Equarte

We granted review in this case and in People v. Piper, post, page 471 [ 229 Cal.Rptr. 125 , 722 P.2d 899 ], to resolve a conflict in Court *459 of Appeal opinions concerning the proper interpretation of several recidivist sentencing provisions—adopted in 1982 as part of Proposition 8—which authorize an additional five-year sentence for defendants convicted of statutorily designated “serious felonies.” (Pen. Code, §§ 667, 1192.7, subd. (c).) 1 Here, defendant, convicted of assault with a deadly weapon (§ 245, subd. (a)(1)), contends that the trial court erred in concluding that the prerequisites for a five-year enhancement were properly met. We hold, contrary to defendant’s contention, that an assault-with-a-deadly-weapon conviction may constitute a “serious felony” within the relevant statutes if the prosecution properly established that the defendant “personally used a dangerous or deadly weapon” in the commission of the offense (§ 1192.7, subd. (c)(23)). Further, although defendant contends that the enhancement was improperly imposed in this case because the complaint failed to allege the section 667 enhancement with sufficient particularity, we conclude— on the basis…

I concur with the majority opinion that assault with a deadly weapon may constitute a “serious felony” within the meaning of Penal Code sections 667 and 1192.7 1 if the defendant *468 personally used a ¡dangerous or deadly weapon in the commission of the offense. I would reverse, however, on the ground that defendant did not receive adequate notice that the prosecution would rely upon his use of a dangerous and deadly weapon as the basis for the serious felony enhancement. I dissent from the holding that defendant’s failure to demur to the information bars him from asserting this issue.

The information in this case alleged that defendant was previously convicted of attempted robbery, a serious felony under sections 667 and 1192.7. It did not assert that defendant’s present offense, assault with a deadly weapon, was a serious felony, but since the status of defendant’s prior offense is irrelevant unless the present crime is also a serious felony, defendant was fairly on notice that the prosecution would seek to prove that point.

There are various circumstances under which an assault with a deadly weapon can be a serious felony. 2 The information did not expressly allege which…

We granted review in this case and in People v. Piper, post, page 471 [ 229 Cal. Rptr. 125 , 722 P.2d 899 ], to resolve a conflict in Court of Appeal opinions concerning the proper interpretation of several recidivist sentencing provisions — adopted in 1982 as part of Proposition 8 — which authorize an additional five-year sentence for defendants convicted of statutorily designated "serious felonies." (Pen. Code, §§ 667, 1192.7, subd. (c).) [1] Here, defendant, convicted of assault with a deadly weapon (§ 245, subd. (a)(1)), contends that the trial court erred in concluding that the prerequisites for a five-year enhancement were properly met. We hold, contrary to defendant's contention, that an assault-with-a-deadly-weapon conviction may constitute a "serious felony" within the relevant statutes if the prosecution properly established that the defendant "personally used a dangerous or deadly weapon" in the commission of the offense (§ 1192.7, subd. (c)(23)). Further, although defendant contends that the enhancement was improperly imposed in this case because the complaint failed to allege the section 667 enhancement with sufficient particularity, we conclude —…