Trial court erred by imposing five-year prior serious felony enhancement (Pen. Code, § 667, subd. (a)) where the information alleged the fact of the prior for purposes of a prior prison term enhancement and Three Strikes law, but failed to plead the prior serious felony enhancement. Defendant was convicted of first degree burglary (Pen. Code, § 459) and other offenses. He admitted he had a prior 2004 conviction for first degree burglary. The information had alleged that this prior (1) was a serious and violent felony within the meaning of the Three Strikes law (citing Pen. Code, § 667, subds. (c), (e)(1)) and (2) defendant had served a prior prison term for this offense (Pen. Code, § 667.5, subd. (a)). During the admission colloquy, the prosecutor repeatedly represented that defendant was admitting a “nickel prior” (Pen. Code, § 667, subd. (a)) and, at sentencing, the trial court added a five-year prior serious felony enhancement to defendant’s sentence. On appeal he challenged imposition of the enhancement. Held: Judgment modified to strike the five-year prior serious felony enhancement and to add the one-year prior prison term enhancement instead. All enhancements must be alleged in the accusatory pleading and either admitted by the defendant or found to be true by the trier of fact (Pen. Code, § 1170.1, subd. (e)). Here, the information alleged defendant’s prior conviction was a serious felony solely for the purpose of the Three Strikes law. Charging language in an accusatory pleading which states that a fact is being alleged to invoke a particular statute does not adequately inform the defendant that the prosecution will use it to invoke a different statute. When the prosecution alleges the fact of a prior serious felony conviction and cites to the Three Strikes law, but does not refer to the prior serious felony enhancement provision, it may be concluded that they have made “a discretionary charging decision.”

Defendant’s trial counsel did not forfeit a challenge to the prior serious felony enhancement by failing to object below. At sentencing, the prosecution told the trial court that defendant’s admission required imposition of a five-year prior serious felony enhancement. Defense counsel did not object and the trial court imposed the enhancement. A lack of notice may be forfeited by failure to object, even when it is a claimed violation of due process. However, principles of waiver and forfeiture do not apply to legal error resulting in an unauthorized sentence. Here, the prior serious felony enhancement was unauthorized because it violated the pleading requirement of Penal Code section 1170.1, subdivision (e). While defense counsel may have forfeited any constitutional objection based on lack of notice in violation of due process, he did not forfeit a statutory objection, because the violation resulted in an unauthorized sentence.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E066293.PDF