Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 07 CM 3797 James LaPorte, Judge.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant Eric Armendariz was convicted of numerous charges after carjacking a vehicle, leading officers on a high-speed chase, shooting at the officers with a stolen firearm, and fleeing the scene. In addition, numerous gun enhancements were found true. At sentencing, he received a life term in prison with a minimum of 89 years before becoming eligible for parole. He appeals, claiming the evidence is insufficient to support his two first degree attempted murder convictions, instructional error, error In reading back testimony outside of his presence and without his waiver, and error in amending the information after the verdict was reached. Except for finding error in the postverdict amendment of two gun enhancement charges, which results in reducing his minimum parole-eligibility term to 69 years, we affirm.
FACTS
In the early morning hours of December 1, 2007, Michael Sharp was giving a ride to Catherine Gonzales because she had been drinking. He stopped his truck at a gas station in Visalia to get a beverage. Sharp went into the store and Gonzales remained in the vehicle. Sharp left the truck running because it was cold outside. Gonzales saw two men, one Hispanic and one Black, near the truck and she became frightened. As she turned to lock the door, someone opened the door. The Black man told her to get out of the truck. Gonzales heard the clicking sound of a gun, and she got out of the car and ran. The two men got into the truck and drove away. Sharp came out of the store and saw two men in his truck. The driver was Black. Both men were wearing hooded sweatshirts. The driver “floored it” and drove away. (Count 7--carjacking.)
That same day, California Highway Patrol (CHP) Officers Maurice Teliha and Henry Vangemert were working together. They were on the side of the road issuing a speeding citation when a pickup truck went by them going very fast. Teliha (the driver) and Vangemert gave chase and activated the siren and lights on their marked patrol car. The truck was traveling at speeds up to 106 miles per hour.
The truck pulled over on an off-ramp. Teliha stopped 15 to 20 feet behind the truck and illuminated it with the spotlights from the CHP patrol car. Teliha could see two occupants in the car. Teliha got out of his car and was standing behind the car door as the passenger of the truck, defendant, got out and turned toward the officers. Defendant began shooting toward the patrol car. Defendant fired three to five shots within a few seconds. Vangemert was still in the car when defendant shot at the officers. Vangemert scrunched down in his seat, then “bear crawled” to the back of the patrol car. Vangemert took out his gun and fired at the truck. The truck pulled away. Vangemert checked on Teliha to see if he was injured. Neither officer was injured. They got into the patrol car and began pursuing the truck. (Counts 1 and 2--attempted first degree murder; counts 3 and 4--assault with a semiautomatic firearm; counts 5 and 6--assault with a semiautomatic firearm on a peace officer.)
The officers lost sight of the truck but shortly thereafter came upon the scene of a crash. A fire hydrant had been sheared off and water was bursting from the area. Other vehicles in the area were damaged and the fleeing truck was totaled. There were no occupants in the truck when Teliha and Vangemert arrived. (Count 8--evading a peace officer; count 9--leaving the scene of an accident.)
Other law enforcement officers arrived, and defendant was found hiding in the area. A grey sweatshirt matching the description of the shirt defendant was wearing was found near the truck, as well as a Bursa semiautomatic firearm.
Defendant was examined and treated at the hospital. He had some abrasions but was otherwise not injured. The doctor who examined and treated defendant said he appeared to be fine and was not mentally incapacitated.
Defendant’s cousin, Sheri Jenkins, identified the Bursa semiautomatic weapon as her gun. Defendant had lived with her when the gun went missing. (Count 10-receiving stolen property.)
The grey sweatshirt found in the area of the truck had blood on it. The blood was tested and found to match defendant’s DNA. Blood on the airbags in the truck were tested. The blood on the airbags matched that of defendant’s housemate, Nathanial Porter.
Nathanial Porter was tried separately. He is not a party to this appeal.
The CHP patrol car had damage to it from bullets. There were multiple bullet impact marks and deflection marks on the hood and front grill. There was a bullet hole in the center of the speaker on the front of the car and a skip mark on the passenger windshield at head level. The window mark was believed to be from a bullet that ricocheted. There were no bullet holes in the doors, and none of the bullets penetrated the windows of the car. Bullet fragments removed from the patrol car and spent rounds found at the scene of the shooting were fired from the Bursa semiautomatic firearm found at the scene of the crash. Similar unspent ammunition was found at defendant’s apartment and at the home of Sheri Jenkins.
Joshua Toney was housed in the same pod with defendant in jail. Toney was interviewed by law enforcement on December 3 and 4, after he told them he had information regarding the shooting. Defendant told Toney he was the person who fired the gun at the officers. He told Toney he fired four or five shots to the car and fired at the Highway Patrol. He also said he carjacked someone. Defendant told Toney that when he was interviewed by law enforcement he told them that when he fired the shots he did not shoot at the CHP officers. Toney was uncooperative at trial and testified he did not recall anything that defendant may have told him. After defendant was arraigned, Toney spoke to defendant again. Toney was able to identify the person who was with defendant that night as defendant’s housemate, Porter.
Zachary Williams lived with defendant and Porter. He had a conversation with Porter after the event but before Porter was taken into custody. Porter told him that he and defendant carjacked someone at a gas station. There was a high-speed chase and Porter pulled over. Defendant got out of the car and shot at the officers. Porter sped away from the shooting and the next thing he remembered was walking down the street.
Francine Mejia testified that her purse was snatched in November of 2007. The person who snatched her purse was wearing a grey hooded sweatshirt and matched the height description of defendant. Mejia’s personal belongings were found in defendant’s apartment after his arrest. Defendant was not charged with any crimes stemming from the purse snatching.
Defense
Defendant testified on his own behalf. He was using methamphetamine for several days before the shooting. On the day before the shooting, he used methamphetamine all day. In the early morning hours of December 1, 2007, he and Porter walked to the gas station. Defendant wanted to get more drugs. Defendant saw the truck at the gas station and thought it was empty. He wanted to steal the truck so he could take the rims, sell the rims, and buy more drugs.
Defendant opened the door to the truck and there was a female inside. Defendant had a gun in his waistband but did not display the gun. The female got out and defendant and Porter got in the truck, with Porter driving. As they drove, Porter told defendant the CHP patrol car was behind them. Defendant was worried because he had a gun and was in a stolen vehicle. He wanted to get away.
Porter stopped the truck. Defendant got out, and he fired shots toward the bumper of the patrol car. He did not intend to murder anyone but merely wanted to get away. If his intent had been to shoot the officers, he would have waited for them to come closer or he would have aimed at them. He was not really thinking at all when he fired the shots.
Defendant got back into the truck after he fired the shots and Porter drove off. Porter lost control of the truck, and defendant does not remember anything that happened after that. He had the gun with him because he was paranoid when he was under the influence of methamphetamine.
Rebuttal
The People presented the December 1, 2007, taped interview of defendant. At the outset of the interview, defendant denied all involvement in the carjacking and shooting. As the interview progressed and defendant was told of evidentiary items that linked him to the crime, defendant admitted he was in the truck but claimed he was picked up by two individuals in the truck and that he was a passenger in the back seat of the truck and did not have anything to do with the shooting. Again, defendant was told further details indicating there were only two people in the truck. He was advised that there would be a difference between shooting a law enforcement officer and shooting without any intent to kill. After this, defendant admitted he was the individual who fired the weapon. He repeatedly denied having any intent to kill anyone. He said he was pointing the gun in the air and not toward the officers. Defendant said he was scared and was not trying to kill anyone.
DISCUSSION
I. Substantial Evidence of Attempted Murders
At trial, defendant admitted culpability for shooting the firearm when the truck was pulled over by the CHP officers but denied that he had the intent to kill. It was argued the damage to the patrol car demonstrated he did not intend to shoot the officers. In addition, defendant claimed he had been taking methamphetamine for days and was unable to form any intent. His claimed intent was merely one to get away. The jury found the attempted murders in counts 1 and 2 were willful, deliberate and premeditated.
Defendant claims the evidence is insufficient to support the jury’s finding that the attempted murders were willful, deliberate and premeditated. In particular, defendant argues there is nothing to suggest the shooting was the result of planning activity and the evidence suggests the incident was a spontaneous one. Defendant contends there was no evidence of a preexisting plan to kill the pursuing officers. Finally, defendant asserts the manner in which he fired the shots provided no evidence of a premeditated attempt to kill.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331, brackets in original.)
“‘[P]remeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’ [Citations.] The process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....’” (People v. Mayfield (1997) 14 Cal.4th 668, 767 .) “The fundamental inquiry is whether a rational jury could have concluded that the crime occurred as a result of preexisting reflection rather than a rash or unconsidered impulse.” (People v. Felix (2009) 172 Cal.App.4th 1618, 1626.)
“In examining whether the evidence is sufficient to show that a defendant premeditated, a reviewing court may consider a tripartite framework--(1) planning activity, (2) motive, and (3) manner of the killing or attempt--in determining whether such intent may be inferred from the trial record. (See People v. Anderson (1968) 70 Cal.2d 15, 26-27.) This framework does not establish an exhaustive list of required evidence that excludes all other types and combinations of evidence that may support a jury’s finding of premeditation [citation], nor does it require that all three elements must be present to affirm a jury’s conclusion that premeditated murder was intended. [Citations.]” (People v. Felix, supra, 172 Cal.App.4th at p. 1626.)
“Attempted murder requires the intent to kill plus a direct but ineffectual act toward its commission. [Citation.] Generally, the question whether the defendant harbored the required intent must be inferred from the circumstances of the shooting.” (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-1208.)
Defendant armed himself with a loaded firearm when he set out in the early morning hours of December 1, 2007 to find a way to obtain more drugs. This circumstance demonstrates “planning and a preconceived willingness to take immediate lethal action should the need arise.” (People v. Ramos, supra, 121 Cal.App.4th at p. 1208.)
Defendant had a motive to kill the officers. He had just carjacked a truck from Gonzales and he had a gun in the truck. It could reasonably be inferred that defendant sought to kill the officers in order to escape capture at that point in time.
The manner of the attempted killing also supports the jury’s verdict. “The act of firing toward a victim at a close, but not point blank, range ‘in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill....’” (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) The fact that the victim was not killed because of a shooter’s poor marksmanship does not necessarily establish a less culpable state of mind. (Ibid.) Defendant fired multiple shots at the patrol car occupied by the two officers from a range of less than 20 feet away. He hit the car multiple times.
All of the above demonstrates the evidence supported the jury’s verdicts of two counts of first degree attempted murder.
II. Instruction on Uncharged Crimes
Evidence was admitted at trial linking defendant to the purse snatching from Mejia. Defendant was not charged with any crimes relating to the purse snatching. Thus, there was evidence of uncharged crimes and the court instructed the jury pursuant to CALCRIM No. 375.
Defendant contends this instruction violated his right under the federal Constitution to require the prosecutor to prove every element of each charged offense beyond a reasonable doubt. Defendant acknowledges that the California Supreme Court rejected a similar argument in People v. Carpenter (1997) 15 Cal.4th 312, but argues that Carpenter is wrongly decided. Defendant “understands” that this court may feel bound to follow the decision of the California Supreme Court, but raises the issue with the understanding that he may ultimately need to seek redress in the federal courts.
We are bound by the decision of the California Supreme Court in Carpenter. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The instruction was not erroneous.
III. Conspiracy as a Valid Theory of Criminal Liability
The jury was instructed that for count 8 (evading a police officer) and count 9 (leaving the scene of an accident) defendant could be found guilty based on a theory of conspiracy. Defendant contends that an uncharged conspiracy is not a valid theory of criminal liability in California as a matter of law and the trial court erred in instructing the jury that he could be found guilty of counts 8 and 9 based on a theory of uncharged conspiracy. Defendant once again acknowledges that there is case law indicating conspiracy is a theory of vicarious liability, but he argues that the cases do not explain the statutory basis for the theory and none of the cases explain how this theory is compatible with the provision of the Penal Code discussing theories of liability. He contends that the theory of liability based on an uncharged conspiracy has “crept into California law even though it is unsupported by and in conflict with the Penal Code.”
“It is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.] ‘Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal conspiracy [citation]; nor, it follows, does it preclude the giving of jury instructions based on a conspiracy theory. [Citations.]’” (People v. Belmontes (1988) 45 Cal.3d 744, 788-789.)
Once again we are bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Defendant’s argument fails.
IV. Absence of Defendant During Readback to Jury
Prior to the jury being sent into the jury room to deliberate, the court stated that there was an agreement that if the jury wanted a reread of any testimony, the reread could take place after consultation between the court and counsel and could take place in the jury room with only the court reporter being present with the jury. In addition, if a reread were to take place, both the jury and the court reporter would be admonished to refrain from any conversation. Counsel stipulated to this agreement.
During deliberations the jury requested a readback of Gonzales’s testimony. The court announced this request in the presence of the People, defendant, and counsel for defendant. The court stated it was going to order the readback of this testimony. Counsel stated there were no further issues to be addressed at this time. The reporter was directed to find the testimony and go to the jury room to read back the testimony.
Defendant claims that his federal right to be present at all critical stages of his trial was violated when the readback to the jury occurred in his absence and without a personally entered waiver of his right to be present. Defendant relies on a line of federal cases to support his position and dismisses California cases to the contrary because they have misinterpreted the United States Constitution. He contends he was prejudiced because the reporter could have placed certain emphasis on testimony during readback that favored the prosecution and this emphasis could have adversely affected the outcome of his trial.
“[T]he court held in People v. Pride (1992) 3 Cal.4th 195 that despite the absence of a personal waiver by the accused his attorney’s waiver of the presence of both attorney and client at a readback did not violate the accused’s federal or state constitutional rights to counsel and due process even though, as the court acknowledged, ‘no one was present (the court, counsel, or defendant) to monitor or report the readback.’ [Citation.] Congruently, the court held in People v. Bloyd (1987) 43 Cal.3d 333 … that the accused’s attorney’s stipulation to the absence of attorney and client alike from a readback did not abridge the accused’s federal constitutional right to counsel or state constitutional right to be present at trial even in the absence of his express consent. [Citation.] Likewise, where the accused’s attorney ‘purported to waive’ the accused’s presence, ‘various portions of testimony were reread to the jury,’ and the appellate briefing made no contention ‘that any other exchanges between the judge and jury, or counsel and jury, took place,’ the court in People v. Hovey (1988) 44 Cal.3d 543, 585, declined to grant relief since ‘rereading of testimony ordinarily would not be an event which bears a substantial relation to the defendant’s opportunity to defend, and nothing in the present record indicates that defendant’s personal presence would have assisted the defense in any way.’” (People v. McCoy (2005) 133 Cal.App.4th 974, 983, fn. omitted.)
Defendant has not shown anything occurred in this case that should cause us to depart from these multiple authorities. His argument does not have merit.
V. Postverdict Amendment of the Information
Penal Code section 12022.53 contains alternative punishments in the form of sentence enhancements for persons convicted of specified felonies who utilize a firearm in the commission of the crime. Under section 12022.53, subdivision (b), a defendant found guilty of an enumerated offense is subject to an additional and consecutive term of 10 years in prison if he personally “uses” a firearm in the commission of the felony. Subdivision (c) of this section provides for an additional and consecutive term of 20 years if the defendant personally and intentionally “discharges” a firearm. Another alternative is found in section 12022.5, which provides for an additional and consecutive term of three to 10 years when a defendant “uses” a firearm in the commission of any felony.
All future code references are to the Penal Code.
In addition to the substantive offenses alleged against defendant, the information charged that “as to Count(s) 1 [attempted murder], 2 [attempted murder], 5 [assault with a semiautomatic firearm on a peace officer], 6 [assault with a semiautomatic firearm on a peace officer], and 7 [carjacking] that the defendant(s) used a firearm within the meaning of Penal Code sections 12022.53 (b) and 12022.5 (a) and (d).”
The information was read to the prospective jurors as previously set forth, alleging that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b).
The jury was instructed that allegations of the personal use of a firearm require general criminal intent. The court instructed the jury that if it finds defendant guilty of the crimes charged in counts 1, 2, 3, 4, 5, 6 or 7, then it must decide if the “People have proved the additional allegation that the defendant personally used a firearm during the commission... of that crime.”
The court defined a “firearm” and stated that a person “uses” a firearm if he displays the weapon in a menacing manner, hits someone with a weapon or fires the weapon. The jury was then told it must determine if the People have proved in counts 1, 2, 5, 6 or 7 the additional allegation that defendant personally and intentionally discharged a firearm during the offense. The elements of proving discharge of a firearm were then defined.
In his argument to the jury, the prosecutor argued that after finding the defendant guilty the jury will have to consider “did he use the firearm.” The prosecutor explained that “use” can occur two ways: one would be what defendant did during the carjacking by having the gun in his waistband or showing the gun to a person; the other way would be by discharging the gun. “That’s a form of use and he did that with the officers.” The prosecutor said there are two findings the jury would have to make on the various verdict forms--use and discharge. Toward the end of his opening argument to the jury, the prosecutor stated that defendant is guilty in counts 1 and 2 of attempted murder “and the use of the firearm[,] the discharge.”
The jury returned its verdicts on October 21, 2008. The verdicts in counts 1 and 2 were identical and found defendant guilty of attempted murder with the additional finding “that the defendant personally discharged a firearm during the commission of the above offense, pursuant to Penal Code sections 12022.5 and 12022.53 (b).” Defendant was found guilty in counts 3, 4, 5, and 6 of personally using a firearm during the commission of the offenses pursuant to section 12022.5 and in count 7 of personally using a firearm during the commission of the offense pursuant to sections 12022.5 and 12022.53, subdivision (b).
On November 13, 2008, the People filed points and authorities seeking to amend the information pursuant to section 1009 to change the gun use enhancement relating to the two attempted murder counts from a section 12022.53, subdivision (b) use enhancement to a section 12022.53, subdivision (c) discharge enhancement. Section 1009 provides in part that the “court in which an action is pending may order or permit an amendment of an... information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings,...” The prosecutor claimed this amendment was meant to cure “a minor clerical error.” The prosecutor stated in his points and authorities that the defendant and his counsel were well aware and well informed of the maximum exposure during the entire proceedings and defense counsel agreed to the verdict forms. The prosecutor asked the court to exercise its discretion and allow the amendment.
The prosecutor’s statement was part of his points and authorities and was not made as a formal declaration.
A hearing was held and the People made their motion to amend, stating the “technical deficiency” in the information was discovered when the probation officer was reviewing the findings. Thus the People asked to replace the word “used” with the word “discharged” and insert section 12022.53, subdivision (c) in counts 1 and 2.
Defense counsel objected, stating the amendment was prejudicial. In addition, defense counsel requested that the court exercise its discretion and not allow the amendment at this time. Defense counsel claimed it was unclear from the verdict what the jury decided.
The court summarized the problem and stated that it agreed “that the defendant knew that he was charged with discharging a weapon at the officers. That was clearly the focus of all evidence instructions and all of the arguments.” The court allowed the amendment to the information and proceeded to sentencing.
The court sentenced defendant in counts 1 and 2 to the additional and consecutive term of 20 years each pursuant to section 12022.53, subdivision (c).
The abstract of judgment lists the enhancements in counts 1 and 2 as violations of section “12022.5/12022.53 (b)”. The abstract states that these enhancements are for a term of 20 years.
Defendant now claims the trial court erred in allowing the prosecutor to amend the information at the time of sentencing to allege that he discharged a firearm in conjunction with counts 1 and 2. Defendant relies on section 12022.53, subdivision (j) and the analogous case of People v. Mancebo (2002) 27 Cal.4th 735.
Section 12022.53, subdivision (j) provides in pertinent part: “For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) 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.”
Section 667.61, the “One Strike law,” contains a similar provision regarding circumstances that must be alleged and proved to lengthen a defendant’s sentence for certain sexual offenses. Subdivision (j) of that section provides: “The penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact.”
In Mancebo, the defendant was charged with and convicted of numerous sex crimes. The People also alleged certain circumstances that would bring the defendant under the harsher penalty scheme of the One Strike law. The sex crime convictions involved more than one victim. In addition, one of the circumstances charged and found true by the jury to support the One Strike sentence was a gun use. The gun use was also alleged as a separate enhancement under section 12022.5. At sentencing, the court realized that it could not use the same gun use in each count as a circumstance to impose a One Strike sentence and also to increase the defendant’s sentence for the same gun use under section 12022.5. The trial court substituted as a circumstance to support the One Strike sentence the circumstance that defendant was convicted of offenses against more than one victim. This circumstance is a proper circumstance to be used under section 667.61, but the information did not expressly allege this circumstance. (People v. Mancebo, supra, 27 Cal.4th at pp. 738-739.)
The California Supreme Court in Mancebo, in an opinion authored by Justice Baxter,found that the trial court could not substitute the multiple victim circumstance for the gun use circumstance as a means to impose the One Strike sentence because it was never pled, even though the elements necessary to establish it were implicit in the information that contained counts with more than one victim and the jury convicted defendant of sex crimes regarding more than one victim. The punishment for the gun use enhancement under section 12022.5 had to be stricken because without the multiple-victim circumstance the court had to rely on the gun use circumstance to impose the One Strike sentence.
“The problem in Mancebo, the court explained, was not in the lack of proof but in the lack of notice. The trial court could not wait until the time of sentencing to decide what enhancements were necessarily established by the jury’s verdicts. ‘[A] defendant has a cognizable due process right to fair notice of the specific enhancement allegations that will be invoked to increase punishment for his crimes.’ Fair notice, the court explained may be critical to the defendant’s ability to contest the factual bases for the enhancement. Furthermore, a defendant’s decision whether to plea bargain or go to trial will often turn on the extent of exposure to a lengthy prison term. The defendant would have less incentive to plea bargain if he did not know up front what enhancements the prosecution intended to seek. Finally, section 1170.1, subdivision (e) requires all enhancements must be ‘admitted by the defendant in open court or found to be true by the trier of fact.’ The court pointed out that unless the prosecution makes known in advance what enhancements it intends to invoke ‘there would be nothing for the defendant to “admit” in open court.’” (People v. Riva (2003) 112 Cal.App.4th 981, 1002, fns. omitted; see also People v. Arias (Mar. 10, 2010, No. B215566) ___ Cal.App.4th ___) [2010 WL797190].)
Although the verdict form here stated the jury found defendant “discharged” a weapon, it stated the discharge was pursuant to section 12022.53, subdivision (b). The defendant was charged in the information with the “use” of a firearm pursuant to section 12022.53, subdivision (b). As stated by the prosecutor, a discharge is a use of a gun. Thus, like Mancebo the information never pled the necessary element for sentencing, in this case the discharge of a gun. The language requiring this to be done is almost identical in sections 667.61 and 12022.53. We fail to see how allowing an amendment to the pleading at the time of sentencing, long after the jury’s verdict has been entered, is any different in kind from what the trial court did at sentencing in Mancebo. The statute is explicit and requires that the enhancement be alleged in the pleading. In both instances, while there was no lack of proof on the issue and the jury’s verdicts supported the finding, defendant did not receive the fair notice required by this section.
The Court of Appeal case of People v. Riva, supra, 112 Cal.App.4th 981 does not alter this decision. In Riva, the defendant was charged with numerous crimes. In addition, it was alleged as to two counts that he discharged a firearm pursuant to section 12022.53, subdivision (d). This allegation was not made as to a third count. The jury was asked to return a finding as to all three counts whether the allegations under section 12022.53 were true. The jury found the allegations to be true as to all three counts, and the trial court added the sentence for the gun allegation to the count that did not contain the enhancement in the information. (Riva, supra, at p. 1000.)
“Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” (§ 12022.53, subd. (d).)
Riva appealed, claiming the failure to plead an enhancement under section 12022.53, subdivision (d) as to the count on which the enhancement was imposed violated his right to adequate notice. Riva relied on Mancebo to support his position. The Riva court found the issue to be a close one but concluded that “imposing the section 12022.53 enhancement in this case did not violate section 12022.53, subdivision (j) or Riva’s right to due process of law.” (People v. Riva, supra, 112 Cal.App.4th at p. 1002.) The court’s conclusion was based on finding that the prosecutor complied with the literal requirements of sections 12022.53 by pleading the enhancement in other counts of the information. “Had the Legislature intended an enhancement under section 12022.53 be specifically pled as to each count the prosecution sought to enhance, it knew how to say so clearly [having done so in other sections of the Penal Code].” (Riva, supra, at p. 1002.) The failure to enact a requirement that the facts alleged to give rise to an enhancement shall be added to and be part of the count in question in the accusatory pleading suggested that the “Legislature did not intend to require such strict pleading requirements with respect to section 12022.53.” (Id., at p. 1003.)
In addition, the Riva court found that the Supreme Court’s concern in Mancebo over lack of fair notice was not applicable because Riva was on notice he had to defend against such a charge and it would not have “affected his decision whether to plea bargain since the other counts which did allege this enhancement obviously posed a risk of greater punishment. Finally, we find it highly unlikely a defendant would admit in open court to an enhancement which would result in a 25-year to life sentence.” (People v. Riva, supra, 112 Cal.App.4th at p. 1003.)
The information here alleged that defendant “used” a gun pursuant to section 12022.53, subdivision (b). The difference between an additional consecutive sentence enhancement of 10 years for each of two counts versus 20 years for each count is significant. The effective difference is an additional 20 years of parole ineligibility. Thus, the charging allegations may have affected defendant’s decision whether to plea bargain or go to trial.
The information did not plead a discharge of a firearm in violation of section 12022.53, subdivision (c) in strict compliance with the mandates of section 12022.53, subdivision (j). The trial court erred in allowing an amendment of the information at sentencing, long after the verdict had been entered.
DISPOSITION
The trial court is directed to restore the findings on firearm enhancements for a specified felony appended to counts 1 and 2 as being pursuant to section 12022.53, subdivision (b) alone, as the information read at the time of the entry of the jury verdict prior to erroneous amendment. Accordingly, the court is directed to amend the abstract of judgment to reflect a consecutive term of 10 years for each enhancement, resulting in an aggregate term of life in prison for a minimum of 69 years before defendant would be eligible for parole. The corrected abstract shall be forwarded to the appropriate authorities. In all other respects, the judgment is affirmed.
WE CONCUR: HILL, J.POOCHIGIAN, J.