Trial court violated defendant’s right to due process by sentencing defendant on uncharged sentencing allegations under Penal Code section 667.61, subdivision (j). A jury convicted defendant of 15 counts of sexually molesting three victims over a two-year period and found a multiple victims allegation true. On appeal he raised several issues, including a claim the trial court erred in imposing 25-year-to-life sentences on each count under subdivision (j) of section 667.61, when that subdivision was not pleaded in the information. Held: Reversed. On 13 of the counts, the information alleged, and the jury found true, that within the meaning of section 667.61, subdivisions (b) and (e), defendant committed a section 667.61, subdivision (c) offense against multiple victims. At sentencing the prosecutor argued and the trial court agreed, that defendant should be sentenced to 25 years to life for each count under subdivision (j), despite the information and verdict form only citing subdivisions (b) and (e), which allow for sentences of 15 years to life. This was error. Enhanced penalties under section 667.61 are available only if the existence of any of the qualifying circumstances is alleged in the information and either admitted by the defendant or found true by the trier of fact. A defendant must be placed on notice that the prosecution will seek to use a multiple victim circumstance. (People v. Mancebo (2002) 27 Cal.4th 735.) Here, the information only informed defendant he could be sentenced to 15 years to life under section 667.61, subdivisions (b) and (e) for committing the alleged offenses against multiple victims. It did not put him on notice he could be sentenced to 25 years to life under section 667.61, subdivision (j)(2), for committing the offenses against multiple victims, at least one of whom was under 14 years old. This violated defendant’s due process rights, requiring reversal. The issue was not forfeited, as the sentence imposed was unauthorized. [Editor’s Note: The court denied relief on other issues raised by the defendant, including an ineffective assistance of counsel claim for failing to object to several instances of alleged prosecutorial misconduct and burden shifting; a claim that the trial court erred in admitting under the fresh complaint doctrine a note written by the victim; and the sufficiency of the evidence of “forcible” lewd acts in two counts.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/H044238.PDF