1

Filed 5/7/19

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Lassen)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID RICHARD BATES,

Defendant and Appellant.

C086471

(Super. Ct. No. CR034048)

APPEAL from a judgment of the Superior Court of Lassen County, Candace J. 

Beason, Judge. (Retired judge of the Los Angeles Super. Ct., assigned by the Chief 

Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant 

and Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and 

F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.

 

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of parts II and III. 
2

Defendant David Richard Bates shot M.H. in the head, killing him. A jury found 

him guilty of voluntary manslaughter and the court sentenced him to 18 years in state 

prison. 

On appeal, defendant contends the trial court erred in refusing his request to 

instruct the jury regarding the effect of the victim’s past harmful or threatening conduct 

on the reasonableness of a defendant’s belief in the need for self-defense. He also 

challenges imposition of a five-year prior serious felony enhancement under Penal Code 

section 667, subdivision (a)(1) 1 on several grounds, including that the sentence was 

unauthorized because the information did not allege such an enhancement nor did he 

admit a prior serious felony conviction for that purpose, that it violated due process 

because he was given inadequate notice of the enhancement, that his counsel was 

constitutionally ineffective for failing to object to the enhancement, and that even if the 

enhancement was proper, the matter must be remanded to allow the trial court to exercise 

newly granted discretion to strike the prior serious felony enhancement under Senate Bill 

No. 1393 (2017-2018 Reg. Sess.). 

We conclude the trial court did not err in declining to give defendant’s requested 

instruction, but that the court improperly imposed a five-year term for a prior serious 

felony enhancement under section 667, subdivision (a)(1). We shall strike the 

unauthorized enhancement and affirm the judgment as modified. In addition, we shall 

order that a clerical error on the abstract of judgment be corrected. 

FACTUAL AND PROCEDURAL BACKGROUND

Defendant originally was charged with the first degree premeditated murder of 

M.H. (§§ 187, subd. (a), 189–count I), and assault with a firearm (§ 245, subd. (a)(2)–

 

1

 Further undesignated statutory references are to the Penal Code.
3

count II).2 The information alleged multiple firearm enhancements (§§ 12022.53, subds. 

(b)-(d), 12022.5), and that defendant had suffered a prior serious or violent felony 

conviction or juvenile adjudication within the meaning of section 667, subdivisions (b)

through (i), and had served four prior prison terms under section 667.5, subdivision (b). 

The court later granted defendant’s motion to dismiss the willful, deliberate, and 

premeditated allegation, reducing count I to second degree murder. The following 

evidence was adduced at trial. 

On May 25, 2016, Randy W. and his nephew, M.H., were living in two separate 

trailers about 100 feet apart on property owned by Dwight B. Dwight had previously 

accused M.H. of stealing items from him, and demanded that Randy and M.H. move off 

the property. 

That day, Dwight, defendant, and several other men visited Randy at his trailer 

and told him “it was moving day.” As they spoke, M.H. pulled up in his vehicle near his 

own trailer. According to Randy, Dwight and the other men approached M.H. as he got 

out of his vehicle. After some discussion, defendant pulled a gun from his pocket and 

shot M.H. in the head. M.H. fell to the ground, and defendant tossed the gun to another 

man and fled. 

During cross-examination, Randy conceded that at some point before the day of 

the shooting, he had seen M.H. and Dwight arguing and that M.H. had threatened 

Dwight. He also saw M.H. pull a shotgun from his trailer when Dwight had previously 

asked him to leave the property. 

Norman F. testified that Dwight asked him and his roommate to accompany him to 

a trailer to retrieve his stolen property. While Dwight spoke with a man at the trailer, 

Norman and his roommate walked towards a nearby barn. Norman turned around and 

 

2

 Count II was dismissed before trial. 
4

saw defendant, Dwight, and M.H. talking; they were not arguing. Defendant suddenly 

grabbed M.H. in a headlock, and Norman heard a pop and saw M.H. fall to the ground. 

Defendant threw something on the ground and ran into the woods. 

After the shooting, Norman and his roommate immediately left the area; only 

Randy and Dwight remained. Dwight called 911, and his recorded call was played for 

the jury. He reported that the man who was shot had pulled a gun out, gotten into a fight, 

and the gun went off; he said he did not know how the actual shooting happened. 

Deputy Sean Moore responded to the scene. He found M.H. lying on his back 

without any signs of life; Dwight and Randy were nearby. Deputy Moore unsuccessfully 

tried to revive M.H. When placing M.H. in a body bag to be transported for an autopsy, 

Deputy Moore forgot to “bag” M.H.’s hands. He also did not collect any potential 

gunshot residue evidence from M.H., Dwight, or Randy. 

The autopsy revealed a single gunshot wound behind M.H.’s left ear with a bullet 

lodged in his brain. Soot marks around the entrance wound indicated the gun was fired at 

very close range. Although a visual inspection of M.H.’s hands did not reveal any visible

signs of gunshot residue, no gunshot residue swabs of his hands were taken or tested

during the autopsy. His clothes also were not tested for gunshot residue. 

A toxicology report showed M.H. had high levels of methamphetamine and other 

drugs in his system when he was killed. According to the report, methamphetamine is a 

stimulant capable of causing hallucinations, aggressive behavior, and irrational reactions. 

Defendant did not testify, but he called several witnesses in his defense. D.C., 

Dwight’s niece, testified that in April 2016, her cousin (Dwight’s daughter) told her that 

she feared for her father’s safety because there was a man on his property with a gun. 

D.C. and several others went to her uncle’s property near the location of M.H.’s trailer. 

When they arrived, M.H. emerged from his trailer with a shotgun. D.C. called 911, and 

she heard M.H. say, “If the cops come, I’m going to burn this fucking place down.” 
5

When no officers responded after 20 minutes, D.C. called 911 again. She eventually left 

the property without speaking to law enforcement. 

In a subsequent statement to police, D.C. said she had gone to the property that 

day to help clean it up. After Dwight told her he wanted M.H. off his property, she 

offered to assist in trying to get him to leave. While she described seeing M.H. with a 

shotgun when they arrived at his trailer, unlike during the trial, she did not report any 

alleged statement by M.H. that he would burn the place down if officers showed up on 

the property. 

Deputy Laura Johnson testified that the gun used to shoot M.H. was never 

recovered. She also confirmed that responding officers did not search Dwight’s house or 

M.H.’s or Randy’s trailers, nor did they collect gunshot residue samples from M.H.’s 

body or anyone else at the scene, although canines were used to search the property the 

following day. 

Ken Moses, an expert in crime scene investigation and forensic evidence, opined 

that law enforcement did not conduct a proper forensic investigation of the scene the day 

M.H. was shot. Although a small area around M.H.’s body was protected, the wider 

crime scene area was not. Responding officers also mishandled or moved M.H. and 

failed to bag his hands, which potentially destroyed fragile blood spatter and gunshot 

residue evidence. 

During closing argument, defense counsel argued that M.H. pulled a gun on 

Dwight and defendant when they approached him, that defendant and M.H. wrestled for 

the gun, and that somehow the gun went off during the struggle. She urged the jury to 

find that the killing was a justifiable homicide under CALCRIM No. 505, emphasizing 

evidence showing that M.H. had high levels of methamphetamine in his system, that he 

had threatened D.C. with a shotgun a month before the shooting, and that Randy had seen 

M.H. threaten Dwight and draw a gun on him sometime before the incident. 
6

The jury found defendant not guilty of second degree murder, but guilty of 

voluntary manslaughter as a lesser included offense. In a subsequent proceeding, 

defendant admitted the allegation “as alleged” in the information that he suffered a 

section 245 conviction in August 2005. He also admitted “as alleged” that he suffered a 

section 12020, subdivision (a)(1) conviction in November 2002. Before taking 

defendant’s admissions, the court explained that defendant was admitting a strike under 

section 667, subdivisions (b) through (i), which would double his sentence, and that he 

was admitting a prior prison term under section 667.5, subdivision (b), which would add 

additional time to his term. Defendant stated that he understood the consequences of 

admitting the prior convictions as alleged. 

The court denied defendant’s subsequent Romero3 motion to strike the prior strike

conviction, and sentenced him to an aggregate term of 18 years in state prison: the 

midterm of six years for the voluntary manslaughter offense, doubled to 12 years for the 

strike prior, plus five years for a prior serious felony enhancement (§ 667, subd. (a)(1)),4

and one year for a prior prison term enhancement (§ 667.5, subd. (b)). 

DISCUSSION

I

Instructional Error

Defendant contends that the trial court erred in refusing to give a bracketed portion 

of CALCRIM No. 505, the pattern jury instruction on self-defense in a homicide case, 

that would have instructed the jury that it could consider M.H.’s prior violent or 

threatening conduct in assessing the reasonableness of defendant’s actions, even though 

 

3

 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

4

 Although the information did not reference section 667, subdivision (a)(1), defendant 

did not object when the court imposed the five-year prior serious felony enhancement 

under that section. 
7

no evidence showed defendant was aware of M.H.’s prior conduct. The trial court did 

not err in declining to give defendant’s requested instruction. 

Background

Defense counsel requested a self-defense instruction that included language based 

on the following bracketed provision of CALCRIM No. 505: “If you find that

__________ <insert name of decedent/victim> threatened or harmed the defendant [or 

others] in the past, you may consider that information in deciding whether the 

defendant’s conduct and beliefs were reasonable].” (CALCRIM No. 505.) Defendant’s 

requested instruction specifically stated in part: “If you find that [M.H.] threatened or 

harmed the defendant or others in the past, you may consider that information in deciding 

whether the defendant’s conduct and beliefs were reasonable.” 

The court initially agreed to give the instruction as requested, but the prosecutor 

objected to the language regarding M.H.’s prior threats or harmful conduct. He argued 

that defendant had to know that M.H. had threatened or harmed him or others in the past 

before the jury could consider M.H.’s prior violent conduct in deciding whether 

defendant’s actions in self-defense were reasonable. 

Defense counsel pointed out that a second bracketed provision in the pattern jury 

instruction stated: “If you find that the defendant knew that __________ <insert name of 

decedent/victim> had threatened or harmed others in the past, you may consider that 

information in deciding whether the defendant’s conduct and beliefs were reasonable].” 

Thus, because the instruction included both optional provisions—one that required 

knowledge and one that apparently did not—she contended that the first bracketed 

provision was appropriate where, as here, a defendant does not know of a decedent’s 

prior harmful or threatening conduct towards others. 

The trial court disagreed, finding that defendant had to know of M.H.’s prior 

threatening conduct before it could instruct the jury with either of the above-described 

bracketed provisions. According to the court, “the testimony of the witness who 
8

mentioned that [M.H.] had made threats, . . . that’s character evidence of [M.H.] that he 

was somewhat of a flammable character,” but without evidence showing defendant knew 

of the threats the court refused to instruct the jury as defense counsel requested. The 

court therefore struck the disputed sentence from the instruction. 

The jury was instructed on self-defense with the following: 

“The defendant is not guilty of murder or manslaughter if he was justified in 

killing someone in self-defense or defense of another. The defendant acted in lawful selfdefense or defense of another if: 

“1. The defendant reasonably believed that he or someone else was in imminent 

danger of being killed or suffering great bodily injury;

“2. The defendant reasonably believed that the immediate use of deadly force was 

necessary to defend against that danger; 

“AND 

“3. The defendant used no more force than was reasonably necessary to defend 

against that danger. Belief in future harm is not sufficient, no matter how great or how 

likely the harm is believed to be. The defendant must have believed there was imminent 

danger of death or great bodily injury to himself or someone else. Defendant’s belief 

must have been reasonable and he must have acted only because of that belief. The 

defendant is only entitled to use that amount of force that a reasonable person would 

believe is necessary in the same situation. If the defendant used more force than was 

reasonable, the killing was not justified. 

“When deciding whether the defendant’s beliefs were reasonable, consider all the 

circumstances as they were known to and appeared to the defendant and consider what a 

reasonable person in a similar situation with similar knowledge would have believed. If 

the defendant’s beliefs were reasonable, the danger does not need to have actually 

existed. [¶] . . . [¶] 
9

“The People have the burden of proving beyond a reasonable doubt that the killing 

was not justified. If the People have not met this burden, you must find the defendant not 

guilty of murder or manslaughter.” (CALCRIM No. 505, as given.) 

Analysis

A trial court must instruct on the general principles of law applicable to a case. 

(People v. Breverman (1998) 19 Cal.4th 142, 154.) A homicide is justifiable when 

committed in self-defense. (§ 197.) “A trial court is required to instruct sua sponte on 

any defense, including self-defense, only when there is substantial evidence supporting 

the defense, and the defendant is either relying on the defense or the defense is not 

inconsistent with the defendant’s theory of the case. [Citation.]” (People v. Villanueva 

(2008) 169 Cal.App.4th 41, 49.) 

Although the trial court here instructed on self-defense, defendant argues the 

instruction as given was incomplete. In defendant’s view, the omitted language—that 

“[i]f you find that [M.H.] threatened or harmed the defendant or others in the past, you 

may consider that information in deciding whether the defendant’s conduct and beliefs 

were reasonable”—was necessary to instruct the jury on how to consider evidence of 

M.H.’s prior threatening conduct in determining whether he acted in perfect or imperfect 

self-defense. We disagree. 

Our task is to determine whether the trial court fully and fairly instructed the jury 

on the applicable law. (People v. Franco (2009) 180 Cal.App.4th 713, 720.) We review 

de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32

Cal.4th 193, 218.) “[T]he correctness of jury instructions is to be determined from the 

entire charge of the court, not from a consideration of parts of an instruction or from a 

particular instruction.” (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on 

other grounds in People v. Reyes (1998) 19 Cal.4th 743, 756; People v. Castillo (1997) 

16 Cal.4th 1009, 1016 [our duty is to look at the instructions as a whole, not in 
10

isolation].) If reasonably possible, we interpret instructions to support the judgment 

rather than to defeat it. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)

Evidence that a victim had previously threatened or harmed others is relevant to a 

defendant’s claim of self-defense only if the defendant knew of the victim’s prior 

threatening conduct. (People v. Tafoya (2007) 42 Cal.4th 147, 165-166 [evidence that a 

person associated with the murder victim was dangerous was relevant to the defendant’s 

claim of self-defense only if the defendant knew of the person’s reputation for 

dangerousness and was afraid of him; because no such evidence was presented, the 

person’s presence at the murder scene was not part of the defendant’s self-defense claim];

People v. Pena (1984) 151 Cal.App.3d 462, 475 [“an instruction on the effect of 

antecedent threats known by a defendant is required where evidence establishes . . . 

threats . . . made by the deceased against the defendant and the defendant’s belief and 

reliance thereon as influencing or justifying his actions”].) This is because “ ‘[a] person 

claiming self-defense is required to “prove his own frame of mind.” ’ ” (People v. 

Minifie (1996) 13 Cal.4th 1055, 1065 (Minifie).) 

As a defendant’s “ ‘perceptions are at issue,’ ” prior known threats by the victim 

“ ‘may color [the defendant’s] perceptions of that individual.’ ” (Minifie, supra,

13 Cal.4th at pp. 1065-1066.) Thus, “[t]he law [of self-defense] recognizes that the 

objective component is not measured by an abstract standard of reasonableness but one 

based on the defendant’s perception of imminent harm or death. Because his state of 

mind is a critical issue, he may explain his actions in light of his knowledge concerning 

the victim.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1094.)

Applying these principles, the trial court properly instructed the jury that to 

determine whether defendant’s beliefs were reasonable, it had to “consider all the 

circumstances as they were known to and appeared to the defendant and consider what a 

reasonable person in a similar situation with similar knowledge would have believed.” 

Because no evidence showed that M.H. had threatened defendant, or that defendant knew 
11

that M.H. had previously threatened others, the trial court rightly refused the give the 

more focused instruction that defendant requested. Given that defendant was unaware of 

the victim’s prior threatening conduct, such conduct was not relevant to show defendant’s 

state of mind for purposes of self-defense. (See, e.g., Minifie, supra, 13 Cal.4th at 

pp. 1065-1069.) Indeed, as the People note, the reasonableness of a defendant’s beliefs 

is necessarily determined by what he is aware of, not from circumstances entirely 

unknown to him. 

To the extent the optional bracketed language at issue fails to include an express

knowledge component, we conclude that a knowledge requirement is nonetheless implicit 

in the language. We reach this conclusion based on the well-settled rules regarding selfdefense (see, e.g., People v. Tafoya, supra, 42 Cal.4th at p. 165 [evidence that a person 

was dangerous was relevant to the defendant’s claim of self-defense only if the defendant 

knew of the person’s reputation for dangerousness]; People v. Humphrey, supra, 

13 Cal.4th at p. 1094), and on the remaining portions of CALCRIM No. 505, which do 

include knowledge requirements. (See CALCRIM No. 505 [“consider all the 

circumstances as they were known to and appeared to the defendant and consider what a 

reasonable person in a similar situation with similar knowledge would have believed”; 

“[t]he defendant’s belief that [he or someone else] was threatened may be reasonable 

even if [he] relied on information that was not true”]; “[i]f you find that the defendant 

knew that [the victim] had threatened or harmed others in the past, you may consider that 

information in deciding whether the defendant’s conduct and beliefs were reasonable”]; 

People v. Burgener, supra, 41 Cal.3d at p. 538 [court considers jury instruction as a 

whole and not merely parts of an instruction]; see also People v. Snyder (1982) 32 Cal.3d 

590, 592 [although former section 12021 (prohibiting felons from possessing firearms) 

did not contain an express knowledge requirement, the statute contained an implied 

knowledge requirement].) 
12

The fact that a victim’s prior instances of violent conduct may be admissible under 

certain circumstances5 does not lead to the conclusion that the court erred in omitting the 

requested bracketed language. The admissibility of evidence to show a victim’s

conformity with a violent character is an entirely different issue from whether a 

defendant’s conduct or belief was reasonable when the defendant had no knowledge of 

the victim’s violent character. While the former focuses on the victim’s conduct, the 

latter focuses on the defendant’s state of mind. 

For this reason, defendant’s reliance on People v. Moreno (2011) 192 Cal.App.4th 

692, People v. Wright (1985) 39 Cal.3d 576, and People v. Shoemaker (1982) 135

Cal.App.3d 442 is misplaced. Those cases considered whether evidence of the victim’s 

violent character was admissible to show that the victim acted in conformity with that 

character. (Moreno, at p. 702; Wright, at pp. 586-587; Shoemaker, at p. 448.) 

Here, there was no issue regarding the admissibility of M.H.’s prior threatening 

conduct; the jury heard that M.H. had threatened D.C. at some point before the deadly 

incident with defendant, and that Randy had seen M.H. threaten Dwight before the day of 

the shooting. Instead, the instructional issue centered on whether the jury could consider 

M.H.’s alleged prior acts of violence in determining whether defendant’s beliefs and 

actions in killing him were reasonable. Because no evidence showed defendant knew of 

the victim’s prior violent conduct, the jury could not have considered that evidence when 

evaluating the reasonableness of defendant’s conduct and beliefs for purposes of his self-

 

5

 Evidence Code section 1103, subdivision (a) provides: “In a criminal action, evidence 

of the character or trait of character (in the form of . . . evidence of specific instances of 

conduct) of the victim of the crime for which the defendant is being prosecuted is not 

made inadmissible by [Evidence Code] Section 1101 if the evidence is: [¶] (1) Offered 

by the defendant to prove conduct of the victim in conformity with the character or trait 

of character. [¶] (2) Offered by the prosecution to rebut evidence adduced by the 

defendant under paragraph (1).”
13

defense claim, even if it could consider the evidence in deciding whether M.H. was the 

aggressor, as defense counsel argued. 

II

Unauthorized Sentence

Defendant contends the trial court improperly imposed a five-year term for a prior 

serious felony enhancement under section 667, subdivision (a)(1) because the 

information did not allege the enhancement nor did he admit the enhancement at trial. We 

agree. 

Background

For count I, the information alleged, “pursuant to . . . section(s) 667(b) through 

(i)” (the statute that defines a strike), that defendant had suffered a prior serious or violent 

felony conviction or juvenile adjudication in August 2005 for assault with a deadly 

weapon (§ 245, subd. (a)(1)) in Plumas County Superior Court case No. 053192. It 

further alleged, “pursuant to . . . section 667.5(b)” (the statute that defines a prior prison 

term enhancement), that defendant had suffered four other convictions. The information 

did not specifically allege a prior serious felony conviction enhancement under section 

667, subdivision (a)(1). 

After the jury found defendant guilty, he agreed to admit the allegations that he 

had suffered the prior assault conviction and one prior prison term “as alleged” in the 

information. At no time during the admission colloquy did either the prosecutor or the 

court refer to a five-year prior serious felony enhancement under section 667, subdivision 

(a)(1), and the presentence probation report included a prison prior and section “667(b)-

(i)” enhancements, but did not mention a potential five-year enhancement under section 

667, subdivision (a)(1). 

The prosecutor’s sentencing memorandum included the first reference to a fiveyear sentence enhancement under section 667, subdivision (a)(1). At the sentencing 

hearing, the trial court stated: “Then we also have the [section] 667(a)(1) prior and the 
14

[section] 667.5(b) prior.” Defense counsel did not respond to the court’s reference to the 

section “667(a)(1) prior.” Thereafter, the court imposed the middle term, “doubled in 

light of the strike prior pursuant to [section] 667(b) through (i)” and, after stating that 

“[defendant] ha[d] admitted the prior for the five-year enhancement,” imposed a 

consecutive five years plus one year for the prior prison term under section 667.5, 

subdivision (b). Defense counsel did not object to the five-year enhancement under 

section 667, subdivision (a)(1).

6

 

Analysis

Under section 1170.1, subdivision (e), “[a]ll enhancements shall be alleged in the 

accusatory pleading and either admitted by the defendant in open court or found to be 

true by the trier of fact.” (§ 1170.1, subd. (e).) 

In People v. Nguyen (2017) 18 Cal.App.5th 260, 272 (Nguyen), under 

circumstances substantially similar to those presented here (id. at p. 262), the court relied 

on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) for the proposition that sentence 

enhancements under section 667, subdivision (a) cannot be imposed unless the 

enhancements were expressly pleaded in the charging documents. Where charging 

language specifically states that a fact is alleged to invoke one particular statute, Nguyen

found it is insufficient to adequately inform the accused that the People will use it to 

invoke a different statute. (Nguyen, at pp. 266, 272.)

That does not mean, as the court in Nguyen emphasized, that an information has to 

cite the applicable enhancement statute. (Nguyen, supra, 18 Cal.App.5th at p. 267.) The 

court recognized that it might be “sufficient to allege that the defendant has a certain 

 

6

 The People concede that defendant did not forfeit his claim that the five-year 

enhancement constitutes an unauthorized sentence even though his trial counsel did not 

object below. (People v. Scott (1994) 9 Cal.4th 331, 354.)
15

prior serious felony conviction ‘for enhancement purposes’ or ‘for purposes of a five-year 

enhancement.’ ” (Ibid.) 

We agree with Nguyen. Although the People argue Nguyen was wrongly decided, 

the court in Nguyen correctly reasoned that because section 1170.1, subdivision (e) 

requires that all enhancements “be alleged in the accusatory pleading,” and either 

admitted by the defendant in open court or found to be true by the trier of fact, it is not 

enough to merely allege the fact of the prior conviction without further alleging that 

conviction of the current offense will subject the sentence to enhancement under the 

specific statutory provision. (Nguyen, supra, 18 Cal.App.5th at pp. 265-266.) 

To the extent the People argue Nguyen erred in relying on Mancebo, supra,

27 Cal.4th 735, or that Mancebo is otherwise inapt, we likewise disagree. In Mancebo, 

the Supreme Court held that the trial court’s use of an unpled multiple victim 

circumstance to impose a one strike sentence violated the express pleading provisions of 

the One Strike law (§ 667.61, subd. (f)), even though the defendant was charged with and 

found guilty of offenses against two victims. (Mancebo, at pp. 743-745.) In so finding, 

the court recognized that a criminal defendant is entitled to sufficient notice of the 

enhancements alleged against him so that he may calculate his potential prison exposure. 

(Id. at p. 752 [“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”].) While Mancebo

considered the One Strike law, as the Nguyen court pointed out, and we agree, there is no 

basis “to distinguish the language of . . . section 667.61, former subdivision (i) (‘alleged 

. . . and . . . either admitted . . . or found to be true’) from the language of . . . section 

1170.1, subdivision (e) (‘alleged . . . and either admitted . . . or found to be true’).” 

(Nguyen, supra, 18 Cal.App.5th at p. 266.) 

Here, the information affirmatively indicated that the prior conviction was being 

pleaded solely for purposes of the Three Strikes law, and it did not cite the prior serious 

felony conviction statute or otherwise refer to the enhancement (§ 667, subd. (a)(1)). 
16

Where “the People allege a prior serious felony conviction, and when they cite the three 

strikes law but do not cite the prior serious felony conviction statute, we can only 

conclude that they have made ‘a discretionary charging decision.’ ” (Nguyen, supra,

18 Cal.App.5th at p. 267, fn. omitted.) Because the five-year prior serious felony 

enhancement under section 667, subdivision (a)(1) was not pleaded and proved and 

defendant did not admit the enhancement during trial, the court erred in subsequently 

imposing a five-year term for the enhancement. We shall order the unauthorized 

sentence stricken.7 

III

Clerical Error on the Abstract of Judgment

The abstract of judgment incorrectly specifies the total term imposed on count I as 

six years. The six-year term on count I was doubled to 12 years for the strike prior. We 

shall order the abstract of judgment be corrected to indicate the total term on count I as 

12 years. 

DISPOSITION

The five-year prior serious felony enhancement under Penal Code section 667, 

subdivision (a)(1) is stricken. In addition, the trial court is directed to correct the abstract 

of judgment to indicate the total term on count I as 12 years. As so modified, the 

 

7

 An appellate court may correct a legal error resulting in an unauthorized sentence at 

any time. (People v. Scott, supra, 9 Cal.4th at p. 354 & fn. 17.) Given our conclusion, 

we need not address defendant’s remaining due process, ineffective assistance, or Senate 

Bill No. 1393 (2017-2018 Reg. Sess.) arguments.
17

judgment is affirmed. The court clerk is directed to prepare an amended abstract of 

judgment and forward a certified copy to the Department of Corrections and 

Rehabilitation.

 KRAUSE , J.

We concur:

 HULL , Acting P. J.

 BUTZ , J.