Imposing Additional Jail Time by Sentencing Judge
In People v. Najera (1972) the court resolved whether a sentencing judge may impose an additional three-year term under section 667.8 (kidnapping for purpose of rape) when a violation of that section was not pled or proven, and was mentioned for the first time in a probation report. (Id. at p. 197.)
The court concluded that "such additional term may not be imposed, since a pleading and proof requirement should be implied as a matter of statutory interpretation and must be implied as a matter of due process." (Ibid.)
The court explained:
"In the present case, as noted above, no notice whatsoever, not just of the code section but of the mens rea required by section 667.8, was given either in the information, arguments of counsel, or evidence produced at trial. Mention that a three-year additional term would be added for kidnapping for the purpose of rape was first made in the probation report filed ten days before sentencing.
As a matter of due process, the enhancement under section 667.8 could not be imposed under these circumstances.
The People, however, urge that the facts overwhelmingly establish that this kidnapping was for the purpose of rape.
They argue the jury must have so concluded, and any error in failing to plead, prove, or instruct on section 667.8 was therefore harmless.
It is unnecessary to articulate a particular standard of review and engage in a harmless-error analysis when defendant's due process right to notice has been so completely violated. (People v. Hernandez, supra, 46 Cal. 3d at pp. 208-209.)