The law of the case doctrine precluded the resentencing court from finding that a prison term of 15 years to life was cruel and/or unusual punishment. Upon his conviction for child molestation, Nash was sentenced to a determinate term after the trial court found a life sentence under the One Strike law was cruel and unusual punishment. On appeal, the sentence was reversed and the case remanded. At resentencing the trial court said it was regrettably compelled to impose 15 years to life based on the Court of Appeal’s disposition. Nash appealed, challenging his sentence as unconstitutionally cruel and/or unusual based on new evidence. Held: Affirmed. At resentencing, the first appellate decision directed the trial court to resentence Nash under Penal Code section 667.61, subdivision (b), and held such a sentence to be constitutional. The law of the case doctrine therefore precluded the trial court from imposing a different term. Nash’s argument that additional evidence should have been considered to reduce his term was unavailing, as this “new evidence” impugning the jury’s verdicts was irrelevant to the trial court’s inquiry at resentencing.
Where the accusatory pleading expressly states that the effect of a sentencing allegation under Penal Code section 667.61, subdivision (b) exposes the defendant to 15 years to life in prison, due process does not permit a sentence of 25 years to life. The Attorney General argued that Nash’s 15-year-to-life sentence is unauthorized and urged the court to impose prison terms of 25 years to life under section 667.61, subdivision (j)(2) because both of the child complainants were under 14 years of age. The Court of Appeal disagreed. The One Strike law provides for an increased term of 15 years to life where the defendant is convicted of committing a lewd act against more than one victim. (Pen. Code, § 667.61, subds. (b), (c)(8), (e)(4).) However, a defendant convicted of lewd acts against two victims, each under the age of 14, faces a possible sentence of 25 years to life per count. (Pen. Code, § 667.61, subd. (j)(2).) Based on due process principles, a defendant must be given notice of the specific sentence enhancement allegations that will be invoked to increase his punishment. The language in the accusatory pleading here, which stated the effect of the One Strike allegation was a 15-year-to-life term, did not give adequate notice of the sentence now sought by the prosecution. This is the case even if the pleading alleges facts that would support the greater term if found true. [Editor’s Note: There is currently a split of authority as to whether an accusatory pleading that alleges only a section 667.61, subdivision (b) enhancement puts a defendant on fair notice for a greater subdivision (j)(2) enhancement to be imposed where requisite facts are found true. The California Supreme Court is considering this issue in In re Vaquera (2019) 39 Cal.App.5th 233, review granted 11/26/2019 (S258376/G056786).]
