No Notice, No Sentence Enhancement in Lewd Act Case

In San Diego County Superior Court, defendant Robert Nash was convicted of three lewd acts (Penal Code § 288(a) on two young girls, ages three and five, and was sentenced to an aggregate term of ten years in state prison.  The sentence was composed of a six-year term for count one and two consecutive two-year terms on counts two and three.

The case was apparently quite emotional, as Mr. Nash’s ex-wife, Joy, testified for the prosecution and it was suspected that she had an ulterior motive.  There were criminal proceedings against Joy Nash earlier, in 2018, for example, which may have been caused, the appellate court noted, by internal family conflict.  Mr. Nash maintained his innocence throughout the trial. 

The judge, John M. Thompson, declined to impose a fifteen-years-to-life sentence on each count under the One-Strike Law (Penal Code § 667.61(b)) because he found doing so would constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and the California Constitution at article I, § 17.

The People appealed this ruling and Nash appealed as well, but on different grounds, to the Fourth Appellate District in San Diego.  The Fourth District granted the People’s appeal, finding that a mandatory life term under the One-Strike Law was constitutional.

The case was then remanded and Judge Thompson reluctantly resentenced Mr. Nash to concurrent 15-years-to-life terms on each of the three lewd act counts.  In doing so, Judge Thompson stated on the record that he still regarded the 15-years-to-life sentences cruel and unusual punishment.

Mr. Nash appealed the constitutionality of the sentence again and argued ineffective assistance of counsel (IAC) and discovery of new evidence of his factual innocence as well, but the Fourth Appellate District denied this appeal based on the law of the case and that the new argument regarding IAC exceeded the scope of the remittitur order and was thus barred.

The People also appealed the 15-years-to-life sentence, arguing that the Penal Code § 667.61(j)(2) of the One-Strike Law mandates a 25-years-to-life sentence where lewd acts involve multiple victims under the age of 14. 

Mr. Nash opposed this appeal, arguing that such a sentence would be improper and a violation of due process because the complaint and the information did not allege such a sentence enhancement and therefore he was not put on notice that the People were seeking such a sentence enhancement.

The Fourth Appellate District’s response was to first note that the courts in California are divided as to whether to impose a 25-years-to-life sentence under Penal Code § 667.61(j)(2) because the accusatory pleading only mentioned  the 15-years-to-life sentence enhancement available under Penal Code § 667.61(b). 

In People v. Jimenez (2019) 35 Cal. App. 4th 373, 395-397, the Sixth Appellate District concluded that a 25-years-to-life sentence could not be imposed consistent with due process.  The same year, but later, In re Vaquera (2019) 39 Cal. App. 5th 233, 245, the Fourth Appellate District disagreed with Jimenez and upheld a 25-years-to-life sentence.  In People v. Zaldona (2019) 43 Cal. App. 5th 527, 532, the Second Appellate District in Los Angeles followed Vaquera. 

The court of appeal further noted that the accusatory pleadings against Mr. Nash set forth sufficient facts to support the 25 years-to-life sentence, as it described the ages of the victims, but such a sentence length of its basis (§ 667.61(j)(2)) was alleged nowhere specifically in any pleading.  The first time such a sentence was sought was after the verdict.  In contrast, the information did specifically notify that Nash faced potential exposure of 15 years to life in state prison.

The Fourth District therefore affirmed the 15-years-to-life sentence (actually three sentences to run concurrent), finding Mr. Nash was not provided fair notice of such a sentence being sought or being potentially applicable to him as required under People v. Mancebo (2002) 27 Cal. 4th 735, 747.  Indeed, Penal Code § 1170.1(e) requires all sentence enhancements to be alleged in the accusatory pleading and either admitted by the defendant or found true by the trier of fact.

Lastly, we note that the sentences were concurrent, although this was a sex crime.  The reader may recognize that this seems contrary to how most sex offense sentences are imposed.  Here, the judge had the discretion to impose the terms concurrent or consecutive.

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