IN THE SUPREME COURT OF
CALIFORNIA
In re OSCAR MANUEL VAQUERA
on Habeas Corpus.
S258376
Fourth Appellate District, Division Three
G056786
Orange County Superior Court
12NF0653
February 5, 2024
Justice Groban authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Jenkins, and Evans concurred.
In re VAQUERA
S258376
Opinion of the Court by Groban, J.
California’s “One Strike” law, codified at Penal Code
section 667.61, is an alternative sentencing scheme that applies
when the prosecution pleads and proves specific aggravating
circumstances in connection with certain sex offenses.1 The
prosecution charged Oscar Manuel Vaquera by information with
two counts of an offense covered by the One Strike law —
committing a lewd act on a child under the age of 14 — and a
jury convicted him on both counts. (§§ 288, subd. (a), 667.61,
subd. (c)(8).) In this habeas corpus proceeding, Vaquera
challenges the 25-year-to-life sentence the trial court imposed
for count 2.2
In connection with this count, the prosecution alleged a
multiple victim circumstance under subdivision (b) of the One
Strike law, which provides for a sentence of 15 years to life
“[e]xcept as provided in subdivision (a), (j), (l), or (m).” (§ 667.61,
subd. (b); see id., subd. (e)(4).)3 After the jury convicted Vaquera
and found true the multiple victim circumstance, the prosecutor
filed a sentencing brief requesting 15 years to life on count 2.
But later, just days before Vaquera’s sentencing hearing, the
1
All further citations to statutes are to the Penal Code.
2
Vaquera does not challenge the 15-year-to-life sentence
the trial court imposed for count 1.
3
All further citations to statutory subdivisions are to the
One Strike law, section 667.61.
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Opinion of the Court by Groban, J.
prosecutor filed a second sentencing brief invoking subdivision
(j)(2) of the One Strike law, which provides for a sentence of 25
years to life when the victim is under the age of 14, and arguing
Vaquera should be sentenced under that provision on count 2.
Vaquera contends the court’s imposition of a 25-year-to-
life sentence for count 2 violated due process guarantees
because the information did not provide him fair notice of the
prosecution’s election to seek that sentence. He further
contends that he is entitled to be resentenced to 15 years to life
on count 2 because the due process violation deprived him of the
opportunity to consider his exposure under subdivision (j)(2
when making key decisions about his defense. The Attorney
General argues that the information provided Vaquera fair
notice and that to the extent the information was ambiguous as
to the prosecution’s intent to seek sentencing under subdivision
(j)(2), Vaquera is not entitled to resentencing on that basis. We
agree with Vaquera and direct the trial court to strike his 25-
year-to-life sentence on count 2 and resentence him to 15 years
to life on that count.
I. BACKGROUND
A. The One Strike Law
“[T]he One Strike law sets forth an alternative and
harsher sentencing scheme for certain sex crimes . . . .” (People
v. Anderson (2009) 47 Cal.4th 92, 107 (Anderson I).) The law
applies when the prosecution pleads and proves specific factual
circumstances in addition to the elements of the underlying sex
offense. (Id. at p. 102.) When the prosecution is pursuing
sentencing under the One Strike law, the jury decides first
whether the prosecution has proved the elements of the charged
offense; if the jury convicts, it then independently considers
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Opinion of the Court by Groban, J.
whether the prosecution has proved the circumstances alleged
to support sentencing under the One Strike law. (Anderson I, at
p. 102.
If the prosecution has not pled and proved a One Strike
law allegation, the usual, determinate sentence for the sex crime
applies. (See § 1170, subds. (a)(3), (b).) For example, for a
violation of section 288, subdivision (a) — the provision under
which Vaquera was convicted — the Penal Code prescribes a
sentence of three, six, or eight years in state prison. (Ibid.
When, however, a jury has found true a One Strike law
allegation, the offense generally will be punishable by an
indeterminate sentence of either 15 years to life or 25 years to
life. (See § 667.61, subds. (a)–(e).) As relevant here, under
subdivision (b), the sentence is 15 years to life if the jury has
found the crime was committed under one of the circumstances
listed in subdivision (e) of the One Strike law, among which is
the multiple victim circumstance. (§ 667.61, subds. (b), (e)(4).
This general scheme is subject to exceptions added by the
Chelsea King Child Predator Prevention Act of 2010 (Stats.
2010, ch. 219, § 16) (Chelsea’s Law), codified in subdivisions (j),
(l), and (m). (See § 667.61, subd. (b) [“[e]xcept as provided in
subdivision (a), (j), (l), or (m) . . .”].) Those subdivisions
prescribe increased punishments of 25 years to life or life
without the possibility of parole when the prosecution has pled
and proved a One Strike circumstance involving a minor victim.
(See § 667.61, subds. (j), (l), (m).) Among these circumstances is
subdivision (j)(2), under which Vaquera was sentenced on
count 2, which provides for a sentence of 25 years to life for “[a]
person who is convicted of an offense specified in subdivision (c
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Opinion of the Court by Groban, J.
under one of the circumstances specified in subdivision (e), upon
a victim who is a child under 14 years of age.”
B. Procedural History
In an interview conducted as part of a child pornography
investigation, Vaquera made incriminating admissions to the
police about his conduct toward two children.4 The prosecution
charged Vaquera by information with two counts — a separate
count as to each of the two children — of committing “a lewd and
lascivious act upon and with the body” of “a child under the age
of fourteen (14) years, with the intent of arousing, appealing to,
and gratifying the lust, passions, and sexual desires of the
defendant and the child” in violation of section 288, subdivision
(a).5
The information also contained a One Strike law
allegation as to each of these two counts. The allegation
concerning the count at issue here read in full: “As to count(s) 2,
it is further alleged pursuant to Penal Code sections
667.61(b)/(e)(4), that in the commission of the above offense,
defendant OSCAR MANUEL VAQUERA committed an offense
specified in Penal Code section 667.61(c) against more than one
victim.” As noted above, subdivision (b) of the One Strike law
prescribes a 15-year-to-life sentence for a conviction of one of the
offenses listed in subdivision (c) when the jury finds true one of
the circumstances specified in subdivision (e). The offense of
4
The evidence at trial showed that Vaquera, who shared an
apartment with the victims’ family, molested the two children
and videotaped them and another child through a hole in the
bathroom wall.
5
The information also alleged child pornography charges
that are not relevant to our analysis.
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Opinion of the Court by Groban, J.
which Vaquera was convicted — committing a lewd act in
violation of section 288, subdivision (a) — is among the offenses
listed in subdivision (c). Subdivision (e)(4) sets out the multiple
victim circumstance, which applies when a defendant is
convicted in a single case of committing an offense listed in
subdivision (c) against multiple victims.
The One Strike law allegation as to count 2 did not include
a citation to subdivision (j)(2) — the provision under which the
trial court ultimately sentenced Vaquera to 25 years to life. Nor
did the allegation specify that the victim was under 14 years
old — the fact that would trigger application of subdivision (j)(2
to a crime otherwise punishable under subdivision (b). (See §
667.61, subd. (j)(2) [providing for a 25-year-to-life sentence when
the defendant was “convicted of an offense specified in
subdivision (c) under one of the circumstances specified in
subdivision (e), upon a victim who is a child under 14 years of
age” (italics added)].) And the allegation did not otherwise
specify that the prosecution was seeking a sentence of 25 years
to life based on the victim’s age rather than the 15-year-to-life
sentence generally provided for in subdivision (b).
The jury convicted Vaquera as charged and found true the
One Strike multiple victim allegations as to both counts. In its
initial sentencing brief, the prosecution asked the court to
impose a sentence of 15 years to life for count 2, explaining:
“Counts 1 and 2 are convictions for [section] 288(a) with a
multiple victim ‘One Strike’ enhancement under Penal Code
section 667.61(b)/(e)(4) and (5). The penalty for each count is an
indeterminate sentence of 15 years to life, with the court holding
the option to run the counts concurrently or consecutively to
each other.” The prosecution requested that Vaquera be
sentenced to “a minimum of 30 years to life” on all counts.
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Opinion of the Court by Groban, J.
A few weeks later, just four days before the sentencing
hearing, the prosecution filed a new sentencing brief. In this
second brief, the prosecution informed Vaquera for the first time
that it was seeking a sentence of 25 years to life on count 2. The
brief explained that Chelsea’s Law — which had taken effect
two years before the prosecution filed the information in
Vaquera’s case and almost four years before it submitted its
second sentencing brief — had added subdivision (j)(2) to the
One Strike law. The brief argued that this amendment
increased the sentence for an offense specified in subdivision (c
involving multiple victims from 15 years to life to 25 years to life
whenever the victim was under 14 years old. Because the
conduct alleged in count 1 predated the Chelsea’s Law
amendments, the prosecution acknowledged that Vaquera could
be sentenced only to 15 years to life on that count. As to the
offense alleged in count 2, however, which occurred after the
Chelsea’s Law amendments took effect, the prosecution
contended that the One Strike law required the trial court to
impose a 25-year-to-life sentence. The prosecution’s new brief
urged the court to impose the sentences on the two counts
consecutively and sentence Vaquera to “a minimum of 40 years
to life” — 10 years longer than it requested in its initial
sentencing brief.
The court sentenced Vaquera to 25 years to life on count 2
and 15 years to life on count 1, to be served concurrently, for a
combined sentence of 25 years to life. Vaquera appealed but did
not challenge the legality of his sentence. The Court of Appeal
affirmed, and we denied review.
The following year, the Department of Corrections and
Rehabilitation (CDCR) sent a letter to the trial court inquiring
about Vaquera’s sentence. The letter pointed out that although
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Opinion of the Court by Groban, J.
the information had alleged a multiple victim circumstance
under subdivision (b) of the One Strike law, which provides for
a 15-year-to-life sentence, Vaquera had been sentenced to
25 years to life on count 2. CDCR inquired whether the court
had intended to sentence Vaquera under subdivision (b). To
address CDCR’s inquiry, the court ordered briefing and held a
hearing, after which it decided to leave intact Vaquera’s 25-year-
to-life sentence for count 2 under subdivision (j)(2).
Vaquera then filed a petition for writ of habeas corpus in
the Court of Appeal, claiming the trial court unlawfully imposed
the 25-year-to-life sentence for count 2 because he did not have
fair notice that he faced 25 years to life on that count. The Court
of Appeal summarily denied relief, Vaquera sought review in
this court, and we granted the petition and transferred the case
back to the Court of Appeal with directions to issue an order to
show cause.
The Court of Appeal issued the order to show cause. In
the return, the Attorney General denied that the information
failed to provide Vaquera fair notice that he could be sentenced
to 25 years to life on count 2 under the One Strike law. The
parties agreed that no evidentiary hearing was necessary. After
oral argument, the court denied relief in a published opinion, In
re Vaquera (2019) 39 Cal.App.5th 233 (Vaquera).
The Court of Appeal rejected as “fundamentally mistaken”
Vaquera’s contention that “the People could have elected to
pursue a prison term of 15 years to life under section 667.61,
subdivision (b), rather than a prison term of 25 years to life
under section 667.61, subdivision (j)(2).” (Vaquera, supra,
39 Cal.App.5th at pp. 244–245.) It observed that “[s]ection
667.61, subdivision (b), requires a sentence of 15 years to life
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Opinion of the Court by Groban, J.
‘[e]xcept as provided in subdivision . . . (j) . . . .’ ” (Id. at p. 245.
It concluded that the prosecution provided Vaquera fair notice
that he could be sentenced under subdivision (j)(2) by pleading
“multiple victim allegations for qualifying sex offenses in which
the victims were under 14 years of age.” (Vaquera, at p. 245.
The Court of Appeal reasoned that because the jury necessarily
found that the victims were under 14 years old when it convicted
Vaquera on counts 1 and 2, “the trial court was required to
impose a 25-year-to-life sentence.” (Ibid.
The Court of Appeal expressly disagreed with People
v. Jimenez (2019) 35 Cal.App.5th 373 (Jimenez). (See Vaquera,
supra, 39 Cal.App.5th at p. 244.) In Jimenez, the court had held
it violated due process to sentence a similarly situated
defendant to 25 years to life under subdivision (j)(2) because “the
information only informed [the defendant] he could be sentenced
to terms of 15 years to life under Penal Code section 667.61,
subdivisions (b) and (e) for committing the alleged offenses
against multiple victims.” (Jimenez, at p. 397.
We granted Vaquera’s petition for review to resolve this
split of authority.
II. DISCUSSION
Vaquera contends here, as he did in the Court of Appeal,
that his sentence for count 2 is unlawful because the information
did not provide fair notice of the specific One Strike sentence he
faced. He argues he had a constitutional right to notice that the
prosecution was seeking a sentence of 25 years to life under
subdivision (j)(2) based on the victim’s age, rather than 15 years
to life under subdivision (b) based on the multiple victim
circumstance alone. He further contends he is entitled to be
resentenced to 15 years to life on count 2 because the violation
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Opinion of the Court by Groban, J.
of this right deprived him of the opportunity to consider his
exposure to additional prison time when making key decisions
about how to conduct his defense. The Attorney General argues
that the information provided Vaquera fair notice of the
sentence he faced on count 2 by way of the cross-reference to
subdivision (j) in the text of subdivision (b) and that if the
prosecution erred in failing to plead the One Strike
circumstance with greater specificity, Vaquera is not entitled to
resentencing on that basis.
We begin by considering what constitutes fair notice in
this context.
A. Criminal Defendants Have a Constitutional
Right to Fair Notice of Their Sentencing
Exposure and the Factual Basis for That
Exposure
A defendant has a due process right to fair notice of any
sentencing allegation that, if proven, will increase the
punishment for a crime. (People v. Anderson (2020) 9 Cal.5th
946, 953 (Anderson II); People v. Mancebo (2002) 27 Cal.4th 735,
747 (Mancebo).) In the sentencing enhancement context, the
touchstone of fair notice is whether the accusatory pleading
enables the defense to predict the sentence the defendant faces
if convicted. To enable a defendant to make this prediction, an
accusatory pleading must provide the defendant with fair notice
of the factual basis on which the prosecution is seeking an
increased punishment and of “the potential sentence.”
(Anderson II, at p. 956.
When the prosecution has not alleged a particular
sentencing enhancement in connection with a specific count, a
“defendant is ordinarily entitled to assume the prosecution
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made a discretionary choice not to pursue the enhancement . . .
and to rely on that choice in making decisions such as whether
to plead guilty or proceed to trial.” (Anderson II, supra,
9 Cal.5th at p. 956.) Since an accusatory pleading that fails to
inform the defendant that the prosecution is pursuing a
particular sentencing enhancement in connection with a specific
count does not allow the defendant to predict the potential
sentence, such a pleading does not provide fair notice. (See id.
at pp. 956–957.
Like a sentencing enhancement allegation, a “One Strike
allegation exposes a defendant to greater punishment than
would be authorized by a verdict on the offense alone.”
(Anderson I, supra, 47 Cal.4th at p. 108.) Without a true finding
on a One Strike allegation, the court may not apply the lengthier
sentences provided for in the One Strike law. (Anderson I, at
p. 108, citing Apprendi v. New Jersey (2000) 530 U.S. 466, 490
(Apprendi) [“Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt”].) Accordingly, we have held the
prosecution must provide the defendant “fair notice of the
qualifying statutory circumstance or circumstances that are
being pled, proved, and invoked in support of One Strike
sentencing.” (Mancebo, supra, 27 Cal.4th at p. 754.
The One Strike law contains an express pleading
requirement: “The penalties provided in this section shall apply
only if the existence of any circumstance specified in subdivision
(d) or (e) is alleged in the accusatory pleading pursuant to this
section, and is either admitted by the defendant in open court or
found to be true by the trier of fact.” (§ 667.61, subd. (o).
Vaquera does not argue that the prosecution violated this
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statutory requirement, which by its terms does not apply to
subdivision (j)(2) so is not directly implicated here. Accordingly,
we consider the question before us — whether the One Strike
allegation provided fair notice that the prosecution was seeking
a 25-year-to-life sentence under subdivision (j)(2) — exclusively
under the rubric of due process. (See Jimenez, supra,
35 Cal.App.5th at pp. 396–397 [satisfying statutory pleading
requirement, where applicable, is necessary but not sufficient to
support application of alternative sentencing scheme under One
Strike law; due process must also be satisfied]; cf. Anderson II,
supra, 9 Cal.5th at p. 953 [“Beneath . . . statutory pleading
requirements lies a bedrock principle of due process.”].)6
The Attorney General argues that due process does not
require the prosecution to notify the defendant of the specific
One Strike sentence it is seeking. In his view, the prosecution
provides fair notice so long as it alleges the facts that support
the One Strike sentence somewhere in the charging document
and generally apprises the defendant of the potential for an
enhanced penalty. In support of this argument, he cites to
People v. Thomas (1987) 43 Cal.3d 818 (Thomas), in which we
held that a pleading that alleged a general charge of
manslaughter put the defendant on notice that he could be
convicted of either voluntary or involuntary manslaughter. (Id.
at p. 828.) The Attorney General reads Thomas as supporting
his argument that due process does not require the prosecution
6
It is unclear why, in enacting Chelsea’s Law, the
Legislature did not amend subdivision (o) to say that the express
pleading requirement applies to the circumstances specified in
subdivisions (j), (l), and (m) as well as those specified in (d) and
(e). It may wish to do so now.
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Opinion of the Court by Groban, J.
to make clear that it is relying on facts alleged in support of a
charged offense to also support a One Strike sentence.
We rejected a similar argument in Mancebo, supra,
27 Cal.4th at page 747, concluding that Thomas did not support
the Attorney General’s contention that it was sufficient for the
accusatory pleading to place the appellant on general notice that
the facts underlying the One Strike circumstance would be at
issue at trial. In Mancebo, the defendant was charged with
committing One-Strike-qualifying crimes against more than one
victim, but the prosecution did not plead a One Strike multiple
victim allegation. (Mancebo, at p. 743.) We acknowledged that
the defendant’s conviction of the charged crimes would have
made it “difficult to meaningfully contest” the truth of a multiple
victim circumstance had the prosecution alleged one. (Id. at
p. 752.) Nevertheless, we held that it would be inconsistent with
the One Strike law’s express pleading requirement and with due
process to base a One Strike sentence on that circumstance
because the prosecution had not pled it. (Mancebo, at p. 752.
An information, we held, must allege “which qualifying
circumstance or circumstances are being invoked for One Strike
sentencing.” (Ibid.) This requirement, we explained, is dictated
not only by the language of the One Strike law’s express
pleading requirement but also by due process, because the
prosecution’s failure to inform the defendant that it is invoking
those circumstances in support of a particular One Strike
sentence “violates [the defendant’s] right to adequate notice of
the factual and statutory bases of sentence enhancement
allegations.” (Mancebo, at p. 746; see id. at p. 747 [“[A]
defendant has a cognizable due process right to fair notice of the
specific sentence enhancement allegations that will be invoked
to increase punishment”].) In sum, to satisfy due process, an
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Opinion of the Court by Groban, J.
accusatory pleading must inform the defendant that the
prosecution is relying on specific facts to support imposition of a
particular One Strike sentence. (Mancebo, at pp. 746–747.) Our
holding in Thomas is not to the contrary. (Mancebo, at pp. 747–
748.)7
To be sure, as we have emphasized, due process does not
require “rigid code pleading or the incantation of magic words.”
(Anderson II, supra, 9 Cal.5th at p. 957.) An accusatory
pleading need not specify the number of the pertinent
sentencing statute, so long as it otherwise clearly notifies the
accused of the factual basis on which it is seeking a longer
sentence and the information necessary to calculate sentencing
exposure. (§ 952; see People v. Tirado (2022) 12 Cal.5th 688, 698
[“[T]he ‘accusatory pleading need not specify by number the
statute under which the accused is being charged.’ ”].) In the
One Strike law context, we have observed that “[a]dequate
notice can be conveyed by a reference to the description of the
qualifying circumstance” in the One Strike allegation
accompanied by either a general “reference to section 667.61” or
a more specific reference to the relevant subdivision of section
667.61. (Mancebo, supra, 27 Cal.4th at p. 754.) If a One Strike
allegation describes the specific factual circumstance based on
which the prosecution seeks One Strike sentencing and cites to
section 667.61, the allegation does not necessarily need to
specify the sentence (i.e., “15 years to life,” “25 years to life,” or
“life without the possibility of parole”) or cite to the specific
7
We disapprove People v. Neal (1984) 159 Cal.App.3d 69,
which we cited with approval in Thomas, supra, 43 Cal.3d at
pages 830 to 831, to the extent it is inconsistent with the
understanding of fair notice that is reflected in our present
analysis.
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subdivision of section 667.61 that provides the applicable
enhanced penalty. (Mancebo, at pp. 753–754; see Anderson II,
at p. 957 [“We do not mean to suggest that an information that
fails to plead the specific numerical subdivision of an
enhancement is necessarily inadequate”].) Similarly, a One
Strike allegation need not specify the factual basis of the
sentence the prosecution is seeking if the allegation’s text
otherwise makes clear that the prosecution intends to rely on
the facts alleged in connection with the underlying count to seek
imposition of a specific One Strike sentence on that count. To
satisfy due process, it is sufficient for an accusatory pleading to
provide the defendant fair notice of the particular One Strike
sentence the prosecution is seeking and of which facts it intends
to prove to support that sentence. (Mancebo, at pp. 753–754.
B. The One Strike Allegation on Count 2 Did Not
Provide Vaquera Fair Notice That the
Prosecution Was Seeking a 25-year-to-life
Sentence Under Section 667.61(j)(2) Based on
the Victim’s Age
Applying these principles, we must determine whether the
One Strike allegation as to count 2 provided Vaquera fair notice
that the prosecution was seeking a sentence of 25 years to life
under subdivision (j)(2) based on the victim being under the age
of 14, rather than 15 years to life under subdivision (b) based on
the multiple victim circumstance alone. As noted above, the
allegation stated: “As to count(s) 2, it is further alleged pursuant
to Penal Code sections 667.61(b)/(e)(4), that in the commission
of the above offense, [Vaquera] committed an offense specified
in Penal Code section 667.61(c) against more than one victim.”
The first subdivision of the One Strike law cited in the
allegation, subdivision (b), states: “Except as provided in
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subdivision (a), (j), (l), or (m), a person who is convicted of an
offense specified in subdivision (c)” — which includes section
288, subdivision (a), under which Vaquera was charged —
“under one of the circumstances specified in subdivision (e) shall
be punished by imprisonment in the state prison for 15 years to
life.” The second subdivision cited in the allegation, subdivision
(e)(4), sets out the multiple victim circumstance.
At least on initial read, the allegation’s citations to
subdivisions (b) and (e)(4), combined with its invocation of the
qualifying circumstance that Vaquera committed the covered
offense “against more than one victim,” suggest the prosecution
was seeking a sentence of 15 years to life based on the multiple
victim circumstance. Subdivision (b) provides for a sentence of
15 years to life, and subdivision (e)(4) applies when a defendant
is convicted in a single proceeding of committing a One Strike
offense “against more than one victim.” Based on the underlying
charges in this case, the prosecution had the choice of: (1) not
including a One Strike allegation in the information and seeking
a determinate sentence of three, six, or eight years (§ 288, subd.
(a)); (2) seeking 15 years to life based on the multiple victim
circumstance alone (§ 667.61, subds. (b) & (e)(4)); or (3) seeking
25 years to life based on the additional circumstance that the
victim of count 2 was under the age of 14 (id., subd. (j)(2)). The
information appears to reflect that the prosecution chose the
middle ground, alleging a One Strike law circumstance, citing
to subdivisions (b) and (e), and including a corresponding
multiple-victim factual allegation, while omitting any citation to
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Opinion of the Court by Groban, J.
subdivision (j)(2) and any corresponding allegation that the
victim was under the age of 14.8
Looking beyond the language of the One Strike allegation
as to count 2, the way the prosecution framed the allegations as
a whole further suggests it was not seeking sentencing under
subdivision (j)(2). The Chelsea’s Law amendments, by which the
Legislature added subdivision (j) to the One Strike law, had
taken effect two years before the prosecution filed the
information. Under the prior version of the statute, subdivision
(e)(4) pertained to the personal use of a firearm; the multiple
victim circumstance was codified in former subdivision (e)(5).
The information cites former subdivision (e)(5) in connection
with the One Strike law allegation as to count 1, which was
based on conduct predating the Chelsea’s Law amendments.
The allegation as to count 2, by contrast, cites subdivision (e)(4
for the multiple victim circumstance. The prosecution’s citation
to subdivision (e)(4) rather than subdivision (e)(5) in connection
8
Notably, the One Strike allegation as to count 2 is framed
how one might expect it to be framed if the prosecution wanted
to make clear that it had elected to seek sentencing under
subdivision (b) rather than under subdivision (j)(2). Indeed, it
is difficult to imagine how else a prosecutor would make that
election clear in the information. Subdivision (j)(2) applies in
the same circumstances in which subdivision (b) applies —
conviction “of an offense specified in subdivision (c) under one of
the circumstances specified in subdivision (e)” (§ 667.61,
subd. (b)) — but only when an additional circumstance is pled
and proved: that the offense was committed “upon a victim who
is a child under 14 years of age” (id., subd. (j)(2)). Had the
prosecution intended to seek sentencing under subdivision (j)(2
it could have simply cited that subdivision; there would have
been no reason for it to cite subdivision (b).
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with count 2, but not count 1, therefore suggests it was aware of
the renumbering of the One Strike law’s multiple victim
circumstance pursuant to the Chelsea’s Law amendments when
drafting the information. (See Stats. 2010, ch. 219, § 16.
Reading the One Strike allegation as to count 2 in this context,
defense counsel would have reasonably assumed the prosecutor
was aware of subdivision (j)(2) and had elected to seek
sentencing under subdivision (b) instead. (See Anderson II,
supra, 9 Cal.5th at p. 956.) Indeed, it appears from the first
sentencing brief that the prosecutor understood throughout the
trial that the punishment for count 2 would be 15 years to life
under subdivision (b).
We considered a somewhat similar issue in Anderson II,
supra, 9 Cal.5th at page 957, where we concluded that the
pleading of a vicarious firearm allegation carrying a 25-year-to-
life sentence as to one count did not provide fair notice that the
prosecution would seek additional vicarious firearm
enhancements as to other counts. We observed that the
prosecution’s choice “to allege other, lesser enhancements” on
the counts at issue gave the defendant “reason to believe the
prosecution was exercising its discretion not to seek the . . . 25-
year-to-life enhancement” on those counts. (Ibid.) In this case,
the framing of the One Strike allegation as to count 2,
particularly when considered in juxtaposition to the framing of
the One Strike allegation as to count 1, gave Vaquera reason to
believe the prosecution was exercising its discretion not to seek
sentencing under subdivision (j)(2) by pleading subdivision (b
and relying exclusively on the multiple victim circumstance
rather than also pleading that the victim was under the age of
14.
17
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Opinion of the Court by Groban, J.
In circumstances parallel to those of this case, the Court
of Appeal in Jimenez, supra, 35 Cal.App.5th 373 held that the
imposition of 25-year-to-life sentences under subdivision (j)(2
violated the defendant’s due process right to fair notice.
(Jimenez, at p. 397.) In Jimenez, as here, a jury convicted the
defendant of committing One-Strike-eligible offenses against
multiple victims under the age of 14 and also found true a One
Strike multiple victim allegation: that “Jimenez did ‘commit the
offense on more than one victim within the meaning of Penal
Code Section 667.61 (b)/(e).’ ” (Jimenez, at p. 394.) The Court of
Appeal concluded this allegation did not provide fair notice that
Jimenez faced 25-year-to-life sentences under subdivision (j)(2).
(Jimenez, at p. 397.) It observed, “the information only informed
Jimenez he could be sentenced to terms of 15 years to life under
Penal Code section 667.61, subdivisions (b) and (e) for
committing the alleged offenses against multiple victims. The
information did not put him on notice that he could be sentenced
to terms of 25 years to life under section 667.61(j)(2) for
committing those offenses upon multiple victims, at least one of
whom was under 14 years of age.” (Jimenez, at p. 397.) In
Jimenez, as here, the prosecution pled and the jury found the
facts necessary to support imposition of a 25-year-to-life
sentence under subdivision (j)(2). (Jimenez, at p. 394; see
Apprendi, supra, 530 U.S. at p. 490.) The Court of Appeal’s
conclusion that the prosecution did not provide fair notice rested
on the information’s failure to inform Jimenez that the
prosecution intended to rely on those facts to seek sentencing
under subdivision (j)(2).
The Attorney General points out that subdivision (b)’s
initial clause states that a sentence of 15 years to life shall be
imposed “[e]xcept as provided in subdivision . . . (j)” and that
18
In re VAQUERA
Opinion of the Court by Groban, J.
subdivision (j)(2), in turn, states that any “person who is
convicted of an offense specified in subdivision (c)” — among
which is the offense alleged in count 2 — “under one of the
circumstances specified in subdivision (e), upon a victim who is
a child under 14 years of age, shall be punished by imprisonment
in the state prison for 25 years to life.” (Ibid.) He contends that
because subdivision (b) cross-references subdivision (j), the
information provided Vaquera fair notice that the prosecution
was seeking a sentence of 25 years to life on count 2. We
disagree. At most, the statutory cross-reference to subdivision
(j) renders the allegation ambiguous as to whether the
prosecutor might seek sentencing under that provision. Read as
a whole, the pleading failed to inform Vaquera of the
prosecutor’s election to seek the more stringent sentence and did
not provide fair notice of his sentencing exposure.9
We recognize, as the Court of Appeal emphasized and as
Vaquera concedes, that the provisions of the One Strike law
9
The Attorney General briefly argues that to hold that
Vaquera’s right to fair notice was violated would be inconsistent
with People v. Valladoli (1996) 13 Cal.4th 590. In Valladoli, we
concluded that the trial court did not violate due process when
it authorized the prosecution to amend an accusatory pleading
after trial to add prior felony conviction allegations. (Id. at
p. 607; see § 969a.) Valladoli is distinguishable. The case
concerned whether the trial court violated due process by
permitting the amendment of an accusatory pleading, not
whether it did so by imposing a sentence based on an unpled
provision. (Valladoli, at p. 607.) Moreover, the defendant in
Valladoli knew from the outset of the case that the prosecution
intended to seek an enhanced sentence based on his prior felony
convictions and disavowed any claim of lack of notice. (Id. at
p. 608.
19
In re VAQUERA
Opinion of the Court by Groban, J.
generally are mandatory when properly pled and proved.
(Vaquera, supra, 39 Cal.App.5th at p. 245.) If the prosecution
had alleged under subdivision (j)(2) that Vaquera was subject to
a 25-year-to-life sentence on count 2 based on having been
“convicted of an offense specified in subdivision (c) under one of
the circumstances specified in subdivision (e), upon a victim who
is a child under 14 years of age” and the jury found that
allegation true, the trial court generally would have been
required to sentence Vaquera to 25 years to life on count 2.
(§ 667.61, subd. (j)(2).
However, the question before us is whether the
information provided fair notice to Vaquera of the One Strike
sentence the prosecution was seeking and the factual basis on
which it sought that sentence. To provide fair notice, an
“accusatory pleading must adequately inform the defendant as
to how the prosecution will seek to exercise its discretion.”
(Anderson II, supra, 9 Cal.5th at p. 957.) As we have explained,
a prosecutor has the discretion to charge any provision of the
One Strike law supported by the facts or, indeed, to elect not to
invoke the One Strike law at all; nothing requires the prosecutor
to charge the One Strike provision that carries the longest
sentence. (See Anderson II, at p. 957; see People v. Villegas
(2023) 97 Cal.App.5th 253, 367–368.)10 The fact that the trial
court must impose a One Strike sentence when a One Strike
allegation is properly pled and proved does not relieve the
10
We disapprove People v. Zaldana (2019) 43 Cal.App.5th
527 to the extent it is inconsistent with our conclusion that the
prosecution has discretion to allege a subdivision (b
circumstance rather than a subdivision (j)(2) circumstance
where the defendant is charged with committing One-Strike-
eligible offenses against multiple victims under the age of 14.
20
In re VAQUERA
Opinion of the Court by Groban, J.
prosecution of its obligation to provide fair notice to the
defendant of the sentence it is seeking. The Court of Appeal
therefore erred in concluding that because the jury found the
facts that would support sentencing under subdivision (j)(2
when it convicted Vaquera on counts 1 and 2, the court was
“required to impose a 25-year-to-life sentence . . . .” (Vaquera,
supra, 39 Cal.App.5th at p. 245.) Whether the court was so
required generally would turn on whether the prosecution
properly invoked subdivision (j)(2) by pleading those facts in
connection with the One Strike allegation. The prosecution’s
failure to do so violated Vaquera’s due process right to fair
notice.
The determination whether an accusatory pleading
provides fair notice of a potential One Strike sentence requires
a careful analysis of the language of the One Strike allegation.
Here, the One Strike allegation specified that it was making
“further” allegations “[as] to count 2.” It may be possible to read
this language as not only specifying the count to which the
allegation pertained but as also incorporating by reference the
factual allegations in count 2, including, as relevant here, that
the victim was under the age of 14. However, to use a fact
alleged in connection with the underlying offense to support a
One Strike allegation, the prosecution must provide fair notice
that it intends to use that fact for purposes of One Strike
sentencing. (Cf. Anderson, supra, 9 Cal.5th at pp. 956–957
[“Fair notice requires that every sentence enhancement be
pleaded in connection with every count as to which it is
imposed”]; Mancebo, supra, 27 Cal.4th at p. 754 [upholding
decision striking unpled multiple victim circumstances although
charging document alleged One-Strike-qualifying offenses
against multiple victims].) The prosecution did not provide fair
21
In re VAQUERA
Opinion of the Court by Groban, J.
notice of its intent to rely on the allegation concerning the
victim’s age to seek a 25-year-to-life sentence under
subdivision (j)(2). As noted above, the information is most
reasonably interpreted as conveying a prosecutorial election not
to rely on the age of the victim — and thus not to invoke
subdivision (j)(2) in connection with count 2. The One Strike
allegation’s ambiguous reference to count 2 did not provide fair
notice of the prosecution’s election to rely on the allegation of the
victim’s age to seek a longer One Strike sentence.
There are various ways the prosecution could have
provided fair notice of its intent to seek sentencing under
subdivision (j)(2). The prosecution could have briefly alleged in
the One Strike law allegation the factual circumstances on
which it was relying (Vaquera having been convicted in the
present case of committing violations of section 288, subdivision
(a) against multiple victims and the victim being under the age
of 14) and cited to the One Strike law generally (§ 667.61). (See
Mancebo, supra, 27 Cal.4th at p. 754.)11 Alternatively, the
prosecution could have cited to subdivision (j)(2) and referenced
the charge in count 2 (§ 288, subd. (a)), an essential element of
which is that the victim was under 14 years old) and the
multiple victim circumstance (§ 667.61, subd. (e)(4)).12 Had the
11
Indeed, the information did specify that that the victims
were under 14 years of age in a separate allegation regarding
defendant’s ineligibility for probation, making the prosecutor’s
failure to include the same factual circumstance in the One
Strike law allegation appear intentional.
12
The One Strike law applies to nine enumerated sex
offenses. (§ 667.61, subd. (c).) Only three of those offenses
require proof that the victim was under 14 years of age at the
22
In re VAQUERA
Opinion of the Court by Groban, J.
prosecution framed the allegation in either of these ways, due
process would not have required it to expressly specify that it
was seeking 25 years to life on count 2, although doing so would
have rendered the pleading even clearer as to Vaquera’s
sentencing exposure. Alternatively, had the prosecution
specified in the One Strike allegation that it was seeking 25
years to life on count 2 and alleged the factual circumstances on
which it was relying to support that sentence, that would have
provided fair notice even without a citation to subdivision (j)(2).
The One Strike allegation as to count 2, however, did not
specify that the prosecution was seeking 25 years to life on that
count, cite to subdivision (j)(2), or otherwise make clear that the
prosecution was seeking a longer sentence based on the victim’s
age. Because the allegation did not inform Vaquera of the
prosecution’s intent to invoke the One Strike law circumstance
on which the trial court ultimately sentenced him, the allegation
failed to provide him fair notice.
time of the offense. (See id., subd. (c)(4), (8), (9).) For any of the
other six offenses, due process requires the One Strike
allegation to specify that the victim was under the age of 14
when the prosecution is seeking a longer sentence under
subdivision (j)(2) on that basis. And even when seeking a
sentence under subdivision (j)(2) for an offense of which the
victim’s age is an element, the best practice is to specify the
offense in the One Strike allegation — e.g., that “the defendant
was convicted of committing a lewd act on a child under the age
of 14 (Pen. Code, § 288, subd. (a))” — in addition to specifying
the subdivision (e) circumstance — e.g., that the defendant “has
been convicted in the present case of committing the offense
against more than one victim” (id., subd. (e)(4)).
23
In re VAQUERA
Opinion of the Court by Groban, J.
C. Vaquera Is Entitled To Resentencing on
Count 2
Having determined that the imposition of a 25-year-to-life
sentence under subdivision (j)(2) on count 2 violated Vaquera’s
due process right to fair notice, we now consider whether he is
entitled to resentencing. Vaquera argues, citing Mancebo, that
he is entitled to be resentenced to 15 years to life on count 2
because the prosecution waived its right to seek a 25-year-to-life
sentence under subdivision (j)(2) by pleading subdivision (b) and
not seeking to amend the information. (See Mancebo, supra,
27 Cal.4th at p. 749 [“doctrines of waiver and estoppel, rather
than harmless error, apply” where the prosecution’s failure to
plead a One Strike allegation reflects a “discretionary charging
decision”].) Alternatively, citing Anderson II, supra, 9 Cal.5th
at pages 963 to 964, Vaquera contends that he is entitled to be
resentenced to 15 years to life on count 2 because the Attorney
General has not demonstrated that the prosecution’s failure to
provide fair notice was harmless.
We need not decide whether Mancebo’s analysis applies in
the present context because even assuming the due process
violation is subject to a prejudice analysis, Vaquera is entitled
to resentencing. In Anderson II, supra, 9 Cal.5th at page 964,
we held that the defendant was entitled to resentencing where
the prosecution’s intent to seek the sentencing enhancements at
issue only became clear on the day of the sentencing hearing —
“too late to cure the defective pleading.” We reasoned that the
purpose of a statutory pleading requirement is “to give sufficient
notice to permit the defense to make informed decisions about
the case, including whether to plead guilty, how to allocate
investigatory resources, and what strategy to deploy at trial.”
(Ibid.; see also Mancebo, supra, 27 Cal. 4th at p. 752 [observing
24
In re VAQUERA
Opinion of the Court by Groban, J.
that timely notice of a sentencing allegation may impact a
defendant’s decision “whether to plea bargain or go to trial”].
Because Anderson did not receive notice of the potential
sentence he faced in time for him to take his sentencing
exposure into account in making those decisions, we concluded
the pleading error was not harmless and he was entitled to
resentencing. (Anderson II, at p. 964.) Nothing in the record
here suggests Vaquera learned of his sentencing exposure on
count 2 in time for him to take it into account in fashioning his
defense strategy. Accordingly, the Attorney General has not
met his burden to show the fair notice violation was harmless.
The Attorney General argues that Vaquera had actual
notice that he faced a 25-year-to-life sentence on count 2 because
the One Strike law required the court to impose a 25-year-to-life
sentence. This argument rests on the erroneous premise that a
15-year-to-life sentence under subdivision (b) would be
unauthorized in the context of this case. As we have observed,
subdivision (j)(2) requires the court to impose a 25-year-to-life
sentence only when it has been properly pled and proved. As
the Attorney General would have us read the statute, the
prosecution’s only options would be to omit a One Strike
allegation entirely (i.e., not seek application of the One Strike
scheme at all) or to seek the maximum sentence permitted
under the One Strike law based on the facts proved in
conjunction with the underlying sex offense (here, 25 years to
life). As we have explained, this reading is incorrect: The
prosecution may opt to allege a One Strike law circumstance
that supports imposition of a 15-year-to-life sentence even when
it alleges facts that would support imposition of a longer
sentence elsewhere in the accusatory pleading.
25
In re VAQUERA
Opinion of the Court by Groban, J.
The Attorney General further argues that Vaquera is not
entitled to resentencing because he should have been aware that
the prosecution could seek sentencing under subdivision (j)(2).
It seems the Attorney General would have us impute to Vaquera
awareness that the prosecution intended to seek sentencing
under subdivision (j)(2) although the Attorney General suggests
the prosecution itself “inadvertently failed to consider”
subdivision (j)(2), and although it appeared to CDCR, reviewing
the trial record, that the prosecution was seeking sentencing
under subdivision (b). Because the information could be
reasonably read as indicating that the prosecution had elected
not to seek 25 years to life under subdivision (j)(2), the burden
is on the Attorney General to demonstrate that Vaquera was
aware of the sentence the prosecution was seeking at a time
when he could have taken his sentencing exposure into
consideration in making key decisions about how to conduct his
defense, “including whether to plead guilty, how to allocate
investigatory resources, and what strategy to deploy at trial.”
(Anderson II, supra, 9 Cal. 5th at p. 964; see Mancebo, supra,
27 Cal.4th at p. 752.) The Attorney General has not met this
burden. The record shows that the same prosecutor filed the
information, conducted the trial, and submitted both sentencing
briefs. In the almost two years between when the prosecution
filed the information and when it filed its second sentencing
brief, it did not seek to amend the information or otherwise
clarify it was seeking sentencing under subdivision (j)(2) rather
than subdivision (b). Then, in its initial sentencing brief, the
prosecution affirmatively asked the court to impose a sentence
of 15 years to life on count 2 pursuant to subdivision (b). It was
not until the prosecution filed its second sentencing brief, three
26
In re VAQUERA
Opinion of the Court by Groban, J.
months after the jury returned its verdict, that it first made
clear its intent to seek 25 years to life under subdivision (j)(2).
This would be a different case if the prosecution had
provided Vaquera timely actual notice that it was seeking a 25-
year-to-life sentence on count 2 and the factual basis on which
it was seeking that sentence, despite its failure to provide such
notice in the information. (See People v. Houston (2012
54 Cal.4th 1186, 1228 [finding the defendant forfeited on appeal
due process claim based on indictment’s failure to provide fair
notice of sentencing exposure where the defendant “received
adequate notice of the sentence he faced” before the case was
submitted to the jury and had sufficient opportunity to request
additional time to prepare a defense but “did not raise an
objection in the trial court”].) Here, however, the Attorney
General does not attempt to demonstrate that Vaquera received
such notice by any means other than the information. In the
return to the order to show cause, the Attorney General did not
allege that Vaquera had actual notice the prosecution intended
to seek a 25-year-to-life sentence under subdivision (j)(2) on
count 2 at a time when Vaquera could have taken the
prosecution’s election into account in formulating his defense
strategy. Nor did the return state facts or provide any
“ ‘documentary evidence, affidavits, or other materials’ ” that
would support a finding that Vaquera had timely actual notice.
(People v. Duvall (1995) 9 Cal.4th 464, 476.) Vaquera therefore
is entitled to resentencing on count 2.
III. CONCLUSION
For the reasons given above, we reverse the judgment of
the Court of Appeal and remand with instructions to grant
Vaquera habeas corpus relief and to direct the trial court to
27
In re VAQUERA
Opinion of the Court by Groban, J.
strike the 25-year-to-life sentence imposed under subdivision
(j)(2) on count 2 and resentence Vaquera to 15 years to life on
that count under subdivision (b).
GROBAN, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
EVANS, J.
28
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re Vaquera
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 39 Cal.App.5th 233
Review Granted (unpublished)
Rehearing Granted
Opinion No. S258376
Date Filed: February 5, 2024
Court: Superior
County: Orange
Judge: David A. Hoffer
Counsel:
Sharon Petrosino, Public Defender, Sara Ross, Assistant Public
Defender, Miles David Jessup, Matthew Darling and Abby Taylor,
Deputy Public Defenders, for Petitioner Oscar Manuel Vaquera.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting, Paige B. Hazard and James M. Toohey,
Deputy Attorneys General, for Respondent the People.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Abby Taylor
Deputy Public Defender
801 Civic Center Drive West, Suite 400
Santa Ana, CA 92701
(657) 251-8607
Paige B. Hazard
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 540-0201
Opinion Information
| Date: | Docket Number: |
| Mon, 02/05/2024 | S258376 |
