People v. Sawyers

Filed 9/26/17
CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B266897

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA133204)
v.

BRIAN ALONZO SAWYERS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, John J. Lonergan, Judge. Vacated in part
and affirmed in part; remanded for further proceedings.
Robert L.S. Angres, 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, Assistant
Attorney General, Joseph P. Lee and Jaime L. Fuster, Deputy
Attorneys 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 parts 1 and 3 of the Discussion.
 A jury convicted defendant and appellant Brian Alonzo
Sawyers of first degree murder, three counts of attempted
premeditated murder, and two counts of shooting at an occupied
dwelling. The offenses all arose from an incident in which
Sawyers and one or more companions fired numerous shots into a
house occupied by rival gang members and their family. The
trial court sentenced Sawyers to 75 years to life in prison
pursuant to the “Three Strikes” law. Sawyers contends
sentencing under the Three Strikes law was unauthorized
because the information failed to allege his prior offense was a
strike. In the published portion of the opinion, we conclude that
because the information failed to give Sawyers notice that he
faced sentencing under the Three Strikes law, and because the
“informal amendment” doctrine does not apply, his sentence must
be vacated. In the unpublished portion, we reject Sawyers’s
contention that the evidence was insufficient to support two of
the attempted murder charges. We also agree with the People
that the trial court erred by awarding conduct credits. We
therefore vacate the sentence, remand for resentencing, and
otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
a. Background information
Eighty-four-year-old Thomas Dunbar and his wife, Mary
Dunbar, lived with their daughter, Linda McCarter, at a house
located on South Northwood Avenue in Compton. McCarter’s
twin sons, Kionte and Dionte McCarter, lived there as well.1

1 For ease of reference, and with no disrespect, where family
members share the same last name we sometimes refer to them
by their first names.

2
Thomas was partially paralyzed, and Mary suffered from
dementia. Their bedrooms were in the front of the house and
faced the street.
The residence was located in an area claimed as the
territory of the Nutty Block Crips criminal street gang. Kionte
and Dionte were both Nutty Block Crip gang members, as were
other family members and the twins’ friend, Brandon Frison.
The Dunbar residence was known as a Nutty Block hangout.
Another Crip gang, ATF, was comprised of three Crip
gangs that had joined forces: Acacia Block, Spooktown, and
Farm Dogs. ATF claimed territory bordering that claimed by
Nutty Block, and the two gangs were rivals. In July 2013 the
Nutty Block and ATF gangs were engaged in a gang war.
Sawyers was an admitted member of the Spooktown gang, and
bore gang tattoos, including “NBK” for “Nutty Block killer.”2
b. The shooting
On the morning of July 25, 2013, at approximately
10:00 a.m., Frison was waiting for the McCarter twins on the
front porch of the Dunbar residence, talking on the phone, while
the twins changed clothes inside the house. Mary was inside,
asleep in one of the front bedrooms, and Linda had just lain
across the foot of Mary’s bed. Thomas was in the other front
bedroom, closest to the front door.
A silver Audi A4 and a charcoal gray Toyota Corolla
travelled slowly down Northwood. Two Black men were seated
inside each vehicle. As one of the vehicles approached the

2 In addition to this gang-related evidence, the People
presented the testimony of a gang expert. Because Sawyers does
not challenge the sufficiency of the evidence to support the gang
enhancements, we do not detail this additional testimony.

3
Dunbar residence, the two men inside fired over 20 gunshots at
the house. Frison fled into the Dunbar house as soon as the
shooting began. Thomas was shot three times, including a shot
to his head that later proved fatal; he had also been hit by bullet
fragments. Paramedics transported him to the hospital, where
he died of his injuries.
c. The investigation3
The police investigation of the crimes revealed that at least
three guns were used in the shooting, including a semiautomatic
rifle capable of firing shots that could penetrate walls. In an
undercover ruse operation, Sawyers made inculpatory statements
indicating he fired the rifle. A witness told detectives that a
week prior to the shooting, one or both of the McCarter twins had
beaten Sawyers. On the morning of the shooting, the witness
observed Sawyers, armed with a large gun, set off with other
gang members in two cars to kill the McCarter twins.
2. Procedure
Trial was by jury. Sawyers was convicted of the first
degree murder of Thomas (Pen. Code, § 187, subd. (a));4 the
attempted willful, deliberate, and premeditated murders of
Linda, Mary and Frison (§§ 664, 187, subd. (a)); and two counts of
shooting at an inhabited dwelling (§ 246). As to each offense, the
jury found Sawyers, and a principal, personally used and
discharged a firearm, causing death (§ 12022.53, subds. (b), (c),
(d), (e)(1)), and that the crimes were committed for the benefit of,

3 We discuss this evidence in more detail where relevant in
the unpublished portion of the opinion.

4 All further undesignated statutory references are to the
Penal Code.

4
at the direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)(1)). Sawyers admitted suffering prior
convictions for first degree burglary and receiving stolen
property. The trial court sentenced Sawyers to 25 years to life for
the murder, doubled pursuant to the Three Strikes law, plus a
25-year-to-life sentence on the section 12022.53, subdivision (d)
firearm enhancement, for a total term of 75 years to life. As to
each of the remaining counts, the trial court sentenced Sawyers
to concurrent terms of 15 years to life, doubled pursuant to the
Three Strikes law, plus 25 years to life for the section 12022.53,
subdivision (d) firearm enhancements. It stayed the remaining
section 12022.53, subdivisions (b), (c), and (e)(1) enhancements
and the section 186.22 gang enhancements. It ordered Sawyers
to pay direct victim restitution of $4,076 and imposed a
restitution fine, a suspended parole revocation restitution fine,
court operations fees, and criminal conviction assessments.
Sawyers appeals.
DISCUSSION
[[ Begin nonpublished portion ]]
[[ 1. Sufficiency of the evidence
Sawyers contends that the evidence was insufficient to
support his convictions for the attempted murders of Mary and
Linda, because there was no evidence he knew they were in the
residence and they were not in Frison’s vicinity when the
shooting transpired. He is incorrect.
a. Additional facts
Officers recovered 24 shell casings from the street in front
of the houses next to the Dunbar residence. Fifteen casings were
.223 caliber; the others were .45 caliber. Numerous bullet
fragments were recovered from the driveway of the home next to

5
the Dunbars’. There were 19 bullet strikes on the front of the
Dunbar home. There were nine bullet holes in Thomas’s bedroom
window, as well as numerous bullet marks on his bedroom wall
and his bed. There were three bullet holes in Mary’s bedroom
window, as well as bullet damage to a metal cabinet and a brown
dresser in her bedroom. A bullet fragment was also found in
Mary’s room. Linda’s car bore two bullet holes. The house next
door to the Dunbar residence had bullet damage to the gate, a
drain, a motorcycle, a car, and the garage; one bullet fragment or
casing was on the front door mat and another was in the garage.
A forensic firearms examiner determined that at least three
firearms were used in the shooting, one likely an AR-15
semiautomatic rifle capable of firing shots that could penetrate
windows and walls, or even multiple walls.
On September 12, 2013, Los Angeles County Sheriff’s
Detective Troy Ewing set up an undercover ruse operation in an
attempt to obtain incriminating statements from Sawyers. First,
Sawyers was placed in a fake lineup and told he had been
identified as the shooter. Sawyers was then returned to a
holding cell with three undercover detectives. During the six-
hour recorded conversation, Sawyers admitted being a
Spooktown and ATF gang member. He confirmed he had taken
care of covering up his crime, including burning his clothing and
getting rid of the gun. He stated that the shooting was
committed during the day, in rival gang territory. He boasted
about “[g]oing lethal” by personally firing multiple shots from a
.223-caliber firearm at a house on Northwood from the back seat
of a leased Audi, while his brother fired from two .45-caliber
firearms. He confirmed that another vehicle had also been
involved. He shot at a person who had been on the phone and

6
ran toward the house when the shooting began. He believed the
person on the porch had seen them “pull up and open fire.”
Sawyers believed another person had been on the porch as well.
Sawyers described the targeted house as a Nutty Block Crips
hangout. One of the undercover officers suggested Sawyers
should get the Audi detailed to eliminate evidence.
Shortly after the undercover operation concluded, Sawyers
made a recorded telephone call to an unidentified female from the
jail. He told the woman to make sure the Audi was “detailed.”
Detectives interviewed Janice Harvey Sessions, a current
or former Spooktown gang member, regarding the shooting.
Sessions stated that a week before the shooting, one or both of
the McCarter twins had beaten “the hell out of” Sawyers at a
Louisiana Fried Chicken restaurant. On the morning of the
shooting, she heard Sawyers request that other ATF members go
with him to kill the McCarter twins. The perpetrators set off in
two cars and Sawyers had a “big gun” that was approximately 20
inches long.5
b. The evidence was sufficient
When determining whether the evidence was sufficient to
sustain a criminal conviction, “ ‘ “we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is

5 Sessions was in custody at the time of the first interview
and stated she wanted a “deal” on her pending case in exchange
for providing information, but also wanted to help because she
knew Thomas. At trial she denied making any statements about
the shooting. She claimed her recorded statements were untrue
and were the product of coercion, intoxication, or her mental
illness.

7
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.]’ ” (People v. McCurdy (2014) 59 Cal.4th 1063,
1104; People v. Johnson (2015) 60 Cal.4th 966, 988.) We presume
in support of the judgment the existence of every fact the trier of
fact could reasonably deduce from the evidence. (People v.
Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted
unless it appears “ ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’
[Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; People v.
Zamudio (2008) 43 Cal.4th 327, 357.)
To prove attempted murder, the People must establish the
defendant intended to kill. “Attempted murder requires the
specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing.”
(People v. Lee (2003) 31 Cal.4th 613, 623; People v. Covarrubias
(2016) 1 Cal.5th 838, 890.) The defendant need not intend to kill
a specific target; the intent to kill “a human being” rather than “a
particular human being,” is sufficient. (People v. Stone (2009)
46 Cal.4th 131, 134.) Intent to kill, that is, express malice,
requires a showing that the assailant either desires the result or
knows, to a substantial certainty, that the result will occur.
(People v. Smith (2005) 37 Cal.4th 733, 739.) The required
mental state may be inferred from the circumstances. (Id. at
p. 741.)
Here, the People contended Sawyers was guilty of the
attempted murders of Mary and Linda under the “kill zone”
theory. In People v. Bland (2002) 28 Cal.4th 313, the defendant
shot at three persons, killing one and injuring the other two. Our
Supreme Court concluded that the doctrine of transferred intent

8
was inapplicable to the crime of attempted murder. (Id. at
pp. 317, 326.) Nonetheless, People v. Bland explained that a
person who shoots at a group of people might “still be guilty of
attempted murder of everyone in the group” on a concurrent
intent or “kill zone” theory. (Id. at p. 329.) People v. Bland
reasoned: “although the intent to kill a primary target does not
transfer to a survivor, the fact the person desires to kill a
particular target does not preclude finding that the person also,
concurrently, intended to kill others within . . . the ‘kill zone.’
‘The intent is concurrent . . . when the nature and scope of the
attack, while directed at a primary victim, are such that we can
conclude the perpetrator intended to ensure harm to the primary
victim by harming everyone in that victim’s vicinity. For
example, an assailant who places a bomb on a commercial
airplane intending to harm a primary target on board ensures by
this method of attack that all passengers will be killed.
Similarly, consider a defendant who intends to kill A and, in
order to ensure A’s death, drives by a group consisting of A, B,
and C, and attacks the group with automatic weapon fire or an
explosive device devastating enough to kill everyone in the group.
The defendant has intentionally created a “kill zone” to ensure
the death of his primary victim, and the trier of fact may
reasonably infer from the method employed an intent to kill
others concurrent with the intent to kill the primary victim.
When the defendant escalated his mode of attack from a single
bullet aimed at A’s head to a hail of bullets or an explosive device,
the factfinder can infer that, whether or not the defendant
succeeded in killing A, the defendant concurrently intended to
kill everyone in A’s immediate vicinity to ensure A’s death. The
defendant’s intent need not be transferred from A to B, because

9
although the defendant’s goal was to kill A, his intent to kill B
was also direct; it was concurrent with his intent to kill A. Where
the means employed to commit the crime against a primary
victim create a zone of harm around that victim, the factfinder
can reasonably infer that the defendant intended that harm to all
who are in the anticipated zone.’ ” (Id. at pp. 329–330.)
People v. Vang (2001) 87 Cal.App.4th 554, cited with
approval in Bland, is on all fours with the evidence here. In
People v. Vang, the defendant committed two drive-by shootings,
firing at two occupied houses. (People v. Vang, supra, at pp. 556–
557.) Vang upheld attempted murder charges as to everyone in
both houses, even though the defendant may have targeted only
one person at each house. (Id. at pp. 563–564; see People v.
Bland, supra, 28 Cal.4th at p. 330.) “The jury drew a reasonable
inference, in light of the placement of the shots, the number of
shots, and the use of high-powered, wall-piercing weapons, that
defendants harbored a specific intent to kill every living being
within the residences they shot up. . . . [D]efendants manifested
a deliberate intention to unlawfully take the lives of others when
they fired high-powered, wall-piercing, firearms at inhabited
dwellings. The fact they could not see all of their victims did not
somehow negate their express malice or intent to kill as to those
victims who were present and in harm’s way, but fortuitously
were not killed.” (People v. Vang, supra, at pp. 563–564.) The
court concluded: “spraying an occupied residence with bullets
from high-powered assault rifles manifests a deliberate intention
to unlawfully take the lives of its inhabitants.” (Id. at p. 556; see
also People v. Bland, supra, at pp. 330–331 [application of kill
zone theory was “virtually compel[led]” when defendant fired a
flurry of bullets at a fleeing car, thereby creating a kill zone].)

10
 The instant matter is indistinguishable from Vang, and
accordingly the evidence was sufficient for the jury to find
Sawyers guilty under a “kill zone” theory. The nature and scope
of Sawyers’s attack supports this conclusion. (See People v. Perez
(2010) 50 Cal.4th 222, 232 [kill zone theory is defined by the
nature and scope of the attack].) Sawyers and his confederates
fired at least 20 rounds from three weapons, at least one of which
had bullets capable of piercing walls. They shot not just at the
doorstep where they saw Frison, but instead sprayed the entire
house and surrounding house with gunfire. Bullet strikes and
fragments were found in both the murder victim’s room and the
second front bedroom where Mary was sleeping. Bullet damage
extended to the next-door neighbor’s property. Sawyers stated,
during the undercover conversation, that he had gone “lethal”
with the gun. In addition to trying to kill Frison, the evidence
showed he also wished to kill the twins. Since he did not know
where the twins were located in the house, the jury could
reasonably infer he intended to kill everyone in the house in
order to ensure he hit them as well as Frison. The circumstances
here – spraying a house with bullets from a high powered, wall-
piercing firearm – is one of the classic examples of the kill zone
theory provided by the Bland court.
Contrary to Sawyers’s argument, the fact he was unaware
Mary and Linda were in the house does not demonstrate an
evidentiary insufficiency. There is no requirement the victims
must have been visible to the defendant, nor must he have known
of their presence. “Whether or not the defendant is aware that
the attempted murder victims were within the zone of harm is
not a defense, as long as the victims actually were within the
zone of harm.” (People v. Adams (2008) 169 Cal.App.4th 1009,

11
1023;6 People v. Vang, supra, 87 Cal.App.4th at pp. 563–564;
People v. Windfield, supra, 3 Cal.App.5th at p. 756, rev.gr.; People
v. Stone, supra, 46 Cal.4th at p. 140 [“a terrorist who simply
wants to kill as many people as possible, and does not know or
care who the victims will be, can be just as guilty of attempted
murder”]; cf. People v. Trujillo (2010) 181 Cal.App.4th 1344,

6 In describing the kill zone theory, the Smith court stated
that where the kill zone theory applies, “a rational jury could
conclude beyond a reasonable doubt that the shooter intended to
kill not only his targeted victim, but also all others he knew were
in the zone of fatal harm.” (People v. Smith, supra, 37 Cal.4th at
p. 746, italics added.) As People v. Adams explained, Smith’s
language does not compel the conclusion that the kill zone theory
applies only when the defendant knows persons other than the
target are present in the kill zone. (People v. Adams, supra,
169 Cal.App.4th at p. 1022.) People v. Adams explained that
Smith’s observations were dicta, because that matter was not a
kill zone case. (People v. Adams, supra, at p. 1022; see also
People v. Windfield (2016) 3 Cal.App.5th 739, 759, review granted
Jan. 11, 2017, S238073.) Further, “the fact that a rational jury
could conclude that a defendant who knows of the presence of the
victims, which was the factual scenario in People v. Smith, had
the necessary express malice does not preclude a rational jury
from concluding that a defendant who does not know of the
presence of the victims also had the necessary express malice if
the jury found that the defendant intentionally created a zone of
harm and that the victims were in that zone of harm.” (People v.
Adams, supra, at p. 1023.) In People v. Vang, for example, the
court concluded the defendant harbored a specific intent to kill
everyone within the residences he “shot up,” despite the fact he
could not see all the victims. (People v. Vang, supra,
87 Cal.App.4th at p. 564.) As noted, Vang was cited with
approval in People v. Bland, supra, 28 Cal.4th at p. 330.

12
1357.) For example, in Bland’s airplane hypothetical, the court
did not suggest that the bomber’s liability would hinge on his or
her correct estimate of how many people were on board.
Relying primarily on People v. McCloud (2012)
211 Cal.App.4th 788 (McCloud), Sawyers argues that the
evidence showed only that he intended to kill Frison and attacked
in a manner that subjected other persons to risk. Under
McCloud, he urges, the kill zone theory applies only if he
specifically intended to kill everyone in a particular area as a
means of killing a targeted individual. In McCloud, the
defendants fired 10 shots from a semiautomatic handgun at a
party attended by over 400 people. Their shots hit three victims,
killing two and injuring the third. (Id. at pp. 790–791.) They
were convicted of two counts of second degree murder and one of
the defendants was convicted of 46 counts of attempted murder.
(Id. at p. 792.) McCloud concluded the trial court prejudicially
erred by instructing the jury on the kill zone theory because it
was not supported by the evidence; moreover, insufficient
evidence supported the attempted murder convictions. (Id. at
pp. 796, 802, 805–806.) The court reasoned: “The kill zone
theory . . . does not apply if the evidence shows only that the
defendant intended to kill a particular targeted individual but
attacked that individual in a manner that subjected other nearby
individuals to a risk of fatal injury. Nor does the kill zone theory
apply if the evidence merely shows, in addition, that the
defendant was aware of the lethal risk to the nontargeted
individuals and did not care whether they were killed in the
course of the attack on the targeted individual. Rather, the kill
zone theory applies only if the evidence shows that the defendant
tried to kill the targeted individual by killing everyone in the area

13
in which the targeted individual was located. The defendant in a
kill zone case chooses to kill everyone in a particular area as a
means of killing a targeted individual within that area. In effect,
the defendant reasons that he cannot miss his intended target if
he kills everyone in the area in which the target is located.” (Id.
at p. 798.) The evidence in McCloud was deemed insufficient to
support the kill zone theory because there was no showing
defendants intended to kill 46 people with the 10 bullets they
fired, nor would it have been possible for them to do so, given the
type of ammunition used. (Id. at pp. 799–800; see People v.
Falaniko (2016) 1 Cal.App.5th 1234, 1244.)
The facts here are similar to Vang, not McCloud.7 Sawyers
used a high-powered assault rifle to spray the house with a hail

7 People v. Windfield, supra, 3 Cal.App.5th 739, review
granted, disagreed with McCloud’s analysis. People v. Windfield
reasoned that McCloud “goes too far. The language in Bland . . .
posits that the intent to kill the nontargeted person(s) can be
inferred from the nature and scope of the attack or from the
method employed. If, as McCloud asserts, the defendant must in
fact intend to kill each attempted murder victim, there is no
reason to employ the theory—the intent to kill is established
without resort to the theory.” (People v. Windfield, supra, at p.
760.) Moreover, People v. Windfield found McCloud’s “restrictive
view” of the theory irreconcilable with other authorities,
including People v. Adams, supra, 169 Cal.App.4th 1009. (People
v. Windfield, supra, at p. 761.) As noted, review has been
granted in People v. Windfield, and the question of the proper
instruction on the kill zone theory is currently pending before our
Supreme Court. (People v. Canizales (2014) 229 Cal.App.4th 820,
review granted Nov. 19, 2014, S221958; Windfield, supra; People
v. Sek (2015) 235 Cal.App.4th 1388, review granted July 22,
2015, S226721.) We need not reach the question of whether

14
of wall-piercing bullets, one of the examples the Bland court cited
as a classic example of a kill zone. (Bland, supra, 28 Cal.4th at
p. 330.) As in Vang, and in contrast to McCloud, from this
evidence the jury could reasonably infer Sawyers fully intended
to kill everyone in the house in order to be sure his target was
hit. (See McCloud, supra, 211 Cal.App.4th at p. 800, fn. 5
[distinguishing Vang].) The evidence was sufficient. ]]
[[ End nonpublished portion ]]
2. Sentencing under the Three Strikes law
Sawyers asserts that the trial court improperly sentenced
him under the Three Strikes law because the information did not
allege his prior burglary conviction was a strike, and he did not
admit the conviction constituted a strike within the meaning of
the Three Strikes law. This contention has merit.
a. Additional facts
An information filed on January 22, 2015, alleged Sawyers
had suffered two prior convictions, one for first degree burglary
and one for receiving stolen property. First, the information
alleged Sawyers had served a prior prison term for both prior
convictions within the meaning of section 667.5, subdivision (b),
and stated that if proven, these convictions could each add a one-
year term to Sawyers’s sentence. Second, the information
alleged, as to the first degree burglary: “as to count(s) 1, 2, 3, 4
and 5 . . . an executed sentence for a felony pursuant to this
subdivision shall be served in state prison pursuant to Penal
Code section 1170(h)(3) in that the defendant(s), Brian Alonzo
Sawyers, has suffered the following prior conviction(s) of a

McCloud correctly states the law because even under its more
restrictive analysis, the evidence was sufficient.

15
serious felony described in Penal Code section 1192.7 or a violent
felony described in Penal Code section 667.5(c) or is required to
register as a sex offender pursuant to Chapter 5.5 (commencing
with Penal Code section 290) of Title 9 of Part 1.” (Italics added,
capitalization omitted.) Nowhere did the information expressly
reference the Three Strikes law and its alternative sentencing
scheme. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d).)
On June 5, 2015, prior to trial, over a defense objection, the
People were permitted to amend the information to add section
12022.53, subdivision (d) and (e)(1) firearm allegations. The
prosecutor did not state that the information was being amended
to add an allegation that the prior burglary was a strike, nor did
the parties or the trial court discuss such an amendment. The
trial court’s minute order merely states the information was
amended “to add special allegations.”8 During the same colloquy,
the trial court discussed the prior convictions alleged and
referred to them as “two one-year prior allegations.” It queried
whether Sawyers wished to bifurcate the priors, and Sawyers
said he did.
On June 18, 2015, immediately after the jury retired for
deliberations, the trial court and the parties discussed the
amendments to the section 12022.53 allegations, in the context of
the final verdict forms. The prosecutor confirmed that she had
made amendments at the start of the trial, “to add (d)” to the
section 12022.53 allegations. The trial court then asked defense

8 The record on appeal does not contain a copy of an
amended information. The superior court clerk has certified that
she was unable to locate such a document in the superior court’s
files. She requested that the district attorney’s office search their
files as well, but they were unable to locate a copy.

16
counsel how he wished to handle the “bifurcated priors,” and
counsel stated he expected defendant to admit the priors if
convicted. The trial court stated that the information “also
alleged some priors,” and specifically referred to page 8 of the
information (the page that contained the section 667.5,
subdivision (b) and the section 1170, subdivision (h)(3)
allegations). The trial court stated that the information alleged
“a prior strike in the VA case, that was the 459 from August 2013
and in addition to that there’s another prior conviction of a 496, a
nonstrike. They were bifurcated.” The trial court advised
Sawyers of his Boykin/Tahl rights9 and his option to choose a
bench trial. Sawyers was not informed of any possible
punishment under the Three Strikes law. After the trial court
confirmed that Sawyers had conferred with his attorney, Sawyers
waived jury trial and agreed to a court trial as to the bifurcated
priors.
After the jury rendered its verdict on June 19, 2015,
defense counsel stated he anticipated a waiver on the prior
conviction allegations. At the request of the defense, the matter
was continued until August 6, 2015. On July 9, 2015, the People
filed a sentencing memorandum requesting that Sawyers’s
sentence be doubled pursuant to the Three Strikes law. Sawyers
filed a sentencing memorandum requesting concurrent terms.
He did not object to application of the Three Strikes law.
On August 6, 2015, Sawyers indicated he wished to admit
the prior conviction allegations. The trial court obtained
Sawyers’s waivers and then accepted Sawyers’s admission, as

9 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969)
1 Cal.3d 122; In re Yurko (1974) 10 Cal.3d 857, 863.)

17
follows: “[D]o you . . . admit that you suffered a prior conviction
in case VA130808 and that was for P.C. 459 in the first degree
and that was on or about August 16th, 2013?” Sawyers replied,
“Yes.”10 The minute order states that Sawyers admitted “prior
conviction on VA130808 and TA129036 pursuant to Penal Code
section 667.5(b).” The trial court sentenced Sawyers as set forth
above, including doubling the terms on all counts pursuant to the
Three Strikes law. At no point did the defense object to Three
Strikes sentencing. The trial court did not address, strike or stay
any of the allegations that had been alleged pursuant to section
667.5, subdivision (b).
b. Legal principles
The Three Strikes law requires that prior felony convictions
be pleaded and proved. (§§ 667, subd. (c), 1170.12, subd. (a);
People v. Blackburn (1999) 72 Cal.App.4th 1520, 1525–1526.) In
addition to this statutory requirement, a defendant “has a
cognizable due process right to fair notice of the specific sentence
enhancement allegations that will be invoked to increase
punishment for his crimes.” (People v. Mancebo (2002) 27 Cal.4th
735, 747 (Mancebo); see People v. Houston (2012) 54 Cal.4th 1186,
1227 (Houston); People v. Robinson (2004) 122 Cal.App.4th 275,
282 [“Due process requires the pleading apprise the defendant of
the potential for an enhanced penalty and allege every fact and
circumstance necessary to establish the increased penalty”].)
Thus, “except for lesser included offenses, an accused cannot be
convicted of an offense of which he has not been charged,

10 Sawyers also admitted suffering the prior conviction for
receiving stolen property. He does not challenge the validity of
that admission on appeal.

18
regardless of whether there was evidence at his trial to show he
committed the offense. [Citation.] An exception exists if the
accused expressly or impliedly consents or acquiesces in having
the trier of fact consider a substituted, uncharged offense.
[Citations.] The same rules apply to enhancement allegations.”
(People v. Haskin (1992) 4 Cal.App.4th 1434, 1438.)
The “Penal Code permits accusatory pleadings to be
amended at any stage of the proceedings ‘for any defect or
insufficiency’ (§ 1009), and bars reversal of a criminal judgment
‘by reason of any defect or imperfection in matter of form which
does not prejudice a substantial right of the defendant upon the
merits’ (§ 960).” (People v. Whitmer (2014) 230 Cal.App.4th 906,
919 (Whitmer); People v. Sandoval (2006) 140 Cal.App.4th 111,
132.) “Section 969a authorizes amendments to an accusatory
pleading for the purpose of alleging a prior felony conviction
‘[w]henever it shall be discovered’ ” that the pleading does not
charge all prior felonies, up to the time the jury is discharged.
(See People v. Sandoval, supra, at p. 132; People v. Tindall (2000)
24 Cal.4th 767, 776, 782.) A pleading may be amended orally.
(People v. Sandoval, supra, at pp. 132–133 [“California law does
not attach any talismanic significance to the existence of a
written information”]; Whitmer, supra, at p. 919 [“an information
may be amended without written alterations to it”].)
Additionally, under the “informal amendment” doctrine, a
defendant may, by his conduct, impliedly consent to amendment
of a pleading. The “ ‘proceedings in the trial court may constitute
an informal amendment of the accusatory pleading, when the
defendant’s conduct or circumstances created by him amount to
an implied consent to the amendment.’ ” (Whitmer, supra, at
p. 919.)

19
 c. Application here
Sawyers argues that he cannot be sentenced under the
Three Strikes law despite his admission of the prior conviction,
because he lacked adequate notice that he was subject to the
Three Strikes sentencing scheme. The People, on the other hand,
suggest we can infer from the record that “the amended
information added a Three Strikes allegation as to the prior
burglary conviction,” and therefore it was not deficient. They
point out that during the discussion in which Sawyers agreed to a
bench trial on the prior conviction allegations, the trial court
stated that one of the priors alleged was a strike. In the People’s
view, because there was no objection at that point, or later when
the trial court imposed sentence pursuant to the Three Strikes
law, the amended information must have included the Three
Strikes allegation. Alternatively, they contend that even if the
information was not so amended, Sawyers had fair notice the
prior would be treated as a strike. They point out that the
information alleged the prior burglary was a serious or violent
felony within the meaning of sections 667.5 and 1192.7, and first
degree burglary is a strike as a matter of law; at the June 18
proceeding the trial court stated that the burglary was a strike;
and the failure to specify a statute by number can be overcome by
factual allegations adequately informing the defendant of the
sentencing allegation charged. (See People v. Haskin, supra,
4 Cal.App.4th at p. 1439 [a reference to an incorrect penal statute
“can be overcome by factual allegations adequate to inform the
defendant of the crime charged”]; People v. Shoaff (1993)
16 Cal.App.4th 1112, 1117-1118.)
In our view, Sawyers’s argument carries the day. Given
the record, we cannot infer the information was actually

20
amended to allege that the burglary was a strike. The fact the
court file does not contain an amended information and the
People failed to produce one in response to the superior court
clerk’s inquiry suggests no written amended information was
prepared. The record likewise does not suggest the prosecutor
orally amended the information to allege the burglary was a
strike. The only amendment discussed on the record at the June
5 proceeding was the addition of section 12022.53, subdivision (d)
and (e)(1) allegations. Defense counsel objected to that addition,
but not to any other amendment, suggesting no other amendment
was offered. The prosecutor never stated that she was amending
to allege a strike. At the same proceeding, the trial court
observed that the information contained two “one-year prior
allegations,” that is, the section 667.5, subdivision (b) prior prison
term allegations; it did not mention a strike allegation. The trial
court’s statement was consistent with the original information –
which contained only the section 667.5, subdivision (b) and
section 1170, subdivision (h)(3) allegations – rather than with a
purported amendment to add a strike allegation.11 The failure to
reference an amendment or state Sawyers was subject to Three
Strikes sentencing suggests no amendment was contemplated.
Nor can we conclude the informal amendment doctrine
applies. As noted, under that doctrine “a defendant’s conduct
may effect an informal amendment of an information without the
People having formally filed a written amendment to the
information.” (People v. Sandoval, supra, 140 Cal.App.4th at

11 That the amendment did not include a strike allegation
was further evidenced by the fact that the only case cited, People
v. Oates (2004) 32 Cal.4th 1048, related to the section 12022.53,
subdivision (d) enhancement.

21
p. 133.) For example, in Whitmer, the defendant was charged
with grand theft under former section 487, based on his
orchestration of the theft of motorcycles and other recreational
vehicles. (Whitmer, supra, 230 Cal.App.4th at p. 916.) At the
relevant time, section 487, subdivision (a) defined grand theft as
theft of property valued at over $400; subdivision (d)(1) provided
that theft of an automobile was likewise grand theft. The
defendant was charged with grand theft under subdivision (d)(1).
Without objection, the court instructed the jury that the
defendant could be convicted of grand theft if he stole property
worth more than $400, or if he stole an automobile. (Whitmer,
supra, at p. 920.) Whitmer held that the stolen vehicles did not
qualify as “automobiles” within the meaning of section 487,
subdivision (d)(1), and therefore the defendant was improperly
charged under that subdivision. (Whitmer, supra, at pp. 917–
919.) Nonetheless, his conviction could stand, because he was
properly convicted under section 487, subdivision (a) of theft of
property valued at over $400. Under the “informal amendment
doctrine,” because the defense never objected to the instructions,
the defendant impliedly consented to the submission of both
theories to the jury. (Whitmer, supra, at pp. 919–920; see also
Houston, supra, 54 Cal.4th at pp. 1226–1229; People v. Toro
(1989) 47 Cal.3d 966, 976-977 [information charged only
attempted murder and assault with a deadly weapon, but
defendant’s failure to object when the jury was instructed on, and
given verdict forms including, the uncharged offense of battery
with serious bodily injury, amounted to implied consent to treat
the information as having been amended to include the battery
charge], disapproved on another ground in People v. Guiuan
(1998) 18 Cal.4th 558, 568, fn. 3; People v. Hensel (1965)

22
233 Cal.App.2d 834, 839-840 [at defense counsel’s request, after a
bench trial the court entered a judgment that defendant was
guilty of an unpled lesser charge; by his conduct, defendant
impliedly consented to informal amendment], disapproved on
another ground by People v. Triggs (1973) 8 Cal.3d 884, 890, 894,
fn. 7.)
The instant matter is distinguishable from the foregoing
authorities. The “touchstone of determining the adequacy of an
accusatory pleading is whether the defendant had adequate
notice of the charges against him.” (People v. Sandoval, supra,
140 Cal.App.4th at p. 134; Whitmer, supra, 230 Cal.App.4th at
p. 919 [the function of an accusatory pleading is to give the
accused notice of the charges].) The informal amendment
doctrine therefore applies only when a defendant had reasonable
notice of a sentence enhancement allegation despite an
incomplete pleading. Here, Sawyers did not have such notice.
The People did not orally amend the information as in Sandoval.
Sawyers did not agree to jury instructions or verdict forms on an
unpleaded charge, as in Houston, Whitmer and Toro, or request
substitution of an unpled charge, as in Hensel. Certainly,
Sawyers had notice of the factual allegations underlying Three
Strikes sentencing; the information alleged, in the context of
section 1170, subdivision (h)(3), the prior burglary was a serious
felony described in section 1192.7 or a violent felony described in
section 667.5. But neither the information nor the court
proceedings gave Sawyers fair notice that his sentence would be
doubled under the Three Strikes law.
The first mention of the Three Strikes law was at the
June 18, 2015 proceeding, in which the trial court stated in
passing that one of the priors was a strike. The defense did not

23
object. But this statement lacked meaningful context, as there
was no indication that Sawyers faced the possibility of Three
Strikes sentencing. Instead the trial court stated, “[y]ou and
your attorney made the decision to bifurcate those” priors. The
bifurcated priors had been previously characterized as “one-year
prior allegations,” that is, alleged as the basis for section 667.5,
subdivision (b) prior prison term enhancements. When Sawyers
waived his Boykin/Tahl rights on the bifurcated priors and
agreed to a court trial, there was no mention of Three Strikes
sentencing. The sole reference to one of the bifurcated priors as a
prior strike, in this context, was insufficient to give Sawyers
notice that he was subject to Three Strikes sentencing.
The first explicit reference to Three Strikes sentencing was
in the People’s sentencing memorandum, filed July 9, 2015, after
Sawyers had waived his right to a jury trial on the prior
conviction allegations. When Sawyers admitted his priors, he
was not advised that the prior burglary was a strike. Neither the
trial court nor the prosecutor advised that the admission could
result in Three Strikes sentencing. Indeed, the minute order
states only that Sawyers admitted the priors pursuant to section
667.5, subdivision (b). While the People are correct that defense
counsel never objected to the prosecution’s sentencing
memorandum or to the trial court’s imposition of a second strike
sentence, on these facts we cannot conclude from those omissions
alone that the informal amendment doctrine applies.
Thus, lacking a written, oral, or informal amendment,
Three Strikes sentencing was impermissible. Several authorities
compel this conclusion. In Mancebo, supra, 27 Cal.4th 735, the
defendant was charged with a variety of sexual offenses against
two victims. (Id. at p. 740.) As to each offense, two special

24
circumstances were alleged under the “One Strike” law,12 but a
multiple-victim special circumstance was not alleged. The jury
found the defendant personally used a firearm, but the
prosecution was forced to choose between using that fact to either
impose an enhancement under section 12022.5, subdivision (a), or
a life term under the One Strike law. (Mancebo, supra, at
p. 744.) For the first time, at sentencing, the prosecutor sought
to dismiss the gun-use allegation under the One Strike law and
substitute an unpleaded multiple-victim circumstance so that
both the determinate-term enhancement and the life term could
be imposed. Mancebo concluded section 667.61, subdivision (f)
“precluded the trial court from striking those circumstances in
order to free up gun use as a basis for imposing lesser
enhancement terms under section 12022.5(a).” (Mancebo, supra,
at pp. 749–750, fn. 7.) It reasoned: “the information neither
alleged multiple victim circumstances nor referenced
subdivision (e)(5) of section 667.61 in connection with those
counts. In other words, no factual allegation in the information
or pleading in the statutory language informed defendant that if
he was convicted of the underlying charged offenses, the court
would consider his multiple convictions as a basis for One Strike
sentencing under section 667.61, subdivision (a).” (Id. at p. 745.)
Mancebo concluded the defendant’s due process rights (as well as
the statutory pleading requirements of the One Strike law) were
violated “not because defendant was never afforded notice that he
was being charged with crimes against two victims; he obviously

12 Like the Three Strikes law, the One Strike law is an
alternative sentencing scheme. (People v. Carbajal (2013)
56 Cal.4th 521, 534; Mancebo, supra, 27 Cal.4th at p. 738.)

25
was, and not because defendant was never afforded notice that
the One Strike law would apply to his case; again, he was.
Sentencing error occurred because defendant was given notice
that gun use would be used as one of the two pleaded and
minimally required circumstances in support of the One Strike
terms, whereafter, at sentencing, the trial court used the unpled
circumstance of multiple victims to support the One Strike terms,
and further imposed two 10-year section 12022.5(a)
enhancements that could otherwise not have been imposed but
for the purported substitution.” (Id. at p. 753.)
In People v. Arias (2010) 182 Cal.App.4th 1009, the
information charged the defendant with attempted murder, but
failed to allege the attempted murders were willful, deliberate
and premeditated as expressly required by section 664,
subdivision (a). Despite this omission the jury found the
defendant guilty of “attempted first-degree” murder and the trial
court sentenced him to life terms pursuant to section 664.
Relying on Mancebo, the appellate court concluded that because
neither the information nor any pleading gave defendant notice
that he was potentially subject to the enhanced punishment
provision under section 664, subdivision (a), the sentence was
improper. (People v. Arias, supra, at pp. 1019–1021.)
In People v. Botello (2010) 183 Cal.App.4th 1014, the People
charged personal firearm use enhancements against two
defendants pursuant to section 12022.53, subdivisions (b), (c),
and (d), but did not allege a principal armed allegation under
subdivision (e)(1). (People v. Botello, supra, at p. 1021.) The
People conceded the evidence was insufficient to prove personal
use of a firearm as to either defendant, but argued the section
12022.53 enhancements could nonetheless be imposed pursuant

26
to subdivision (e)(1). (Botello, supra, at p. 1022.) Botello held
application of subdivision (e)(1) would violate that subdivision’s
pleading and proof requirements, as well as the notice
requirement of due process. (Botello, supra, at p. 1022.) “ ‘[N]o
factual allegation in the information or pleading in the statutory
language informed defendant[s] that if [they were] convicted of
the underlying charged offenses,’ they would be subject to the
firearm enhancements of section 12022.53, subdivisions (b)
through (d) by virtue of the circumstances listed in subdivision
(e)(1).” (People v. Botello, supra, at p. 1027; see also People v.
Haskin, supra, 4 Cal.App.4th at p. 1440 [where nothing in the
record suggested defendant had impliedly consented to have the
court consider a section 667.5, subdivision (b) allegation as a
nonincluded section 667 (five-year) enhancement, trial court was
without authority to impose a sentence greater than that
authorized by section 667.5, subdivision (b)].)
Most recently, People v. Wilford (2017) 12 Cal.App.5th 827
came to a similar conclusion. There, the defendant was charged
with domestic violence. Section 273.5, subdivision (f)(1) provides
that a defendant who has suffered specified priors within seven
years of the charged offense may be punished with a two-, four-,
or five-year term. Subdivision (h)(1) provides that if such a
person is granted probation, he or she must serve at least 15 days
in jail. The information in People v. Wilford included a section
273.5, subdivision (h)(1) allegation, but not a subdivision (f)(1)
allegation. (People v. Wilford, supra, at pp. 835-836.) The trial
court found the subdivision (h)(1) allegations true. Without
objection, it sentenced Wilford pursuant to subdivision (f)(1),
based on its true finding on the subdivision (h)(1) allegation.
(People v. Wilford, supra, at p. 836.) This was improper.

27
Although the information alleged Wilford had been convicted of a
qualifying offense within the previous seven years, the pleading
referenced only section 273.5, subdivision (h)(1). “Nothing in the
amended information gave any hint that the prosecution also
sought to make Wilford subject to the provisions of section 273.5,
subdivision (f)(1), which would increase the applicable sentencing
range.” (People v. Wilford, supra, at p. 838.) Although the
information included “every fact necessary to impose the sentence
under section 273.5, subdivision (f)(1),” there was no advisement
that the prosecution intended to use the factual allegations to
increase Wilford’s sentence under subdivision (f)(1). (People v.
Wilford, supra, at p. 838.) It was “inconsequential whether
section 273.5, subdivision (f)(1) is labeled an enhancement,
alternative sentencing scheme, or a sentencing statute. The
amended information specified that, for counts 5 and 6, Wilford
faced a sentence of two, three, or four years with the possibility of
an additional 15 days under section 273.5, subdivision (h)(1) for
each count. There was no indication whatsoever that Wilford
faced the possibility of a sentence of two, four, or five years for
each of those same offenses under section 273.5, subdivision
(f)(1). Further, the prosecutor only sought an increased sentence
under that subdivision after the jury returned its verdict and the
court found true the qualifying prior conviction. The resulting
sentence under section 273.5, subdivision (f)(1) violated Wilford’s
due process rights and cannot stand.” (Id. at p. 840.)
The foregoing authorities compel the conclusion that
Sawyers cannot be subjected to Three Strikes sentencing.
Similar to the One Strike sentencing scheme at issue in Mancebo,
the Three Strikes scheme includes a pleading and proof
requirement. (§§ 667, subd. (c); 1170.12, subd. (a).) As explained

28
above, Sawyers had notice that the burglary was alleged to be a
serious or violent felony for purposes of section 1170, subdivision
(h)(3). But, because the information did not allege section 667,
subdivisions (b) through (i) or section 1170.12, subdivisions (a)
through (d), or otherwise reference the Three Strikes law,
Sawyers had insufficient notice that the People would seek
sentencing under the Three Strikes law if he admitted the prior,
a “critical shortcoming.” (People v. Wilford, supra, 12
Cal.App.5th at p. 840; see Mancebo, supra, 27 Cal.4th at p. 745;
People v. Botello, supra, 183 Cal.App.4th at p. 1027.) As noted,
neither the trial court’s mention of the strike nor the information
gave Sawyers even an inkling that the People would seek to use
the prior burglary as the basis for Three Strikes sentencing.
When Sawyers waived his right to a jury trial on the prior
conviction allegations, he had no notice that the People intended
to request Three Strikes sentencing. By the time he admitted the
prior, the People had filed their sentencing memorandum, which
did indeed request application of the Three Strikes law. But the
People offer no persuasive authority suggesting that, on the facts
presented here, a sentencing memorandum is an adequate
substitute for a proper pleading.
The People also contend that Sawyers’s failure to object to
the imposition of a Three Strikes sentence forfeited his claim that
he lacked adequate notice. But it is the People’s burden to
properly plead enhancement allegations, not the defendant’s
responsibility to ferret them out. A similar argument was
rejected in Mancebo, which concluded that imposing a sentence
based on an unpleaded gun-use circumstance resulted in an
unauthorized sentence not subject to the forfeiture doctrine.
(Mancebo, supra, 27 Cal.4th at pp. 749–750, fn. 7; People v. Arias,

29
supra, 182 Cal.App.4th at p. 1017 [“imposition of a sentencing
enhancement based on an unpled enhancement allegation in
violation of statutory pleading requirements amounted to an
unauthorized sentence”].)13
The People’s reliance on People v. Houston in support of
their forfeiture argument is unavailing. There, the defendant
argued he was improperly sentenced to life imprisonment for
each of 10 counts of attempted murder, because the indictment
had failed to alleged the attempted murders were willful,
deliberate, and premeditated, as required by section 664,
subdivision (a). (People v. Houston, supra, 54 Cal.4th at p. 1225.)
Our Supreme Court concluded the defendant had forfeited his
contention. (Ibid.) During the defense case, the trial court
informed the defendant that the prosecution was attempting to
charge premeditation; cautioned that if “ ‘that’s not right,’ ” the
parties should inform the court; and stated that premeditated
attempted murder was punishable by life in prison. (Id. at
p. 1226.) The court also presented the parties with draft verdict
forms which asked jurors to determine whether the attempted
murders were willful, deliberate, and premeditated, and
subsequently instructed the jury on premeditation. At no time
did the defendant object. Under these circumstances, Houston
concluded, the defendant had forfeited his contention that the
flawed indictment precluded the imposition of the life sentences.
(Id. at p. 1228.) He had adequate notice “of the punishment he
faced,” because the trial court had “expressly noted that
defendant, if convicted, would be sentenced to life imprisonment.”

13 In light of our conclusion, we do not reach the parties’
arguments regarding ineffective assistance of counsel.

30
(Id. at p. 1227.) But the same cannot be said here. As we have
explained, Sawyers was not notified, before waiving his right to a
jury trial, that he potentially faced a Three Strikes sentence.
Accordingly, we order the sentence vacated and remand the
matter for resentencing.
[[ Begin nonpublished portion ]]
3. Custody credits
At sentencing, the trial court awarded Sawyers 53 days of
presentence conduct credit. The People assert that section 2933.2
bars the award of presentence conduct credits to persons
convicted of murder. (§ 2933.2, subd. (a); see People v. Calles
(2012) 209 Cal.App.4th 1200, 1226; People v. Wheeler (2003) 105
Cal.App.4th 1423, 1431–1432.) We agree. At resentencing, the
trial court is directed to modify the judgment to omit the
presentence conduct credits. ]]
[[ End nonpublished portion ]]

31
 DISPOSITION
The sentence is vacated and the matter is remanded for
resentencing consistent with the opinions expressed herein. In
all other respects, the judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

BACHNER, J.

We concur:

EDMON, P. J.

LAVIN, J.


Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

32