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Imposition of PC 12022.53(e) Enhancements Not Pleaded

Case Name: People v. Anderson (2020) 9 Cal.5th 946
Case #: S253227
Last Updated: July 23, 2020

Were the enhancements under Penal Code section 12022.53, subdivision (e), improperly imposed as to counts 3 through 7 because the prosecution did not specifically plead a violation of this subdivision as to those counts? (See People v. Mancebo (2002) 27 Cal.4th 735.)

Opinion By: Justice Kruger (unanimous decision)
Held: Trial court erred by imposing vicarious firearm use enhancements (Pen. Code, § 12022.53, subd. (e)) that were not pleaded in connection with the relevant counts. Anderson and fellow gang members went to a party. They were asked to leave. The group did depart, but returned with guns and began robbing the partygoers. One of Anderson’s group shot and killed a man at the party. Anderson was convicted of first degree murder with a 25-year-to-life vicarious firearm discharge enhancement (Pen. Code, § 12022.53, subds. (d), (e)). He was also convicted of five robbery counts. As to the robbery counts, the jury found true 25-year-to-life vicarious firearm discharge enhancements, but these enhancements were not pleaded in connection with the robbery counts. On appeal, Anderson challenged the firearm enhancements as to the robberies. The Court of Appeal affirmed. The California Supreme Court granted review. Held: Reversed. All sentence enhancements “shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.” (Pen. Code, § 1170.1, subd. (e).) With respect to the vicarious liability firearm use enhancement at issue, section 12022.53, subdivision (e) expressly requires that the prosecution plead and prove that the defendant committed a felony on behalf of a street gang (Pen. Code, § 186.22) and that a “principal in the offense committed any act specified in subdivision (b), (c), or (d)?that is, an act that would trigger a firearm enhancement had the defendant committed that act personally.” A criminal defendant has a due process right to have notice of the charges against him so that he may prepare a defense. This requirement applies equally to enhancements. The information in this case alleged a section 12022.53, subdivision (e) enhancement as to the murder count but not as to the robbery counts. “A pleading that alleges an enhancement as to one count does not provide fair notice that the same enhancement might be imposed as to a different count.” [Editor’s Note: The court disapproved People v. Riva (2003) 112 Cal.App.4th 981.]

Although defense counsel did not object to the deficiency in the pleading, the court exercised its discretion to address the merits of defendant’s statutory notice claim and determined the deficiency was not harmless. The 25-year-to-life vicarious firearm discharge enhancements were not pleaded in connection with the robbery counts. But, for unknown reasons, the jury instructions and verdict forms nonetheless asked the jury to return findings on these enhancements. The Attorney General argued that Anderson had sufficient notice that he faced the enhancements based on the jury instructions and verdict forms, which defense counsel did not object to. The Supreme Court disagreed. First, the court disagreed with the Attorney General’s argument that, by failing to object, Anderson impliedly consented to an informal amendment of the information to add the additional enhancement allegations as to the robbery counts. The court also concluded it should reach the merits of Anderson’s claim despite his failure to object. Generally, “a criminal defendant who fails to object at trial to a purportedly erroneous ruling forfeits the right to challenge that ruling on appeal.” A pleading defect does not necessarily result in an unauthorized sentence that can be raised and corrected for the first time on appeal. (See People v. Houston (2012) 54 Cal.4th 1186.) However, an “appellate court may decide an otherwise forfeited claim where the trial court has made an error affecting an important issue of constitutional law or a substantial right.” As the error here went to the overall fairness of the proceeding, the court reached the merits of Anderson’s claim. The record did not support a conclusion that Anderson had adequate notice of the prosecution’s intention to seek the additional section 12022.53, subdivision (e) enhancements as to the robbery counts. “The prosecution’s intention to ask for the five unpleaded, 25-year-to-life enhancements only became apparent on the day of the sentencing hearing.” The notice given was too late to cure the defective pleading and the deficiency was not harmless. [Editor’s Note: The court noted that this would be a different case if the prosecution had told Anderson from the outset that it planned to seek the section 12022.53, subdivision (e) enhancements as to the robbery counts but for some reason failed to include them in the information, citing Houston, supra, 54 Cal.4th 1186, 1227-1228.] This case was decided on 7/23/2020.

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