California Court of Appeal Dec 11, 2017 No. E066293Published
Filed 12/11/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E066293
v. (Super.Ct.Nos. RIF1301321, RIF1301886) DINH VAN NGUYEN, OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael B. Donner,
Judge. Affirmed as modified in part, reversed in part, and remanded with directions.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Arlene A. Sevidal and
Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I.B and III.
1
Defendant Dinh Van Nguyen has a prior first degree burglary conviction which
(b)(2).) Charging language which expressly states that a fact is alleged to invoke one
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particular statute does not adequately inform the accused that the People will use it to
invoke a different statute. (Cf. People v. Sweeney (2016) 4 Cal.App.5th 295, 301
[information alleging elevated sentence under Pen. Code, § 186.22, subd. (d) did not
provide adequate notice of enhancement under Pen. Code, § 186.22, subd. (b) when the
two provisions were mutually exclusive].) Accordingly, when, as here, the People allege
a prior serious felony conviction, and when they cite the three strikes law but do not cite
the prior serious felony conviction statute, we can only conclude that they have made “a
discretionary charging decision.” 1
1 We are not aware of any requirement that a prosecutor must plead and prove every prior serious felony conviction as an enhancement under Penal Code section 667, subdivision (a).
Penal Code section 969 provides: “[A]ll known previous convictions . . . must be charged.” However, the Supreme Court has stated that Penal Code “[s]ection 969 does not itself articulate a duty to charge prior convictions but simply specifies, once a duty to charge a prior conviction is imposed by some other law, that all such priors be charged. [Citations.]” (In re Varnell (2003) 30 Cal.4th 1132, 1141, fn. 6, italics added, italics omitted.)
Similarly, the three strikes law states that it “shall be applied in every case in which a defendant has one or more prior serious and/or violent felony convictions . . . . The prosecuting attorney shall plead and prove each prior serious and/or violent felony conviction,” subject to specified exceptions not applicable here. (Pen. Code, § 667, subd. (f)(1).) It further states, “[t]he prosecution shall plead and prove all known prior felony serious and/or violent convictions . . . .” (Id., subd. (g).) Here, however, the prosecution did plead defendant’s prior serious felony conviction, expressly for purposes of the three strikes law. As far as our research reveals, these provisions of the three strike law have never been interpreted as requiring the prosecution to plead and prove a prior conviction as a prior serious felony conviction enhancement.
9
We are not holding that an information must cite the applicable enhancement
statute. It might be sufficient to allege that the defendant has a certain prior serious
felony conviction “for enhancement purposes” or “for purposes of a five-year
enhancement.” It might even be sufficient (though we need not decide the question here)
to allege the conviction “for all applicable purposes” or for no specified purpose
whatsoever. (See People v. Thomas (1986) 41 Cal.3d 837, 843 [When “[t]he defect in
the pleading . . . is one of uncertainty only, [it] is waived by defendant’s failure to demur.
[Citations.]”].)
Our holding finds support in People v. Botello (2010) 183 Cal.App.4th 1014.
There, the information alleged gang enhancements; it also alleged personal firearm use
enhancements under Penal Code section 12022.53, subdivisions (b), (c), and (d). The
jury found all of these enhancements to be true. (Botello, supra, at p. 1021.) On appeal,
however, the People conceded that there was insufficient evidence that either of the
defendants was the shooter; they asked the appellate court to impose gang vicarious
firearm discharge enhancements under Penal Code section 12022.53, subdivision (e).
(Botello, supra, at p. 1022.) The appellate court held that this was prohibited under
Mancebo. (Botello, supra, at pp. 1022–1027.) It noted that in Mancebo, “the inadequacy
of pleading identified by the Supreme Court was not the failure to plead facts that would
support the multiple victim circumstance, but rather the failure to plead the circumstance
itself.” (Botello, supra, at p. 1024; see also People v. Wilford (2017) 12 Cal.App.5th 827,
835–840 [information alleged prior conviction for purposes of Pen. Code, § 273.5, subd.
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(h)(1) (15-day minimum sentence), but trial court used it for purposes of Pen. Code,
On appeal, the defendant argued that he could not be subjected to the
enhancements under Penal Code section 12022.5, subdivision (a) because they had not
been alleged or found true. (People v. Fialho, supra, 229 Cal.App.4th at pp. 1394–1395.)
The appellate court disagreed: “[Penal Code] section 1170.1, subdivision (e) does not
preclude the imposition of ‘“lesser included enhancements”’ [citation] when the charged
enhancement is either factually unsupported or inapplicable to the offense of conviction.”
(Id. at p. 1397.) It noted that “there is precedent in case law for imposition of uncharged
but ‘“lesser included enhancements’” [citation] . . . .” (Id. at p. 1395.)
It further held: “We also conclude that [Penal Code] section 1170.1, subdivision
(e) does not require the prosecution to include specific statutory references for
enhancement allegations. It is well-settled that only the factual allegations underlying an
offense or enhancement must be pleaded, unless the relevant statute provides otherwise.
[Citations.] Here the information pleaded all the facts necessary for the former section
12022.5 enhancements in the section 12022.53 allegations.” (People v. Fialho, supra,
229 Cal.App.4th at p. 1397.) 2
A dissenting justice would have held that Penal Code section 1170.1, subdivision
(e) “impos[es] specific pleading requirements for enhancements . . . .” (People v. Fialho,
2 Oddly, the court cited Mancebo only once, and then in support of the proposition that the “multiple-victim circumstance of [Penal Code section] 667.61, subd[ivision] (e)(5) must be pleaded by ‘factual allegation’ or by ‘pleading in the statutory language’ . . . .” (People v. Fialho, supra, 229 Cal.App.4th at p. 1397, italics added.) However, this is simply not a tenable reading of Mancebo; after all, there, the crucial factual allegation — multiple victims — was pleaded.
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supra, 229 Cal.App.4th at p. 1400 [dis. op. of Márquez, J.].) “The plain language of
[Penal Code] section 1170.1[, subdivision] (e) requires that all enhancements be ‘alleged
in the accusatory pleading,’ and that all enhancements be ‘admitted by the defendant in
open court or found to be true by the trier of fact.’ Neither of these statutory
requirements were satisfied . . . .” (Ibid.)
We may assume, without deciding, that Fialho correctly states the law with regard
to lesser included enhancements. The fact that the prosecution alleges the greatest
potentially available enhancement does not suggest that it has made a discretionary
charging decision to forgo a lesser included enhancement, if the greater turns out to be
unavailable. But the situation here is significantly different. Here, the prosecution knew
all along that the same prior could serve as both a strike and a prior serious felony
conviction enhancement. In the words of Mancebo, its choice to allege one but not the
other “must be deemed a discretionary charging decision.”
Last but not least, the People also rely on People v. Tardy (2003) 112 Cal.App.4th
783. In Tardy, the information charged the defendant with robbery and alleged eight
prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). (Tardy, supra, at
p. 785.) The jury, however, found him guilty of the lesser included offense of petty theft.
(Id. at pp. 785–786.) The prosecution took the position that, because of the defendant’s
prior convictions, he was guilty of petty theft with a prior. (Pen. Code, § 666.) The
defendant then admitted the prior prison term enhancements, and the trial court sentenced
him under Penal Code section 666. (Tardy, supra, at p. 786.)
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The appellate court found no error. It explained: “[Penal Code] section 666 by its
terms does not require the statute to be specifically pleaded in the information or
indictment. [Citations.] Nor do constitutional principles of due process require that the
statute be specifically alleged as long as the pleading apprises the defendant of the
potential for the enhanced penalty and alleges every fact and circumstance necessary to
establish its applicability. [Citations.]” (People v. Tardy, supra, 112 Cal.App.4th at
p. 787.)
It also stated: “Mancebo . . . stands for the limited proposition that a defendant is
entitled to notice of the specific facts that will be used to support an enhanced sentence.
Facts alleged and proved only as part of the substantive crime charged cannot later be
used to support a sentencing enhancement. [Citation.] Tardy’s sentence, however, unlike
Mancebo’s, was enhanced based on facts specifically pleaded and proved as
enhancements.” (People v. Tardy, supra, 112 Cal.App.4th at p. 789.)
Much as with Fialho, we do not disagree with the result in Tardy. The fact that
Penal Code section 666 contains no “pled and proved” requirement is sufficient to
distinguish Tardy from Mancebo as well as from this case. However, for this very
reason, it was unnecessary for the Tardy court to declare that Mancebo is “limited” and
does not apply when the prosecution seeks to use facts pleaded as an enhancement to
support a different enhancement. We find nothing in Mancebo itself that would warrant
this supposed limitation.
14
We therefore conclude that the trial court erred by imposing the unpleaded five-
year prior serious felony conviction enhancement. The People ask us, in this event, to
impose the one-year prior prison term enhancement instead, which was pleaded and
found true. Defendant’s reply brief does not respond to the People’s request; we deem
this to be acquiescence. (In re A.R. (2014) 228 Cal.App.4th 1146, 1153.)
The trial court never struck the prior prison term enhancement. It simply failed to
impose it — apparently because it could not impose both enhancements at the same time.
(People v. Jones (1993) 5 Cal.4th 1142, 1149–1153.) Reversing the prior serious felony
conviction enhancement should therefore revive the prior prison term enhancement.
(People v. Haskin (1992) 4 Cal.App.4th 1434, 1441.) Accordingly, we will modify the
judgment so as to impose the prior prison term enhancement.
C. Forfeiture.
It is well-established that a lack of notice can be forfeited by failure to object, even
when it is claimed that it violated due process. (People v. Abilez (2007) 41 Cal.4th 472,
521, fn. 12.) In particular, when a defendant is convicted of an offense that was not
alleged in the accusatory pleading, an objection based on lack of due process notice
cannot be raised for the first time on appeal. (People v. Goolsby (2015) 62 Cal.4th 360,
367; People v. Toro (1989) 47 Cal.3d 966, 976-978.)
We therefore questioned whether defendant’s trial counsel forfeited defendant’s
present contention by failing to object below. At our request, the parties submitted
further briefing on this issue.
15
As defendant points out, in Mancebo itself, the Supreme Court held that the
defendant did not forfeit the error by failing to object. (People v. Mancebo, supra, 27
Cal.4th at p. 749, fn. 7.) It relied on the unauthorized sentence exception — i.e.,
principles of waiver and forfeiture do not apply to “‘legal error resulting in an
unauthorized sentence [that] commonly occurs where the court violates mandatory
provisions governing the length of confinement.’ [Citation.]” (Ibid.) In the case before
it, the sentence was unauthorized because it violated the “pled and proved” requirement
of Penal Code section 667.61. (Mancebo, supra, at p. 749, fn. 7.)
Mancebo is primarily a statutory decision, not a constitutional decision.
Admittedly, the court did observe that “in addition to the statutory requirements that
enhancement provisions be pleaded and proven, a defendant has a cognizable due process
right to fair notice of the specific sentence enhancement allegations that will be invoked
to increase punishment for his crimes.” (People v. Mancebo, supra, 27 Cal.4th at p. 747.)
It also noted that the case “implicated” “due process fair notice concerns . . . .” (Id. at
p. 754.) Nevertheless, it stopped short of premising its decision on due process. For
example, as mentioned earlier, it stated: “[O]ur holding is limited to a construction of the
language of section 667.61 . . . . We have no occasion in this case to interpret other
statutory provisions not directly before us.” (Id. at p. 745, fn. 5.) A decision based on
due process, by contrast, would necessarily apply to other statutory provisions.
Here, defendant invokes Penal Code section 1170.1, subdivision (e), although he
also states that he “failed to receive proper and adequate notice and was thereby denied
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due process.” It may well be that defense counsel forfeited any constitutional objection
based on lack of notice in violation of due process by failing to raise it below. However,
he could not and he did not forfeit a statutory objection, based on Penal Code section
1170.1, subdivision (e), because the violation resulted in an unauthorized sentence.
III
ERRONEOUS LIMITATION ON CONDUCT CREDIT
Defendant contends that the trial court erred by limiting his presentence conduct
credit to 15 percent. The People concede the error.
The trial court awarded defendant 624 days of actual presentence custody credit,
plus 126 days of “2933.1 time.” The minute order added the explanation, “[v]iolent
[f]elony.”
“A defendant in a felony or misdemeanor case may . . . earn additional
presentence credits against his or her sentence, called ‘conduct credits,’ for performing
assigned labor [citation] and for complying with applicable rules and regulations
[citation]. [Citations.]” (In re Mallard (2017) 7 Cal.App.5th 1220, 1225.) “For a crime
committed on or after October 1, 2011, a defendant accrues [presentence] conduct credits
at a rate of two days for every four days in actual custody.” (Ibid.; see Pen. Code,
§ 4019, subds. (b), (c).) 3
3 Defendant’s burglary was committed in November 2011.
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Under Penal Code section 2933.1, subdivision (c), however, when a person is
convicted of a violent felony, as defined in Penal Code section 667.5, subdivision (c), his
or her presentence conduct credits are limited to “15 percent of the actual period of
confinement . . . .” 4
In the contracting case, defendant was convicted of, among other things, first
degree burglary. First degree burglary is a serious felony under Penal Code section
1192.7, subd. (c)(18). However, it is not a violent felony under Penal Code section 667.5,
subdivision (c), unless “it is charged and proved that another person, other than an
accomplice, was present in the residence during the commission of the burglary.” (Id.,
subd. (c)(21), italics added.) The evidence at trial showed that another person who was
not an accomplice was actually present. Also, the trial court could, at least arguably,
make the necessary finding. (See People v. Garcia (2004) 121 Cal.App.4th 271, 277–
280.) Nevertheless, this fact was never charged. 5
We therefore conclude that defendant was entitled to presentence conduct credit at
the two-for-four rate.
4 Parenthetically, we are at a loss to understand how the trial court came up with the figure of 126 days. This is not 15 percent of 624; rather, it is slightly more than 20 percent. Thus, it appears that the calculation needs to be redone in any event. 5 The trial court may have been misled by the probation report, which at one point described count 1 as “Burglary – residential/vic[tim] present.”
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IV
DISPOSITION
The judgment is modified by striking the prior serious felony conviction
enhancement and the related five-year term, and by adding a prior prison term
enhancement and a related one-year term, to be served consecutively. The judgment is
reversed, solely with respect to the calculation of presentence conduct credit, and the
matter is remanded with directions to recalculate defendant’s presentence conduct credit.
In all other respects, the judgment as modified is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION RAMIREZ P. J.
We concur:
McKINSTER J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court erred by imposing a prior serious felony conviction enhancement that was not specifically alleged in the accusatory pleading, as required by Penal Code section 1170.1, subdivision (e). The court held that this failure to plead the enhancement resulted in an unauthorized sentence, which was not forfeited by the defendant's failure to object.
Issues
Whether a prior serious felony conviction enhancement must be specifically alleged in the accusatory pleading to be imposed.
Whether a defendant forfeits a claim of error regarding an unpleaded enhancement by failing to object at sentencing.
Whether a trial court may limit presentence conduct credits to 15 percent for a first degree burglary conviction when the presence of a non-accomplice was not charged or proven.
Disposition. Affirmed as modified in part, reversed in part, and remanded with directions.
Quotations verified verbatim against the opinion
“The trial court erred by imposing the prior serious felony conviction enhancement. Under Penal Code section 1170.1, subdivision (e), an enhancement must “be alleged in the accusatory pleading . . . .””
“Moreover, a violation of this requirement results in an unauthorized sentence, and therefore defense counsel did not forfeit the error.”