Three Strikes sentence reversed where charging document failed to give notice that defendant was subject to a Three Strikes life sentence. Sawyers was convicted of first degree murder, gun use, and other offenses based on an incident where he and fellow gang members shot into a rival gang member’s house, killing an elderly man. As to the murder, the trial court sentenced Sawyers to 25-years-to-life, doubled due to a serious felony prior, plus 25-years-to-life for the gun use. On appeal, Sawyers argued the Three Strikes sentence was illegal because the information had failed to allege his prior offense was a strike and, although he admitted a conviction for first degree burglary as a prior prison term, he did not admit that it was a strike. Held: Sentence vacated. The Three Strikes law requires that prior felony convictions be pleaded and proved. (Pen. Code, §§ 667, subd. (c), 1170.12, subd. (a).) A defendant also has a due process right to notice of the specific sentence enhancement allegations that will be used to increase the punishment for his crimes. An accused may not be convicted of an offense that has not been charged (except a lesser included offense), unless he expressly or impliedly consents or acquiesces in having the trier of fact consider an uncharged offense. An accusatory pleading may be amended at any stage of the proceeding (Pen. Code, § 1009), which includes adding a prior felony conviction allegation (Pen. Code, § 969a), but here the information was not amended either orally or in writing to allege a strike. While a defendant can impliedly consent to amendment of a pleading if he is given reasonable notice of a sentence enhancement allegation, Sawyers did not have such notice in this case. Thus, he cannot be subject to a Three Strikes sentence.

Defendant’s failure to object to the imposition of a Three Strike sentence did not forfeit his claim that he lacked adequate notice of the strike allegation. The prosecution argued that Sawyers’ failure to object to imposition of a Three Strikes sentence forfeited his claim of inadequate notice. “But it is the People’s burden to properly plead enhancement allegations, not the defendant’s responsibility to ferret them out.” Sawyers’ claim of inadequate notice of the strike allegation was preserved for appeal.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B266897.PDF