Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F04815
HULL, J.A jury found defendant Shawn Tyrone Davis guilty of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); undesignated statutory references that follow are to the Penal Code), and dissuading a witness or victim from testifying (§ 136.1, subd. (a)(1)). The jury also found that defendant had previously been convicted of first degree burglary, a felony. The trial court sentenced him to an aggregate term of 15 years, which included a five-year enhancement for defendant’s prior felony pursuant to section 667, subdivision (a). On appeal, defendant contends the imposition of the five-year enhancement violated his right to due process of law and his statutory right to notice of the charges against him. We affirm the judgment.
Facts and Proceedings
We set forth only the procedural facts because the facts underlying defendant’s offenses are unnecessary to the resolution of this appeal.
The amended information charged defendant, in part, as follows:
In Count One:
“On or about May 29, 2006, at and in the County of Sacramento, State of California, defendant(s) BEVERLY BARRON and SHAWN TYRONE DAVIS did commit a felony namely: a violation of Section 245(a)(1) of the Penal Code of the State of California, in that said defendant did willfully and unlawfully commit an assault on LINDSEY V[.], with a deadly weapon, and by means of force likely to produce great bodily injury.”
In Count Seven:
“For a further and separate cause of action, being a different offense from but connected in its commission as the charges set forth in Counts One through Six hereof: On or about August 9, 2006, at and in the County of Sacramento, State of California, defendant(s) SHAWN TYRONE DAVIS did commit a felony, namely: a violation of Section 136.1(a)(1) of the Penal Code of the State of California, in that said defendant did knowingly and maliciously prevent and dissuade LINDSEY V[.], a witness and victim, from attending and giving testimony at a trial, proceeding, and inquiry authorized by law.”
The amended complaint further alleged:
“Prior Conviction (Case) [¶] 2.
“It is further alleged that the said defendant(s) SHAWN DAVIS, was on April 20, 1993, in the Superior Court of the State of California, for the County of Contra Costa, convicted of the crime of 1st degree burglary in violation of Section 460(a) of the Penal Code, a serious felony, within the meaning of Section 667(a) of the Penal Code.
“It is further alleged that because the defendant(s), SHAWN DAVIS, has suffered the above listed conviction, he/she comes within the provisions of Section 667(b)-(i) and Section 1170.12 of the Penal Code.”
As noted, the jury found defendant guilty of the crimes alleged in both of these counts and found defendant’s prior conviction for first degree burglary to be true.
The trial court sentenced defendant to an aggregate term of 15 years as follows: the middle term of three years, doubled to six years, on count 1; a consecutive two years, doubled to four years, on count 7; and a consecutive five years for the prior serious felony under section 667, subdivision (a).
Discussion
Defendant contends his due process and statutory right to adequate notice of the charges made against him were violated because the information did not include a notation that count 7 (dissuading a witness or victim from testifying in violation of section 136.1, subdivision (a)(1)) could be used as a basis for imposing a five-year enhancement under section 667, subdivision (a). There is no merit to this contention.
The allegations we have set forth above placed defendant on notice that he was required to defend against, among others, charges that he had committed an assault with a deadly weapon or by means of force likely to produce great bodily injury in violation of section 245, subdivision(a)(1), that he had committed the crime of preventing or dissuading a witness from attending trial or giving testimony in violation of section 136.1, subdivision (a)(1) and that he had previously been convicted of a serious felony within the meaning of sections 667, subdivision (a)(1) and 1192.7, subdivision (c).
It appears that, at its essence, defendant’s contention that he was not afforded due process of law because of a lack of notice of a possibility of a five-year enhancement of his sentence due to a prior conviction of a serious felony rests on the theory that the enhancement could not attach to the assault charge because there was no proof that defendant used a deadly weapon as opposed to a means of force likely to produce great bodily injury and that the enhancement could not attach to the charge of dissuading a witness because the section 667, subdivision (a)(1) charging allegation was not set forth as part of count seven, which charged a violation of section 136.1 subdivision(a)(1). He points to the fact that another charge, for which he was found not guilty, alleged a violation of section 245, subdivision (a)(1), but specifically and immediately thereafter alleged that this assault constituted a serious felony within the meaning of section 1192.7, subdivision (c).
The People properly concede that, as litigated, count one could not form the basis for an enhancement under section 667, subdivision (a)(1) because there was no finding by the jury that defendant had personally inflicted great bodily injury or had used a firearm. The question then becomes whether the enhancement could attach to the only other crime of which defendant was convicted, dissuading a witness or victim.
Section 667, subdivision (a)(1), provides in pertinent part: “any person convicted of a serious felony who previously has been convicted of a serious felony in this state [as defined in § 1192.7, subd. (c)] shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction . . . .” Thus, subdivision (a)(1) of section 667 provides a five-year enhancement for a prior conviction of a serious felony when the current conviction is a serious felony. Intimidation of victims or witnesses in violation of section 136.1 is a serious felony. (§ 1192.7, subd. (c)(37); People v. Neely (2004) 124 Cal.App.4th 1258.)
Thus, the allegations of the information and the statutory provisions cited therein placed defendant on notice that he was subject to a five-year sentence enhancement if it was found that (1) he was guilty of committing a crime that was a serious felony and (2) he had previously been convicted of a serious felony, specifically, first degree burglary. His conviction of dissuading a witness constituted, as a matter of law, a conviction of a serious felony. He was placed on notice of that fact by reading the provisions of section 1192.7, subdivision (c) and the law that has construed that subdivision.
For purposes of due process, notice to the defendant is adequate if the charging document uses words sufficient to place defendant on notice of the offenses charged so that he may have a reasonable opportunity to prepare and present a defense. (People v. Bright (1996) 12 Cal.4th 652, 670.) The charging document was sufficient to place defendant on notice of the charges against him and it gave him a reasonable opportunity to prepare and present a defense to the substantive charges and to the alleged sentence enhancement. There was no violation of his right to due process of law.
Defendant relies on section 969f to support his argument that he did not receive adequate notice. Section 969f, however, was enacted for the benefit of the prosecution, not the defendant. An allegation under 969f was unnecessary.
Section 969f provides: “(a) Whenever a defendant has committed a serious felony as defined in subdivision (c) of Section 1192.7, the facts that make the crime constitute a serious felony may be charged in the accusatory pleading. However, the crime shall not be referred to as a serious felony nor shall the jury be informed that the crime is defined as a serious felony. This charge, if made, shall be added to and be a part of the count or each of the counts of the accusatory pleaded which charged the offense. If the defendant pleads not guilty to the offense charged in any count which alleges that the defendant committed a serious felony, the question whether or not the defendant committed a serious felony as alleged shall be tried by the court or jury which tries the issue upon the plea of not guilty. If the defendant pleads guilty of the offense charged, the question whether or not the defendant committed a serious felony as alleged shall be separately admitted or denied by the defendant. [¶] (b) In charging an act or acts that bring the defendant within the operation of paragraph (8) or (23) of subdivision (c) of Section 1192.7, it is sufficient for purposes of subdivision (a) if the pleading states the following: [¶] ‘It is further alleged that in the commission and attempted commission of the foregoing offense, the defendant ____, personally (inflicted great bodily injury on another person, other than an accomplice) (used a firearm, to wit: ____,) (used a dangerous and deadly weapon, to wit: ____,) within the meaning of Sections 667 and 1192.7 of the Penal Code.” (Italics added.)
In enacting section 969f, the Legislature enabled prosecutors to charge facts in an accusatory pleading that make the current offense constitute a serious felony and, thus, “to prequalify a crime as a serious felony in the event of a defendant’s future conviction of another serious felony. (Assem. Bill No. 897 (1991-1992 Reg. Sess.).)” (People v. Leslie (1996) 47 Cal.App.4th 198, 204.) It provides the prosecutor the discretion to charge, and thereafter prove, those facts necessary to use the conviction as a prior serious felony in a later case. (Ibid.) It was adopted solely for the benefit of the prosecution to enhance future convictions. (People v. Yarbrough (1997) 57 Cal.App.4th 469, 477, fn. 2.)
Moreover, because intimidation of victims or witnesses in violation of section 136.1 is a serious felony as a matter of law, no additional facts needed to be pleaded or proved for the prosecutor to use it as a prior serious felony in a future case. (§ 1192.7, subd. (c)(37); see People v. Neely, supra, 124 Cal.App.4th at p. 1268 [all felony violations of section 136.1 are serious felonies within meaning of section 1192.7, subdivision (c)(37)].) Thus, section 969f has no application.
The allegation that defendant had previously been convicted of a serious felony (first degree burglary) within the meaning of section 667, subdivision (a), and the charge in count 7 of intimidating or dissuading a witness in violation of section 136.1, subdivision (a)(1) were sufficient to put defendant on notice that count 7 could be used as a basis for imposing the section 667, subdivision (a), enhancement. We thus reject defendant’s contention that the trial court improperly used an “unpled circumstance to increase [his] sentence.” (Cf. People v. Mancebo (2002) 27 Cal.4th 735, 754.)
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P. J., BUTZ, J.