Defendant received adequate notice of allegation under the One Strike law where the prosecution consistently indicated from the preliminary hearing through the trial that a One Strike circumstance related to the rape counts, even though the information mistakenly pled the One Strike circumstance as to another sex offense. An information was filed charging defendant with five counts of raping his daughter (Pen. Code, § 261, subd. (a)(2); counts 1 – 5) when she was 15 years old and three counts of committing lewd and lascivious acts on her when she was 10 years old (Pen. Code, § 288, subd. (a); counts 6 – 8). A One Strike allegation of infliction of GBI during the commission of the offense was alleged as to count 8 (Pen. Code, § 288, subd. (a)). From the preliminary hearing through trial, the prosecution indicated the GBI circumstance related to the rape counts, based on the daughter’s pregnancy. The jury was instructed that if it found defendant guilty of one of the rape charges, it must decide whether he inflicted GBI in committing the crime. The jury convicted on all counts and found the GBI allegation true as to the rape counts. Prior to sentencing, the trial court realized the GBI allegation had been pled as to the wrong count. It struck the allegation as to count 8, and added it to the rape counts. Defendant was sentenced to 25 years to life, plus additional terms. On appeal he challenged the GBI allegation because it was not alleged as to the rape counts. Held: Affirmed on this point. California’s One Strike law (Pen. Code, § 667.61) provides an alternative and enhanced term for certain sex crimes. Circumstances which bring a defendant within the law must be pled and proved. (People v. Mancebo (2002) 27 Cal.4th 735.) Here, defendant was placed on notice of the substantive claims and potential sentence from the beginning of the case. Only the information was inconsistent with the prosecution’s theory of defendant’s guilt and sentencing exposure, and “that deficiency did not violate defendant’s statutory or due process rights.”

The trial court erred in applying the amended version of Penal Code section 667.61 to defendant. Penal Code section 667.61 was amended in September 2010 to move the GBI circumstance from section 667.61, subdivision (e) to subdivision (d), thereby increasing the sentence from 15 years to life to 25 years to life. However, the offenses in this case predate that amendment. The state and federal prohibitions against ex post facto laws prohibit application of the amended statute to defendant, requiring reduction of his sentence to 15 years to life.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E063305.PDF