People v. Dinh Van Nguyen

*262 Defendant Dinh Van Nguyen has a prior first degree burglary conviction which qualifies as:

1. A "strike" prior ( Pen. Code, §§ 667, subds. (b) - (i), 1170.12 );

2. A one-year prior prison term enhancement ( Pen. Code, § 667.5, subd. (b) ); and

3. A five-year prior serious felony conviction enhancement ( Pen. Code, § 667, subd. (a) ).

The information in this case contained one paragraph alleging the fact of the prior and citing the statute that defines a strike. It also contained a second paragraph realleging the fact of the prior and citing the statute that defines a prior prison term enhancement. However, it never specifically alleged-either in so many words or by citing the relevant statute-a prior serious felony conviction enhancement.

Defendant admitted the fact of the prior; he did not expressly admit its legal effect. Then, at sentencing, the trial court used the prior as a strike and as a prior serious felony conviction enhancement. Defense counsel did not object.

*263 The trial court erred by imposing the prior serious felony conviction enhancement. Under Penal Code section 1170.1, subdivision (e), an enhancement must "be alleged in the accusatory pleading ...."…