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Name: People v. Perez
Case #: B258736
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 10/01/2015

One Strike sentence on forcible oral copulation count reversed where prosecution failed to allege the qualifying circumstances as to that count in the accusatory pleading. Perez was convicted of a number of offenses, including forcible oral copulation, based on evidence that he kidnapped a woman at knife point and subjected her to sexual acts. In the information, the prosecution alleged application of the One Strike law (Pen. Code, § 667.61) as to two counts based on two qualifying circumstances. No such allegation was made as to the forcible oral copulation count. The trial court nonetheless instructed the jury on the One Strike allegations as to the forcible oral copulation count and the jury found the allegations true. The trial court imposed a total prison sentence of 52 years to life, which included a One Strike sentence on the forcible oral copulation count. Perez challenged this portion of his sentence on appeal. Held: Sentence partially reversed. A One Strike sentence may only be imposed if one of the circumstances specified in subdivisions (d) or (e) of section 667.61 are alleged in the accusatory pleading and either admitted or found true. In People v. Mancebo (2002) 27 Cal.4th 735, the court held the requirements must be strictly construed not only on the basis of statutory interpretation, but also to accord due process to the accused. It does not matter, as the prosecution alleged, that Perez arguably had actual notice of the One Strike circumstances which the prosecution sought to apply. Nor does it suffice that the information contained general allegations that a circumstance enumerated in section 667.61, subdivisions (d) and (e), was applicable because this does not provide specific notice as to which qualifying One Strike circumstance the prosecution intends to invoke. “The People must allege the specific One Strike law circumstances it wishes to invoke as to each count it seeks to subject to the One Strike law’s heightened penalties.”