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People v. Christenson9/30/2002
197.)
As the Attorney General points out, defendant was charged with and convicted of violations of Vehicle Code section 23153 involving two separate victims. We acknowledge that it would be difficult for him to contest the truth of the section 23588 enhancement, whether or not the enhancement had been properly pled so as to afford him notice. Nevertheless, section 1170.1, subdivision (e) makes no special exception for section 23588 in the statute's pleading and proof requirements. These requirements apply to all the qualifying circumstances enumerated in section 1170.11. In many instances, the fair notice afforded by the pleading requirement may be imperative in a defendant's effort to contest the factual bases and truth of the enhancement. As the reviewing court, we will not impose the Vehicle Code section 23588 enhancement, never alleged or discussed below.
Disposition
The judgment is reversed as to the convictions returned on counts five and six. The matter is remanded to the trial court for resentencing, with instructions to prepare an amended abstract of judgment in accordance with this opinion and forward a copy of the modified abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur:
Parrilli, J.
Pollak, J.
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