Full Opinion

Filed 10/23/26 P. v. Aleman CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE THE PEOPLE, B346311 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. 24WCCF00581) JOSHUA ALEMAN, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Joan M. Chrostek, Judge. Reversed and remanded with directions. Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent. _________________________ Joshua Aleman appeals from a judgment after a jury trial that included a five-year prior serious felony conviction enhancement under Penal Code section 667, subdivision (a)(1).1 Aleman contends the trial court erred in imposing the enhancement because it was not alleged in the accusatory pleading and the error was not harmless. We agree and remand for resentencing. FACTUAL AND PROCEDURAL BACKGROUND2 On June 6, 2024, Aleman went to a Circle K convenience store in Rowland Heights. He selected an energy drink, put it in his pocket without paying, and attempted to leave the store. When the cashier told Aleman he needed to pay for the drink, Aleman denied taking it, threatened to shoot and run over the cashier, pushed the cashier, and held his hands up and “tried to make a move to like have a fight.” Frightened, the cashier asked Aleman to leave, and Aleman left with the drink. A September 2024 information charged Aleman with one count of second degree robbery (§ 211; count 1). It further alleged Aleman “had been convicted of the following serious and/or violent felony, as defined in Penal Code section 667(d) and Penal Code section 1170.12(b), and is thus subject to sentencing pursuant to the provisions of Penal Code section 667(b)-(j) and Penal Code section 1170.12.” It asserted that Aleman had been 1 All undesignated statutory references are to the Penal Code. 2 Because this appeal does not raise any issues concerning the facts of the underlying offense, the opinion includes only a brief summary of the underlying incident. 2 previously convicted of “PC 273.5 (GBI).” The information additionally alleged that Aleman had been convicted of two felonies within the meaning of section 1203, subdivision (e)(4), and alleged factors in aggravation under California Rules of Court, rule 4.421, subdivisions (b)(1), (b)(3), and (b)(5). The information did not charge a prior serious felony conviction enhancement under section 667, subdivision (a)(1). It indicated that the maximum sentence was 10 years, stating the charge range was “2-3-5 State Prison” “x 2.” In the People’s November 5, 2024 trial brief, they stated that Aleman’s “maximum exposure” was “10 years in State Prison.”3 At some point before trial, the People made Aleman a plea offer. A minute order dated November 6 indicates “[t]he People state early disposition offer is no longer available.” Trial commenced on November 7. The reporter’s transcript from that day reflects that after an off-the-record discussion, the trial court stated: “All right. And once we impanel the jury, the People’s offer is gone.” On November 13, a jury found Aleman guilty of second degree robbery. That same day, in a bifurcated proceeding, the trial court found true the strike prior allegation as to the section 273.5 conviction and that Aleman served a prior prison term within the meaning of California Rules of Court, rule 4.421, subdivision (b)(3). On November 19, the People filed a sentencing brief. The People conceded that “[t]he [i]nformation in our case does 3 All further dates are to 2024 unless specified. 3 not allege the 5-year prior pursuant to PC 667(a)(1),” but argued its imposition was mandatory because Aleman had a prior conviction for a serious felony, based on the 273.5 conviction alleged in the information. The People sought an upper-term sentence, doubled, for a total of 10 years, plus an additional 5 years pursuant to section 667, subdivision (a)(1). On April 24, 2025, the trial court held a sentencing hearing. It denied Aleman’s motion, filed the day of the hearing, to dismiss the prior strike conviction for domestic violence pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Aleman’s motion did not address the People’s proposal to sentence Aleman pursuant to an uncharged section 667, subdivision (a)(1) enhancement. Defense counsel also did not raise any objection regarding section 667, subdivision (a)(1) during the hearing. The trial court imposed a nine-year prison sentence, consisting of the low term of two years, doubled due to the “strike,” plus a consecutive five years pursuant to section 667, subdivision (a)(1). Aleman timely appealed. DISCUSSION Aleman challenges the imposition of the uncharged five-year serious felony enhancement pursuant to section 667, subdivision (a)(1). He contends the trial court erred in imposing the enhancement because the prosecution did not charge it in the information and the prosecution only sought the additional sentence after he declined a plea offer and after the guilt phase of trial. Aleman argues the enhancement therefore violated applicable statutory law and his due process rights. The People counter Aleman forfeited this claim of error by not raising it in 4 the trial court; the trial court properly imposed the enhancement because the information’s factual allegations provided sufficient notice; and any error was harmless. We agree with Aleman, strike the imposition of the section 667, subdivision (a)(1) enhancement, and remand for resentencing. I. The Trial Court Erred by Imposing the Five-Year Serious Felony Enhancement “As a rule, all sentence 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.’ (Pen. Code, § 1170.1, subd. (e) . . . .)” (People v. Anderson (2020) 9 Cal.5th 946, 953 (Anderson).) “ ‘ “No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” [Citations.] “A criminal defendant must be given fair notice of the charges against him in order that he may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial.” ’ [Citation.] This goes for sentence enhancements as well as substantive offenses: A defendant has the ‘right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.’ [Citation.]” (Ibid.) Accordingly, section 1170.1, subdivision (e) requires “more than simply alleging the facts supporting an enhancement somewhere in the information. [Citation.] The pleading must provide the defendant with fair notice of the potential sentence.” (Anderson, at p. 956.) The information alleged Aleman “had been convicted of the following serious and/or violent felony[ ], as defined in Penal Code 5 section 667(d) and Penal Code section 1170.12(b), and is thus subject to sentencing pursuant to the provisions of Penal Code section 667(b)-(j) and Penal Code section 1170.12 . . .” and then alleged the prior domestic violence conviction. Alleging the fact of the prior conviction for purposes of the strike allegation was insufficient to provide notice that Aleman also faced an additional five-year sentence under section 667, subdivision (a)(1). People v. Nguyen (2017) 18 Cal.App.5th 260 (Nguyen) is instructive. In Nguyen, the information similarly did not allege a section 667, subdivision (a)(1) enhancement, but alleged the fact of the conviction underlying that enhancement for purposes of the Three Strikes law. (Nguyen, at p. 266.) The Court of Appeal held that the trial court erred in imposing the prior serious felony enhancement because under “section 1170.1, subdivision (e), an enhancement must ‘be alleged in the accusatory pleading . . .’ ” and the information did not do so. (Id. at p. 263.) The court reasoned the defendant lacked notice of the potential longer sentence because the factual predicate for the enhancement was alleged specifically for the Three Strikes allegations: “Significantly, every prior serious felony conviction is necessarily also a strike prior. [Citations.] Charging language which expressly states that a fact is alleged to invoke one particular statute does not adequately inform the accused that the People will use it to invoke a different statute.” (Id. at pp. 266–267, second italics added.) Accordingly, “when, as here, 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.’ ” (Id. at p. 267.) 6 Our high court favorably cited Nguyen in the context of uncharged section 12022.53 enhancements, explaining that “[f]air notice requires that every sentence enhancement be pleaded in connection with every count as to which it is imposed.” (Anderson, supra, 9 Cal.5th at pp. 956–957, citing Nguyen, supra, 18 Cal.App.5th at p. 267.) In Anderson, the information alleged the enhancement as to some counts but not others. (Anderson, at p. 950.) The court concluded that by alleging the enhancement as to some counts but not others, the prosecution indicated it was exercising its discretion not to impose the enhancement as to the uncharged counts. (Id. at p. 957.)4 As in Nguyen and Anderson, the information failed to “provide [Aleman] with fair notice of the potential sentence.” (Anderson, supra, 9 Cal.5th at p. 956.) Thus, the trial court’s imposition of the uncharged enhancement was error. (Nguyen, supra, 18 Cal.App.5th at p. 267.) The People cite several cases in support of their contention that imposition of the section 667, subdivision (a)(1) enhancement was mandatory. However, none address an unpled enhancement or notice to the defendant. In People v. Jackson (1986) 178 Cal.App.3d 694, 696, the information did allege that 4 Anderson cautioned: “We do not mean to suggest that an information that fails to plead the specific numerical subdivision of an enhancement is necessarily inadequate. [Citation.] Neither the relevant statutes nor the due process clause requires rigid code pleading or the incantation of magic words. But the accusatory pleading must adequately inform the defendant as to how the prosecution will seek to exercise its discretion.” (Anderson, supra, 9 Cal.5th at p. 957.) 7 the defendant sustained a prior conviction within the meaning of section 667, subdivision (a). In People v. Dotson (1997) 16 Cal.4th 547, 550, the California Supreme Court considered whether a court imposing a sentence under the Three Strikes law for a serious felony must also impose a separate determinate term for section 667, subdivision (a) enhancements. The Dotson opinion does not indicate whether the information alleged the section 667, subdivision (a) enhancements, nor was there any discussion of the defendant’s notice of the enhancements. People v. Vizcarra (2015) 236 Cal.App.4th 422 also does not address the issue here. It concerned a defendant’s argument that the trial court erred when resentencing him on remand from a prior appeal. The prior appeal was decided by an unpublished opinion. As described in the published Vizcarra opinion, in the unpublished opinion the court held that “the trial court erred and rendered an unauthorized sentence by (1) failing to impose a mandatory five-year enhancement under section 667(a)(1), and (2) failing to double under the Three Strikes law the two-year sentence it imposed for Vizcarra’s count 3 conviction.” (Id. at p. 426.) In the second, published opinion, the court considered how the doctrines of collateral estoppel and law of the case applied. (Id. at pp. 427, 429–430.) The court did not address whether an unpled enhancement may be imposed or address the issues of notice at issue here. Accordingly, Jackson, Dotson, and Vizcarra do not address the issue before us, and cases are not authority for propositions not considered. (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1252; People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.) Moreover, reliance on an unpublished California state court opinion is 8 improper, as such opinions may not be considered for precedential authority.5 (California Rules of Court, rule 8.1115.) Under the circumstances here, the trial court erred by imposing the unpled section 667, subdivision (a)(1) enhancement. (Nguyen, supra, 18 Cal.App.5th at pp. 266–267.) II. The Error Is Reviewable on Appeal “As a general rule, a criminal defendant who fails to object at trial to a purportedly erroneous ruling forfeits the right to challenge that ruling on appeal.” (Anderson, supra, 9 Cal.5th at p. 961.) “It is well established that a lack of notice can be forfeited by failure to object, even when it is claimed that it violated due process.” (Nguyen, supra, 18 Cal.App.5th at p. 271.) Aleman admits that his trial counsel failed to raise any claim of error regarding the section 667, subdivision (a)(1) enhancement. However, he asserts that we may review his claim under the unauthorized sentence doctrine, citing Nguyen. In Nguyen, the court held that the defendant’s failure to raise his statutory claim of error regarding an unpled enhancement in the trial court did not render the claim unreviewable on appeal “because the violation resulted in an unauthorized sentence.” (Nguyen, supra, 18 Cal.App.5th at p. 272.)6 5 In addition, the published version of Vizcarra was decided in 2015, before Nguyen and Anderson, which were issued in 2017 and 2020, respectively. 6 Nguyen’s forfeiture ruling is confined to the defendant’s statutory claim. The court held: “It may well be that defense counsel forfeited any constitutional objection based on lack of notice in violation of due process by failing to raise it below. However, he could not and he did not forfeit a statutory objection, 9 Anderson subsequently clarified that while we may consider a forfeited claim of error regarding an unpled enhancement, the unauthorized sentence doctrine does not provide the basis for our review. The court explained that to “impose unpleaded sentence enhancements is an error of a different variety . . . .” (Anderson, supra, 9 Cal.5th at p. 962, citing People v. Houston (2012) 54 Cal.4th 1186, 1227.) Our Supreme Court held that despite the defendant having forfeited the argument as to the unpled enhancement, the court could address it on appeal because the error was “clear and obvious” and affected the defendant’s substantial rights “by depriving [him] of timely notice of the potential sentence he faced.” (Anderson, at pp. 961, 963.) The court observed that there was no notice of the enhancement “midtrial,” and the prosecution did not indicate an intent to impose the enhancements until the day of sentencing, such that “the error was one that goes to the overall fairness of the proceeding.” (Id. at p. 963.) We similarly conclude that we may review Aleman’s claim for the first time on appeal. The error was clear and obvious under Nguyen, Anderson, and section 1170.1, subdivision (e). The trial court imposed a five-year enhancement that was never alleged in the charging document, as required by statute. In its trial brief, the prosecution asserted Aleman faced a maximum of 10 years, and the enhancement exposed him to an additional 5 years. He lacked notice of this additional sentence until after the guilt phase of trial, implicating the fairness of the proceeding. based on Penal Code section 1170.1, subdivision (e), because the violation resulted in an unauthorized sentence.” (Nguyen, supra, 18 Cal.App.5th at p. 272.) 10 This error affected Aleman’s substantial rights “by depriving [him] of timely notice of the potential sentence he faced.” (Anderson, supra, 9 Cal.5th at p. 963.) Under these circumstances, we reach the merits of Aleman’s claim despite his failure to object in the trial court. (Anderson, supra, 9 Cal.5th at p. 961 [pleading failures related to sentence enhancements that carry longer sentences constitute “the type of error we should address even though [the defendant] did not bring it to the trial court’s attention”].) III. The Error Was Not Harmless We disagree with the People that the error was harmless. The People did not reveal their intention to pursue the enhancement until their sentencing brief. This was too late. In Anderson, the court held that imposing the uncharged enhancement was not harmless error. The court explained: “[T]he purpose of a statutory pleading requirement is not simply to ensure the defendant has notice of the potential sentence on the day of sentencing. It is meant to give sufficient notice to permit the defense to make informed decisions about the case, including whether to plead guilty, how to allocate investigatory resources, and what strategy to deploy at trial.” (Anderson, supra, 9 Cal.5th at p. 964.) The prosecution did not clarify its intent to seek sentencing based on the unalleged enhancements until the sentencing hearing. (Anderson, supra, 9 Cal.5th at p. 964.) “At that point, the damage was done—it was by then too late to consider the prosecution’s pretrial plea deal or reshape his trial strategy.” (Ibid.; accord, In re Vaquera (2024) 15 Cal.5th 706, 726 [following Anderson and finding lack of notice of sentence not harmless 11 because it was too late for defendant to make informed decisions as to plea and trial strategy].) The Anderson court reasoned that the case would be different if the prosecution told the defendant “from the outset that it planned to seek the section 12022.53(e) enhancements as to the robbery counts but for some reason failed to include them in the information.” (Anderson, supra, 9 Cal.5th at p. 964.) The court distinguished People v. Houston, supra, 54 Cal.4th 1186, in which the defendant received notice of the potential sentence during the guilt phase of trial. The court in Anderson observed that in Houston, the court “ ‘actually notified defendant of the possible sentence he faced before his case was submitted to the jury, and defendant had sufficient opportunity to object to the indictment and request additional time to formulate a defense.’ ” (Anderson, at p. 962, quoting Houston, at p. 1229.) But in Anderson, the “notice given was too late to cure the defective pleading” and was thus “not harmless.” (Anderson, at p. 964.) As in Anderson, and unlike in Houston, the prosecution first indicated its intent to seek the enhancement after the guilt phase of trial. This was too late to cure the defective pleading and for Aleman to reconsider the prosecution’s plea deal or his trial strategy. The error was therefore not harmless. When faced with a 15-year sentence as opposed to a 10-year sentence, Aleman may have accepted the plea offer or reassessed his trial strategy. Regardless, we need not speculate as to what he would have done. Under Anderson, the prosecution’s lack of notice necessarily prevented him from doing either and was not harmless. (Anderson, supra, 9 Cal.5th at p. 964.) 12 We conclude the imposition of the five-year prior serious felony enhancement was not harmless. We remand for a full resentencing so the trial court may exercise its discretion considering these changed circumstances. DISPOSITION The imposition of the section 667, subdivision (a)(1) enhancement is reversed and the sentence is vacated. The matter is remanded to the trial court with directions to strike the section 667, subdivision (a)(1) enhancement and to resentence Aleman. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ASHWORTH, J.* We concur: ADAMS, P. J. HANASONO, J. * Retired Judge of the El Dorado Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 13