Mancebo

*738 Opinion

Introduction

In this case we address a claim of sentencing error under Penal Code section 667.61, 1 also known as the “One Strike” law, and section 12022.5, subdivision (a) (section 12022.5(a)), which provides generally for a fixed-term enhancement for personal gun use in connection with conviction of a felony offense. The validity of the One Strike sentence imposed in this case is not contested. Rather, the narrow question presented is whether the circumstance of gun use was available to support two section 12022.5(a) enhancements when gun use had already been properly pled and proved as a basis for invoking One Strike sentencing. The answer requires close examination of the pleading and proof requirements of the One Strike law.

Section 667.61 sets forth an alternative, harsher sentencing scheme for certain forcible sex crimes. A jury convicted defendant Chad Melvin Mancebo of eight such qualifying forcible and violent sex offenses, committed on separate dates against two different victims. Under the One Strike law, defendant stands sentenced to two indeterminate 25-year-to-life terms for having committed forcible rape against one victim under the specified…

I respectfully dissent.

The majority asserts “a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.” (Maj. opn., ante, at p. 747.) *755 Here, however, defendant was on notice he might be subject to sentence on a multiple victim circumstance under Penal Code 1 section 667.61, subdivision (e)(5) (section 667.61(e)(5)). The “One Strike” law was specifically referenced in the information. Moreover, the prosecution alleged, and the jury found, defendant committed qualifying crimes against multiple victims. Nor did defendant object in the trial court either when the prosecutor sought to have the multiple victim circumstance imposed or when sentence was pronounced. As the Attorney General notes, “If appellant’s trial counsel felt that the multiple-victim circumstance was not properly alleged pursuant to [section 667.61,] subdivision (i), he presumably would have objected to the application of the circumstance at trial. . . . The lack of any objection or even comment by any participant at sentencing in this case indicates that the application of the multiple-victim…

In this case we address a claim of sentencing error under Penal Code section 667.61, [1] also known as the "One Strike" law, and section 12022.5, subdivision (a) (section 12022.5(a)), which provides generally for a fixed-term enhancement for personal gun use in connection with conviction of a felony offense. The validity of the One Strike sentence imposed in this case is not contested. Rather, the narrow question presented is whether the circumstance of gun use was available to support two section 12022.5(a) enhancements when gun use had already been properly pled and proved as a basis for invoking One Strike sentencing. The answer requires close examination of the pleading and proof requirements of the One Strike law.

Section 667.61 sets forth an alternative, harsher sentencing scheme for certain forcible sex crimes. A jury convicted defendant Chad Melvin Mancebo of eight such qualifying forcible and violent sex offenses, committed on separate dates against two different victims. Under the One Strike law, defendant stands sentenced to two indeterminate 25-year-to-life terms for having committed forcible rape against one victim under the specified circumstances of gun…