, thereupon claim a conviction on the charge as laid, on the theory that the B marriage was the bigamous one.   On that theory the defendant would be entitled to acquittal on the ground of variance (§ 1151, Pen.Code);  there would be a failure of proof;  i.e., the identity of the crime would be different.”  (20 Cal.2d at p. 710, 128 P.2d 345, emphasis in original.)

 The factual circumstance the court hypothesized is virtually identical to what occurred in the case at bar.   Although the information charged the offense of assault with a deadly weapon became a serious felony because defendant personally inflicted great bodily injury, after the jury verdict finding that allegation not true, the prosecution changed its theory to rely instead on proof defendant personally used a dangerous or deadly weapon to support the serious felony finding.   This switching of theories by the People in this situation is precisely what the Supreme Court denounced in People v. Equarte, supra, 42 Cal.3d 456, 467, footnote 13, 229 Cal.Rptr. 116, 722 P.2d 890.

Furthermore, personal infliction of great bodily injury is manifestly not the same offense as personally using a deadly weapon.   The distinction between such proscribed conduct is not a mere trifling or technical discrepancy.  (Cf. People v. Williams, supra, 27 Cal.2d 220, 226, 163 P.2d 692.)  “The very essence of due process lies in notification to the accused of the nature of the charge against him.”  (People v. Feldman (1959) 171 Cal.App.2d 15, 23, 339 P.2d 888.)   The information in the present case failed to give defendant adequate notice he would be charged with personal use of a deadly weapon which in turn denied him a fair opportunity to adequately prepare and present a defense directed to that charge.   As a result, defendant's right to due process of law has been violated and the enhancement must be stricken.

Nor can we accept the People's argument defendant's substantial rights have not been violated because the information alleged a deadly weapon was involved somehow in the crime and because defendant's personal use of a dangerous or deadly weapon was supported by the evidence.   This contention demonstrates the very danger due process seeks to avoid.  “The fact that the accused, charged with one crime, may in the course of trial be found to have committed another, must not deprive him of the full opportunity for defense of the crime not charged.”  (People v. Feldman, supra, 171 Cal.App.2d at p. 24, 339 P.2d 888 [conviction of conspiracy could not be sustained on evidence defendant committed some act in furtherance of the conspiracy but did not commit the overt acts alleged in information];  see also People v. Hernandez (1976) 64 Cal.App.3d Supp. 16, 134 Cal.Rptr. 620 [convictions for rescuing inmate reversed where should have been prosecuted under statute proscribing assistance in aiding an escape attempt].)

This case is analogous to the situation in People v. Henderson (1972) 26 Cal.App.3d 232, 102 Cal.Rptr. 670.   In that case the defendant was charged with robbery, and the information further alleged that in the commission of the robbery he was “armed” with a deadly weapon (shotgun).   Trial was to the court which convicted the defendant of robbery and imposed a sentence enhancement for “use” of a firearm pursuant to section 12022.5.   On appeal of his sentence the Court of Appeal struck the firearm use enhancement.   The court found the information was silent regarding defendant's use of the firearm and further failed to allege such use by reference to the specific code section.   In striking the enhancement, Justice Kaus, writing for a unanimous court, explained “Regardless of the fact that the evidence amply justified the finding, the lack of notice in the charge makes the finding impermissible, absent a most radical reinterpretation of the due process clause.”  (26 Cal.App.3d at p. 238, 102 Cal.Rptr. 670.)

The same may be said regarding the enhancement in the case at bar.   The information was silent regarding personal use of a deadly weapon.   The information did not allege the offense was a serious felony because of defendant's personal use of a deadly weapon nor did it refer to section 1192.7, subdivision (c)(23) defining as a serious felony “any felony in which the defendant personally used a dangerous or deadly weapon.”   It was not until the jury returned its verdict the People attempted to rely on that factual circumstance to justify a serious felony finding.   Because defendant was unaware the People would attempt to sustain the five-year serious felony sentence enhancement on the basis of personal use of a deadly weapon, he was denied adequate notice and opportunity to prepare a defense to that charge.⁴  Consequently, principles of due process compel the conclusion the enhancement must be stricken and the judgment modified to strike the five-year enhancement.⁵

DISPOSITION

The judgment of conviction for assault with a deadly weapon is affirmed but modified to strike the five-year sentence enhancement imposed pursuant to Penal Code section 667, subdivision (a) and section 1192.7, subdivision (c).

FOOTNOTES

1.   All further statutory references are to the Penal Code.

2.   Section 667, subdivision (a) provides in pertinent part:“[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.”

3.   Section 1009 provides as follows:“An indictment, accusation or information may be amended by the district attorney, and an amended complaint may be filed by the prosecuting attorney in any inferior court, without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained.   The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment or information be one that cannot be remedied by amendment, may order the case submitted to the same or another grand jury, or a new information to be filed.   The defendant shall be required to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if he has not yet pleaded and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted.   An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.   A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint․”

4.   Our conclusion is further supported by the recent enactment of section 969f, subdivision (a).   Effective January 1, 1993, all allegations an offense constitutes a serious felony for purposes of section 1192.7, subdivision (c) must be specifically pled and tried to a jury or a court if sitting without a jury.

5.   Because disposition of this issue is determinative of this appeal, we need not address defendant's remaining contention of insufficient evidence to support a finding his prior felony conviction was also a serious felony within the meaning of sections 667 and 1192.7.

JOHNSON, Associate Justice.

LILLIE, P.J., and FRED WOODS, J., concur.