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Name: People v. Smart
Case #: C049931
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 12/19/2006

A defendant is entitled to fair notice of specific sentence enhancement allegations that will be invoked to increase punishment for his crimes. For the purpose of a Penal Code section 12022.53 (d) enhancement, subdivision (f) provides that only one additional term of imprisonment can be imposed per defendant for each qualifying crime. Here, defendants were charged with one count of Penal Code section 246 with one enhancement pursuant to section 12022.53, subdivision (d), specifying two victims. The evidence presented at trial was that there were two victims inside the vehicle. The verdict forms delineated a separate enhancement as to each victim. The enhancements were found true and the court imposed separate 25-years-to-life sentences for each enhancement. The court found that because only one offense was charged under a provision allowing only one addition term for each qualifying crime, the defendants did not have fair notice of potential punishment for the two enhancements. Submitting verdict forms to the jury at trial was “too late in the game to afford the defendants fair notice of the possibility of two such enhancements.” (People v. Mancebo (2002) 27 Cal.4th 735.) A prosecutor can account for increased culpability resulting from more than one victim by charging the number of offenses in line with the number of victims and alleging the appropriate 12022.53 enhancement as to each offense. Because the prosecutor did not do so here (but then attempted to garner the benefits of such proper charging) defendants were denied their due process right to notice of the enhancement potential. Accordingly, one of the two section 12022.53 (d) enhancements imposed against each defendant was struck.