Woman's Conviction Upheld in Vicious Stabbing Death of Neighbor in Lakewood

Virginia Ann Krall was convicted in August 2009 of second-degree murder for the June 16, 2006, killing of Yolanda Meraz, 37, who was stabbed 30 times.

City News Service

September 05, 2012

A state appeals court panel today upheld a woman's conviction for murdering a neighbor and stabbing three of the victim's relatives with a 12-inch knife during a pre-dawn attack in Lakewood more than six years ago.

The three-justice panel from California's 2nd District Court of Appeal rejected an appeal filed on behalf of Virginia Ann Krall, who was sentenced in January 2011 to just over 36 years to life in state prison.

Krall was convicted in August 2009 of second-degree murder for the June 16, 2006, killing of Yolanda Meraz, 37, who was stabbed 30 times in the 4300 block of Quigley Avenue.

She also was convicted of three counts of attempted murder for the stabbings of Meraz's mother, daughter and sister, along with one count of residential burglary.

Jurors in her first trial deadlocked on whether she was sane or insane at the time of the crime, resulting in a sanity phase retrial. A second jury later determined that she was sane.

Krall's trial attorney and family contended she was mentally ill.

Meraz's daughter, Megan Bufford, who spoke at Krall's sentencing, begged the judge to keep her mother's killer in prison for life.

"I never want to see the day when she is released," Bufford told Norwalk Superior Court Judge Robert J. Higa.

Lakewood woman convicted of stabbings gets 30 to life

Virginia Krall will have to serve more than 30 years before she can ask for parole

By Tracy Manzer - MercuryNews.com

January 13, 2011

NORWALK - Wednesday night was a tough night for many of Yolanda Meraz's loved ones.

The last five years have been difficult for the Lakewood murder victim's family, but Wednesday night marked the eve of sentencing for Meraz's killer and the end of a lengthy legal process that felt as though it may never end, relatives said.

"It's strange, it doesn't feel like it's really here," said Megan Bufford, 23, the daughter of Meraz and a victim of convicted killer Virginia Krall.

That was on Thursday, just minutes before Norwalk Superior Court Judge Robert Higa handed down the maximum allowed; 36 years and four months to life in prison.

Krall, 26, killed Meraz and tried to kill Bufford and her aunt, Samantha Meraz, and grandmother, Jeanie Meraz, on June 16, 2006, after Krall crept into the family's Lakewood home in the 4300 block of Quigley Avenue around 3 a.m.

Krall found her weapon, a 12-inch butcher knife, in a drawer in the victims' kitchen. She waited inside the home at least 20 minutes before striking. She also chased Bufford down the street as the then 18-year-old victim ran for her life.

"Virginia Krall murdered my mother, in doing so she murdered a part of me," Megan told the judge.

"If it was up to her I would not be here today," she added as she cried. "She only stopped stabbing me because my mom woke up."

Four of Meraz's relatives addressed the court and one read letters from the other survivors of the attack.

As her relatives spoke, Bufford sat curled up in the front row of the courtroom with her slender legs tucked tight against her body.

She and the other survivors said their lives are forever changed by the attack. They suffer from post-traumatic stress and the happiness that once joined the family is now strained for some and completely gone for others.

Yolanda Meraz's cousin, Angela Max, recalled cleaning the dried blood off her aunt, Jeanie Meraz, as her aunt sat with blackened eyes in her hospital bed, completely shattered after the attack.

Yolanda Meraz's sister-in-law, Susan Cordova, said Samantha Meraz is constantly questioned about the scars on her neck from having her throat slit.

Bufford said she suffers constant nightmares that people are breaking into her home, trying to kill her and her mother.

"I miss the days when I would wake up and think, 'Thank God it's just a nightmare,'" she told the court. "(Now) it's my reality."

Around 30 people, friends and family of the victims, attended the sentencing. Also there were Krall's father, Bill Krall, and stepmother, Renee Ramirez.

As Krall's family spoke tears filled Bufford's eyes and one her relatives held up a board covered in photos of her murdered mother.

"My daughter's a good person - she did an evil deed," Bill Krall said.

He told the court he took his god-fearing family to church every Sunday and they regularly read the Bible. Something happened to his daughter to stray "from the right path," he said.

"She needs to pay the price for her actions, but ... I'm confident she's going to make good for herself," he said.

Krall said 'thank you' after her father finished. That, and a brief exchange with the judge on court formalities, were the only times she spoke Thursday.

Krall's family and her attorney, Scott Heron, insisted her actions were fueled by mental illness and drug use. The defendant entered two pleas to the case, one of not guilty and one of not guilty by reason of insanity.

The first jury, which convicted Krall in August of 2009 on one count of second degree murder and three counts of attempted murder, also found true multiple allegations that the attacks on the survivors resulted in great bodily injury and that Krall personally used a weapon in the incident. The same jury, however, deadlocked on the sanity portion of her trial.

A second jury, convened last year, found she was sane at the time of her crimes, which paved the way for Thursday's sentencing.

Samantha Meraz told the court in a letter read by Cordova that what was most frightening for her was the knowledge that there was no reason for the attack.

All of the victims urged the judge to send Krall to prison for life.

"I never want to see the day where she is released," Bufford said.

Krall's father, stepmother and her lawyer asked the court to show mercy on Krall and place her somewhere she could get help.

They also apologized to Meraz's family. Ramirez said they had not done so earlier because they did not want to further upset the family by approaching them.

"I'm sorry," she said. "Words and expressions could never ever ... come close to (addressing) the pain and suffering you've endured."

Though the years given for the counts of second-degree murder and attempted murder are dictated by state law, Higa did rule all the terms be served consecutively rather than concurrently.

Deputy District Attorney Ana Lopez explained after the sentencing that Krall could qualify for parole in about 33 years, but the prosecutor noted that a parole board would conduct a review before deciding if Krall was fit for release.

Notification is given to victims before parole reviews, she explained to the victims and their supporters as they clustered in the courthouse hallway to hug and console one another.

"We'll be there," Max vowed.

Jury still deliberating Krall's sanity in Lakewood stabbing spree

By Tracy Manzer - PressTelegram.com

August 27, 2009

NORWALK - A jury that convicted a 25-year-old Lakewood woman of second-degree murder and attempted murder for a 2006 stabbing spree will resume deliberations Monday in the sanity phase of her trial.

Virginia Ann Krall was found guilty Aug. 14 of one count of second-degree murder for the death of Yolanda Meraz, 37, and three counts of attempted murder for the slashings of Meraz's daughter, sister and mother at the family's Lakewood home.

Krall was also convicted of multiple allegations that the attacks on the survivors resulted in great bodily injury and the personal use of a weapon.

Authorities said Krall crept through an open window at her neighbors' home in the 4300 block of Quigley Avenue at about 3 a.m. June 16, 2006, and stabbed Meraz to death as she lay sleeping in her bed.

Krall then turned the 12-inch knife that she had found in Meraz's kitchen on the dead woman's daughter - who was 18 at the time - the victim's sister and the victim's mother.

The prosecutor argued the killing and attempted killings were calculated attacks, noting that Krall waited until the "dark of night" to sneak through an open window, that she looked in the victims' kitchen and found "the biggest knife they got" and that Krall then turned off the lights to give herself an edge over her victims.

The murder victim was stabbed 30 times, according to the coroner's testimony.

The defense attorney, however, argued there was no doubt his client killed Meraz and attacked the other women, but his client's mental state - hampered by what he called a combination of mental illness and psychosis and the use of drugs - made it impossible to find Krall guilty of first-degree murder because she was insane.

The defendant, who was 22 at the time of the slaying, entered two pleas in her case, one of not guilty and one of not guilty by reason of insanity.

After her conviction this month, a second phase of the trial began Aug. 17 to determine her mental status.

If Krall is found to have been insane at the time, she could face a lifetime commitment in a mental facility.

If the jury rejects the insanity plea, she faces a potential life sentence in prison.

The jury, which began its deliberations just before the lunch break Wednesday, is expected to continue deliberating Monday morning, said Sandi Gibbons, a spokeswoman for the DA's office.

Lakewood Woman Describes Knife Attack That Killed Sister

By Ashley Surdin - Los Angeles Times

June 28, 2006

Moments after collapsing on her neighbors' frontyard with multiple stab wounds to her back, arms and neck, Samantha Meraz managed to stand up and wrestle her assailant's knife away.

"I knew she was going to kill my mother," Meraz, 30, said as she recounted for the first time the June 16 attack at her family's Lakewood home.

At about 3 a.m., Virginia Krall, 22, carrying a 12-inch knife, allegedly climbed through a side window and stabbed and slashed Meraz; her mother, Jeannie Meraz, 57; sister Yolanda Meraz, 37; and niece Megan, 18, according to police.

Yolanda died of her wounds, while Meraz and her other family members are recuperating. All have been released from the hospital.

Krall remains in custody in lieu of $2.7-million bail, said Los Angeles County Sheriff's Sgt. Kevin Lloyd. She is scheduled to be arraigned July 5 on one count of murder and three counts of attempted murder. The motive is still unclear.

Speaking at a news conference Tuesday outside their Quigley Avenue home, Meraz said her family had never seen Krall before and did not know why they were attacked. Krall had only recently moved into the neighborhood.

Meraz, who has visible wounds on her arms and neck, said the alleged assailant did not speak and "seemed calm" during the assault.

Yolanda Meraz, who was in her bedroom, was the first to be attacked, said Colin Lyon, another relative and family spokesman. When her daughter, Megan, started screaming, she was stabbed twice in the chest, Lyon said. The wounded teenager ran outside.

Meanwhile in the kitchen, the attacker stabbed Jeannie Meraz sixteen times, including on her tongue, a piece of which had to be sewn back on, Lyon said.

Samantha Meraz, who was outside and did not know what was happening, heard her mother's screams and rushed inside, where she saw her being stabbed, Meraz said. The attacker then turned on Samantha, who bolted out the front door.

"As I was running, I felt her stabbing me," recalled Samantha, who collapsed on her neighbor's frontyard. As her assailant walked away, Meraz stood up and grabbed the knife before collapsing again.

At that point, Krall's roommate appeared and led her back to their home three doors down, Lyon said.

She was subdued with little resistance until deputies arrived, neighbors said.

Funeral services have not yet been scheduled for Yolanda Meraz, a dispatcher for a trucking company who was the family's main provider.

Her loss "left a void emotionally and financially" for the other women, Lyon said. Two of the survivors were previously disabled, and the youngest is a full-time college student.

4 Women Stabbed, 1 Fatally

The attacker enters a Lakewood home at 3a.m. and kills a grandmother, wounding two daughters and a granddaughter.

By Lynn Doan - Los Angeles Times

June 17, 2006

A woman wielding a 12-inch kitchen knife terrorized a Lakewood family early Friday, stabbing a grandmother to death and wounding her two daughters and a granddaughter, authorities said.

The 22-year-old assailant, who had recently moved into the usually quiet block of Quigley Avenue, climbed through a window of the brick-front house about 3 a.m. and set upon the four women, Los Angeles County sheriff's deputies said.

Neighbors told authorities that the attacker chased two of the victims out the front door and down the street, continuing to stab them.

Awakened by the screams, the neighbors subdued the woman until deputies arrived. They said she offered no resistance.

The mayhem in the middle-class neighborhood left blood spatters on the doorstep of the house and down the block between Harvey Way and Stevely Avenue.

"There is a tremendous amount of blood inside the house," said Lt. Larry Lincoln of the sheriff's Homicide Division.

The names of the victims have not been released. Lincoln said that the grandmother, 58, died at a hospital Friday morning and that the wounded included an 18-year-old granddaughter.

The three surviving victims, who suffered stab wounds primarily to the chest, were hospitalized in serious but stable condition, he said.

Investigators identified the assailant as Virginia Krall, 22, who had recently moved into the area after living with her father in Long Beach.

The motive for the stabbings was unclear. Lincoln said that it appeared to be a random attack but that investigators were still questioning those involved.

William Krall, the father of the accused, said in a telephone interview that his daughter suffered from "problems." He would not elaborate, but said they had worsened recently.

"Things just appeared to have gone from bad to worse," he said.

He said his daughter had been living with him a few months when problems erupted between them.

She then moved in with friends in Lakewood. He said sheriff's deputies would not let him speak to her Friday.

Property records show that the house where the stabbings occurred belongs to Yolanda Meraz, 37, and Jeanie Meraz, 58, who apparently received it as part of a 1995 divorce. Jose Luis Meraz, who turned over the title to them, could not be reached for comment.

Viviann Turner, who lives down the street in the neighborhood of two-story homes, said neighbors knew little about the women.

"They had lived there for quite a while, but they more or less stayed to themselves," she said. "They were quiet, so I don't think anybody really knew them."

Others said Jeanie Meraz, the grandmother, was in poor health.

Neighbors milling around the house Friday afternoon were shocked by the scene of police cars and crime-scene tape on a street where children's toys were parked in many lawns.

"It's just horrendous," said Tom Crook, 48, a 16-year resident of the street. "We're bummed about ... because, you know, maybe we could have helped."

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,
v.
VIRGINIA ANN KRALL, Defendant and Appellant.

B231290

(Los Angeles County
Super. Ct. No. VA095907)

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Higa, Judge. Affirmed.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Virginia Ann Krall of one count of second degree murder (Pen. Code, § 187, subd. (a)) (count 1), three counts of attempted murder (§§ 187, subd. (a), 664) (counts 2-4), and one count of first degree residential burglary with a nonaccomplice present (§ 459) (count 5). The jury found that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). At defendant’s first sanity trial, the jury was unable to reach a verdict, and the trial court declared a mistrial. At a retrial, the jury found defendant legally sane.

The trial court sentenced defendant to a total term of 21 years four months plus 15 years to life in prison. In count 1, the trial court imposed a term of 15 years to life plus one year pursuant to section 12022, subdivision (b)(1). In count 2, the trial court imposed a consecutive upper term of nine years, plus an additional three years pursuant to section 12022.7, subdivision (a), and an additional one year pursuant to section 12022, subdivision (b)(1) for a total term of 13 years. In each of counts 3 and 4, the trial court imposed consecutive terms of one-third the midterm of 84 months for a term of 28 months. In each of counts 3 and 4, the trial court imposed an additional one-third of one year, or four months, pursuant to section 12022, subdivision (b)(1) and one-third the midterm of three years, or one year, pursuant to section 12022.7, subdivision (a) for total terms of three years eight months in these counts. The trial court also imposed and stayed, pursuant to section 654, an upper term of six years in count 5.

FACTS

Prosecution Evidence

On June 15, 2006, defendant was romantically involved with Justin Schmalz and lived with him at the Lakewood home of his mother, Kelly Schmalz (Schmalz). The Schmalz family lived three or four houses away from the Meraz family, the victims in this case. When Schmalz returned from work at approximately 9:30 p.m., defendant was acting normally. At approximately 11:30 p.m., Schmaltz went to bed.

Megan Bufford lived with her mother, Yolanda Meraz, her aunt, Samantha Meraz, and her grandmother, Jeanie Meraz. Bufford and Yolanda shared a bedroom. At approximately 1:30 a.m. on June 16, 2006, Bufford came home and got ready for bed. As she sat on her bed afterwards, she saw defendant open the door and enter the room with a knife in her hand. Bufford did not know who defendant was. Defendant then held the knife with her arms raised above her head. After a few seconds, defendant ran toward Bufford, jumped onto the bed, and stabbed her two times. Defendant then ran around the bed and began stabbing Yolanda. Yolanda fell on the floor and defendant stabbed her repeatedly as she lay there. Bufford saw Yolanda being stabbed approximately 10 times. Bufford ran out of the room, yelling for help and telling everybody to get out of the house. Bufford ran outside and hid behind a car.

Jeanie was awakened by the screaming and heard Samantha say that Bufford wanted them to call 911. Jeanie began to call as Samantha ran out after Bufford. Jeanie called out to ask what she should tell the 911 operator. As she did so, defendant came out of Bufford’s room and attacked Jeanie. Defendant repeatedly stabbed Jeanie on her left side. She stabbed the top of Jeanie’s head as well as her ear, cheek, jaw line, hand, wrist, and chest. When Jeanie slipped and fell, defendant kept stabbing her in the back. Then she suddenly stopped.

Samantha was asleep on the couch when she heard Bufford scream for her and Jeanie to get out of the house. Samantha originally ran after Bufford to see what was going on but returned to the house when she heard Jeanie, her mother, screaming. Samantha saw defendant repeatedly stabbing Jeanie as Jeanie was on the ground.

Samantha ran out of the house again. She knew that defendant was chasing her. Defendant stabbed Samantha in the back and in the neck. Defendant grabbed Samantha by the shirt, brought her to the ground, and repeatedly stabbed her in the arm and chest. Defendant then got up and began walking away. When Samantha got up also, defendant turned around and took Samantha to the ground again. Defendant tried to stab Samantha in the head. The knife went into the grass and Samantha was able to grab it. Defendant then got up and walked away. Samantha recognized the knife as one that the Meraz household kept in a block of knives in the kitchen.

Jennifer De La O, a neighbor, was awakened by the sound of a woman screaming for help. De La O looked out her window and saw Bufford running northbound. De La O called 911. Through the window, she saw defendant walking southbound from the direction Bufford had gone. When she was connected to the 911 operator, De La O stepped outside to describe the scene. She saw defendant holding a knife and straddling someone. Defendant was raising the knife and plunging it downward. De La O recognized the person on the ground as Samantha. Defendant got up and began walking southbound toward a woman who was calling and motioning to her. Deputies arrived shortly thereafter.

Schmalz had also been awakened by screaming. She heard a woman saying, “Oh, God. Oh God. Help me.” Schmaltz looked out from her balcony and saw what appeared to be a scuffle on the ground. When the struggle stopped, Schmalz saw one of the two people coming toward her, and she recognized the person as defendant. Defendant had “wild hair,” a torn tank top, and blood on her shirt and hands. Defendant was screaming, “Oh, my God. Oh, my God. What have I done? Kill me now. Kill me now.” Schmaltz told defendant to “shut up.” Defendant seemed to calm down a little. Schmalz brought defendant back to her home and told her to sit on a bench outside while Schmalz called the police. When the police arrived, Schmalz told defendant to get up, and she did so.

The police drew their guns and ordered defendant to the ground. She complied with their orders. Defendant appeared calm as she was booked and processed. She answered questions appropriately and was cooperative.

Yolanda died as a result of the attack. She suffered 30 stab wounds, including defensive wounds to her hands. Defendant’s attack caused Bufford to suffer a collapsed lung and a stab wound to her arm. She spent 10 days in the hospital. Samantha was treated for 16 stab wounds and suffered nerve damage to her arm. Jeanie also suffered 16 stab wounds. She had permanent nerve damage on two of the fingers of her left hand and was unable to use them. She also suffered a stab wound to her tongue.

Defense Evidence

Dr. Marshall Cherkas, a psychiatrist, testified that there was more than a 50 percent likelihood that defendant was grossly psychotic at the time of the stabbings, and that her thinking was delusional, fragmented, and without control. He believed that the psychosis was a product of long-term mental illness exacerbated by substance abuse. Dr. Cherkas acknowledged that drug use could have been part of the reason, or even the primary reason, for what he believed had been a psychotic episode.

Dr. Cherkas believed defendant had delusional thoughts. He based his opinion on his three interviews with defendant, a video made shortly after she was arrested, and her medical records. Defendant believed that there were devils in the world that were standing in the way of her going to heaven and of other people being saved. She believed she was selected by God to attack and kill these devils. She was to be a leader. Defendant’s understanding that devils represented something bad and that heaven represented something good was an indication that defendant knew the difference between right and wrong.

Defendant told Dr. Cherkas that she specifically went to the Meraz home to kill. Defendant told Dr. Cherkas that she entered the house through a window with that intent, picked up a knife with that intent, and had that intent each time she stabbed Yolanda, Jeanie, Samantha, and Bufford. She had formed the intent hours before the stabbings. Dr. Cherkas perceived that defendant understood what it meant to kill.

DISCUSSION

I. Imposition of Deadly Weapon and Great Bodily Injury Enhancements

In her opening brief, defendant contended that the enhancements imposed in counts 2 through 4 for knife use under section 12022, subdivision (b)(1) should have been stayed under section 654, since her sentence in those counts was enhanced for infliction of great bodily injury under section 12022.7. Defendant asserted that her enhancements for knife use and infliction of great bodily injury fell under the purview of section 654 because they were based on the same act and were committed with the same intent and objective.

In her reply brief, defendant concedes that the decision in People v. Ahmed (2011) 53 Cal.4th 156 (Ahmed), puts an end to this issue. Ahmed rejected the defendant’s similar claim in that case, relying on section 1170.1, subdivisions (f) and (g) rather than section 654. (Ahmed, at pp. 159-160, 168.) After discussing the legislative history of section 1170.1, the court stated, “[w]e can fairly discern a legislative intent to permit imposition of one weapon enhancement and one great-bodily-injury enhancement. Because section 1170.1 provides the answer to the question of this case, we do not consider section 654.” (Ahmed, at p. 168.)

II. Knife-Use Finding in Count 5

A. Defendant’s Argument

Defendant contends that, since there was no knife-use allegation under section 12022, subdivision (b)(1) in count 5, the jury’s true finding on the enhancement for knife use in that count must be stricken.

B. Relevant Authority

Section 1170.1, subdivision (e) provides that “[a]ll 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.”

The purpose of the information is to provide a criminal defendant with notice of the charges and to allow him to prepare a defense and avoid surprise. (People v. Valladoli (1996) 13 Cal.4th 590, 607; People v. Haskin (1992) 4 Cal.App.4th 1434, 1438.) This means that, except for a lesser included offense, a defendant cannot be convicted of an offense with which he has not been charged, even if there was evidence at trial to show that he committed the offense. (People v. Haskin, at p. 1438.) The same rule applies to enhancements. (Ibid.)

C. Proceedings Below

The information alleged with respect to counts 1 through 4 that, in the commission of these offenses, defendant personally used a deadly and dangerous weapon, to wit, a knife. The trial court instructed the jury with CALCRIM No. 3145 in pertinent part as follows: “If you find the defendant guilty of the crimes charged in Counts 1 through 5, you must then decide whether for each crime the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon during the commission of that crime. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.” (Italics added.) During the discussion of jury instructions, defense counsel made no objection to the content of CALCRIM No. 3145. At the close of the discussion, the trial court asked, “Now, with those that we’ve discussed, do you agree all of these instructions should be given?” Defense counsel assented. No request was made to amend the information.

The prosecutor argued as follows: “With the charges of the attempted murder, as well as with the charge of murder, as well as the attempted murder, and the burglary, you’re going to hear that you have an allegation that a weapon was used. . . . and certainly there is no question that that occurred.” There was no objection.

Defense counsel argued, “I am not going to suggest that Miss Krall is not guilty. It’s ludicrous. A little housekeeping matter out of the way. There’s a jury instruction about use of a deadly weapon. Skip it. All you have to do is agree and say, yes, it was used. There doesn’t need to be any discussion about it.”

The verdict form for count 5 read in pertinent part as follows: “We, the jury in the above-entitled action, find the Defendant, Virginia Ann Krall, guilty of Burglary in violation of section 459 of the Penal Code, a felony, as charged in Count 5 of the information. [] . . . [] We, the jury, further find the allegation that the defendant, Virginia Ann Krall, personally used a dangerous or deadly weapon during the commission of the above crime in violation of section 12022(b)(1) of the Penal Code to be . . . True.”

D. Claim Forfeited; No Prejudice

Respondent argues that defendant has forfeited any challenge to the absence of a deadly weapon allegation in count 5 by failing to object to the verdict form. Respondent further argues that any procedural error is harmless. We agree that defendant’s claim has been forfeited. We further conclude that defendant was not deprived of adequate notice.

In People v. Mancebo (2002) 27 Cal.4th 735, on which defendant relies, our Supreme Court addressed the issue of fair notice with respect to pleadings. In that case, the defendant was convicted of eight different sex crimes against two victims. (Id. at p. 738.) The nature of the offenses justified sentencing under the one strike law, section 667.61. The information alleged that, in accordance with section 667.61, subdivisions (a) and (e), the crimes against one victim were committed under the circumstances of kidnapping and gun use and the crimes against the second victim were committed under the circumstances of gun use and tying or binding. (§ 667.61, subd. (e)(1), (3), (5).) The trial court was thus able to sentence the defendant to two terms of 25 years to life under the one strike law. (Mancebo at p. 738.) The information did not allege, however, a multiple victim circumstance under section 667.61, subdivision (e)(4). (Mancebo at p. 739.) In order to apply two additional gun-use enhancements alleged under section 12022.5, subdivision (a) while still maintaining the “‘minimum number of circumstances’” required to impose the longer sentence, the trial court, without giving defendant prior notice, substituted the multiple victim circumstance for the circumstance of gun use alleged with the sex crimes. (Mancebo at pp. 738-739.)

The Court of Appeal struck the two gun-use enhancements, and our Supreme Court affirmed the Court of Appeal’s judgment. (Mancebo, supra, 27 Cal.4th at p. 739.) The court held that the “express pleading requirements of section 667.61, subdivisions (f) and (i), read together, require that an information afford a One Strike defendant fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing.” (Id. at pp. 753-754; § 667.61, subds. (f) & (i).) “Substitution of that unpleaded circumstance for the first time at sentencing as a basis for imposing the indeterminate terms violated the explicit pleading provisions of the One Strike law.” (Mancebo, at p. 743.) Mancebo does not aid defendant’s cause in that Mancebo is based on the express pleading requirements of section 667.61, which were violated by the trial court in that case. The statute in the instant case, section 12022, subdivision (b)(1), has no such express pleading requirement. Moreover, the trial court in Mancebo substituted the uncharged circumstance at sentencing, unlike the instant case, where the jury instructions and verdict forms contained the uncharged allegation in count 5.

Defendant’s case is more analogous to that of People v. Riva (2003) 112 Cal.App.4th 981 (Riva), where the defendant was charged with several crimes after a shooting. (Id. at p. 986.) It was alleged as to two counts that he discharged a firearm pursuant to section 12022.53, subdivision (d), but the allegation was not made as to a third count. (Riva, at p. 1000.) The verdict forms, however, asked the jury to return a finding as to all three counts whether the allegations under section 12022.53, subdivision (d) were true, and the jury found them true. (Riva, at p. 1000.) The trial court imposed a sentence for the enhancement in the count in which it was not alleged. (Id. at pp. 1000-1001.)

The defendant in Riva relied on Mancebo to appeal the imposition of the enhancement, claiming the failure to plead the allegation under section 12022.53, subdivision (d) on the third count violated his right to adequate notice and the statutory pleading provisions of section 12022.53, subdivision (j). The Riva court concluded that imposing the section 12022.53 enhancement did not violate section 12022.53, subdivision (j) nor Riva’s right to due process of law. (Riva, supra, 112 Cal.App.4th at pp. 1001, 1002.) The court noted that the prosecutor complied with the literal requirements of section 12022.53, subdivision (j) by pleading the enhancement in other counts of the information. (Riva, at p. 1001.) More importantly, the Supreme Court’s concern in Mancebo over lack of fair notice was not applicable because Riva was on notice he had to defend against the charge. (Riva, at p. 1003.) “[A]lthough the better practice is to allege the enhancement with respect to every count on which the prosecution seeks to invoke it, the failure to do so is not fatal so long as the defendant has fair notice of his potential punishment, which he did in this case.” (Id. at p. 985.) In the instant case, the enhancement in question did not contain specific pleading requirements, unlike the statute involved in Riva. Therefore, the argument in favor of defendant having adequate notice is even stronger under the reasoning of Riva.

Defendant has cited other decisions disallowing convictions based on uncharged allegations, i.e., People v. Botello (2010) 183 Cal.App.4th 1014 and People v. Arias (2010) 182 Cal.App.4th 1009. Unlike in those cases, in the instant case the jury was provided with the verdict forms required to record their findings regarding the allegations, and they found them to be true. (See Botello, at p. 1021; Arias, at p. 1017.) Moreover, the decisions in Botello and Arias, like Mancebo, were based on statutory pleading requirements as well as the notice requirement of due process. (Botello, at pp. 1017, 1022, 1027; Arias, at pp. 1017, 1019.)

Accordingly, in the instant case, considering defense counsel’s failure to object to the inclusion of the allegation in the jury instructions and in the count 5 verdict form, we conclude the failure to allege the firearm-use enhancement in count 5 was forfeited, and the sentence imposed under that enhancement was proper. (See, e.g., People v. Toro (1989) 47 Cal.3d 966, 976-977, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3 [defendant’s failure to object to instructions and verdict forms on lesser related offense may be viewed as implied consent to trier of fact’s consideration of the lesser related offense].) Moreover, defendant had sufficient constitutional notice of the enhancement allegation, since it was engendered by the same conduct that gave rise to the same allegation in the other counts in the information. Defendant knew that the weapon allegation applied to the burglary as well as the other counts, and she prepared her defense accordingly. (Riva, supra, 112 Cal.App.4th at pp. 1002-1003.)

DISPOSITION

The judgment is affirmed.

Virginia Krall, center, follows her defense attorney, Scott Heron, left, into Judge Robert Higa's courtroom at the Norwalk Superior Courthouse on Thursday, January 13, 2011, to be dealt a 36-year and four-month sentence with a mandatory 33 years to be served before being considered for parole.
(Diandra Jay/Press-Telegram)

The victim

Yolanda Ester Meraz