Filed 10/1/15
                      CERTIFIED FOR PARTIAL PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                      DIVISION TWO



THE PEOPLE,                                         B258736

        Plaintiff and Respondent,                   (Los Angeles County
                                                    Super. Ct. No. KA098528)
        v.

EDUARDO LALO PEREZ,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Los Angeles County.
Robert M. Martinez, Judge. Affirmed in part, reversed in part, and remanded with
instructions.
        Richard A. Levy, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, and Corey J. Robins, Deputy Attorney General,
for Plaintiff and Respondent.
                                         ******




       Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of the Discussion, parts I, II, III, and IV.B.
       Eduardo Lalo Perez (defendant), while 16 years old, kidnapped a woman at
knifepoint and then subjected her to a series of sexual acts, digitally penetrating her,
placing his penis against her mouth and teeth, and attempting to rape her from behind. A
jury found him guilty of six crimes related to the incident, and the trial court sentenced
him to prison for 52 years to life. In the published portion of our decision, we conclude
that the trial court erred in imposing a sentence of 25 years to life on the forcible oral
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copulation count, under the “One Strike” law (Pen. Code, § 667.61), because the People
did not as to that count plead any circumstance triggering application of section 667.61,
and never moved to amend the information to allege any such circumstance. Because our
Supreme Court‟s decision in People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo),
requires such specificity in pleading under the One Strike law, we are compelled to
vacate that sentence. In the unpublished portion of our decision, we reject defendant‟s
other challenges to his convictions and sentence. We accordingly affirm his convictions
and remand for resentencing.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Raquel Doe (Raquel) was walking home from a friend‟s house one night when
defendant, while wearing a mask and gloves, grabbed her from behind, placed a knife to
her neck, and threatened to kill her if she screamed. Defendant took her cell phone and
camera, and with one hand pressing a knife against her throat and the other fondling her
breasts, directed her toward an abandoned house. He pulled her into a darkened alley.
He removed his mask enough to expose his lips, pinned Raquel against a wall and
forcibly kissed her. While still holding a knife against her body, he then removed the
glove from his other hand, unzipped her pants, and penetrated her vagina with his fingers.
She felt his bare hand against her thigh. Defendant pulled her further into the alley,
where he forced her to bend down and placed his penis against her mouth and teeth; he


1      All further statutory references are to the Penal Code unless otherwise indicated.
                                              2
was unable to insert his penis into her mouth. Defendant turned Raquel away from him,
directed her to bend over, and tried to insert his penis into her vagina; she felt his penis
against her thighs, but he did not penetrate her. All the while he ignored Raquel‟s
sobbing. He marched her back to the edge of the alleyway, and left. Although no
evidence of defendant‟s age was introduced at trial, it is undisputed that he was 16 years
old at the time of the crime.
       Raquel immediately contacted the police. She identified her attacker as a Hispanic
male approximately 5 feet 6 inches to 5 feet 7 inches in height and weighing
approximately 160 pounds, but could give no further details because he was partially or
wholly masked during the entire attack. Forensic technicians collected samples from
Raquel‟s right and left inner thighs, her breasts, her vulva, her vagina, her external anus,
her external mouth and her left shoe (because she said she had spit on her shoe after the
assault). The sample from her right inner thigh contained epithelial (or skin-cell) DNA;
the profile from that sample was uploaded onto the national database. Approximately
one year later, defendant‟s DNA was collected and uploaded onto the database and was a
match to the DNA collected from Raquel‟s inner thigh.
       The People charged defendant with six counts: (1) kidnapping (§ 207, subd. (a));
(2) sexual penetration by a foreign object (§ 289, subd. (a)(1)); (3) attempted forcible
rape (§ 261, subd. (a)(2)); (4) second-degree robbery (§§ 211, 212.5); (5) assault with
intent to commit a felony (§220, subd. (a)(1)); and (6) forcible oral copulation (§ 288a,
subd. (c)(2)). As to all counts, the People alleged that defendant had personally used a
dangerous or deadly weapon under section 12022, subdivision (b)(1). As to the
kidnapping and sexual penetration by a foreign object counts, the People alleged that
defendant was eligible for a sentence of 25 years to life under the One Strike statute
because he kidnapped the victim and personally used a dangerous or deadly weapon. The
People made no such allegations with respect to the forcible oral copulation count. The
trial court nevertheless instructed the jury to determine, as to the sexual penetration count
and the forcible oral copulation count, whether defendant had kidnapped the victim, had

                                              3
personally used a dangerous or deadly weapon, or had engaged in aggravated kidnapping
of the victim. The jury returned guilty verdicts on all counts, and found that defendant
had kidnapped the victim, had used a dangerous or deadly weapon, and had engaged in
an aggravated kidnapping.
       The trial court imposed a state prison sentence of 52 years to life. The court
imposed a sentence of 26 years to life on the sexual penetration by a foreign object count
comprised of a base sentence of 25 years to life under the One Strike law and a one-year
weapon enhancement under section 12022, subdivision (b)(1). The court then imposed a
consecutive sentence of 25 years to life on the forcible oral copulation count under the
One Strike law, and a consecutive one-year sentence on the attempted forcible rape
count. The court imposed a concurrent, three-year sentence on the second degree robbery
count. Invoking section 654, the court stayed the sentences on the remaining two counts
and stayed the deadly weapon enhancement on all of the counts except the sexual
penetration by a foreign object count.
       Defendant timely appeals.
                                       DISCUSSION
I.     Sufficiency of the Evidence
       Defendant argues that all of his convictions must be vacated because they rest on
insufficient evidence. In particular, he argues that (1) the only evidence tying him to
these crimes is the DNA found on the victim‟s thigh, and such biological evidence is
insufficient to sustain a conviction as a matter of law, (2) he introduced expert testimony
that his skin cells could have ended up on the victim‟s inner thigh when he touched the
glove worn by the actual perpetrator, and the evidence at trial did not “vitiate” his “theory
of secondary transfer,” and (3) the totality of the evidence at trial does not support the
jury‟s verdict. In evaluating the sufficiency of the evidence, we ask whether there is
reasonable and credible evidence of solid value to support the jury‟s verdicts beyond a
reasonable doubt; we do so by looking at the entire record, viewing all of the evidence in
the light most favorable to the verdicts and drawing all reasonable inferences to support

                                              4
those verdicts. (People v. Banks (2014) 59 Cal.4th 1113, 1156, disapproved on other
grounds in People v. Scott (2015) 61 Cal.4th 363, 391; People v. Medina (2009) 46
Cal.4th 913, 919.)
       Defendant first argues that a conviction that rests solely upon fingerprint or DNA
evidence is infirm as a matter of law. This is an overstatement. To be sure, courts have
overturned California convictions for insufficient evidence when the sole evidence tying
the defendant to the crime is biological evidence (fingerprints or DNA) found on items to
which the defendant had access prior to the crime. (See, e.g., People v. Trevino (1985)
39 Cal.3d 667, 696-697, disapproved on other grounds in People v. Johnson (1989) 47
Cal.3d 1194 [fingerprint on dresser drawer insufficient, where defendant stayed in home
with the dresser prior to the charged murder]; see also Mikes v. Borg (9th Cir. 1991) 947
F.2d 353, 356-358 [fingerprint on turnstile posts insufficient, where posts were used in
public locations prior to victim‟s purchase of them].) But, “under California law,”
fingerprints and DNA are viewed as “strong evidence of identity and ordinarily are
sufficient, without more, to identify the perpetrator of a crime”—particularly where the
item or place touched was not something to which the defendant had access prior to the
crime. (People v. Tuggle (2012) 203 Cal.App.4th 1071, 1076; see also People v.
Figueroa (1992) 2 Cal.App.4th 1584, 1588 [palm prints on window that was point of
entry for burglary sufficient, where no evidence defendant had been near window
before]; People v. Preciado (1991) 233 Cal.App.3d 1244, 1247 [fingerprints on
wristwatch box sufficient, where no evidence defendant had access to the box].) In this
case, defendant‟s skin cells were found on Raquel‟s inner thigh, an area to which he had
no access until the charged sex crimes, and is thus not an instance in which the biological
evidence is to be considered insufficient as a matter of law.
       In his second argument, defendant argues that DNA is different from fingerprints,
that he presented expert testimony that skin cells with his DNA could have come to be on
Raquel‟s inner thigh through “secondary transfer” (because the perpetrator who touched
her thigh wore gloves that could have touched defendant‟s skin prior to the attack), and

                                             5
that his convictions are invalid unless the People disprove his theory of secondary
transfer. We reject this argument legally and factually. Although non-California
decisions seem to support defendant‟s proffered legal rule that the People must disprove
every “reasonable hypothesis” (see Finley v. State (Fla.App. 2014) 139 So.3d 940, 943;
Eby v. State (Tex.App. 2005) 165 S.W.3d 723, 732-733), the law in California is
different: Although some California authority notes that a case based on circumstantial
evidence is deemed “legally insufficient unless it is so complete as to exclude every
reasonable hypothesis of innocence” (People v. Ollado (1966) 246 Cal.App.2d 608, 611),
our Supreme Court has clarified that this does not erect a categorical rule. Instead,
“„[w]hether the evidence presented is direct or circumstantial, . . . the relevant inquiry on
appeal remains whether any reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt.‟” (People v. Ruiz (1988) 44 Cal.3d 589, 611.) It does not
matter which standard we apply in this case, however, because the evidence at trial
disproved that defendant‟s secondary transfer hypothesis was “reasonable” and because
the evidence was sufficient for a reasonable trier of fact to find him guilty beyond a
reasonable doubt. Although both the People‟s expert and defendant‟s expert agreed that
secondary transfer of DNA can occur, secondary transfer was not a reasonable hypothesis
in this case and did not preclude a reasonable jury from finding defendant guilty beyond a
reasonable doubt for two reasons: (1) it was uncontroverted that the concentration of skin
cells found on Raquel‟s inner thigh was too high to have been left by secondary transfer;
and (2) it was uncontroverted that the assailant touched Raquel‟s inner thigh with his bare
hand and his bare penis, not with a gloved hand (as defendant‟s secondary transfer theory
necessarily posits).
       Defendant lastly asserts that the evidence, when viewed as a whole, was
insufficient to sustain his convictions. More specifically, he argues that (1) Raquel was
unable to pick defendant out of a photo spread, (2) her description of the assailant (as 5
feet 6 inches tall and 160 pounds) did not match defendant‟s height and weight when he
was arrested a year later (5 feet 6 inches and 120 pounds), and was even less accurate

                                              6
because defendant was 16 at the time and could have grown taller in the intervening year,
(3) her description of the assailant as Hispanic is of little significance because statistical
data not introduced at trial would have shown that the area where the charged crimes
occurred has a high concentration of Hispanic residents, (4) the police were unable to
show that defendant used the cell phone taken from Raquel during the incident,
(5) Raquel‟s assailant told her he was “wanted” by police, but no evidence was presented
that there was a warrant out for defendant at the time, and (6) the police did not conduct a
“voice lineup” to see whether Raquel recognized defendant‟s voice a year later.
       We are unpersuaded. Raquel‟s inability to identify defendant based on his mug
shot is of little consequence because her assailant was fully or partially masked during the
entire incident. Along similar lines, her misjudgment of the assailant‟s weight is not
surprising given that it was night and that her attention was on the sexual assault, not on
her assailant‟s build as he assaulted her. Although evidence that defendant used Raquel‟s
cell phone, that defendant had an active warrant for his arrest, or that Raquel recognized
his voice would have reinforced his identity as the assailant, its absence does not negate
or undermine the other evidence of his identity. And defendant‟s attempt to impeach the
                                                                                                 2
verdict with evidence he did not present below (the statistical evidence) is inappropriate.
(See People v. Kelly (2006) 40 Cal.4th 106, 126.) The jury had before it evidence that
Raquel‟s assailant touched her inner thigh with his bare hand and penis, and had touched
his penis to her mouth; evidence that defendant‟s skin cells were found in a high
concentration on her inner thigh and that male DNA (which was not subjected to further
testing) was found outside her mouth and in her spit immediately after the incident; and
evidence that Raquel‟s description of the assailant‟s height, weight and race generally
matched defendant. On the basis of this evidence, a reasonable jury could find beyond a



2      Accordingly, we deny defendant‟s request that we take judicial notice of the U.S.
Census Bureau‟s data on the ethnic composition of the area in which the crimes occurred.
For the same reason we deny defendant‟s request that we judicially notice a growth chart
and life expectancy table never offered at trial.
                                              7
reasonable doubt that defendant was the perpetrator. Defendant‟s request that we
reweigh evidence to come to a different conclusion is one we must decline. (People v.
Brown (2014) 59 Cal.4th 86, 106.)
II.    Evidentiary Rulings
       Defendant next raises three challenges to the exclusion or admission of evidence.
We review evidentiary rulings for an abuse of discretion. (People v. Harris (2005) 37
Cal.4th 310, 337.)
       A.      Exclusion of testimony regarding defendant’s age
       During his cross-examination of Los Angeles County Sheriff‟s Department
Sergeant Glen Eads (Sergeant Eads), defense counsel asked Sergeant Eads if he knew
defendant‟s age at the time he first contacted defendant about the DNA match. After the
People objected, Sergeant Eads responded that he did not “know his exact age.” Defense
counsel then asked if Sergeant Eads‟s recollection would be refreshed if he looked at his
report; he said yes. Out of the jury‟s presence, the People renewed its relevance
objection, and defense counsel explained that defendant‟s young age (16) was relevant to
show that he might have grown in the year prior to his arrest and that Raquel‟s physical
description did not match defendant‟s actual height at the time of the incident. When the
trial court asked defense counsel how Sergeant Eads would know defendant‟s age,
counsel responded that “he got it from the defendant‟s I.D., along those lines, because he
has booking information.” The court then precluded further questioning of Sergeant Eads
on this subject, commenting that “there‟s other ways to establish his age at the time.”
       Defendant argues that this ruling was error because defendant‟s age was relevant
to support his defense that defendant might have been shorter at the time of the crimes
than at the time of his arrest, which would have made Raquel‟s physical description less
accurate. But the trial court did not exclude the evidence as irrelevant. Instead, the
court‟s questions suggested its concern that Sergeant Eads‟s testimony would have been
based on reading a report that contained defendant‟s age; such testimony would have
been based on hearsay (that is, the out-of-court statements comprising the booking report)

                                             8
rather than on personal knowledge. Personal knowledge is prerequisite for lay testimony.
(Evid. Code, § 702.) Although Sergeant Eads‟s statement that looking at the report might
refresh his recollection could be construed as an indication that he did have personal
knowledge, Sergeant Eads also stated he “didn‟t know” defendant‟s age; faced with this
potentially conflicting evidence, the court did not abuse its discretion in relying on
Sergeant Eads‟s more direct disclaimer of personal knowledge.
       There was no prejudice in any event. The trial court did not preclude defendant
from introducing his age through other means, and defendant elected not to do so.
Moreover, defendant elected not to produce any evidence that he had grown in height or
that, statistically, young men of that age grow in height; without this additional evidence,
the absence of evidence of his age was irrelevant. Further, defendant argued the other
inconsistencies in Raquel‟s description of her assailant and her inability to select
defendant‟s photograph from the photo spread; in light of the jury‟s rejection of this line
of argument, it is not reasonably probable that evidence that Raquel‟s estimation of
defendant‟s height was off by an inch or two would have yielded a different verdict.
(People v. Watson (1956) 46 Cal.2d 818, 836-837.)
       We further reject defendant‟s argument that this evidentiary error violated his
federal constitutional rights to present his own defense, to cross-examine witnesses, or
denied him a fair trial by excluding relevant evidence or by dictating how he should
conduct his defense. It is well settled that application—or even misapplication—of the
“ordinary rules of evidence” do not typically implicate the federal Constitution. (People
v. Marks (2003) 31 Cal.4th 197, 227.) The trial court did not exclude defendant‟s
proffered defense; it simply excluded one avenue for admitting one piece of evidence
relevant to challenge Raquel‟s identification, and left other avenues open. This did not
co-opt the defense or otherwise deny defendant his constitutional rights. (People v.
McNeal (2009) 46 Cal.4th 1183, 1203; People v. Guillen (2014) 227 Cal.App.4th 934,
1019-1020; People v. Miralrio (2008) 167 Cal.App.4th 448, 462 (Miralrio).)



                                              9
       B.      Exclusion of specific instances of secondary transfer of DNA
       During defense questioning of the People‟s DNA expert and his own DNA expert,
defendant was permitted to ask whether the experts were aware of cases that had been
dismissed based on secondary transfer of DNA and to pose hypothetical questions
regarding secondary transfers through gloves that closely matched the facts of this case.
But the trial court did not allow defense counsel to ask questions about the specific
details of secondary transfer occurring in other cases. Defendant argues that this was
error because such inquiry would have (1) impeached the People‟s DNA expert‟s
testimony that he had not encountered secondary transfer in sexual assault cases, and
(2) provided the jury with more vivid examples.
       The trial court did not abuse its discretion in excluding this evidence. Although
the court did not articulate the legal basis for its ruling, we review the ruling and not the
reasoning (People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12), and the court‟s ruling
is valid under Evidence Code section 352. That section grants a court broad discretion to
exclude evidence where its probative value is substantially outweighed by “the
substantial danger of unfair prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352; People v. Holford (2012) 203 Cal.App.4th 155, 167-168.) In this
case, the court was within its discretion to exclude evidence of the details of other cases
in which secondary transfer occurred because the benefits of such testimony would have
been outweighed by (1) the undue consumption of time necessary to introduce those
details and to hash out whether they were similar to or dissimilar from the details of this
case, and (2) the danger that the jury might be misled if the details, similarities and
differences were not sufficiently fleshed out.
       C.      Admission of Sergeant Eads’s answer to question that suggested
additional information not before the jury

       During the cross-examination of Sergeant Eads, defense counsel asked: “In this
particular case, you got information regarding DNA and that was regarding [defendant]

                                              10
in that he became kind of the focus of your investigation; is that accurate?” Sergeant
Eads responded, “In addition to other things, too.” Defendant argues that this response is
akin to a prosecution witness‟s intentional reference to a defendant‟s excluded confession
or defendant‟s status as a suspect in other investigations involving identical crimes. (See
People v. Navarette (2010) 181 Cal.App.4th 828, 836 [witness testified that he opted to
forego DNA testing in light of defendant‟s “statement” that had been excluded by the
court] (Navarette); People v. Bentley (1955) 131 Cal.App.2d 687, 690, disapproved on
other grounds in People v. White (1958) 50 Cal.2d 428, 431 [witness testified that
defendant was a suspect in a crime similar to the charged offense] (Bentley).)
       To begin, defendant forfeited this argument because he did not object to Sergeant
Eads‟s answer or move to strike it. (People v. Dykes (2009) 46 Cal.4th 731, 756-757.)
Defendant argues that his lack of objection should be excused because (1) objection is not
necessary when a prosecutor engages in misconduct, and Sergeant Eads is considered
part of the “prosecution team” under Brady v. Maryland (1963) 373 U.S. 83, and
(2) defense counsel was constitutionally ineffective.
       Neither argument is persuasive. Although the failure to object to prosecutorial
misconduct may be excused if an objection would have been futile or an admonition from
the trial court would not have cured the harm caused by the misconduct (People v.
Centeno (2014) 60 Cal.4th 659, 674), defendant has not demonstrated the futility of an
objection or of an admonition; more to the point, this was not prosecutorial misconduct
because “a prosecutor cannot be faulted for a witness‟s nonresponsive answer that the
prosecutor neither solicited nor could have anticipated.” (People v. Tully (2012) 54
Cal.4th 952, 1035.) Brady is irrelevant, as it deals with a prosecutor‟s discovery
obligations for which the prosecutor is ultimately responsible. (See In re Brown (1998)
17 Cal.4th 873, 879, fn. 3.) Defense counsel was also not constitutionally ineffective.
The decision not to object did not fall below an objective standard of competence
(People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147 [requiring showing of
incompetence and prejudice]) because (1) as we discuss below, the answer was not

                                            11
inappropriate, or (2) objecting would have called even more attention to the issue, which
would have been a bad tactical decision (People v. Castanada (2011) 51 Cal.4th 1292,
1334 [“The decision whether to object to the admission of evidence is „inherently
tactical,‟ and a failure to object will rarely reflect deficient performance by counsel”].)
       On the merits, Sergeant Eads‟s answer was not objectionable under Navarette or
Bentley. Sergeant Eads did not allude to an excluded confession by defendant or to
defendant‟s involvement in a similar crime; he stated that his investigation started to
focus on defendant based on the DNA match and “other things.” This comment is
nothing like the bombshell revelations going directly to guilt that were the basis for
Navarette and Bentley. Moreover, there were other reasons for Sergeant Eads‟s
suspicions to focus on defendant, and those “other things” were in evidence—namely,
that defendant lived in the area where the incident occurred and that Raquel‟s description
of her assailant somewhat matched defendant.
III.   Instructional Issue
       Defendant argues that the trial court erred in not instructing the jury on the crime
of attempted forcible oral copulation as a lesser-included offense to the forcible oral
copulation crime charged in the information. A trial court is required to instruct a jury,
even when not requested to do so, on any lesser-included offense if there is “substantial
evidence” “that the lesser offense, but not the greater, was committed.” (People v. Cruz
(2008) 44 Cal.4th 636, 664.) We review this instructional issue de novo. (People v. Cole
(2004) 33 Cal.4th 1158, 1218.)
       There was no error here. As an attempt crime, attempted forcible oral copulation
is presumably a lesser-included offense to the completed crime of forcible oral
copulation. (§§ 288a, 664; People v. Braslaw (2015) 233 Cal.App.4th 1239, 1248
[attempts are generally lesser-included offenses to completed crimes].) However, there
was not “substantial evidence” that defendant committed only the lesser-included crime
of attempted forcible oral copulation. The completed crime of forcible oral copulation
only requires proof of “copulation” (§ 288a, subds. (a) & (c)(2)(A))—that is, “[a]ny

                                              12
contact, however slight, between the mouth of one person and the sexual organ . . . of
another” (People v. Dement (2011) 53 Cal.4th 1, 41-42 (Dement); accord, People v.
Huynh (2012) 212 Cal.App.4th 285, 305). Neither penetration nor ejaculation is
required. (Dement, at pp. 41-42; cf. People v. Clements (1931) 111 Cal.App. 173, 175
[penetration required for crime of rape].) In this case, Raquel testified that defendant
forced his penis against her lips and mouth, and her account was corroborated by the fact
that male DNA was found on the outside of her mouth as well as in her spit.
       Defendant argues that evidence suggested that his penis might not have penetrated
Raquel‟s mouth and that his penis touched her face and mouth. This evidence does not
suggest that defendant is guilty only of attempted forcible oral copulation because the
evidence he points to still shows contact between defendant‟s penis and Raquel‟s mouth,
which—as noted above—constitutes sufficient evidence of “oral copulation” to sustain a
conviction for the completed crime.
IV.    Sentencing
       A.      Proper application of One Strike law
       Since its adoption in 1994, California‟s One Strike law (§ 667.61) has set forth an
“alternative and harsher sentencing scheme for certain sex crimes.” (People v. Anderson
(2009) 47 Cal.4th 92, 102, 107 (Anderson).) For the sex crimes falling within its reach
(§ 667.61, subd. (c) [enumerating crimes]), a first-time offense can result in one of two
heightened sentences. The sentence will be 15 years to life if the jury finds (or the
defendant admits) one or more of the “circumstances” listed in section 667.61,
subdivision (e). (§ 667.61, subds. (b) & (e).) The sentence will be 25 years to life if the
jury finds (or the defendant admits) either (1) two of the “circumstances” listed in section
667.61, subdivision (e), or (2) one of the more aggravated “circumstances” listed in
section 667.61, subdivision (d). (§ 667.61, subds. (a), (d) & (e).)
       The One Strike law specifically spells out what the People must do in order to
invoke its greater penalties: “The penalties provided in this section shall only apply if the
existence of any circumstances specified in subdivision (d) or (e) is alleged in the

                                             13
accusatory pleading pursuant to this section, and is either admitted by the defendant in
open court or found to be true by the trier of fact.” (§ 667.61, subd. (o).) In Mancebo,
supra, 27 Cal.4th 735, our Supreme Court read this requirement strictly to obligate the
People to allege, in the operative charging document, “which qualifying circumstance or
circumstances are being invoked for One Strike sentencing.” (Id. at p. 752; accord,
People v. Wutzke (2002) 28 Cal.4th 923, 930.) In the Supreme Court‟s view, this
outcome is dictated not only by the language of the One Strike law, but also by due
process because “the fair notice afforded by that pleading requirement may be critical to
the defendant‟s ability to contest the factual bases and truth of the qualifying
circumstances”; may be essential for the defendant to assess his sentencing “exposure”;
and may be necessary for the defendant to know what he must admit to if he elects to
enter a plea. (Mancebo, at pp. 746-747, 750, 752.)
       In this case, defendant argues that the People did not adhere to these specific
pleading requirements as to each of his One Strike law convictions.
               1.    Sexual penetration by a foreign object (count 2)
       Defendant argues that there is a mismatch between the One Strike law
circumstances the People pled with respect to the sexual penetration by a foreign object
count, and the circumstances later presented to the jury. We agree, but conclude that this
mismatch does not affect his One Strike law sentence. It does, however, affect the deadly
weapon enhancement.
       In the information, the People alleged two One Strike law circumstances with
respect to the sexual penetration with a foreign object count: (1) “[d]efendant kidnapped
the victim”; and (2) “[d]efendant personally used [a] dangerous or deadly weapon.” The
jury was instructed on these circumstances, and found both to be true. Because these two
circumstances—which are listed in subdivision (e) of section 667.61—were properly pled
and proven, the trial court‟s sentence of 25 years to life complies with the One Strike law.
(§ 667.61, subd. (a).)



                                             14
       Defendant points out that the trial court instructed the jury on the additional
circumstance that defendant engaged in an “aggravated kidnapping” within the meaning
of section 667.61, subdivision (d)(2), and that this circumstance was nowhere alleged in
the information. (See § 667.61, subd. (d)(2) [listing as a circumstance that the defendant
“kidnapped the victim of the present offense and the movement of the victim
substantially increased the risk of harm to the victim over and above that level of risk
necessarily inherent in the underlying [enumerated] offense . . .”].) Mancebo held that a
court could not impose a One Strike law sentence based upon the multiple-victim
circumstance that was never alleged under the One Strike law. (Mancebo, supra, 27
Cal.4th at p. 740.) However, the trial court‟s error in submitting this circumstance to the
jury in this case has no effect on the One Strike law sentence of 25 years to life because,
as noted above, it is independently valid due to the two circumstances that were properly
pled and proven.
       Our conclusion does require us to vacate the one-year enhancement for the use of
a deadly weapon. The One Strike law provides that where, as here, “only the minimum
number of circumstances specified in subdivision (d) or (e) that are required for” an
enhanced One Strike law sentence “have been pled and proved, . . . those circumstances
shall be used as the basis for imposing” the One Strike law sentence “rather than being
used to impose the punishment authorized under any other provision of law, unless [the
other] provision . . . provides for a greater penalty . . . .” (§ 667.61, subd. (f); Mancebo,
supra, 27 Cal.4th at pp. 738, 740 [use of gun enhancement not permitted when same
allegation was necessary to support the 25-years-to-life One Strike law sentence]; People
v. Rodriguez (2012) 207 Cal.App.4th 204, 214-215 [use of deadly weapon enhancement
not permitted when allegation was necessary to support the 25-years-to-life One Strike
law sentence].) Because the deadly weapon circumstance is necessary to support the One
Strike law sentence, we vacate the one-year enhancement for use of a deadly weapon
imposed with respect to the sexual penetration by a foreign object count.
               2.     Forcible oral copulation (count 6)

                                              15
       Defendant next argues that his One Strike law sentence of 25 years to life for the
forcible oral copulation sentence must be vacated because the People did not allege any
One Strike circumstances with respect to this count. Defendant is correct: Although the
information alleges One Strike law circumstances with respect to the kidnapping and
sexual penetration counts, the information alleges no such circumstances as to the
forcible oral copulation count. Under Mancebo, “the People‟s failure to include a[ny] . . .
allegation[s] [with respect to the forcible oral copulation count] must be deemed a
discretionary charging decision.” (Mancebo, supra, 27 Cal.4th at p. 749.)
       The People offer three arguments as to why this pleading error should not affect
the One Strike law sentence on this count. First, the People contend that defendant had
actual notice that the People sought to apply the kidnapping, use of a deadly weapon, and
aggravated kidnapping circumstances to the forcible oral copulation count because the
trial court told the jury as much during jury selection. This is not entirely correct. The
trial court did tell the jury that the kidnapping and use of a deadly weapon circumstances
applied to the forcible oral copulation count; it did not, however, mention the aggravated
kidnapping circumstance at that time. But under Mancebo, what matters is notice by
pleading, not actual notice. The defendant in Mancebo certainly knew from the counts
alleging different victims that a multiple-victim enhancement could be at issue, but the
Supreme Court in Mancebo found that this knowledge did not satisfy the requirements of
section 667.61 or due process. (Mancebo, supra, 27 Cal.4th at p. 753.)
       Second, and relatedly, the People argue that the trial court actually amended the
information to allege the kidnapping and use of a deadly weapon circumstances as to the
forcible oral copulation count because the trial court told the jury as much during voir
dire. However, the trial court did not indicate that it was amending the information;
instead the court read the information as if it already had been amended. But it had not.
There is nothing in the record to indicate that the prosecutor ever asked the trial court to
amend the information, and the People do not argue on appeal that such a request was
ever made. Amendment is certainly permitted. (§ 1009; see Miralrio, supra, 167

                                             16
Cal.App.4th at p. 458 [allowing amendment to allege One Strike law sentence as to
additional counts].) However, it is up to the prosecution, as part of its power over
charging decisions (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976), to so
request. Its decision not to do so, as noted above, is “deemed to be a discretionary
charging decision.” (Mancebo, supra, 27 Cal.4th at p. 749.)
       Third, the People assert that the information contains allegations that, while not
specific to the forcible oral copulation count, can be construed as such. The People point
to two allegations. One states: “It is further alleged as to count(s) 1, 2, 3, 4, 5, and 6,
pursuant to subdivision (b) of Welfare and Institutions Code section 602, that the
defendant was 14 years of age or older at the time the defendant committed the above
offense(s), and that a circumstance enumerated in subdivisions (d) and (e) of section
667.61 of the Penal Code is applicable.” This is insufficient for two reasons. To begin,
as the italicized portion indicates, this allegation is designed to explain why this case is
being filed in adult court rather than juvenile court under Welfare and Institutions Code
section 602. It is not meant to invoke the One Strike law, for its allegations are partly
nonsensical for these purposes given that counts 1 (kidnapping) and 4 (second degree
robbery) are not even One Strike law-eligible offenses. (See § 667.61, subd. (c).)
Further, this allegation does not specify which of the One Strike law circumstances it
seeks to invoke. Although Mancebo leaves it open to the People to allege circumstances
by “reference to the description of the qualifying circumstance . . . in conjunction with a
reference to section 667.61,” by “specific numerical designation” of which provision
within section 667.61, subdivision (d) or (e), or by “some combination thereof,”
(Mancebo, supra, 27 Cal.4th at p. 754), the court made clear that the People must provide
“notice of which qualifying circumstance or circumstances are being invoked” (id. at
p. 752). It is not enough to refer to all of them.
       The second allegation the People highlight states: “It is further alleged, within the
meaning of Penal Code sections 667.61(a) and (e), . . . as to count(s) 1 and 2 that the
following circumstances apply: Defendant kidnapped the victim . . . [and] Defendant

                                              17
personally used [a] dangerous or deadly weapon.” To be sure, People v. Riva (2003) 112
Cal.App.4th 981 (Riva), held that a trial court could properly apply a 25-year discharge-
of-a-firearm enhancement under section 12022.53, subdivision (d) as to a count for which
that enhancement was not alleged, at least when it was alleged (but not imposed) for two
other counts in the information. (Id. at pp. 1002-1003.) The court reasoned that the
Legislature had required that the “existence of any fact . . . be alleged in the accusatory
pleading” (§ 12022.53, subd. (j)), but had not required that those facts “be alleged in
connection with a particular count in order to apply to that count.” (Riva, at p. 1001.)
The court further found it “highly unlikely” that the absence of an allegation with respect
to the specific count at issue would affect defendant‟s decision to enter a plea because
few defendants would “admit in open court to” a 25-year enhancement. (Id. at p. 1003.)
       We find Riva inapplicable to the One Strike law. The language requiring pleading
and proof in section 12022.53, subdivision (j) and in section 667.61, subdivision (o) is
nearly identical. Thus, it might be said that the Legislature‟s decision not to require
count-specific allegations in section 12022.53 applies with equal force to section 667.61.
But section 12022.53 and section 667.61 are different, as Riva itself acknowledged.
(Riva, supra, 112 Cal.App.4th at p. 1003 [“we conclude that the Supreme Court‟s
concern over lack of fair notice expressed in Mancebo is not applicable in the present
case”].) Unlike section 12022.53‟s firearm enhancements, “[t]he One Strike law is
not . . . a sentence enhancement”; “[r]ather, it „sets forth an alternate penalty for the
underlying felony itself . . . .‟” (People v. Acosta (2002) 29 Cal.4th 105, 118, quoting
People v. Jefferson (1999) 21 Cal.4th 86, 101.) Unlike sentencing enhancements, a
defendant can only plead guilty to a One Strike law crime if the circumstances necessary
to trigger that crime are pled—that is how the defendant knows the maximum sentence he
or she faces and what he or she must admit during the plea. Moreover, extending Riva’s
rule to the One Strike law would give short shrift to Mancebo’s due process
underpinnings by allowing one or more One Strike law circumstance(s) alleged as to one
count to trigger a One Strike law sentence on another count as long as the total sentence

                                              18
actually imposed by the trial court does not exceed the total sentence that could have
been imposed if the People had adhered to the actual allegations in the charging
document. Mancebo‟s due process concerns are better served by a more straight-forward
rule, and the one that we adopt today: The People must allege the specific One Strike law
circumstances it wishes to invoke as to each count it seeks to subject to the One Strike
law‟s heightened penalties.
       Because the People did not adhere to this rule, the One Strike law sentence as to
the forcible oral copulation count must be reversed.
       B.      Cruel and unusual sentence
       Defendant finally argues that the 52-year sentence the trial court imposed for an
offense he committed while only 16 years old violates the cruel and unusual punishment
clause because it amounts to a “de facto life without possibility of parole” sentence. (See
Graham v. Florida (2010) 560 U.S. 48, 74 [“[F]or a juvenile offender who did not
commit homicide the Eighth Amendment forbids the sentence of life without parole”];
People v. Caballero (2012) 55 Cal.4th 262, 265, 268 [extending Graham to cases that are
the “equivalent” of life without possibility of parole].)
       In light of our ruling above, defendant‟s sentence on the forcible oral copulation
count is no longer an indeterminate sentence of 25 years to life, and is instead a
determinate sentence of “three, six or eight years.” (§ 288a, subd. (c)(2)(A).) No matter
which sentence the trial court imposes at the resentencing, defendant‟s total sentence will
likely be no greater than 35 years to life. Such a sentence “leave[s] the possibility of a
substantial life expectancy after prison,” and is accordingly not a “de facto life without
possibility of parole” sentence that implicates the cruel and unusual punishment clause.
(People v. Perez (2013) 214 Cal.App.4th 49, 52.) We accordingly find no merit to
defendant‟s constitutional argument.
                                       DISPOSITION
       The judgment is modified by striking the sentence imposed under the One Strike
law as to count 6, and striking the one-year weapon enhancement on count 2. The matter

                                              19
is remanded for resentencing on count 6, and the clerk of the superior court is directed to
prepare an amended abstract of judgment reflecting the sentence of 25 years to life on
count 2. In all other respects the judgment is affirmed.
       CERTIFIED FOR PARTIAL PUBLICATION.


                                                   _______________________, J.
                                                           HOFFSTADT
We concur:


____________________________, Acting P. J.
        ASHMANN-GERST


____________________________, J.
          CHAVEZ




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