by Douglas Ankney

Resolving a split among the Courts of Appeal, the Supreme Court of California ruled that a defendant has a due process right to notice of a prosecutor’s election to seek an enhanced sentence under Penal Code § 667.61(j)(2). (Note: Undesignated statutory references are to the California Penal Code.)

Oscar Manuel Vaquera was charged by information with two separate counts of committing “a lewd and lascivious act upon and with the body” of “a child under the age of fourteen (14) years” in violation of § 288. Vaquera’s information read as to count 2: “it is further alleged pursuant to Penal Code sections 667.61(b)/(e)(4), that in the commission of the above offense, defendant OSCAR MANUEL VAQUERA committed an offense specified in Penal Code section 667.61(c) against more than one victim.”

California’s “One Strike” law, § 667.61, “is an alternative sentencing scheme that applies when the prosecution pleads and proves specific aggravating circumstances in connection with certain sex offenses,” the Court stated. Without the One Strike allegation, Vaquera faced a sentence of 3, 6, or 8 years. § 288(a).

But under § 667.61(b), the One Strike law provides for a mandatory sentence of 15 years to life for a conviction of any sexual offense enumerated in § 667.61(c) (which includes § 288) and the jury finds true (or the defendant admits) one of the circumstances specified in § 667.61(e). Vaquera’s information cited 667.61(e)(4), which states the qualifying circumstance is that the offense was committed “against more than one victim.”

The jury found Vaquera guilty of the underlying offenses and found true the One Strike allegations. Initially, the prosecutor sought consecutive sentences of 15 years to life for Counts 1 and 2 for an aggregate sentence of 30 years to life. But just four days before Vaquera’s sentencing hearing, the prosecutor sought a sentence of 25 years to life for Count 2 under § 667.61(j)(2) and requested consecutive sentences for an aggregate sentence of 40 years to life. Section 667.61(j)(2) provides for a sentence of 25 years to life where the victim “is a child under age 14.” The trial court sentenced Vaquera to 15 years to life on Count 1 and 25 years to life on Count 2 (under § 667.61(j)(2)) but ran the sentences concurrently for a sentence of 25 years to life.

Ultimately, Vaquera petitioned the Court of Appeal (“COA”) for a writ of habeas corpus, alleging that the “trial court unlawfully imposed the 25-year-to-life sentence for Count 2 because he did not have fair notice that he faced 25 years to life on that count.” The COA summarily denied relief, so Vaquera timely appealed to the California Supreme Court, which transferred the case back to the COA with directions to issue an order to show cause.

After hearing argument from the parties, the COA denied relief. The COA expressly rejected People v. Jimenez, 35 Cal. App. 5th 373 (2019) (holding due process violated where similarly situation defendant sentenced to 25 years to life under § 667.61(j)(2) because “the information only informed [the defendant] he could be sentenced to terms of 15 years to life under § 667.61 (b) and (e) for committing the alleged offenses against multiple victims”), and held that under § 667.61(j)(2), “the trial court was required to impose a 25-year-to-life sentence.”

The Supreme Court granted review to resolve the split between the Courts of Appeal. The Court observed that a “defendant has a due process right to fair notice of any sentencing allegation that, if proven, will increase the punishment for a crime.” People v. Anderson, 470 P.3d 2 (Cal. 2020). The Court explained: “In the sentencing enhancement context, the touchstone of fair notice is whether the accusatory pleading enables the defense to predict the sentence the defendant faces if convicted. To enable a defendant to make this prediction, an accusatory pleading must provide the defendant with fair notice of the factual basis on which the prosecution is seeking an increased punishment and of ‘the potential sentence.’” Id. “When the prosecution has not alleged a particular sentencing enhancement in connection with a specific count, a ‘defendant is ordinarily entitled to assume the prosecution made a discretionary choice not to pursue the enhancement ... and to rely on that choice in making decisions such as whether to plead guilty or go to trial.’” Id. “Since an accusatory pleading that fails to inform the defendant that the prosecution is pursuing a particular sentencing enhancement in connection with a specific count does not allow the defendant to predict the potential sentence, such a pleading does not provide fair notice.” Id.

In the present case, the prosecution had three choices regarding the prosecution of Vaquera: (1) simply prosecute the alleged § 288 offenses without enhancement, (2) prosecute under § 667.61(e)(4), seeking an enhanced sentence of 15 years to life due to multiple victims, or (3) prosecute under § 667.61(j)(2), seeking an enhanced sentence of 25-years-to-life based on the age of the victim.

The charging information expressly cited § 667.61(e)(4) and expressly stated the prosecution sought an enhanced sentence due to more than one victim. Nothing in the information alerted Vaquera that he was facing a sentence of 25 to life under § 667.61(j)(2), the Court stated. And while the COA was correct that a finding of guilty of a covered offense coupled with a finding of true of a properly pled and proven allegation under § 667.61(j)(2) requires a mandatory sentence of 25 years to life, this does not excuse the prosecutor’s failure to properly plead the allegation even if the jury’s findings would support the allegation. That is, the enhanced sentences under the One Strike law are mandatory only when the allegations have been properly pled and proven, the Court instructed.

Accordingly, the Court reversed the COA and remanded with instructions to grant Vaquera habeas relief and to direct the trial court to strike the 25-year-to-life sentence and resentence him to 15-years-to-life on Count 2. See: In re Vaquera, 542 P.3d 208 (Cal. 2024).

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