Filed 6/12/17

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D069888

Plaintiff and Respondent,

v. (Super. Ct. No. SCD261253)

JOHNNY JEROME WILFORD,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Joseph P.

Brannigan, Judge. Affirmed in part; reversed in part; remanded with directions.

Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Heidi Salerno,

Deputy Attorneys General, for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part I. A jury convicted Johnny Jerome Wilford of assault by means likely to produce

great bodily injury (Pen. Code,1 § 245, subd. (a)(4); count 1), battery with serious bodily

injury (§ 243, subd. (d); count 2), resisting an officer (§ 148, subd. (a)(1); count 4), and

two counts of corporal injury to a cohabitant (§ 273.5, subd. (a); counts 5, 6).2 The jury

also found true the allegations that Wilford: (1) inflicted great bodily injury on the victim

within the meaning of section 12022.7, subdivision (a) and section 1192.7, subdivision

(c)(8) as to count 1; (2) inflicted great bodily injury on the victim within the meaning of

section 1192.7, subdivision (c)(8) as to count 2; and (3) was out on parole at the time he

committed counts 1 and 2 (§ 1203.085, subd. (b)).

The trial court found, as to counts 5 and 6, Wilford suffered a prior assault

conviction within seven years of the current offenses within the meaning of section

273.5, subdivision (h)(1). The court also found that Wilford suffered a prior strike

(§§ 667, subd. (b)-(i), 1170.12), a serious felony conviction (§ 667, subd. (a)(1)), and a

prison prior (§ 667.5, subd. (b)).

The court sentenced Wilford to prison for 22 years, consisting of four years for

count 1, doubled to eight years for his prior strike, plus three years for the great bodily

enhancement; one year four months, doubled to two years eight months based on his

prior strike for counts 5 and 6; five years for the serious felony prior conviction; and eight

months for the probation violation. The court stayed Wilford's sentence under count 2

1 Statutory references are to the Penal Code unless otherwise specified. 2 The trial court declared a mistrial as to count 3 (making a criminal threat, § 422) when the jury became deadlocked. 2 and for the prison prior. In addition, the court sentenced Wilford to time served for

count 4.

Wilford appeals, contending his conviction for count 1 should be reversed because

the trial court prejudicially erred in answering the jury's question regarding lesser

included offenses and his sentence for counts 5 and 6 violated due process. We find that

the court's error in responding to the jury's question regarding count 1 was harmless.

However, we conclude that Wilford's challenge to his sentence for counts 5 and 6 is well

taken. We therefore reverse his sentence on those two counts and remand this matter to

the superior court for resentencing as to those two counts only, consistent with this

opinion.

FACTUAL BACKGROUND

Prosecution

In the summer of 2014, Wilford began dating Dulce Amaya. At the time, Amaya

was still living with and in a relationship with Rodrigo Osorio, the father of her youngest

daughter. Once Osorio discovered Wilford and Amaya were dating, he ended the

relationship with Amaya and moved out of her house three months later. Soon after

Osorio moved out, Wilford moved in with Amaya, her two daughters, her nine-year-old

brother, her roommate Latasha Haines, Osorio's niece Estela, Estela's mother, and

Estela's three siblings. Estela regularly babysat Amaya's daughters. Wilford kept his

belongings in the basement, but he slept upstairs with Amaya. Amaya's mother lived at

the house on the weekends.

3 Osorio would come to the house to see his daughter. On one occasion, Osorio

refused to leave the house and grabbed onto Amaya's jacket. Amaya called the police

who came to escort Osorio out. Wilford came home and saw the police were there.

Osorio saw Wilford and told the police Wilford did drugs and was on probation. Amaya

believed her relationship with Wilford changed when he got frustrated with her for not

getting a restraining order against Osorio. After that, Wilford became violent toward her.

For example, when Amaya told Wilford she was going to leave him, he pushed her onto

the bed. On another occasion, Wilford kicked Amaya's front door from the outside so

hard that the door would no longer close. Although the police came out to investigate,

Wilford and Amaya told the police that nothing happened.

On another occasion, Wilford pushed Amaya onto the coffee table causing her leg

to bruise. He forced her into his van and drove her to his grandfather's house against her

will. After one of Wilford's friends showed up at the house, Amaya asked the friend to

convince Wilford to release her. However, Wilford would not let her go. Later, Amaya

took photos of her injuries and Wilford asked her to delete them. When she and Wilford

fought, Amaya often would kick him out of the house, but eventually, she would forgive

him and he would return.

One night in November 2014, Amaya and Wilford were play fighting and

wrestling. Wilford got too rough and she could not get him off her. She grabbed a pan

and hit him to get him off her. In response, he pulled her hair, which hurt her neck. She

asked him to stop, but he kept pulling her hair. He also bit her neck. They fought from

4 the kitchen to the dining room to the living room. They finally stopped fighting and went

outside to smoke a cigarette.

While outside, Amaya told Wilford she was upset. Wilford grabbed her by the

neck with both hands and squeezed to where she could not breathe. She got free and

went to the side of the house. He followed and grabbed her by the hair. Wilford said,

"Do you want me to treat you like all the other bitches?" He dragged her by her hair and

arms into the basement. The basement entrance was outside and not accessible from

inside the house.

Once in the basement, he told her he was sorry. She told him she wanted to leave,

but he blocked her from leaving. Amaya was afraid she would die and concerned about

who would care for her children. She agreed to have sex with Wilford to calm him down.

Amaya did not call the police.

The next morning while they were leaving for work, Amaya told Wilford that he

had to move out. Wilford became angry, but went to work. Later that night, when they

got home, Wilford told her he needed her support. She told him to leave. He put his

hand over her mouth and dragged her across the room by her hair. Amaya yelled for her

roommate who called the police.

By the time the police arrived, Wilford had left. Amaya told the police that a man

named Johnny Fluker had choked her, locked her in the basement, covered her mouth,

and dragged her by her hair across the room. She told the police he had grabbed her by

the throat and asked her, "Do you want me to treat you like all those other bitches?" She

lied to the police about Wilford's last name because she did not want Wilford to get in

5 trouble. She was terrified of what Wilford would do to her. Wilford had told her that if

she called the police, he would call child protective services (CPS) to complain about her.

Amaya had bruises around her neck, on her inner and outer arm, and bite marks on her

neck from Wilford assaulting her.

A few weeks later, Amaya, Osorio, and her children spent Thanksgiving with her

family in Los Angeles. When she returned from Los Angeles, Wilford apologized and

said he would never hurt her again. Amaya forgave Wilford and they resumed their

romantic relationship. She believed he would change. She also blamed herself for what

had happened.

On January 22, 2015, Amaya had a garage sale at her house with Vonnie Galligher

and Galligher's boyfriend Bishop Slingerland. After the garage sale, Wilford, Galligher,

Slingerland, and Amaya cooked, drank beer, talked, and played music. After the children

went to bed, the adults sat in the front of the house. Amaya wanted to listen to some

music and picked a song. Wilford did not want to hear the song. Nevertheless, Amaya

played the song and Wilford became angry. He walked to the back of the house and

asked her to follow him. She followed him asking why he was mad. They argued loudly.

Then the altercation became physical. Amaya slapped Wilford. Wilford slapped her

back, shoved her to the ground, and kicked her several times in the side.

Slingerland walked to the side of the house and saw Wilford kicking Amaya.

Wilford told Slingerland, "You need to back off." Wilford grabbed Slingerland's shirt

and lifted him up. Wilford told him, "Don't get in it" or he would kill him. Slingerland

6 walked back to the front of the house. He was holding his forehead, which bore a red

mark. Slingerland told Galligher they were leaving.

Amaya got up and ran back to the front of the house. Wilford said, "Oh, you think

you're going to get off that easy?" He ran at Amaya and hit her in the face. Wilford

tackled Amaya, and she hit a metal fence. He threw her to the ground by her throat and

kicked her side several times.

Amaya screamed at Galligher to call the police, but Galligher's phone was dead.

Amaya ran into her house, grabbed her four-year-old daughter and ran across the street

because her phone also was dead. She stopped a man in a car and asked him to call the

police. He refused. Slingerland drove Wilford away.

Amaya went back into her house. She sent Osorio a Facebook message asking

him to come to her house because Wilford had beaten her up. Haines came home and

Amaya used Haines's phone to call 9-1-1. Amaya told the operator that her ex-boyfriend

had hit and kicked her again. She said she was scared and that her three children were

with her. She said he had been violent in the past. She said she was scared he was going

to kill her. While talking with the 9-1-1 operator, she told Haines that she should have

listened to her when she told her in the past to leave Wilford because he was going to

keep hitting her. Amaya was afraid Wilford was going to kill her based on his hitting her

and stories of him being violent toward previous ex-girlfriends.

Osorio arrived and saw Wilford drive by the house twice. The police arrived and

Amaya told them what happened. Amaya had cuts on her hands, leg, and her neck;

bruises on her shoulder and ribs; pain on the side of her body; and injuries to her face.

7 Due to the pain, she was unable to work for a few days. After the police left, Amaya saw

Wilford drive by her house in his ex-girlfriend's car. After he drove by, he walked up to

her house. He was angry. He told Amaya that he had seen it with his own eyes that she

had called the police, and she was going to regret it. Amaya ran into the house and called

9-1-1. She told the operator Wilford was back and he was going to kill her and her

family. Wilford drove away.

The next day, Amaya got a restraining order against Wilford. While she was

filling out the restraining order at the police station, Wilford showed up in the parking lot.

She was scared. Wilford had told her that if she got a restraining order he would call

immigration and call CPS to tell them she had abused drugs. After she obtained the

restraining order, Amaya called the police because Wilford kept calling her and he took

the chip out of her truck so it could not start.

Amaya reconciled with Osorio, and he moved back in with her because she did not

feel safe. A month later, Amaya began having an affair with Wilford. While Osorio was

shopping with Amaya, Wilford saw them together, walked up, and hit Osorio in the face.

Osorio wanted to call the police, but Amaya convinced him not to.

On February 12, 2015, Wilford called Amaya to ask to borrow a charger. Amaya

asked Estela to put the charger on the steps for Wilford to pick up. While Estela was

bringing out the charger, she saw Wilford. He told her, "You never saw me." He took

the charger from her and went into the basement. That night, Amaya and Osorio were in

the house getting ready to go out. Her children, Estela and Estela's sister Evelyn were

there. Amaya, Estela, and Evelyn went to the basement to get a pair of heels. They saw

8 Wilford in the basement. Wilford said that he was there to get a couple of his things.

Amaya gave him a hug and a kiss and said she was getting her shoes and leaving.

Wilford knew Osorio was upstairs in the house. Amaya told Wilford she was going out

dancing with Osorio. This news bothered Wilford. Estela and Evelyn went back

upstairs. After a few minutes, Amaya left the basement.

Amaya went back into the house and saw Osorio on her way to the bathroom.

Osorio went outside to the back to get something out of his truck. As he was going back

into the house, he heard a noise in the basement. He took one step down the basement

stairs to see what it was. He bent down to look and saw Wilford at the bottom of the

stairs.

Osorio tried to leave, but Wilford pulled Osorio down. Wilford grabbed Osorio's

neck, pushed him to the ground and put his knees on his chest. Wilford held him down

with one hand and choked him with the other. Wilford yelled at Osorio and told him he

was going to kill him. Osorio could not breathe. Wilford hit him in the face repeatedly

with his fist. Osorio blacked out and did not remember what happened until later when

he was in the ambulance.

Estela walked back toward the basement to find Wilford on top of Osorio hitting

Osorio with one hand and holding him down with the other. Estela told Wilford to stop

and leave. Wilford eventually ran off. Estela helped Osorio into the house. Osorio was

covered in blood. Estela sat Osorio on the couch. Osorio looked faint. He attempted to

call 9-1-1, but handed the phone to Amaya who talked to the operator. Amaya asked the

9 operator to send an ambulance for Osorio because Wilford had attacked him and he was

bleeding everywhere and fainting.

An ambulance took Osorio to the hospital. He had a CT scan of his head and face.

Osorio suffered a fractured nose, broken teeth, a bruise to his neck, and spent three days

in the hospital. Amaya went to the hospital. Before going inside, she met Wilford a few

blocks away. Later that night, Wilford came over to Amaya's house and stayed the night

with her.

After Osorio was released from the hospital, he continued to live with Amaya for a

few months. Meanwhile, Amaya and Wilford remained in a romantic relationship. The

police arrested Wilford on March 19, 2015. A uniformed officer recognized Wilford

from a police wanted poster. The officer approached Wilford and told him to sit on the

curb. While they were talking, Wilford stood up three times. Because Wilford was a big

man who seemed very nervous and kept standing up, the officer decided to handcuff him.

The officer reached down to put on the cuffs. Wilford stood up and ran down the street.

The officer chased him down the street, into an alley, over a fence, and into a backyard.

Back up units arrived in the backyard just as Wilford tripped and fell.

After his arrest, during telephone conversations, Wilford told Amaya to testify, "I

don't recall" to not make him look bad. At Wilford's preliminary hearing, Amaya

testified, "I don't remember" to many questions because she wanted to protect Wilford.

The last time Wilford called Amaya from jail, in mid-November 2015, he told her he had

forgiven her for calling the police after he beat her up. After that conversation, Amaya

decided to stop lying for Wilford and ended their romantic relationship.

10 As of his arrest, Wilford was on probation for assault with a firearm. Wilford had

a prior conviction of assault with a firearm against a former girlfriend. He also had a

prior conviction of false imprisonment by violence against another former girlfriend.

Wilford's ex-wife got a restraining order against Wilford to protect her from domestic

violence. Wilford committed domestic violence against another ex-wife and against

another former girlfriend.

Defense3

Between January 28 and February 12, 2015, Wilford periodically would see

Amaya in her house's basement. Wilford still had property there. A week before the

February 2015 incident, Amaya told him to be careful because Osorio had started

carrying a knife in his truck. Osorio also had threatened to harm Amaya and Wilford.

On February 12, 2015, Wilford had sex with Amaya in her basement. From the

bottom of the stairs of the basement, he could see the top of the windshield of Osorio's

truck. Later, Amaya came downstairs with her nieces and told him she was going out

with Osorio. Amaya and the girls left the basement when they heard Osorio coming to

the side of the house.

In the basement, Wilford heard Osorio's footsteps move toward the truck. He

heard the truck door open and saw the interior light turn on. Wilford then heard the truck

door close and heard footsteps coming toward the basement. Wilford saw a light and

heard Osorio walking down the stairs. Osorio had one hand to his side, and Wilford was

3 Because Wilford only challenges the jury's verdict as to count 1, we discuss Wilford's evidence as to that count only. 11 concerned that Osorio had a weapon. Wilford was afraid Osorio would hurt or kill him.

As Osorio approached the bottom of the stairs, Wilford rushed out, locked Osorio's arm,

and "carried" him back up the stairs. Wilford then began punching Osorio. Wilford

punched Osorio three to five times, and after the last punch, Osorio fell to the ground.

Wilford then left.

DISCUSSION

I

JURY INSTRUCTIONS

During jury deliberations, among other questions, the jury asked the court the

following: "Are we required to reach a unanimous 'not guilty' or 'guilty' on the greater

charge before considering the lesser included offense LIO?"

With both the prosecutor and defense counsel in agreement, the trial court

responded to the jury question:

"You may not consider the lesser included offenses unless or until you have reached a unanimous not guilty verdict as to the greater offenses. If you reach a unanimous guilty verdict as to the greater offenses, then you do not complete the verdict form for the lesser included offenses. If you cannot reach a unanimous verdict as to the greater offenses you do not proceed to the lesser included offenses and you inform the court."

Wilford contends, and the People concede, that the trial court's answer was error.4

(See People v. Kurtzman (1988) 46 Cal.3d 322, 328.) A jury can consider greater and

4 Wilford argues his trial counsel was constitutionally ineffective for failing to object to the trial court's answer to the jury's question. We find this issue moot as we address the merits of Wilford's challenge although his attorney did not object during trial. 12 lesser offenses in any order it chooses. It only must acquit on the greater offense before

convicting on the lesser offense. (Id. at pp. 330-331.) Therefore, the court should not

have told the jury that it could not consider the lesser included offense unless or until it

reached a unanimous not guilty verdict on the charged, greater offense.

Although the parties agree that the trial court erred, not surprisingly they disagree

regarding the effect of this error. Wilford argues that it was prejudicial under People v.

Watson (1956) 46 Cal.2d 818 (Watson). The People contend that the error was harmless.

The People have the better argument.

In applying the Watson standard of prejudice, we follow our high court's guidance

in People v. Breverman (1998) 19 Cal.4th 142 at page 177:

"Appellate review under Watson . . . focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result."

Based on our review of the record, we determine the trial court's error in

responding to the jury's question was harmless under the Watson standard. The evidence

adduced at trial overwhelmingly supports Wilford's conviction for assault by means

likely to cause great bodily injury.

Wilford choked and beat Osorio until he blacked out. He grabbed Osorio's leg and

brought him off balance, down onto the stairs. As Osorio tried to escape, Wilford pulled

him down. Wilford grabbed Osorio's neck and pushed him to the ground. He put his

13 knees on Osorio's chest, held him down with one hand, and choked him with the other to

the point Osorio could not breathe. Wilford hit Osorio repeatedly in the face with his fist.

Wilford admitted he punched Osorio in the face three to five times. However,

Wilford asserts that these few punches to Osorio's face and the possible choking of him

for a period of time were not the type of assault likely to produce great bodily injury. We

disagree. Indeed, the injuries Osorio sustained undermine Wilford's position. Osorio

suffered a fractured nose, broken teeth, and bruise to his neck. He spent three days in the

hospital. And the jury found Osorio did suffer great bodily injury.

We also are not persuaded by Wilford's argument that the jury doubted Osorio's

credibility because they did not convict Wilford of the criminal threat offense. The

evidence supporting that offense was relatively weak, especially in comparison to the

evidence supporting the aggravated assault offense. Osorio testified that Wilford said

something to him in English that he could not understand. He testified that while Wilford

was choking him, he said more things in English he could not understand, and said, "I

want to kill you." Wilford then hit him, and Osorio could not remember what happened

after that. This evidence does not call into question the mountainous evidence supporting

Wilford's conviction under count 1.

We conclude there is not a "reasonable probability" that Wilford would have

obtained a more favorable outcome had the error not occurred. (See People v. Lasko

(2000) 23 Cal.4th 101, 111.) The evidence of the brutal attack taken together with the

true finding of the great bodily injury enhancement show it was not reasonably probable

that the jury would have found simple assault had there been no instructional error. (See

14 Watson, supra, 46 Cal.2d at p. 836.) Even had the jury considered simple assault before

considering aggravated assault, it could not have returned a verdict on simple assault

without acquitting Wilford of aggravated assault, and on this evidence, there is no way it

would have found that the assault was other than aggravated. As such, we have little

doubt that any reasonable jury would have convicted Wilford of assault by means likely

to cause great bodily injury on the record before us.

II

WILFORD'S SENTENCE FOR COUNTS 5 AND 6

For counts 5 and 6, the amended information alleged Wilford committed a

violation of section 273.5, subdivision (a),5 which carried a sentence range of two, three,

or four years. In addition, the information included a special allegation under section

273.5, subdivision (h)(1)6 as to counts 5 and 6. The information indicated the effect of

the allegation was a minimum sentence of 15 days.

5 Section 273.5, subdivision (a) provides: "Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment." 6 Section 273.5, subdivision (h)(1) states: "If probation is granted, or the execution or imposition of a sentence is suspended, for any defendant convicted under subdivision (a) who has been convicted of any prior offense specified in subdivision (f), the court shall impose one of the following conditions of probation: [¶] (1) If the defendant has suffered one prior conviction within the previous seven years for a violation of any offense specified in subdivision (f), it shall be a condition of probation, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 15 days." 15 The jury found Wilford guilty under counts 5 and 6. The trial court also found

true the prior conviction allegations under section 273.5, subdivision (h)(1) as to those

counts.

Before sentencing, the prosecutor filed a sentencing brief requesting the court to

sentence Wilford under counts 5 and 6 to a term of two, four, or five years under section

273.5, subdivision (f)(1).7 This term could be doubled to four, eight, or 10 years based

on Wilford's prior strike conviction.

At the sentencing hearing, the trial court questioned the prosecutor regarding the

request for a new term. The prosecutor explained she was requesting a sentencing range

of two, four, or five years for counts 5 and 6 under section 273.5, subdivision (f)(1) based

on the trial court's true finding on the prior conviction allegation per section 273.5,

subdivision (h)(1). The trial court ultimately agreed, without any objection from

Wilford's counsel, and sentenced Wilford to a consecutive one-third of the midterm

sentence of one-third of four years (one year four months), doubled to two years eight

months for counts 5 and 6 based on the prior strike conviction.

Wilford argues his sentence for counts 5 and 6 must be reversed because it was not

properly pled in the information. Specifically, he contends that because the prosecutor

pled an enhancement under section 273.5, subdivision (h)(1) instead of section 273.5,

7 Section 273.5, subdivision (f)(1) provides: "Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000)." 16 subdivision (f)(1), the court could not sentence him under the two, four, or five year triad.

The People counter, arguing that section 273.5, subdivision (f)(1) is an "alternative

sentencing provision" that was not required to be pled separately. Moreover, the People

emphasize that the amended information alleged every fact needed to be proved to

support Wilford's sentence under section 273.5, subdivision (f)(1).

A defendant has a constitutional due process right to be advised of the charges

against him to have a reasonable opportunity to prepare and present a defense. (People v.

Jones (1990) 51 Cal.3d 294, 317; People v. Lohbauer (1981) 29 Cal.3d 364, 368-369.)

As such, a defendant may not be convicted of an offense, which is neither specifically

charged in the accusatory pleading nor necessarily included within a charged offense.

(People v. Parks (2004) 118 Cal.App.4th 1, 6-7.) Further, a defendant has a right to fair

notice of the specific sentence enhancement allegations that will be relied upon to

increase punishment for his crimes. (People v. Mancebo (2002) 27 Cal.4th 735, 745

(Mancebo); People v. Haskin (1992) 4 Cal.App.4th 1434, 1438.) Nevertheless, a

variance between the information and sentence generally does not offend due process

unless a defendant is misled to his prejudice in presenting a defense. (See People v.

Ramirez (2003) 109 Cal.App.4th 992, 999.)

The People maintain the instant action is like People v. Tardy (2003) 112

Cal.App.4th 783 (Tardy). In that case, the accusatory pleading had charged the defendant

with robbery and had alleged prior qualifying convictions (i.e., allegations of prior prison

terms served for felony convictions of petty theft with a prior), but it did not specifically

charge him with a separate crime of petty theft with a prior conviction. The jury

17 acquitted the defendant of robbery, but found him guilty of petty theft. In a bifurcated

proceeding on the priors, the prosecutor gave notice that it intended to ask the court to

sentence the defendant as a felon under section 666, because some of the defendant's

priors qualified as prior theft offenses. After this disclosure, the defendant waived his

right to a jury trial, and admitted the prior offenses. The trial court found true a strike

offense, and found that the defendant had suffered a prior theft offense conviction. The

court proceeded to sentence the defendant for the felony offense of petty theft with a

prior. On appeal, the defendant argued that the charging document failed to plead the

crime of petty theft with a prior. The appellate court rejected this contention, stating first

that, "[a]n accusatory pleading stating the charged offense provides the defendant not

only with notice of the offense actually charged but also with notice of any necessarily

included offenses," and that "[p]etty theft is a necessarily included offense of robbery."

(Tardy, supra, at p. 786.) Petty theft with a prior, under section 666, is not a separate

crime. Rather, it is an elevated sentence or enhancement for multiple violations of the

petty theft statute. (Tardy, supra, at p. 787.) However, "[d]ue process requires that a

criminal defendant be given fair notice of the charges to provide an opportunity to

prepare a defense and to avoid unfair surprise at trial." (Id. at p. 786.) "[C]onstitutional

principles of due process [do not] require that the statute be specifically alleged as long as

the pleading apprises the defendant of the potential for the enhanced penalty and alleges

every fact and circumstance necessary to establish its applicability." (Id. at p. 787, citing

People v. Thomas (1987) 43 Cal.3d 818, 826.)

18 Although the amended information here did allege that Wilford had been

convicted of a qualifying offense within the previous seven years, the pleading referenced

section 273.5, subdivision (h)(1) as the special allegation with the effect of adding 15

days to Wilford's sentence. More specifically, that subdivision provides: "If the

defendant has suffered one prior conviction within the previous seven years for a

violation of any offense specified in subdivision (f), it shall be a condition of probation,

in addition to the provisions contained in Section 1203.097, that he or she be imprisoned

in a county jail for not less than 15 days." (§ 273.5, subd. (h)(1).) Nothing in the

amended information gave any hint that the prosecution also sought to make Wilford

subject to the provisions of section 273.5, subdivision (f)(1), which would increase the

applicable sentencing range. In addition, this is not a case of citing the wrong statute by

mistake. The People do not argue that they intended to list section 273.5, subdivision

(f)(1), but mistakenly listed subdivision (h)(1). And there was no advisement, anywhere

in the pleading, that the prosecution would use the "factual allegations" again, to increase

Wilford's sentence under section 273.5, subdivision (f)(1).

In Tardy, supra, 112 Cal.App.4th 783 the prosecution advised the defendant of its

intent to use the qualifying prior offenses for felony sentencing (petty theft with a prior)

before the defendant waived his right to a jury trial on the issue. In contrast, here, the

prosecution notified Wilford it was seeking an increased sentence after the jury returned

its verdict and the court had found true that Wilford had been convicted of a qualifying

offense under section 273.5, subdivision (h)(1). For these reasons, we do not find Tardy,

supra, 112 Cal.App.4th 783 instructive here.

19 The People also contend that every fact necessary to impose the sentence under

section 273.5, subdivision (f)(1) was alleged in the information and found true. Thus,

they argue that Wilford's sentence for counts 5 and 6 was increased based on facts

specifically pled and proved. We agree with the People, but their argument does not

carry the day. The problem here was that Wilford was not appraised of the possible

prison sentence he was facing. The People, however, maintain this lack of notice did not

matter because subdivision (f)(1) is not an enhancement but a sentencing statute. Thus,

the People insist, "There was no requirement to mention . . . section 273.5, subdivision (f)

by name when every fact necessary to establish [section] 273.5, subdivision (f) was

included in the prior conviction allegations set forth in the accusatory pleadings." As

such, the People place great weight on the distinction between an enhancement and a

sentencing statute. Under the facts of this case, we find this distinction immaterial.

Moreover, the California Supreme Court rejected this very distinction, albeit in a

different context. (See People v. Cross (2015) 61 Cal.4th 164, 178-179 (Cross).)

In Cross, supra, 61 Cal.4th 164, the defendant was charged with a felony violation

of section 273.5, subdivision (a). It was further alleged that the defendant had a prior

section 273.5 conviction for purposes of enhanced punishment. At trial, the defendant

stipulated to the prior without having been advised of or waiving his Boykin–Tahl rights.8

8 Boykin v. Alabama (1969) 395 U.S. 238, 242-244 and In re Tahl (1969) 1 Cal.3d 122, 130-133, set forth the rule that to ensure a defendant's "guilty plea" is knowing and voluntary, the trial court is required to inform the defendant of three constitutional rights (right to a jury trial, right to cross-examine witnesses, and right to remain silent) and obtain a waiver of each. In re Yurko (1974) 10 Cal.3d 857 extended this procedure to the 20 The jury convicted the defendant and found the prior to be true. The defendant was

sentenced to the upper term of five years. (Cross, supra, at pp. 168-169.) The court held

that Yurko, supra, 10 Cal.3d 857 applies when a defendant admits by stipulation all

necessary facts for imposing an enhanced punishment under section 273.5, former

subdivision (e)(1).9 (Cross, supra, at pp. 168, 174, 179.)

Although Cross, supra, 61 Cal.4th 164 involved a defendant stipulating to a prior

section 273, subdivision (a) conviction, which is not an issue here, we note that the

Supreme Court rejected arguments that are advanced similar to ones here regarding the

difference between an enhancement and a sentencing statute. For example, the Supreme

Court observed that the defendant was sentenced to prison for five years under section

273.5, subdivision (f)(1). However, but for his stipulation to a previous conviction of

another section 273.5, subdivision (a) offense within the past seven years, the defendant

faced no more than four years in prison for his current section 273.5, subdivision (a)

offense. The Supreme Court explained, "we do not see a meaningful distinction between

an 'enhancement' and an 'alternative sentence scheme' in this context." (Cross, supra, at

p. 175; italics omitted.) Moreover, our high court made clear that "section 273[,

subdivision] (f)(1) has the same effect as an enhancement." (Cross, supra, at p. 178.) In

other words, it did not matter whether section 273.5, subdivision (f)(1) was labeled an

defendant's admission of a prior conviction allegation, which increases punishment. (Id. at p. 863.) 9 Former section 273.5, subdivision (e)(1) is now section 273.5, subdivision (f)(1). (See Stats. 2013, ch. 763, § 1, p. 5599 [redesignating former subd. (e)(1) as subd. (f)(1)].) 21 enhancement or an alternative sentencing scheme. The court determined the protections

of Yurko, supra, 10 Cal.3d 857 applied to the defendant. (Cross, supra, at p. 179.)

We are mindful that the instant matter does not implicate Wilford's Boykin–Tahl

rights or the expansion of those rights under Yurko, supra, 10 Cal.3d 857. Nevertheless,

the Supreme Court's reasoning in Cross, supra, 61 Cal.4th 164 implies that the People's

branding of section 273.5, subdivision (f)(1) as a sentencing statute does not end our

analysis. Here, it is undisputed that the amended information did not warn Wilford that a

finding of a prior qualifying conviction under section 273.5, subdivision (h)(1) would

increase his sentence range under counts 5 and 6 from two, three, or four years to two,

four, or five years. (See § 273.5, subd. (f)(1).) And although the facts necessary to

impose the sentence under section 273.5, subdivision (f)(1) are the same as were alleged

under section 273.5, subdivision (h)(1), there is no indication in the amended information

of the possibility of this increased punishment. This is a critical shortcoming here where

Wilford was offered and rejected a plea bargain prior to trial. (See Mancebo, supra, 27

Cal.4th at p. 752 ["Furthermore, in many instances a defendant's decision whether to plea

bargain or go to trial will turn on the extent of his exposure to a lengthy prison term."].)

Even though we do not know if Wilford would have accepted the plea bargain had he

known of the increased punishment for counts 5 and 6, we are certain the amended

information did not provide him with such information on which to make an informed

decision. Alternatively stated, Wilford was not informed of the potential of the enhanced

penalty. (See Tardy, supra, 112 Cal.App.4th at p. 787 ["Nor do constitutional principles

of due process require that the statute be specifically alleged as long as the pleading

22 apprises the defendant of the potential for the enhanced penalty and alleges every fact and

circumstance necessary to establish its applicability."].)

In short, on the facts before us, we conclude it is inconsequential whether section

273.5, subdivision (f)(1) is labeled an enhancement, alternative sentencing scheme, or a

sentencing statute. The amended information specified that, for counts 5 and 6, Wilford

faced a sentence of two, three, or four years with the possibility of an additional 15 days

under section 273.5, subdivision (h)(1) for each count. There was no indication

whatsoever that Wilford faced the possibility of a sentence of two, four, or five years for

each of those same offenses under section 273.5, subdivision (f)(1). Further, the

prosecutor only sought an increased sentence under that subdivision after the jury

returned its verdict and the court found true the qualifying prior conviction. The resulting

sentence under section 273.5, subdivision (f)(1) violated Wilford's due process rights and

cannot stand.

DISPOSITION

The sentences for counts 5 and 6 are reversed. This matter is remanded to the

superior court for resentencing on counts 5 and 6 consistent with this opinion. In all

other aspects, the judgment is affirmed.

23 HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.

24