People v. Soun CA1/5

BACKGROUND

This appeal addresses sentencing error based on a pleading defect. Accordingly, our factual summary includes only the factual and procedural background necessary to resolve the question of sentencing error.

I. First Amended Information

The first amended information alleged the following six felony counts: first degree burglary with intent to commit sexual assault (§ 220, subd. (b); count I); attempted rape by force or violence or by threat of bodily injury (§§ 664, 261, subd. (a)(2); count II); sexual battery by restraint (§ 243.4, subd. (a); count III); assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count IV); criminal threats (§ 422; count V); false imprisonment (§ 236; count VI). It further alleged circumstances in aggravation under California Rules of Court, rule 4.421(a)(1), (a)(3), (a)(6)–(7), and (b)(1)–(3). Under a heading listed as “Allegation of Prior Convictions Pursuant to Penal Code Sections 667(d), 667(e), 1170.12(b), and 1170.12(c)” the information states: “It is further alleged that said defendant, Sarith Soun, prior to the commission of the above offense, did suffer a conviction and juvenile adjudication, within the…