Opinion
H047928
05-24-2022
THE PEOPLE, Plaintiff and Respondent, v. MOHAMMAD KHALIQI, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1628809
LIE, J.Defendant Mohammad Khaliqi was convicted by a jury of assault with intent to commit a sex crime during a first degree burglary (Pen. Code, § 220, subd. (b)), assault with intent to commit a sex crime (§ 220, subd. (a)), forcible lewd act on a child under 14 (§ 288, subd. (b)(1)), first degree burglary (§ 460, subd. (a)) with a nonaccomplice present (§ 667.5, subd. (c)(21)), and false imprisonment by violence (§ 237, subd. (a)). The jury also found true that the forcible lewd act count had been committed during a first degree burglary with the intent to commit a forcible lewd act (§ 667.61, subd. (d)(4)). The court imposed a term of life without the possibility of parole (LWOP) for the forcible lewd act count consecutive to a determinate upper term of six years for the section 220, subdivision (a) count. Terms for the remaining counts were imposed but stayed under section 654.
All statutory references are to the Penal Code.
On appeal, defendant contends that (1) the section 220, subdivision (a) count was not supported by substantial evidence, (2) his right to due process was violated by imposition of an LWOP sentence because the original and amended informations failed to specifically allege that section 667.61, subdivision (j)(1), which specifies an LWOP term, was applicable, (3) an amendment to section 654 requires remand for the court to exercise its newly granted discretion, (4) the LWOP sentence was cruel and/or unusual punishment, (5) a mistake on the abstract of judgment requires correction, and (6) the court erred in imposing a suspended parole revocation restitution fine under section 1202.45 because defendant is not eligible for parole. The Attorney General concedes that the mistake on the abstract requires correction. We agree that this mistake requires correction. We also conclude that substantial evidence supports the section 220, subdivision (a) conviction and that section 654 does not require a remand.
Defendant also filed a habeas petition, which we dispose of by separate order.
My colleagues and I disagree as to whether defendant's due process rights were violated. They conclude that there was a due process violation and reverse and remand for resentencing to a term of 25 years to life. I would find no due process violation because the pleadings properly alleged the one strike allegation, including all of the necessary facts and an accurate identification of the applicable statutory provisions in compliance with section 667.61's statutory pleading and proof requirement. In my view, defendant cannot establish a due process violation based on the only flaw in the pleadings-a mistake concerning the punishment attached to the one strike allegation-because the pleading correctly identified the relevant statute and the statute itself correctly identified the punishment he faced. I would affirm the judgment.
Consequently, it is not necessary for me to address defendant's cruel and/or unusual punishment claim or his challenge to the parole revocation restitution fine.
I. THE PROSECUTION'S CASE
Defendant's offenses occurred during two incidents that were about a month apart. The first incident occurred on April 2, 2015. E., a nurse in her 20's, went to Mitsuwa Market at lunchtime to get some ramen before her afternoon work shift. After she got some ramen, she went to use a restroom at the market. The market's restrooms were located along a small hallway in the back of the market. E. went into the women's restroom, within which were two stalls and a sink. She went into the stall that was closest to the door and sat down on the toilet. While she was using the toilet, she was also using her phone. She heard the water in the sink turn on "full blast," which was very loud. Next, E. saw "hands start to appear under the stall" and then "arms and a head coming into my stall." Defendant quickly and smoothly pulled his entire body into her stall.
E. began "to really panic" when she saw defendant coming into her stall because she was "sitting there with [her] pants down." She started kicking and screaming and "just kind of flailing around as best I can." Defendant grabbed her right ankle with his left hand at the same time that "his right arm was pushing him up into the stall" so that he "was coming up to sitting in the stall." E. saw no camera or phone in defendant's possession, and defendant said nothing. His head was positioned about a foot or two from her vagina, and "[h]e was focused on trying to get into the stall." Defendant managed to pull his whole body into her stall with his "bottom . . . on the ground."
E. was "really, really scared," and she yelled "get out of here you sick eff-er." She kept kicking at defendant's torso and also "trying to bring my hands down on his face or anything I can, really get my hands on." After "a prolonged time of kicking and flailing at him," E. "hit him on the nose" "really hard" with the palm of her hand, which appeared to startle and shock him. At about that same time, E. heard the restroom door open. Defendant "scooted back down under the stall" and left the restroom. The encounter had lasted more than a minute but "[n]o more than five minutes."
E. "got myself together" and "went running out from the stall" back into the market intending "to fight him." But he was nowhere to be seen. E. asked some other patrons if they had seen a man, and one said she had seen a man running past her. Surveillance video from the market showed defendant entering the area where the restrooms were located, disappearing from sight, and then leaving that area about seven minutes later. The police used the surveillance video to create a flyer that was sent out as an all points bulletin to other law enforcement agencies in hopes of identifying the perpetrator.
The second incident occurred on May 5, 2015. Thirteen-year-old C. was walking home from middle school. Although she walked with friends for the first 15 minutes of her walk home, she walked alone for the last 15 minutes of the walk. As she approached the front door of her house from her driveway, she saw defendant out of the corner of her eye. He followed her up to her front porch and started talking to her. Defendant was standing five feet away from her at this point. C. noticed that defendant was "video taping me on his camera phone."
Defendant asked her "what city is this," and C. told him San Jose because she "thought he was just lost." He then asked for her name and age, asked "do I like cum," and asked her "Do you want to suck my cock." C. knew that this was "definitely wrong" and that she was "in trouble," so she opened her front door, ran inside, and tried to slam the door on him. However, he "barged inside" and "pinned me against the wall." Defendant grabbed her "collarbone" and "shoulders" and seemed to be trying to push her down. C. fought back, pushing her hand against his face and trying to kick him. She shoved her palm into his nose, and he "got off of me." Defendant looked a little shocked and afraid, and he "stared" at her for a few seconds before leaving. C. locked the front door, hid in a closet, and texted her father: "Daddy, someone tried to rape me. Please come home." After this incident, C. did not walk home from school anymore.
Defendant's encounter with C. was captured on video by the home's surveillance cameras. Defendant can be seen following her down the sidewalk before she even crosses the street to approach her house. Just prior to following her up her front walk, he pauses and looks around as if to see if anyone is watching before he approaches her. He approaches her only after she reaches her front door, and he positions himself behind a pillar. When she shakes her head repeatedly and goes in the door, he follows her. She tries to close the door to keep him out, but he forces his way inside, pushes her into a corner, pulls her toward him, and knocks her down to the floor. She pushes him off of her and regains her feet, and he hesitates and seems as if he is going to prolong the encounter. However, she backs off, and he eventually goes out the front door and trots away.
Defendant also recorded a video of the encounter on his cell phone. He can be heard repeatedly asking her for her name and age and also if she is 18. She shakes her head repeatedly. Defendant then twice asks "do you like cum." Then he says "do you want to suck my cock" and "I'll give you money." C. shakes her head repeatedly and flees into the house. When defendant follows her in and attacks her, she repeatedly screams very loudly.
After the C. incident, the police released images from the surveillance videos to the press in hopes of identifying the perpetrator of the incident. Tips enabled the police to identify defendant as the perpetrator of the two incidents, and both E. and C. identified him as their assailant.
Defendant was arrested three days after the C. incident.
II. THE DEFENSE CASE
The defense at trial was that defendant lacked the "specific intent to commit sexual crimes" on either occasion. Defendant's trial counsel asserted that the video of defendant's attack on C. "shows you he did not commit a sexual crime." He also told the jury that defendant would testify about "what his intentions were."
Defendant was the only defense witness at trial. Defendant was 31 years old and living in San Jose at the time of the two incidents. He testified that, before the E. incident, he had drunk three or four shots of vodka and eaten a marijuana edible. At the market, he spent about four or five minutes in the men's restroom before entering the women's restroom. His purpose in doing so was to "do a prank" and "scare her" by saying" 'boo.'" Defendant denied that he had any sexual intent. He saw that a woman was sitting inside the stall. Intending to record the encounter on his cell phone, he "slid into the stall" "on my back" and "said 'Boo.'" E. responded by screaming and kicking at him. After she kicked him in the head twice, he grabbed her ankle. Then she hit him in the face. The entire encounter took less than a minute, and he left after she hit him. His cell phone did not record the incident because his battery had died.
Defendant testified that before the C. incident, he had drunk five shots of vodka and eaten a marijuana cookie. He saw C. two or three blocks ahead of him, and he "wanted to freak her out" while recording her on his phone. Defendant intended to "shock" her by "say[ing] something sexual" so that he could post a video of the encounter online. He thought he would get "hits or likes" and "advertiser's pay." Defendant claimed that he asked her age because he "wanted to make sure that I'm dealing with an adult," and he testified that he thought she was "a college student." Defendant claimed that he entered her home "to get her to scream" for the "prank" or "spoof" that he was recording. He admitted that he "shook her" intending "[t]o get her to scream." Defendant insisted that he had no sexual intent when he touched C. and did not intend to arouse himself. He admitted that he ran away after the incident.
Defendant testified that when he learned that the police were looking for him, he was "shocked" and "terrified." He "knew that what I did was wrong, but it wasn't at that level." His mother cut his hair and shaved his beard to change his appearance. He deleted the video of C. on his cellphone because "[i]t lost its value" due to the media attention the incident had drawn.
On cross-examination, defendant asserted that his sole intention was "to make spoof videos." He denied turning on the water in the restroom before the E. incident. He admitted that he had grabbed C.'s head. Defendant explained what he had planned for his encounter with C.: "The plan was very simple. It was just to freak her out. And at the right moment shake her . . . and get her to scream." He was "not worried that a rape was going to occur" because "[t]hat's a line that I would never need to cross." He "just wanted to give her that impression" to "scare her."
Defendant admitted that he had been convicted of two counts of felony burglary in 2003. Although he admitted that he had told a defense expert that he had made other videos before the C. incident, he was unable to recall any of them. He claimed that the "me too movement" had created "the climate for producing such videos," but he admitted that the "me too movement" had not yet occurred in 2015 when the C. and E. incidents occurred.
Defendant's trial counsel argued to the jury that "[t]here's no sexual crimes committed" because the prosecution's "case fails on intent." He maintained that "the video shows a non-sexual intention." Defendant's trial counsel argued that the requisite intent was lacking because, when defendant had the opportunity to sexually assault C., he did not do so. He argued that defendant was guilty only of the lesser included offenses of simple assault on C. and simple assault on E.
III. DISCUSSION
A. Section 220, Subdivision (a) Offense: Sufficiency of the Evidence
Defendant contends that his conviction for assault with intent to commit a specified sex crime on E. is not supported by substantial evidence that he harbored the requisite intent. He claims that because he did not say anything to E. and touched only her ankle, there was no evidence that he intended to commit rape, sodomy, oral copulation, or sexual penetration. Although he acknowledges that the jury was properly instructed that it could use evidence of defendant's assault on C. to support a finding that he harbored a similar intent when he assaulted E., he maintains that the evidence of his intent as to C. was "ambiguous at best" because he touched only C.'s shoulder, did not make any further sexual comments after he entered C.'s home, and did not overpower her and actually complete a sexual offense on her.
"' "[T]he element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence." '" (People v. Lopez (2015) 240 Cal.App.4th 436, 454.) "Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) "[T]he standard of review that applies to insufficient evidence claims involving circumstantial evidence is the same as the standard of review that applies to claims involving direct evidence. 'We "must accept logical inferences that the [factfinder] might have drawn from the circumstantial evidence. [Citation.]" . . . . Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal. [Citation.]' [Citation.]" (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
Defendant ignores many of the key circumstances supporting a finding that he harbored the requisite intent. First, he turned on the water full blast in the restroom before he started pulling himself into E.'s stall. This important fact reflects that defendant's plan contemplated that he would need to cover up the noise from his activities in the stall, which is inconsistent with any claim that his intent was merely to view E.'s exposed body. Second, he entered E.'s stall knowing that she was in a vulnerable position with her pants around her ankles and her genital area exposed. The most reasonable inference that can be drawn from this fact is that he intended to make contact with her genitals while she was unable to prevent him from accessing them. Third, he pulled his entire body into the stall, which would not have been necessary unless he intended to use his body, rather than just his hands, to assault her, which rebuts any inference that he intended only to fondle E. Fourth, defendant grabbed and held onto E.'s ankle even after she kicked him repeatedly, which demonstrated a persistence that is inconsistent with an intent to merely view her exposed body or fondle her. When all of these circumstances are considered together, the most reasonable inference is that defendant intended to complete a sexual penetration, oral copulation, or sexual intercourse offense on E. in the stall.
Furthermore, the jury also could reasonably infer from defendant's attack on C. that he harbored a similar intent when he assaulted E. just a month earlier. We reject defendant's claim that his intent as to C. was "ambiguous." Before violently attacking C., he asked her "do you like cum" and "do you want to suck my cock" and, when she vehemently shook her head in response, he said "I'll give you money." After these statements caused C. to flee into her home, he pursued her, grabbed her upper body, and tried to force her head down and toward him. When his statements to C. are viewed in tandem with the nature of his assault on C., they unambiguously reflect that he intended to force C. to orally copulate him. Although he made no statements during his assault on E. and his conduct was less precisely directed at oral copulation, a jury could reasonably infer from the entire constellation of circumstances, including his subsequent attack on C., that his assault on E. was intended by defendant to accomplish an act of sexual penetration, sexual intercourse, or oral copulation.
We find no merit in defendant's claim that the evidence of his intent was too amorphous to support a conviction. An intent to commit a specified sex offense is the only reasonable explanation for defendant's conduct. Had he wanted only to look at or fondle E.'s body, there would have been no need for him to turn on the water, grab E.'s ankle, or pull his entire body into the stall. Nor would there have been any incentive for him to remain in the stall after E. repeatedly kicked him. His own testimony that he was intending to make a spoof video was belied by E.'s testimony that he did not have a cell phone in his hands when he entered her stall. We find the evidence sufficient to support a reasonable inference that defendant harbored the requisite intent.
Defendant cites two cases in which Courts of Appeal found that there was substantial evidence of the requisite intent, and he argues that these two cases establish that the evidence in this case was not sufficient because, in his view, the evidence in this case is weaker than the evidence in those cases. Arguments of this type lack merit because the sufficiency of one set of circumstances to support a finding of the requisite intent does not establish that another set of circumstances is insufficient. In other words, a finding of sufficiency does not delineate the boundary between sufficiency and insufficiency.
In any event, neither case he cites is helpful here. In People v. Bradley (1993) 15 Cal.App.4th 1144, the defendant grabbed the 16-year-old victim's arm and, with his companion holding her other arm, led her to a secluded area. (Id. at p. 1155.) After the two men made comments about "getting a piece of that," defendant put his hands under the victim's shirt and shorts, and pressed himself and his erect penis against her. (Ibid.) It is little wonder that the Court of Appeal found these circumstances sufficient to support the requisite intent, but that tells us nothing about whether the completely different circumstances here were sufficient.
People v. Craig (1994) 25 Cal.App.4th 1593 also tells us nothing about the border between sufficiency and insufficiency. In Craig, the defendant grabbed the victim by her hair, pushed her into her car, told her not to look at him, put his hand up her shirt, and fondled her breasts before someone intervened and apprehended him. Twice before, the defendant had assaulted women, once fondling a woman's breast and once putting his hand under a woman's skirt. (Id. at pp. 1596-1597.) On appeal, he claimed that the evidence showed only that he intended" 'something sexual'" but not sexual intercourse. (Id. at p. 1597.) The Court of Appeal concluded that "the entire melange of circumstances shown by the evidence" was sufficient to support the requisite intent. (Id. at p. 1604.) If anything, the evidence in Craig was weaker than the evidence in this case, as the C. incident demonstrated that defendant harbored a specific intent to commit a specified sex crime, while the defendant's prior conduct in Craig was more amorphous.
We reject defendant's substantial evidence challenge to the section 220, subdivision (a) conviction.
B. One Strike Allegation
Defendant claims that his right to due process was violated because neither the original information nor the amended information specifically mentioned section 667.61, subdivision (j)(1), which identifies when an LWOP term applies.
Defendant maintains that his trial counsel's failure to object below did not forfeit this contention because, as a result of this pleading error, his sentence was unauthorized. Defendant alternatively contends that his trial counsel was prejudicially deficient in failing to object below. Since the Attorney General does not argue that the issue was forfeited (although he does not concede that it was not forfeited), I consider the merits of defendant's claim.
1. Section 667.61
Section 667.61, subdivision (a) provides: "Except as provided in subdivision (j), (1), or (m), a person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life." Section 667.61, subdivision (c) lists numerous offenses, including "Lewd or lascivious act, in violation of subdivision (b) of Section 288." (§ 667.61, subd. (c)(4).) Section 667.61, subdivision (d) provides: "The following circumstances shall apply to the offenses specified in subdivision (c): . . . (4) The defendant committed the present offense during the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, with intent to commit an offense specified in subdivision (c)."
Section 667.61 subdivision (f) provides: "If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a), (b), (j), (1), or (m) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a), (b), (j), (1), or (m) whichever is greater, rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty or the punishment under another law can be imposed in addition to the punishment provided by this section. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), (j), or (1) and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law."
Section 667.61 also contains a number of additional provisions. "(g) Notwithstanding Section 1385 or any other law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section. [¶] (h) Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is subject to punishment under this section. [¶] (i) For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), or in paragraphs (1) to (6), inclusive, of subdivision (n), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6. [¶] (j)(1) A person who is convicted of an offense specified in subdivision (c), with the exception of a violation of subdivision (a) of Section 288, upon a victim who is a child under 14 years of age under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), shall be punished by imprisonment in the state prison for life without the possibility of parole. Where the person was under 18 years of age at the time of the offense, the person shall be punished by imprisonment in the state prison for 25 years to life. [¶] (2) A person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life."
Section 667.61 also contains the following provisions, which are not at issue here: "(1) A person who is convicted of an offense specified in subdivision (n) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), upon a victim who is a minor 14 years of age or older shall be punished by imprisonment in the state prison for life without the possibility of parole. If the person who was convicted was under 18 years of age at the time of the offense, the person shall be punished by imprisonment in the state prison for 25 years to life. [¶] (m) A person who is convicted of an offense specified in subdivision (n) under one of the circumstances specified in subdivision (e) against a minor 14 years of age or older shall be punished by imprisonment in the state prison for 25 years to life. [¶] (n) Subdivisions (1) and (m) shall apply to any of the following offenses: . . . ." Forcible lewd conduct is not one of the offenses listed in subdivision (n) of section 667.61.
Finally, section 667.61, subdivision (o) 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."
2. The Pleadings
Both the original and amended informations alleged that the forcible lewd act count had been committed "during the commission of a [first degree] burglary . . . with the intent to commit an offense specified in subdivision (c), within the meaning of Penal Code sections 667.61(a) and 667.61(d)." The "INFORMATION SUMMARY" on the front pages of the original and amended informations stated that the "Alleg. Effect" of the one strike allegation was "25-life."
3. Analysis
Defendant's contention is that the absence of any reference to section 667.61, subdivision (j)(1) in the informations violated his right to due process because the informations did not inform him that he faced an LWOP sentence rather than a sentence of 25 years to life.
He relies heavily on this court's decision in People v. Jimenez (2019) 35 Cal.App.5th 373 (Jimenez). The Attorney General, on the other hand, relies on two subsequent cases disagreeing with this court's holding in Jimenez, and he notes that this issue is currently before the California Supreme Court. (People v. Zaldana (2019) 43 Cal.App.5th 527, 533 [Second District] (Zaldana), review granted March 18, 2020, S259731; In re Vaquera (2019) 39 Cal.App.5th 233, 244, review granted November 26, 2019, S258376 [Fourth District] (Vaquera).)
This issue is before the California Supreme Court in In re Vaquera, S258376 (G056786; 39 Cal.App.5th 233; Orange County Superior Court; 12NF0653). The California Supreme Court's Web site describes the issues in Vaquera as: "(1) Did the Court of Appeal err by disagreeing with People v. Jimenez (2019) 35 Cal.App.5th 373 and endorsing as mandatory the sentencing practice prohibited in that case? (2) Is the Court of Appeal's decision incorrect under People v. Mancebo (2002) 27 Cal.4th 735? (3) Did the Court of Appeal err by failing to address petitioner's claims as to the issues of waiver and estoppel?"
The analysis in Jimenez was premised on the California Supreme Court's decision in People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), so I begin with a discussion of Mancebo. Mancebo did not concern the validity of a section 667.61 term. (Mancebo, at p. 738.) Instead, it concerned whether a personal use of a firearm enhancement could be imposed in addition to a section 667.61 term where one of the two section 667.61, subdivision (e) circumstances found true by the jury in support of the section 667.61 term was personal use of a firearm. (Mancebo, at p. 738.) The jury had found true a firearm use allegation under section 667.61, subdivision (e) and a firearm use enhancement allegation under section 12022.5. Section 667.61, subdivision (f) provides that a circumstance necessary to support a section 667.61 term may not also be used to impose punishment under another law. The trial court in Mancebo acknowledged that limitation, but it "substitute[d]" for the firearm use circumstance that had been pleaded and proved a "multiple victim" circumstance under section 667.61, subdivision (e) that had not been pleaded or proved, though the jury had convicted defendant of sex offenses against two different victims. (Mancebo, at pp. 738-739.) The Court of Appeal had found that the trial court's "substitut[ion]" violated section 667.61's "pleading and proof provisions" and defendant's "due process right to fair notice," and it had ordered the firearm use enhancement stricken. (Mancebo, at p. 739.)
On review, the California Supreme Court concluded that "[t]he plain wording" of section 667.61 "controls here." (Mancebo, supra, 27 Cal.4th at p. 743.) At the time of Mancebo, section 667.61, former subdivision (i) provided: "For the penalties provided in this section to apply, the existence of any fact required under subdivision (d) or (e) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (Mancebo, at p. 743; former § 667.61, subd. (i).) "[T]he statute's pleading and proof requirements apply to all of the qualifying circumstances enumerated in subdivisions (d) and (e)." (Mancebo, at p. 752.) The multiple victim circumstance, which was one of the circumstances set forth in section 667.61, subdivision (e), had not been alleged in the information or found true by the jury. Hence, the statutory pleading and proof requirement precluded use of the multiple victims circumstance as a basis for the imposition of a one strike sentence. (Mancebo, at pp. 744-745.) "[T]he One Strike law clearly applies only if the information alleges facts, and also the 'circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) [are] pled and proved . . . .'" (Id. at pp. 744-745.) "We simply find that the express pleading requirements of section 667.61, subdivisions (f) and (i), read together, require that an information afford a One Strike defendant fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing." (Id. at pp. 753-754.)
The California Supreme Court found that the contention had not been forfeited by the defendant's failure to object below because section 667.61's mandatory pleading and proof requirement made the imposition of a sentence based on an unpleaded and unproved circumstance an unauthorized sentence. (Mancebo, supra, 27 Cal.4th at p. 749, fn. 7.)
The California Supreme Court also found support for its conclusion in the protections provided by due process. "[I]n 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." (Mancebo, supra, 27 Cal.4th at p. 747.) And the California Supreme Court agreed with the Court of Appeal that the prosecution's failure to allege a multiple victims circumstance was "a discretionary charging decision" that invoked the "doctrines of waiver and estoppel." (Id. at p. 749.)
Section 667.61 has been significantly amended since Mancebo. In 2006, the "any fact required under" language in section 667.61, former subdivision (j) was changed to "any circumstance specified in." (Stats. 2006, ch. 337, § 33 [effective in September 2006]; Voter Information Guide, Gen. Elec. (Nov. 2006) text of Prop. 83 [Jessica's Law], p. 131.) That provision, which now appears in subdivision (o), reads: "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." (§ 667.61, subd. (o), italics added.) Subdivision (j) was not added to section 667.61 until 2010. The 2010 legislation also added the language at the beginning of section 667.61, subdivision (a) that provides: "Except as provided in subdivision (j) . . . ." (Stats. 2010, ch. 219, § 16 [Chelsea's Law].) The legislative history of the 2010 amendment carefully distinguished between "circumstances," which the Legislature used to refer solely to the circumstances set forth in subdivisions (d) and (e), and the new subdivision (j) punishment provisions. (Assem. Com. on Public Safety, Rep. on Assem. Bill No. 1844 (2010-2011 Reg. Sess.) as amended Apr. 13, 2010, pp. 4-5; Sen. Com. on Public Safety, Rep. on Assem. Bill No. 1844 (2010-2011 Reg. Sess.) as amended June 2, 2010, p. 12.)
These subdivisions had previously had no exceptions.
These amendments to section 667.61 occurred before the defendant in Jimenez committed his offenses. (Jimenez, supra, 35 Cal.App.5th at p. 379.) The defendant in Jimenez claimed on appeal that his section 667.61 terms should have been 15 years to life, as set forth in section 667.61, subdivision (a), rather than 25 years to life, as provided in section 667.61, subdivision (j)(2), because "the information only cited subdivisions (b) and (e) of that section, and the jury found the allegations true under those specific subdivisions." (Jimenez, at p. 393.) He argued that "the prosecution's decision to plead enhancements under subdivision (b) rather than section 667.61(j)(2) failed to provide him notice of the substantially greater exposure he faced under the latter provision" in violation of "his due process rights." (Id. at p. 395.)
Although the defendant had not objected below, this court rejected the Attorney General's claim that the defendant had forfeited his due process challenge. This court held, citing Mancebo, that the forfeiture rule did not apply because "when a court violates mandatory provisions governing the length of confinement" it imposes an "unauthorized sentence . . . ." (Jimenez, supra, 35 Cal.App.5th at p. 395.)
This court concluded in Jimenez that Mancebo was dispositive of the defendant's due process claim. (Jimenez, supra, 35 Cal.App.5th at p. 396.) Although this court acknowledged that section 667.61, subdivision (o)-the pleading and proof requirement-did not mandate the pleading and proof of anything beyond the circumstances in subdivisions (d) and (e), this court reasoned that the lack of a mandate did not establish that the pleading was "sufficient." (Jimenez, at pp. 396- 397.) As the information mentioned only subdivisions (b) and (e), this court held that the defendant's "constitutional right to due process" was violated because "[t]he information did not put him on notice that he could be sentenced to terms of 25 years to life under section 667.61(j)(2) for committing those offenses upon multiple victims, at least one of whom was under 14 years of age." (Jimenez, at p. 397.) This court also noted the Mancebo court's observation that, because" '[i]n many instances a defendant's decision whether to plea bargain or go to trial will turn on the extent of his exposure to a lengthy prison term, '" less information about the nature of the sentence would provide" 'less incentive to plea bargain.'" (Ibid.)
I regretfully conclude that this court's analysis in Jimenez cannot withstand scrutiny. This court's decision in Jimenez conceded that there was no statutory violation because the statutory pleading and proof requirement had been fully satisfied. All that remained was the defendant's due process claim." '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.'" (People v. Thomas (1987) 43 Cal.3d 818, 823.) "[I]t is the language of the accusatory pleading which is controlling and not the specification of the statute by number . . . ." (Id. at p. 831.)
My colleagues dismiss the California Supreme Court's language in Thomas as outdated and inapplicable. (Opn. of Lie, J., post, at pp. 2-3.) They suggest that Thomas was rejected by the California Supreme Court in Mancebo. (Opn. of Lie, J., post, at pp. 2-3.) Not so. While the California Supreme Court distinguished Thomas from the statutory pleading and proof requirement violation that was before the court in Mancebo, the court relied on Thomas in Mancebo for the proposition that a defendant must demonstrate that he was prejudiced by the challenged language in the pleading. (Mancebo, supra, 27 Cal.4th at p. 748) My colleagues' claim that Thomas is no longer good law after Apprendi v. New Jersey (2000) 530 U.S. 466 is puzzling. In Apprendi, the United States Supreme Court held that the Sixth Amendment requires that, with one exception, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, at p. 490.) Nothing in the Apprendi line of cases requires that the punishment for a crime be identified in the pleading.
My colleagues' reliance on People v. Anderson (2020) 9 Cal.5th 946 is similarly misplaced. Anderson involved a straightforward violation of "the relevant statutory pleading requirements" with the result that the pleading "did not provide Anderson with statutorily adequate notice that the prosecution would seek to invoke vicarious liability enhancements as to each of the robberies." (Anderson, at pp. 953, 957.) In contrast, no one contends in this case that there was any violation of the statutory pleading requirements or that the prosecution failed to inform defendant that it was seeking a one strike sentence. My colleagues' reliance on People v. Goodwillie (2007) 147 Cal.App.4th 695 is even more inapt, as that case did not even involve pleadings, but instead misstatements by the prosecutor in the course of plea negotiations. (Id. at p. 733.)
My colleagues argue that the mistake in the information summary should be properly viewed as a "discretionary charging decision" by the prosecutor not to seek an LWOP term. (Opn. of Lie, J., post, at p. 3.) The actual text of the informations cannot support such a distorted view of the charging allegations. The prosecutor expressly charged a one strike allegation that carried with it a statutorily mandated LWOP term. It is not possible to magically transform an obvious mistake in the informations-one that a brief look at the statute would correct-into a "discretionary charging decision."
In this case, as in Jimenez, the informations advised defendant that he faced a one strike sentence, identified the factual basis for the applicable one strike circumstance, and alleged that the one strike offense had been committed against a child under 14. This constituted the entire factual basis for the LWOP sentence that was imposed by the trial court. While the informations erroneously identified the "effect" of the one strike allegations, this error could not have caused defendant to be "taken by surprise" because section 667.61 itself clearly identified the punishment that was mandated based on these allegations-an LWOP term. Moreover, the informations specifically cited section 667.61, subdivision (a), which explicitly cross-referenced subdivision (j). When an information correctly identifies the statutory basis for an allegation and the statute identifies the penal consequence of the allegation, a defendant has fair notice of both the nature of the allegation and the punishment he faces. Neither section 667.61, subdivision (o)'s pleading and proof requirement nor due process required anything more, and Mancebo does not suggest otherwise.
I agree with Vaquera and Zaldana, both of which expressly disagreed with this court's reasoning in Jimenez. (Vaquera, supra, 39 Cal.App.5th at pp. 241, 244.) The Vaquera court and the Zaldana court faced the very same issue that this court faced in Jimenez and held that there had been no due process violation because the defendants had "fair notice" of the sentences they faced. (Vaquera, at pp. 235, 238; Zaldana, supra, 43 Cal.App.5th at pp. 533-536.)
I would reject defendant's claim that his due process rights were violated. The informations correctly informed him of the precise factual basis for the one strike term that was ultimately imposed, and he could not have been surprised by the LWOP term because even a cursory review of section 667.61, which was expressly identified in the informations, would have apprised him that the informations had superfluously but mistakenly identified the punitive effect of the one strike allegation. I do not agree with my colleagues that the informations "demonstrably misinform[ed]" defendant "that he faced only a 25-year-to-life sentence [and thereby] prejudicially denied him due process." (Opn. of Lie, J., post, at p. 3.) Thus, since an information is not required to identify the punishment for an offense (§ 952) and the informations indisputably complied with section 667.61's express statutory pleading and proof requirement, I would find no due process violation.
C. Amended Section 654
We requested supplemental briefing from the parties on the issue of whether defendant was entitled to a remand for the trial court to exercise its discretion under the newly amended version of section 654 to stay the one strike term for the forcible lewd conduct count. Defendant argues that a remand is required, while the Attorney General argues that section 654 may not properly be applied to stay a one strike term. We agree with the Attorney General.
A determination of whether the Legislature intended to create an exception to the application of section 654 is an issue of statutory construction. (People v. Hicks (1993) 6 Cal.4th 784, 791.) Here, neither section 654 nor section 667.61 expressly states that section 654 is not applicable to a punishment imposed under section 667.61. The Attorney General contends that the language of section 667.61, subdivision (h) impliedly creates an exception to the application of section 654.Section 667.61, subdivision (h) provides: "Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is subject to punishment under this section." (Italics added.) He argues that the imposition of a section 654 stay would be inconsistent with this statutory bar on the "suspen[sion]" of execution of a one strike sentence.
Section 667.61, subdivision (g) provides: "Notwithstanding Section 1385 or any other law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section." (Italics added.) The Attorney General does not contend that this provision impliedly created an exception to section 654.
We agree. "A stay is a temporary suspension of a procedure in a case until the happening of a defined contingency." (People v. Santana (1986) 182 Cal.App.3d 185, 190.) Although the application of section 654 is usually referred to as a "stay" of execution of sentence, nothing in section 667.61 suggests that the Legislature's failure to include the word "stay" in section 667.61, subdivision (h) was intended to permit a stay of execution of sentence while barring a suspension of execution of sentence, particularly because there appears to be no cognizable distinction between a stay and a suspension of execution of sentence. A section 654 stay in fact suspends execution of a term pending completion of the term for another crime based on the same act or course of conduct. The language of section 667.61, subdivision (h) is most reasonably understood to extend to a section 654 stay because otherwise much of subdivision (h)'s language would be superfluous. "[W]e generally must 'accord[ ] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose,' and . . . '[a] construction making some words surplusage is to be avoided.'" (People v. Valencia (2017) 3 Cal.5th 347, 357.) The bar on probation alone would have been sufficient to preclude a suspension of imposition or execution of sentence associated with a grant of probation. It is difficult to conceive of what type of suspension other than a section 654 stay would be addressed by the remaining language in subdivision (h). In our view, the only reasonable construction of the statute that gives meaning to the bar on suspension of execution of sentence is an interpretation that bars a section 654 stay. Under this construction of section 667.61, subdivision (h), it precludes a section 654 stay-suspension of execution-of a section 667.61 term, so the amendment of section 654 provides no basis for a remand.
D. Cruel and/or Unusual Punishment
Defendant contends that his LWOP sentence is unconstitutionally cruel and/or unusual punishment. Since my colleagues reverse and remand for resentencing to a non-LWOP sentence, and defendant makes no challenge to a non-LWOP sentence, it is not necessary to address this contention.
E. Mistake in Abstract
The parties agree that the abstract of judgment erroneously refers to defendant's conviction on count 5 as being for a violation of section "200(a)." We agree and will direct the trial court to prepare an amended abstract that accurately refers to count 5 as a conviction for a violation of section "220(a)."
F. Parole Revocation Restitution Fine
Defendant contends that the trial court should not have imposed a parole revocation restitution fine under section 1202.45 because he is ineligible for parole. The Attorney General asserts that there was no error in imposing the fine. Since this case is being remanded for resentencing, we need not address this contention.
IV. CONCLUSION
My colleagues reverse the judgment, but I would affirm the judgment and direct the trial court to correct the mistake in the abstract.
ELIA, ACTING P.J.
LIE, J. with whom GROVER, J. joins, concurring.
We concur in Justice Elia's opinion in all respects except III.B, ante, with which we respectfully disagree. We conclude that in this case due process did not permit a sentence of life without the possibility of parole under subdivision (j) of Penal Code section 667.61, where the People in the operative amended information and every prior accusatory pleading had instead consistently informed Khaliqi that he was subject to a sentence of "25 to life" under subdivision (a) of the same statute.
Unspecified statutory references are to the Penal Code.
As the California Supreme Court has observed, "[b]eneath all statutory pleading requirements lies a bedrock principle of due process." (People v. Anderson (2020) 9 Cal.5th 946, 953.) In addition to fair notice of the charges to avoid unfair surprise at trial, "[t]he pleading must provide the defendant with fair notice of the potential sentence." (Id. at p. 956.) Even where a statute mandates an aggravated sentence based on enhancements found true by a jury or admitted by the defendant, the failure of an accusatory pleading to "adequately inform the defendant" may warrant reversal of the mandatory but inadequately pleaded enhancement. (Id. at p. 957 [addressing enhancement under section 12022.53, subdivision (e) that "shall apply" if certain facts are "pled and proved"].)
" '[T]he defendant's ability to predict with certainty the judgment from the face of the felony indictment, '" (Alleyne v. United States (2013) 570 U.S. 99, 111 (Alleyne), [extending Apprendi v. New Jersey (2000) 530 U.S. 466, 478 (Apprendi) to enhancement increasing mandatory minimum sentence]) has likewise been central to constitutional requirements of due process and notice as construed by the United States Supreme Court. Other than the fact of a prior conviction," '[f]acts that expose a defendant to a punishment greater than that otherwise legally prescribed [are] by definition "elements" of a separate legal offense.'" (Alleyne, supra, 570 U.S. at 111.) "[M]erely because the state legislature placed its . . . sentence 'enhancer' 'within the sentencing provisions' of the criminal code 'does not mean [the enhancement] is not an essential element of the offense.'" (Apprendi, supra, 530 U.S. at p. 495.) Sentencing provisions that enumerate specific circumstances triggering different aggravated sentencing minimums, define "distinct and aggravated crime[s]" (Alleyne, supra, 570 U.S. 99, 116), which due process and the notice requirements of the Sixth Amendment require to be specifically alleged in the accusatory pleading (Jones v. United States (1999) 526 U.S. 227, 243 fn. 6 (Jones)).
Section 667.61, in subdivisions (a), (b), (j), (l), and (m), defines five such "distinct and aggravated crimes" (Alleyne, supra, 570 U.S. 99, 116), each subject to one of three different indeterminate sentencing ranges: 15 years to life (§ 667.61, subd. (b)); 25 years to life (§ 667.61, subds. (a), (j)(2), (m), or (n)); or, under specified circumstances including commission of the instant offense "upon a victim who is a child under 14 years of age," life without the possibility of parole (§ 667.61, subd. (j)(1)). In People v. Mancebo (2002) 27 Cal.4th 735, the California Supreme Court addressed the due process requirements of adequate pleading of this mandatory sentencing scheme. Even though the defendant had notice of the facts on which the trial court would ultimately impose an enhanced "One Strike" sentence (id. at p. 753), the court recognized a defendant's "right to adequate notice of the factual and statutory bases of sentence enhancement allegations brought against him." (Id. at p. 746, italics added.) It accordingly rejected the People's distinction between "the facts of the [statutorily defined] circumstance" and the statutory provisions establishing the sentencing consequence of that fact. (Id. at p. 744.)
The court in Mancebo rejected the People's reliance on its decision in People v. Thomas (1987) 43 Cal.3d 818 (Thomas), for the proposition "that a specific statutory enumeration [was] not a prerequisite for a valid pleading." (Mancebo, supra, 27 Cal.4th at p. 747.) The People here rely again on Thomas, but the court in Mancebo explained that in Thomas it merely held that the inclusion of" 'willfully'" in the accusatory pleading "did 'not transmogrify the crime charged from manslaughter generally to voluntary manslaughter exclusively.'" (Id. at p. 748.) Thomas, moreover, addressed the availability of a lesser theory of liability, not a greater one, which did not augment either the minimum or maximum sentencing exposure of which the accusatory pleading informed the defendant. In once again advocating its broader reading of Thomas, the People overlook the United States Supreme Court's later decision in Jones, supra, 526 U.S. 227, and in succeeding cases formalizing the constitutional requirements of pleading elemental sentencing enhancements. Although "an information that fails to plead the specific numerical subdivision of an enhancement" is not "necessarily inadequate," "the accusatory pleading must adequately inform the defendant as to how the prosecution will seek to exercise its discretion." (Anderson, supra, 9 Cal.5th at p. 957.)
We recognize that imposition of a sentence of life without parole is otherwise mandatory under section 667.61, subdivision (j)(1). (In re Vaquera (2019) 39 Cal.App.5th 233, 244-245, review granted November 26, 2019, S258376 (Vaquera).) But the mandatory character of a statutory enhancement when adequately pleaded does not resolve whether defects in the pleading that demonstrably misinform a defendant that he faced only a 25-year-to-life sentence prejudicially denied him due process. The mandatory nature of section 667.61 and section 12022.53 did not prevent the California Supreme Court from treating related defects in pleading as a "discretionary charging decision." (Mancebo, supra, 27 Cal.4th at p. 749; see also Anderson, supra, 9 Cal.5th at p. 956) And here, a fair reading of each successive accusatory pleading was that the People sought a sentence of 25 years to life, under subdivision (a) of section 667.61, and not life without parole, under subdivision (j). There was no factual allegation in the information that would have informed the defendant that the age of one of his victims would be the basis for a sentence of life without parole under section 667.61, subdivision (j)(1). (See Mancebo, supra, 27 Cal.4th at p. 745 [no factual allegation in pleading that informed defendant that the court would consider his multiple victims as basis for one-strike sentence].)
Whether or not the general pleading of section 667.61, subdivision (a) would otherwise suffice to alert a defendant to the potential for sentencing under the specific exception of subdivision (j)(1), the information here notified Khaliqi without reservation or qualification that the consequence of the section 667.61, subdivision (a) allegation was 25 years to life. The prosecution thereby made irrelevant the "[e]xcept as provided in subdivision (j), (l), or (m)" prefatory clause of the subdivision under which it elected to charge him, because the information's stated sentencing range was set by section 667.61, subdivision (a)'s general rule and not subdivision (j)(1)'s exception. So material a statutory misadvisement "violates notions of fundamental fairness assured by the due process clause of the Fourteenth Amendment." (People v. Goodwillie (2007) 147 Cal.App.4th 695, 734-735 [prosecutor's misadvisement about consequences under section 2933.1 of plea bargain ultimately rejected by defendant resulted in due process violation].)
Presently before the California Supreme Court is the question whether the People's pleading of section 667.61, subdivision (a)-which provides for a sentence of 25 years to life in prison, "[e]xcept as provided subdivisions (j), (1), or (m)"- gives fair notice of the intention to proceed under subdivision (j), thereby foreclosing the possibility of parole otherwise available after 25 years under subdivision (a). (See People v. Jimenez (2019) 35 Cal.App.5th 373, 397 ["failure to plead the enhancement under section 667.61(j)(2) precluded sentencing based on that provision"]; Vaquera, supra, 39 Cal.App.5th at p. 244 [declining to follow Jimenez and distinguishing Mancebo]; People v. Zaldana (2019) 43 Cal.App.5th 527 [same], review granted March 18, 2020, S259731 (Zaldana).)
As Justice Elia observes, ante, at pages 14 and 15, footnote 7, the California Supreme Court's website discusses the issues in Vaquera as including the following:" 'Did the Court of Appeal err by disagreeing with People v. Jimenez (2019) 35 Cal.App.5th 373 and endorsing as mandatory the sentencing practice prohibited in that case?' "
We need not venture into this debate as to the scope of Mancebo as it applies to one-strike pleading: we assume without deciding that, as determined by Vaquera and Zaldana, section 667.61, subdivision (a)'s prefatory "except as otherwise provided in subdivision (j)" language would ordinarily alert a defendant to the potential application of subdivision (j)(1). Every accusatory pleading in this case, however, is distinguishable from Vaquera and Zaldana. Beyond omitting any reference to the subdivision under which it ultimately sought to have Khaliqi sentenced, the People here expressly and repeatedly informed Khaliqi that the one-strike sentence for which his forcible lewd conduct against 13-year-old C. qualified him under section 667.61, subdivision (a) was "25 to life," not life without parole. Even the probation department took Khaliqi's maximum sentence on count 1 to be 25 years to life, only correcting itself by filing a supplemental memorandum on the day of the sentencing hearing. Khaliqi on this record had even less warning of his eventual sentence than did the defendant in Mancebo, where the operative information had in fact alerted the defendant to the judgment sought and ultimately imposed-one-strike sentences of 25 years to life on two counts, and 10-year enhancements under section 12022.5, subdivision (a) as to each count-and the bare facts (if not the specific statutory circumstances) on which such a judgment would be predicated. (Mancebo, supra, 27 Cal.4th at pp. 738-739.)
We are also unable to conclude that the People have met their burden of proving the due process violation was harmless beyond a reasonable doubt under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. "[I]n many instances a defendant's decision whether to plea bargain or go to trial will turn on the extent of his exposure to a lengthy prison term." (Mancebo, supra, 27 Cal.4th at p. 752.) A sentence of life without the possibility of parole, of course, represents a greater sentence than a life term with the possibility of parole after 25 years; it accordingly follows that a defendant facing life in prison without the possibility of parole might give more consideration to a negotiated settlement. (See Anderson, supra, 9 Cal.5th at p. 964; Mancebo, supra, 27 Cal.4th at p. 752.)
For these reasons, we conclude that under the specific facts of this case, the operative information, like the prior accusatory pleadings, affirmatively misinformed Khaliqi that he faced a sentence of 25 years to life. Accordingly, he was denied the requisite ability to predict with certainty from the face of the accusatory pleading the judgment of life imprisonment without possibility of parole, and this due process violation was prejudicial.
The judgment is reversed. On remand, the trial court is directed to resentence defendant on the forcible lewd act count to a sentence of 25 years to life rather than life without the possibility of parole. When the trial court prepares a new abstract of judgment, it shall correctly identify count 5 as a violation of section 220, subdivision (a).
I CONCUR: GROVER, J.