Under the facts of this case, defendant’s sentence under Penal Code section 273.5, subdivision (f)(1) violated due process because there was no indication in the information that he faced the possibility of a sentence under this subdivision. Wilford attacked his girlfriend on multiple occasions and was convicted by a jury of two counts of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) and related offenses. As to the corporal injury counts (counts 5 and 6), the trial court found Wilford had suffered a prior assault conviction within seven years of the current offenses (Pen. Code, § 273.5, subd. (h)(1)), based on Wilford’s past assaults against former girlfriends. Based on this finding, the prosecutor thereafter requested that Wilford be sentenced under section 273.5, subdivision (f)(1). The trial court agreed, even though section 273.5, subdivision (f)(1) was not referenced in the information. Wilford appealed. Held: Reversed. A defendant has a due process right to fair notice of the specific sentence enhancement allegations that will be relied upon to increase punishment for his crimes. Here, the amended information referenced section 273.5, subdivision (h)(1), indicating the prior conviction allegation could add 15 days to Wilford’s sentence. Nothing in the information referenced section 273.5, subdivision (f)(1), which increased the applicable sentencing range. Although every fact necessary to impose the sentence under section 273.5, subdivision (f)(1) was alleged in the information and found true, the resulting punishment was different, and Wilford was not appraised of the possible prison sentence he faced under section 273.5, subdivision (f)(1) until after the jury verdict and true finding on the qualifying prior conviction. This shortcoming was critical because Wilford was offered and rejected a plea bargain prior to trial, and the amended information did not provide him with the information necessary to make an informed decision about the plea offer. The court distinguished People v. Tardy (2003) 112 Cal.App.4th 783.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D069888.PDF