Opinion
A151307
08-30-2018
THE PEOPLE, Plaintiff and Respondent, v. ROGER LEE ROBERTS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. CRF 169060)
In May of 2015, Jane Doe, who was then almost 15 years old, began living with defendant Roger Roberts, whom she believed to be her father. Over the next several months, Roberts repeatedly had sex with Doe and provided her with methamphetamine. A jury found Roberts guilty of multiple counts of unlawful sexual intercourse and furnishing a controlled substance to a minor. Because Roberts had two previous convictions for lewd and lascivious acts with children under the age of 14, he was sentenced as a third-strike offender to an aggregate term of 362 years to life. On appeal, he contends that the trial court erred in admitting evidence of his prior convictions, that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment, and that the prosecution failed to properly plead that he was ineligible for second-strike sentencing because of his prior convictions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We provide a summary of the facts at trial only as relevant to the issues on appeal.
A. Current Offenses
In May 2015, Doe, who was then almost 15 years old, went to live with Roberts in Crescent City. At that time, Roberts was 52 years old and in a romantic relationship with Doe's mother. Roberts represented himself to Doe as her father, and Doe believed he was her father.
Soon after Doe moved in with Roberts, he told her that she had a "big butt" and "big boobs," which made her feel uncomfortable. Shortly thereafter, Doe discovered in Roberts's bedroom a Ziploc bag with what looked like crystals inside. Doe asked Roberts what was in the bag and he told her it was methamphetamine. Roberts crushed the methamphetamine, cut it into two lines, rolled up a piece of paper, and demonstrated how to snort it. Roberts then handed Doe the rolled-up paper and she snorted one line of methamphetamine. This incident was the first time she had used methamphetamine. Roberts provided Doe with methamphetamine on at least four occasions, twice at the house in Crescent City, and twice at the Hiouchi Motel.
Soon after Doe moved in with Roberts, they began having sex. The first time took place at Roberts's house in Crescent City, and the second time at the Hiouchi Motel. Doe testified that she had sex with Roberts "[o]ver ten times" between May and September of 2015 and that eventually they were having sex "regularly" or "daily."
On September 9, 2015, Doe discovered she was pregnant. On that date Doe left Roberts's house and went to live in a foster home. Doe gave birth on May 13, 2016, and her doctor estimated the date of conception as late July or early August of 2015. After Doe's baby was born, DNA samples were taken from Doe, Roberts, and the baby. Analysis of the samples indicated that Roberts was not Doe's father, but that there was a "high level of certainty" that he was the baby's father. B. Prior Convictions
a. 1987 Conviction
Roberts was married to N.J.'s mother in the mid-1980s. In 1986 and 1987, when N.J. was seven or eight years old, N.J. and her brother often spent the night at Roberts's house, where Roberts, N.J., her brother, and her mother sometimes slept in the same bed. On multiple such occasions, Roberts put his fingers inside N.J.'s vagina. This also occurred when Roberts and N.J. were alone in the house and eventually progressed to sexual intercourse "a lot of times over at least a year." At some point in 1987, N.J. told her mother about these incidents.
On August 28, 1987, Roberts pled no contest to one count of lewd and lascivious acts with a child under 14 years of age (Pen. Code, § 288, subd. (a)), and was sentenced to state prison for three years.
Further undesignated statutory references are to the Penal Code.
b. 2000 Conviction
In 2000, Roberts was the best friend of C.B.'s mother's husband, and also the father of C.B.'s friend. Twice that year, when C.B. was eight years old, she went to Roberts's house for a sleepover with her friend. On both occasions, Roberts touched her torso and tried to put his legs between hers. On the second occasion, Roberts touched her knee with his penis.
Roberts pled no contest to two counts of lewd and lascivious acts with a child under the age of 14 (§ 288, subd. (a)) and guilty to one count of failing to register as a sex offender (§ 290, former subd. (g)(2)). Roberts was sentenced to state prison for a term of 14 years and four months. C. Procedural History
Evidence of the prior convictions was admitted both as propensity evidence under Evidence Code section 1108 and to prove the fact of the convictions for sentencing purposes. Both N.J. and C.B. testified briefly at trial.
On October 3, 2016, the Del Norte County District Attorney filed an information charging Roberts with 10 counts of unlawful sexual intercourse (§ 261.5, subd. (d)) (counts 1-10) and four counts of furnishing a controlled substance to a minor (Health & Saf. Code, § 11380) (counts 11-14). With respect to count 1, the information alleged that Roberts inflicted great bodily injury (Doe becoming pregnant and giving birth) pursuant to section 12022.7. With respect to counts 11-14, the information alleged that Doe was at least four years younger than Roberts at the time of the offenses. (Health & Saf. Code, § 11380.1, subd. (a)(3).)
The information also alleged that Roberts had suffered two prior convictions, in 1987 and 2000 as described above, for violating section 288, subdivision (a), "within the meaning of Penal Code sections 1170.12 and 667(b) to 667(i) inclusive."
On March 1, 2017, a jury found Roberts guilty of all counts and all the special allegations true, except for the allegation of great bodily injury in connection with count 1. The trial court sentenced Roberts under the "Three Strikes" law (§ 667) to ten consecutive 25 years to life terms on counts 1-10, four consecutive 27 years to life terms on counts 11-14, and four consecutive one-year terms for the age difference enhancements with respect to counts 11-14, for a total aggregate term of 362 years to life. This appeal followed.
DISCUSSION
Roberts argues that the trial court erred in admitting evidence of his two prior convictions under Evidence Code section 1108 and that his sentence of 362 years to life constitutes cruel and unusual punishment in violation of the Eighth Amendment. In a supplemental brief, he also argues that he was sentenced as a third-strike offender in violation of section 667, subdivision (e)(2)(C) because the prosecution failed to "plead[] and prove[]" his prior convictions within the meaning of that statute. I. The Trial Court Did Not Err in Admitting Roberts's Prior Convictions
Roberts argues that the trial court erred in admitting, over defense objection, evidence of his two prior convictions as propensity evidence pursuant to Evidence Code section 1108. 1. Additional Background
In sexual offense cases, Evidence Code section 1108 creates an exception to Evidence Code section 1101's prohibition against propensity evidence. Under Evidence Code section 1108, when a criminal defendant is accused of a sexual offense, "evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (Evid. Code, § 1108, subd. (a).) Our Supreme Court has held Evidence Code section 1108 to be constitutionally valid because "the provision preserves trial court discretion to exclude the evidence if its prejudicial effect outweighs its probative value" under Evidence Code section 352. (People v. Falsetta (1999) 21 Cal.4th 903, 907.)
Evidence Code section 1101, subdivision (a) provides: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
In deciding whether Evidence Code section 1108 evidence is admissible under Evidence Code section 352, "trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta, supra, 21 Cal.4th at p. 917.) In evaluating such evidence, the court must also determine "whether '[t]he testimony describing defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses.' " (People v. Harris (1998) 60 Cal.App.4th 727, 738.) " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying Evidence Code section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 320.)
We review the admission of Evidence Code section 1108 evidence for an abuse of the trial court's discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371.)
In ruling on the prosecution's motion in limine to admit evidence of the prior convictions under Evidence Code section 1108, the trial court found as follows: After noting that it had considered the "similarities of the crime[s]," it found that the evidence of the prior convictions was not stronger than the evidence of the charged offense, because DNA testing showed that Roberts was the father of the Doe's child and therefore had sex with her, and that he had been convicted of the previous crimes and had later admitted committing one of them. The trial court then found that although the prior convictions were remote in time, the evidence was not "stale" because "this wasn't a one-time, one-off situation," but rather one in which Roberts "committed similar offenses years and years apart." Because Roberts had already been convicted of the prior offenses, the court found no clear burden on him in defending against them. The trial court indicated it had considered less prejudicial terms but was not aware of any, and found that there was not a high likelihood of jury confusion because the prior offenses were separate incidents with separate victims. In addition, because Roberts had already been convicted of and punished for the prior offenses, there was little danger that the jury would convict Roberts of the charged offense in order to punish him for them. With respect to undue consumption of time, the trial court accepted the prosecution's representation that the prior convictions would be proved quickly, not "more than thirty minutes per victim."
Finally, the trial court found: "One of the things we look at is whether the prior crimes, propensity crimes, were any more inflammatory than this one is. And I think you could argue that both ways. I think it's more inflammatory that both of the victims were eight years old in that case. We certainly had an older victim who is—I can't tell if she was 14 when these allegedly started or 15. But she was 15 during most of them. [¶] So the age would make the others more inflammatory. But in this case the daughter—or the victim is alleged to—was thought to have been the biological father, at least by some people, and was held out to be from what we've been told and she got pregnant. [¶] So I think that there—I don't think the—I don't think that either one—either of the cases are necessarily that much more inflammatory than the other." Ultimately, the trial court concluded that the probative value outweighed any prejudice under Evidence Code section 352 and admitted the evidence. 2. Analysis
Roberts does not discuss or offer any argument that the trial court abused its discretion with respect to any of the factors listed above, save one: whether the testimony regarding the prior offenses was more inflammatory than the evidence of the charged offense. Roberts argues the trial court's consideration of that factor was based on an incorrect factual assumption, namely, that Roberts actually believed Doe was his biological daughter. (See People v. Cluff (2001) 87 Cal.App.4th 991, 998 ["A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence"].) Roberts bases this argument on a recorded conversation between himself and Doe's mother while he was in jail, admitted into evidence at trial, in which he told her that he "knew [Doe] wasn't my daughter."
Roberts's argument simply misreads the record. The trial court nowhere relied on—indeed, even suggested that it was relying on—Roberts's belief that he was Doe's father in evaluating how inflammatory the jury would find the circumstances of his current offense. Rather, as set forth above, the trial court noted that Roberts "was thought to have been the biological father, at least by some people" and that he was "held out to be" the father. Whether Roberts himself believed he was Doe's father, Doe testified that he represented himself to her as her father and she believed him. We agree with the trial court that the prior and current offenses were comparably inflammatory, because the prior offenses involved eight-year-old victims, while the current offense involved an older victim who believed she was Roberts's daughter and who ultimately became pregnant. Roberts does not argue that the trial court committed any other error in its analysis under Evidence Code section 352, and we find none. There was no abuse of discretion. II. Roberts's 362 Year to Life Sentence Is Not Cruel and Unusual
Roberts next argues that the 362-year sentence he received constitutes cruel and unusual punishment in violation of the Eighth Amendment because it is impossible for any human being to serve. In support, he relies on Justice Mosk's concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, in which the defendant was sentenced to 111 years in prison. (Id. at p. 589.) In a concurring opinion joined by no other justice, Justice Mosk found that "[a] sentence of 111 years in prison is impossible for a human being to serve, and therefore violates both the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and the cruel or unusual punishment clause of article I, section 17 of the California Constitution." (People v. Deloza, at pp. 600-601 (conc. opn. of Mosk, J.).)
Because we conclude that Roberts's Eighth Amendment argument fails on the merits, we need not reach the People's argument that he has forfeited it by failing to raise it before the trial court.
Roberts does not argue that his particular sentence is grossly disproportionate to the gravity of his offenses. (See People v. Baker (2018) 20 Cal.App.5th 711, 733 ["We begin an Eighth Amendment analysis 'by comparing the gravity of the offense and the severity of the sentence.' . . . . Only in the rare case in which this threshold comparison leads to an ' "inference of gross disproportionality" ' do we proceed to 'compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions' " (quoting Graham v. Florida (2010) 560 U.S. 48, 60)].) Instead, he argues that any sentence exceeding a human lifespan violates the Eighth Amendment, relying exclusively on Justice Mosk's concurrence in People v. Deloza. But Justice Mosk's concurrence is not controlling. (See People v. Stewart (1985) 171 Cal.App.3d 59, 65.) In addition, numerous decisions of the Courts of Appeal have rejected the very argument that Roberts makes here and upheld similar sentences against Eighth Amendment challenges. (See, e.g., People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383 [upholding sentence of 115 years plus 444 years to life against Eighth Amendment challenge]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1132, 1134-1137 [53 years plus 375 years to life]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531 [129-year sentence for 25 sex crimes against 11-year-old stepdaughter]; People v. Retanan (2007) 154 Cal.App.4th 1219, 1230 [135 years to life for multiple sex offenses involving minors]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [283 years and 8 months for violent sexual assaults against seven women].) Roberts makes no effort to distinguish these cases, and instead asserts that they are all wrongly decided. We are not persuaded. Roberts's Eighth Amendment claim fails. III. Roberts's Third-Strike Sentence Was Not Statutorily Unauthorized
Finally, Roberts argues that the ten 25-year-to-life sentences he received on the unlawful sexual intercourse counts were statutorily unauthorized because the prosecution failed to "plead[] and prove[]" his prior convictions within the meaning of section 667, subdivision (e)(2)(C). We disagree. 1. Additional Background
The People argue that Roberts has forfeited this argument by failing to raise it below. Because Roberts argues in the alternative that if he forfeited the argument, his trial counsel was ineffective in failing to raise it, we will reach the merits.
As applicable here, section 667, subdivision (e)(2)(A) provides: "Except as provided in subparagraph (C), if a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: [¶] . . . [¶] (ii) Imprisonment in the state prison for 25 years."
Section 667, subdivision (e)(2)(C) then provides, in relevant part: "If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a serious or violent felony as defined in subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (e) [second-strike sentencing] unless the prosecution pleads and proves any of the following: [¶] . . . [¶] (iv) The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies: [¶] . . . [¶] (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288."
As noted, Roberts had two prior convictions for violating section 288, which are "serious and/or violent felony convictions" as defined in section 288, subdivisions (e)(2)(A) and (e)(2)(C). His ten current convictions for unlawful sexual intercourse (§ 261.5, subd. (d)) were neither serious nor violent as defined in section 288, subdivisions (e)(2)(A) or (e)(2)(C). (See §§ 1192.7, subd. (c) & 1192.8, subd. (a).) However, because his prior convictions were so-called "super strikes" (as listed in section 667, subdivision (e)(2)(C)(iv)) that disqualified him from second-strike sentencing under section 667, subdivision (e)(1), the trial court applied third-strike sentencing as set forth in section 667, subdivision (e)(2)(A) to each of his 10 convictions, resulting in ten consecutive 25 years to life sentences.
A violation of section 288 is included in section 1192.7, subdivision (c), and section 667, subdivision (d) includes "any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state." (§ 667, subd. (d)(1); see § 1192.7, subd. (c).)
In his opening brief, Roberts argued that his previous "super strikes" were also the basis for the 27 year to life sentences he received on the four counts of furnishing a controlled substance to a minor. On reply, Roberts concedes that third strike sentences were properly applied to those four counts because a violation of Health and Safety Code section 11380 is a serious felony. (See § 667, subd. (d)(1) & § 1192.7, subd. (c)(24).)
The information made two references to each of Roberts's prior convictions. First, it alleged each conviction "within the meaning of Section 667(a)(1) of the Penal Code." Section 667, subdivision (a)(1) provides for five-year sentencing enhancements for prior convictions when the current offense is a serious or violent felony. As noted, the unlawful sexual intercourse offenses were not serious or violent felonies, and so these enhancements did not apply to counts 1-10. Second, the information alleged that each conviction was "within the meaning of Penal Code sections 1170.12 and 667(b) through 667(i) inclusive."
With respect to his prior convictions, the information provided:
"SPECIAL ALLEGATION PRIORSERIOUS FELONY, within the meaning of Section 667(a)(1) of the Penal Code.
"IT IS FURTHER ALLEGED that defendant was, on the 15th day of May, 1987, in the Superior Court of the state of California, for the county of Del Norte, convicted of a serious felony, to wit: Lewd/Lascivious Acts with a Minor Under 14, in violation of Section 288(a) of the Penal Code, case number 87050C.
"SPECIAL ALLEGATION PRIORSERIOUS FELONY, within the meaning of Section 667(a)(1) of the Penal Code.
"IT IS FURTHER ALLEGED that defendant was, on the 27th day of September, 2000, in the Superior Court of the state of California, for the county of Del Norte, convicted of a serious felony, to wit: Lewd/Lascivious Acts with a Minor Under 14, in violation of Section 288(a) of the Penal Code, case number CRF004440.
"SPECIAL ALLEGATION, within the meaning of Penal Code sections 1170.12 and 667(b) through 667(i) inclusive.
"It is further alleged that said defendant was convicted on the 15th day of May, 1987, of Lewd/Lascivious Acts under 14, in violation of section 288(a) of the Penal Code, in Del Norte County, State of California, case number 87050C, within the meaning of Penal Code sections 1170.12 and 667(b) to 667(i) inclusive.
"SPECIAL ALLEGATION, within the meaning of Penal Code sections 1170.12 and 667(b) through 667(i) inclusive.
"It is further alleged that said defendant was convicted on the 27th day of September, 2000, of Lewd/Lascivious Acts under 14, in violation of section 288(a) of the Penal Code, in Del Norte County, State of California, case number CRF004440, within the meaning of Penal Code sections 1170.12 and 667(b) to 667(i) inclusive."
Roberts's argument presents a question of statutory interpretation, which we review de novo. (See Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 715; People v. Tennard (2017) 18 Cal.App.5th 476, 485 (Tennard).) 2. Analysis
Roberts does not dispute that he is eligible for third-strike sentencing on his current offenses based on his prior convictions. Instead, he argues: "The pleading-and- proof requirement for factors disqualifying the defendant from second-strike sentencing [under subdivision (e)(2)(C)] . . . is separate and distinct from the pleading-and-proof requirement for the prior offenses qualifying him for third-strike sentencing [under subdivision (e)(2)(A)]. . . . [¶] Here, the prosecution did the former but not the latter. It certainly pleaded that appellant had two prior convictions of violating section 288, and it proved that by adducing court documents into evidence. That was adequate to satisfy the pleading-and-proof requirement of section 667, subdivision (e)(2)(A). But it did not address the separate pleading-and-proof requirement of section 667, subdivision (e)(2)(C): that is, it did not allege that appellant was disqualified from a second-strike sentence pursuant to any of the specific disqualifying offenses set forth in that subdivision, or even so much as mention that subdivision." Roberts thus argues, in reliance on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), that his sentence was unauthorized by the statute and that he must be resentenced under the second-strike sentencing scheme.
In Mancebo, the defendant was convicted of 10 sex offenses against two different victims on two different dates. (Id. at pp. 739-740.) He was then sentenced under the "One Strike law" (§ 667.61), which provides terms of 25 years to life for certain sex offenses where two or more of certain enumerated circumstances have been "pled and proved" by the prosecution. (§ 667.61, subds. (a), (e), & (f); see Mancebo, supra, 27 Cal.4th at pp. 741-742.) The One Strike law also provides that if only the minimum number of qualifying circumstances required for one-strike sentencing have been pled and proved, they must be used as the basis for imposing the one-strike term "rather than being used to impose the punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or the punishment under another provision of law can be imposed in addition to the punishment provided by this section." (§ 667.61, subd. (f).) The prosecution alleged personal firearm use as to all counts pursuant to section 12022.5, subdivision (a), which provides for a 10-year sentencing enhancement. (Mancebo, supra, at p. 740.) For purposes of satisfying the minimum requirements of the One Strike law, the prosecution alleged the minimum two enumerated circumstances—kidnapping and firearm use as to one victim, and binding the victim and firearm use as to the other. (Ibid.) At sentencing, in order to impose a One Strike law sentence and the firearm enhancement without using the firearm use finding twice as prohibited by section 667.61, subdivision (f), the trial court substituted a One Strike law enumerated circumstance that was never specifically alleged in the information—that the offenses were committed against more than one victim under section 667.61, subdivision (e). (Mancebo, at p. 740.) Neither the multiple victim circumstance nor its numerical subdivision were specifically referenced in the information. (Ibid.) The Supreme Court held that the information was inadequate, and in violation of the "pled and proved" requirement of section 667.61, subdivision (f), "because it failed to put defendant on notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance to secure indeterminate One Strike terms under section 667.61, subdivision (a) and use the circumstance of gun use to secure additional enhancements under section 12022.5(a)." (Mancebo, at p. 745.) Roberts argues that the requirement that the prosecution "pleads and proves" a circumstance disqualifying him from second-strike sentencing imposes the same notice requirement as the "pled and proved" language of the One Strike law under Mancebo, and that the prosecution here failed to satisfy it.
We conclude that the reference to Roberts's prior convictions, together with citation to "Penal Code sections 1170.12 and 667(b) through 667(i) inclusive," was sufficient to satisfy the requirement that the prosecution "plead[] and prove[]" that Roberts had suffered the prior convictions for the purposes of section 667, subdivision (e)(2)(C) and to provide the "fair notice" required by Mancebo. (Mancebo, supra, 27 Cal.4th at p. 752.) Obviously, both section 667, subdivisions (e)(2)(A) and (e)(2)(C) are contained within sections "667(b) through 667(i) inclusive." Roberts argues that this was nevertheless insufficient to provide notice that he would be disqualified from second-strike sentencing under section 667, subdivision (e)(2)(C) because that range is the "entirety of the Three Strikes law, comprising some 1,800 words of statutory language," and akin to alleging the prior convictions "within the meaning of the Penal Code." But section 667, subdivisions (b) through (i) are contained on only two pages (pp. 289-290) of the LexisNexis 2017 edition of the Standard Penal Code, and the provisions sufficient to determine Roberts's sentence are set forth above in only two short paragraphs. The language used was sufficiently specific to put Roberts on notice that he was not eligible for second-strike sentencing because of his prior convictions. A specific reference to section 667, subdivision (e)(2)(C) was not required.
Our conclusion finds support in Mancebo itself. The Mancebo court responded to the dissent's suggestion that it was imposing "rigid code pleading requirements": "To the contrary, we do not here hold that the specific numerical subdivision of a qualifying One Strike circumstance under section 667.61, subdivision (e), necessarily must be pled. 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. Adequate notice can be conveyed by a reference to the description of the qualifying circumstance (e.g., kidnapping, tying or binding, gun use) in conjunction with a reference to section 667.61 or, more specifically, 667.61, subdivision (e), or by reference to its specific numerical designation under subdivision (e), or some combination thereof. We do not purport to choose among them." (Mancebo, supra, 27 Cal.4th at pp. 753-754.) Section 667.61, like Section 667, contains numerous subsections ((a) through (o)) and comprises the entirety of the One Strike law, and thus the Supreme Court expressly suggested that the information as styled here would provide the required "fair notice" to the defendant.
Nor do the other authorities relied on by Roberts support his argument that a specific citation to the applicable subsection must be provided in the information.
In People v. Wilford (2017) 12 Cal.App.5th 827 (Wilford), the defendant was charged with and convicted of two counts of corporal injury to a cohabitant, which ordinarily carries a sentence of two, three, or four years. (Id. at pp. 829, 835-836.) However, section 273.5 also provides that if the defendant has a prior conviction for the same offense within the previous seven years, the sentencing triad becomes two, four, or five years under subdivision (f)(1), and if the court grants probation, it must impose a 15-day jail sentence under subdivision (h)(1). (Wilford, at pp. 835-836 & fns. 6 & 7.) The information included an allegation of the prior conviction with reference to section 273.5, subdivision (h)(1), with the effect that a minimum sentence of 15 days was required, but made no mention of subdivision (f)(1). (Wilford, at p. 838.) The court concluded that Wilford could not be sentenced under the triad provided in section 273.5, subdivision (f)(1) because "[t]he amended information specified that, for counts 5 and 6, Wilford faced a sentence of two, three, or four years with the possibility of an additional 15 days under section 273.5, subdivision (h)(1) for each count. There was no indication whatsoever that Wilford faced the possibility of a sentence of two, four, or five years for each of those same offenses under section 273.5, subdivision (f)(1)." (Wilford, at p. 840.) Here, by contrast, the information did not indicate any particular sentence, nor did it suggest by citation to any specific subsection of section 667 that other applicable subsections would not be applied.
In People v. Sawyers (2017) 15 Cal.App.5th 713, the defendant was charged with and convicted of murder, three counts of attempted murder, and two counts of shooting at an inhabited dwelling. (Id. at p. 717.) The information alleged that the defendant had suffered two prior convictions, one for first degree burglary and one for receiving stolen property, and that he had served a prior prison term for both within the meaning of section 667.5, subdivision (b). (People v. Sawyers, at p. 718.) "Nowhere did the information expressly reference the Three Strikes law and its alternative sentencing scheme." (Ibid.) However, at sentencing, the trial court doubled the terms on each count pursuant to the Three Strikes Law, using the first degree burglary conviction as a first strike. (Id. at pp. 717, 719-720.) After concluding that there had been no written, oral, or informal amendment of the information to allege that the burglary conviction was a strike, the court found Three Strikes sentencing impermissible "because the information did not allege section 667, subdivisions (b) through (i) or section 1170.12, subdivisions (a) through (d), or otherwise reference the Three Strikes law," and "neither the trial court's mention of the strike nor the information gave Sawyers even an inkling that the People would seek to use the prior burglary as the basis for Three Strikes sentencing." (Id. at pp. 726-727.) But in this case the information did "allege section 667, subdivisions (b) through (i)," thus putting Roberts on notice that his prior convictions would be used as the basis for Three Strikes sentencing. (Id. at p. 726.)
In People v. Nguyen (2017) 18 Cal.App.5th 260 (Nguyen), the defendant was found guilty of first degree burglary and various other offenses. The information alleged a prior conviction for first degree burglary, that it qualified as a "strike" prior with reference to section 667, subdivisions (b)-(i), and that it qualified defendant for a prior prison term enhancement by referencing section 667.5, subdivision (b). (Nguyen, at p. 262.) "However, it never specifically alleged—either in so many words or by citing the relevant statute—a prior serious felony conviction enhancement" under section 667, subdivision (a). (Nguyen, at p. 262.) The prior conviction was then used at sentencing both as a strike to double the term on the burglary count and to impose a five-year enhancement under section 667, subdivision (a). (Nguyen, at p. 264.) The Court of Appeal held that the five-year enhancement could not be imposed, because "[t]he information affirmatively indicated that the prior conviction was being pleaded solely for purposes of the three strikes law" and "[c]harging language which expressly states that a fact is alleged to invoke one particular statute does not adequately inform the accused that the People will use it to invoke a different statute." (Id. at pp. 266-267.) And the court went on to explain: "We are not holding that an information must cite the applicable enhancement statute. It might be sufficient to allege that the defendant has a certain prior serious felony conviction 'for enhancement purposes' or 'for purposes of a five-year enhancement.' It might even be sufficient (though we need not decide the question here) to allege the conviction 'for all applicable purposes' or for no specified purpose whatsoever." (Id. at p. 267.) The prosecution in this case did not cite one statute in the information and then seek to apply another at sentencing. And the information did provide citation to the applicable enhancement statute.
Finally, in Tennard, supra, 18 Cal.App.5th 476, the defendant was convicted of domestic violence (§ 273.5, subd. (a)), and the information alleged several prior convictions, including for forcible rape (§ 261), a "super strike" making him eligible for third strike sentencing. (Tennard, at pp. 480-481.) The information referenced " 'sections 667, subdivisions (c) and (e)(2)(A)' " but did not reference section 667, subdivision (e)(2)(C). (Tennard, at p. 482.) "The information also did not specifically allege that defendant's prior forcible rape conviction disqualified him or rendered him ineligible for sentencing under section 667, subdivision (e)(1), or that the prosecution intended to seek an indeterminate 25-year-to-life term for defendant's current, nonstrike offense." (Ibid.) After the defendant was sentenced to a 25-year-to-life term, he argued, as Roberts argues here, that his sentence was unauthorized because the information failed to allege that his prior conviction was a super strike making him ineligible for second-strike sentencing because it made no reference to section 667, subdivision (e)(2)(C). (Tennard, at p. 485.)
Tennard held that the prosecution had satisfied the pleading and proof requirements of section 667, subdivision (e)(2)(C) by alleging the fact of the defendant's prior rape conviction together with reference to subdivision (e)(2)(A): "The allegation of the forcible rape conviction, which was identified by its code section number, . . . section 261, subdivision (a)(2), and as 'RAPE BY FORCE,' sufficiently notified defendant that the prosecution would seek to disqualify him from second strike sentencing eligibility, pursuant to section 667, subdivision (e)(1), based on the forcible rape conviction. Although section 667, subdivision (e)(2)(C) was not referenced in the information, it was not required to be. It was effectively noted by the reference to section 667, subdivision '(e)(2)(A),' which specifically references, in its introductory clause, section 667, subdivision (e)(2)(C) as an exception to its provisions. The information also specifically alleged that defendant has a prior conviction for 'rape by force,' which is a super strike described in Welfare and Institutions Code section 6600, subdivision (b), a disqualifying factor identified in Penal Code section 667, subdivision (e)(2)(C)(iv)(I)." (Tennard, supra, 18 Cal.App.5th at pp. 487-488.)
Roberts reads Tennard to mean that the pleading and proof requirements of section 667, subdivision (e)(2)(C) required a reference to that subdivision in the information, which requirement was satisfied by reference to subdivision (e)(2)(A) and the reference to subdivision (e)(2)(C) included therein. Roberts argues that because the information in this case did not make specific reference to section 667, subdivision (e)(2)(A) or to subdivision (e)(2)(C), the information here is inadequate whereas the information at issue in Tennard was not. We read Tennard as holding only that a reference to subdivision (e)(2)(A) was sufficient, not necessary. Although it was admittedly less specific, the information in this case likewise referenced the fact and statute of Roberts's prior conviction, and referred him to section 667, "subdivisions (b) through (i)," including subdivisions (e)(2)(A) and (e)(2)(C), which made clear that he would be subject to third-strike sentencing by virtue of his prior convictions. To the extent that Tennard can be read to hold that a reference to section 667, subdivision (e)(2)(A) was required and a more general reference to subdivisions (b) through (i) would have been insufficient, we respectfully disagree for all the reasons discussed above.
In sum, the information's reference to "sections 1170.12 and 667(b) through 667(i) inclusive," although not a model of pleading clarity, was sufficient to satisfy the requirement that the prosecution "plead[] and prove[]" that Roberts had suffered the prior convictions for the purposes of section 667, subdivision (e)(2)(C), and was thus disqualified from second-strike sentencing. Accordingly, his challenge to his sentence fails.
DISPOSTION
The judgment is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.