United States v. 2007-06-05 | 03-55534 | GAUTT VLEWIS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 DARRELL ANTHONY GAUTT, No. 03-55534
Petitioner-Appellant, D.C. No.
v.  CV-01-06771-PA
GAIL LEWIS, Warden, OPINION
Respondent-Appellee. 
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
January 26, 2007—San Francisco, California
Filed June 6, 2007
Before: M. Margaret McKeown and Marsha S. Berzon,
Circuit Judges, and Samuel P. King,* Senior District Judge.
Opinion by Judge Berzon
*The Honorable Samuel P. King, Senior United States District Judge
for the District of Hawaii, sitting by designation.
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COUNSEL
Wayne Young, Santa Monica, California, for the petitioner-
appellant.
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Ryan B. McCarroll and Steven E. Mercer, Deputy Attorney
Generals, Los Angeles, California, for the respondent-
appellee.
OPINION
BERZON, Circuit Judge:
We consider whether Darrell Anthony Gautt’s constitu-
tional due process right to be informed of the charges against
him was violated when he was charged with a sentencing
enhancement under one statute, section 12022.53(b) of the
California Penal Code,1 but had his sentence enhanced under
a second, different statute, section 12022.53(d). The first stat-
ute, not the second, was alleged by number and by nearly ver-
batim description in the information. We hold that Gautt’s due
process right was indeed violated when, as a result of this dis-
crepancy, he was sentenced pursuant to a twenty-five-year-to-
life enhancement, rather than a ten-year enhancement, and
that the California appellate court’s decision to the contrary
constituted “an unreasonable application of [ ] clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d). We therefore reverse
the district court’s denial of Gautt’s petition for a writ of
habeas corpus. On remand, the district court shall grant a con-
ditional writ of habeas corpus, ordering that the state release
Gautt unless it re-sentences him.2
1All citations are to the 1998 version of the California Penal Code,
unless otherwise stated.
2Gautt also challenges his second-degree murder conviction under sec-
tion 187(a) of the California Penal Code, arguing that his equal protection
rights were violated when the prosecution exercised its peremptory strikes
in a racially discriminatory manner. See Johnson v. California, 545 U.S.
162 (2005); Batson v. Kentucky, 476 U.S. 79 (1986). We reject this chal-
lenge and affirm the denial of Gautt’s habeas petition as to the underlying
conviction in a separate unpublished memorandum disposition filed simul-
taneously with this opinion.
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I
The barebones facts of Gautt’s crime are that on January
10, 1998, Gautt shot and killed Samantha Fields, after
demanding that she pay him $25 for cocaine he had given her
the day before. Just prior to the shooting, Gautt had used
cocaine. Gautt threatened Fields by holding the gun close to
her. The gun went off, but none of the several people in the
room saw the shooting. Gautt later maintained that the gun
fired only because Fields reached up and knocked either his
hand or the gun. Fields died from a single gunshot wound to
her chest. Afterwards, Gautt threatened the other people in the
room with the gun and made them help him dispose of the
body. Further details of the crime do not matter for purposes
of the current appeal.
The facts that do matter here are procedural and concern
the content of Gautt’s information, the trial court’s instruc-
tions to the jury, the closing arguments, the verdict form, and
the ultimate judgment, as well as the substance of the two
statutory provisions at the center of this case — sections
12022.53(b) and 12022.53(d).
(1) The information charged Gautt with one count of
murder and one count of possession of a firearm by a felon
under sections 187(a) and 12021(a)(1), respectively. It also
charged him with violating sections 1203.06(a)(1),
12022.5(a)(1), and 12022.53(b), each of which imposes addi-
tional penalties on defendants convicted of “personally
us[ing] a firearm” in the commission of a crime. As stated in
the information, a conviction under section 12022.53(b) trans-
lates into a ten-year sentence enhancement.3 The information
3Section 1203.06(a)(1)(A) provides a different penalty than is provided
for by section 12022.53(b). Under section 1203.06(a)(1)(A), “[p]robation
shall not be granted to, nor shall the execution or imposition of sentence
be suspended for . . . [a]ny person who personally used a firearm during
the commission or attempted commission of . . . [m]urder.” CAL. PENAL
CODE § 1203.06.
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made no reference to section 12022.53(d). This omission is
the pivotal fact in this case.
Sections 12022.53(b) and 12022.53(d) differ in several crit-
ical respects. In full, section 12022.53(b) states:
Notwithstanding any other provision of law, any per-
son who is convicted of a felony specified in subdi-
vision (a),[4] and who in the commission of that
felony personally used a firearm, shall be punished
by a term of imprisonment of 10 years in the state
prison, which shall be imposed in addition and con-
secutive to the punishment prescribed for that felony.
The firearm need not be operable or loaded for this
enhancement to apply.
CAL. PENAL CODE § 12022.53(b) (emphasis added).
In contrast, section 12022.53(d) provides:
Notwithstanding any other provision of law, any per-
son who is convicted of a felony specified in subdi-
vision (a) . . . and who in the commission of that
felony intentionally and personally discharged a
Under section 12022.5(a)(1), a ten-year-sentence enhancement like that
automatically provided for under section 12022.53(b) is one possible pen-
alty within a range. Specifically, section 12022.5(a)(1) provides:
any person who personally uses a firearm in the commission or
attempted commission of a felony shall, upon conviction of that
felony or attempted felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of
which he or she has been convicted, be punished by an additional
term of imprisonment in the state prison for 3, 4, or 10 years.
Id. § 12022.5(a)(1).
4For purposes of both section 12022.53(b) and 12022.53(d), the felonies
enumerated in section 12022.53(a) include murder under section 187.
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firearm and proximately caused great bodily injury
. . . to any person other than an accomplice, shall be
punished by a term of imprisonment of 25 years to
life in the state prison, which shall be imposed in
addition and consecutive to the punishment pre-
scribed for that felony.
Id. § 12022.53(d) (emphasis added).
Crucially, while conviction under section 12022.53(b)
requires only that the defendant “personally used a firearm,”
conviction under section 12022.53(d) requires considerably
more — namely, that the defendant “personally discharged a
firearm,” that he did so “intentionally,” and that he “proxi-
mately caused great bodily injury.” Commensurate with its
less serious nature, conviction under section 12022.53(b)
leads to a ten-year sentence enhancement; in contrast, a con-
viction under section 12022.53(d) generates a far heavier,
twenty-five-year-to-life, enhancement.
(2) Despite these major differences, the trial court confused
the two statutes when time came to instruct the jury. While
ostensibly reciting the elements for section 12022.53(b), the
trial judge actually recited those additional elements unique to
section 12022.53(d): personal discharge, intentional dis-
charge, and proximate causation of great bodily injury —
here, death:5
5Neither party objected to this instruction.
The transcript from the instructions conference suggests that there
would have been no opportunity before the actual recital of the instruction
to the jury to do so. Neither the prosecutor nor Gautt’s lawyer ever
reviewed the actual substance of the instruction with the judge. Instead, it
appears that both parties simply assumed that the court would give a cor-
rect instruction for section 12022.53(b). The trial court never stated other-
wise before actually giving the instruction.
For example, at one point during the colloquy, the prosecutor referred
to an instruction for “12202.53, personal use.” At another point, both the
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It is alleged in Count One that in the commission
or attempted commission of the crime charged
therein described, the defendant Darrell Gautt per-
sonally discharged a firearm, causing the death of
Samantha Fields, within the meaning of Penal Code
section 12022.53, subdivision b.
If you find the defendant guilty of the crime of
murder, you must determine whether the defendant
personally discharged a firearm in the commission
or attempted commission of the crime of murder,
and whether it proximately caused the death of
Samantha Fields.
The word firearm as used in this instruction
includes a handgun. The term personally discharged
a firearm, as used in this instruction, means that the
defendant must have personally and intentionally
fired it.
(Emphases added.)
(3) Despite these instructions, the prosecution during its
subsequent closing argument specifically disavowed any need
to show that Gautt had intentionally discharged the weapon,
the requirement unique to section 12022.53(d). Instead, the
trial judge and prosecutor referred to California Jury Instruction 17.19,
which is applicable to, among other statutory provisions, sections
1203.06(a)(1), 12022.5(a), and 12022.53(b) of the California Penal Code.
See CAL. JURY INSTR. CRIM. 17.19. Indeed, the prosecutor initially
requested that the trial judge instruct the jury that for the sentence
enhancement to apply, the “firearm need not be operable,” a request that
makes sense only if she was assuming the instruction was to apply to an
enhancement under section 12022.53(b), rather than section 12022.53(d).
Finally, when the trial judge summarized the instructions toward the end
of the conference, she simply stated, “then we have 12022.53 and the
12022.5 A and 17.19,” without clarifying which portion of section
12022.53 she was referring to.
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prosecutor focused solely on Gautt’s use of the handgun, the
only showing required under section 12022.53(b). As she told
the jury:
He pulled the trigger. I submit to you at that moment
he meant to. But that’s not at issue in this case
because I’m not asking you to find he intended to do
it.
What I’m asking you and hope actually showing
you, looking at the law and applying the facts in this
case, that killing in this case resulted from the inten-
tional act of pointing a loaded handgun at Samantha
Fields with his finger on the trigger. . . .
(Emphases added.) Similarly, when the prosecutor later
recited the elements of the “personal discharge” enhancement,
she did not mention intent to discharge the firearm; instead,
she indicated that it was sufficient that “[h]e had his finger on
the trigger when the murder took place.”
(4) The pattern of statutory confusion and conflation that
began with the trial judge’s instructions to the jury repeated
itself when the jury completed its verdict form. The verdict
form asked jurors, if they found Gautt guilty of one count of
second-degree murder, under section 187(a), and one count of
possession of a firearm by a felon, under section 12021(a)(1),
to decide whether Gautt was also guilty under sections
1203.06(a)(1) and 12022.5(a)(1), for “personally us[ing] a
firearm, to wit: handgun” during “the commission and
attempted commission” of Fields’s murder. Until this point
then, the verdict form perfectly corresponded to the charges
presented in the information. The jury’s finding that Gautt
was guilty under sections 1203.06(a)(1) and 12022.5(a)(1)
therefore presents no due process problems.
The verdict form and the information deviated, however,
with regard to section 12022.53(b). According to the verdict
form, the jury was to decide whether Gautt
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personally discharged a firearm in the commission
of the crime of MURDER that porximately [sic]
caused the death of Samantha Fields, within the
meaning of Penal Code Sections 12022.5(a)(1) and
12022.53(b).
(Emphases added.) In other words, the verdict form cited to
section 12022.53(b), but listed the personal discharge and
proximate causation elements unique to section 12022.53(d).
Complicating matters even further, the verdict form did not
include section 12022.53(d)’s element of intentional discharge.6
The jury, using the verdict form, found Gautt guilty of violat-
ing section 12022.53(b), the ten-year enhancement, but
applied some of the elements of section 12022.53(d)’s
twenty-five-year-to-life enhancement.7
(5) The abstract of judgment contains yet one more dis-
crepancy. Although that document listed section 12022.53(b),
the ten-year enhancement, as the basis for a sentence enhance-
ment, it also stated that Gautt’s sentence was to be enhanced
twenty-five years to life — the applicable enhancement under
section 12022.53(d).
6For reasons that are unclear, this paragraph of the verdict form also ref-
erenced section 12022.5(a)(1), even though the paragraph immediately
preceding it already presented jurors with the question whether Gautt was
guilty under section 12022.5(a)(1). Moreover, the preceding paragraph —
unlike this one — accurately described the relevant element of section
12022.5(a)(1), defining it in terms of a “personal use,” rather than a “per-
sonal discharge” offense. No one seems to have noticed that the verdict
form listed the same statutory provision twice, but provided two different
definitions of the offense.
7The verdict form employed the language “within the meaning of . . .
section 12022.53(b),” and the jury had been instructed that “[t]he term
personally discharged a firearm, as used in this instruction, means that the
defendant must have personally and intentionally fired it.” So one could
understand the verdict form as including an intent element by incorpora-
tion, even though it did not expressly state any such requirement. As we
have noted, however, the prosecutor apparently did not so understand the
instruction. She argued the enhancement to the jury from the verdict form
on the premise that no finding of intent to pull the trigger was necessary.
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Gautt was sentenced to a term of imprisonment of forty-
nine years and eight months to life, based in part on the
twenty-five-year-to-life enhancement.8 He appealed to the
California Court of Appeal, which affirmed his conviction
and sentence in an unpublished opinion but ordered the
abstract of judgment “amended” to refer to section
12022.53(d), not section 12022.53(b), as the basis for the
twenty-five-years-to-life enhancement. Gautt’s petition for
review to the California Supreme Court was denied, as was
his petition for a writ of habeas corpus in the district court.9
II
We review a district court’s denial of habeas relief de novo.
See Plumlee v. Del Papa, 465 F.3d 910, 917 (9th Cir. 2005).
Because Gautt’s habeas petition was filed after April 24,
1996, the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) dictates our analysis. See Arredondo v.
Ortiz, 365 F.3d 778, 781 (9th Cir. 2004). Under AEDPA, a
petition for a writ of habeas corpus cannot be granted as to an
issue that the state court decided on the merits, unless
the adjudication of the claim (1) resulted in a deci-
sion that was contrary to, or involved an unreason-
able application of, clearly established Federal law,
8The sentence was calculated as follows: fifteen years to life for the
second-degree murder conviction; the twenty-five-years-to-life sentence
enhancement under section 12022.53; eight months for the possession of
a firearm by a felon conviction; and an additional nine-year enhancement,
pursuant to section 667.5(b) of the California Penal Code, because Gautt
had served nine prior prison terms.
9The district court granted Gautt a certificate of appealability on the
issue whether Gautt “was deprived of Due Process because the Second
Amended Information, the jury instructions and the verdict were all based
on § 12022.53(b), which carried a sentence of an additional ten years,
while he was sentenced to an additional twenty-five years to life under
§ 12022.53(d).” We granted Gautt’s later request to broaden his certificate
of appealability to include his Batson claim. See note 2 supra.
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as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). For purposes of this statute, “clearly
established Federal law” refers to “the governing legal princi-
ple or principles set forth by the Supreme Court at the time
the state court renders its decision.” Lockyer v. Andrade, 538
U.S. 63, 71-72 (2003).
A state court decision is “contrary to” such law if it (1) “ap-
plies a rule that contradicts the governing law set forth in
[Supreme Court] cases” or (2) “confronts a set of facts that
are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different
from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-
06 (2000). A state court decision is “an unreasonable applica-
tion of” such law if “the state court identifies the correct gov-
erning legal rule from [the Supreme] Court’s cases but
unreasonably applies it to the facts of the particular state pris-
oner’s case” or “if the state court either unreasonably extends
a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply.”
Id. at 407. The petition must establish that the state court’s
application of governing law was not only erroneous, but also
“objectively unreasonable.” See Andrade, 538 U.S. at 75; Wil-
liams, 529 U.S. at 409-10.
When applying this standard, we review the “last reasoned
decision” by a state court. See Robinson v. Ignacio, 360 F.3d
1044, 1055 (9th Cir. 2004). In this case, that judgment is the
California Court of Appeal’s.
III
We begin our analysis by describing “clearly established
Federal law” with respect to a criminal defendant’s right to be
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sufficiently informed of the charges against him. We then turn
to the California Court of Appeal’s opinion, reviewing that
court’s treatment of the relevant federal law and the facts
presented by Gautt’s case. Finally, we address the state’s
argument that other sources, beyond the information, pro-
vided Gautt with sufficient notice of a pending charge under
section 12022.53(d).
A
The Sixth Amendment guarantees a criminal defendant the
fundamental right to be informed of the nature and cause of
the charges made against him so as to permit adequate prepa-
ration of a defense. See U.S. CONST. amend. VI (“In all crimi-
nal prosecutions, the accused shall enjoy the right . . . to be
informed of the nature and cause of the accusation . . . .”);
Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“It is as much
a violation of due process to send an accused to prison follow-
ing conviction of a charge on which he was never tried as it
would be to convict him upon a charge that was never
made.”); In re Oliver, 333 U.S. 257, 273 (1948) (“A person’s
right to reasonable notice of a charge against him, and an
opportunity to be heard in his defense — a right to his day in
court — are basic in our system of jurisprudence. . . .”); Jack-
son v. Virginia, 443 U.S. 307, 314 (1979) (“[A] person cannot
incur the loss of liberty for an offense without notice and a
meaningful opportunity to defend.”). This guarantee is appli-
cable to the states through the due process clause of the Four-
teenth Amendment. See Cole, 333 U.S. at 201 (“No principle
of procedural due process is more clearly established than that
notice of the specific charge, and a chance to be heard in a
trial of the issues raised by that charge, if desired, are among
the constitutional rights of every accused in a criminal pro-
ceeding in all courts, state or federal.”).10 When determining
10In addition to raising a Sixth Amendment “right to notice” claim,
Gautt also claims that the state trial court erred when it “constructively
amended” the information by broadening the jury instructions so as to
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whether a defendant has received fair notice of the charges
against him, we begin by analyzing the content of the infor-
mation. See Cole, 333 U.S. at 198; see also James v. Borg, 24
F.3d 20, 24 (9th Cir. 1994) (holding that to determine whether
the defendant had adequate notice, “the court looks first to the
information,” the “principal purpose of [which] is to provide
the defendant with a description of the charges against him in
sufficient detail to enable him to prepare his defense”) (citing
Lincoln v. Sunn, 807 F.2d 805, 812 (9th Cir. 1987)); cf. Sti-
rone, 361 U.S. at 217 (stating that under the Fifth Amend-
ment’s right to a grand jury indictment, “a court cannot permit
a defendant to be tried on charges that are not made in the
indictment against him”).
In Cole, the Court carefully examined the information, con-
cluding that defendants had not been sufficiently apprised of
a charge under § 1 of an Arkansas statute, the provision that
the state supreme court relied upon when affirming their con-
victions. 333 U.S. at 197-98, 200. Instead, as the Court
explained, the defendants had “read the information as charg-
ing them with an offense under § 2 of the Act,” in no small
part, because while the information itself did not cite to either
statute, the “language describing the offense charged in the
information [was] substantially identical with the . . . lan-
guage of § 2 of the Arkansas Act,” which “describes an
allow the jury to convict him of an offense with which he was never
charged. A constructive amendment constitutes a violation of one’s Fifth
Amendment right to presentment or indictment by a grand jury. See U.S.
CONST. amend. V; Stirone v. United States, 361 U.S. 212, 215-18 (1960);
United States v. Aguilar, 756 F.2d 1418, 1423 (9th Cir. 1985). As the state
correctly points out, however, this Fifth Amendment right has not been
incorporated into the Fourteenth Amendment so as to apply against the
states. See Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972) (citing
Hurtado v. California, 110 U.S. 516, 534-35 (1884)); see also Williams v.
Haviland, 467 F.3d 527, 531-32 (6th Cir. 2006) (holding that Apprendi did
not change the “Supreme Court’s repeated assertion that the Grand Jury
Clause of the Fifth Amendment does not apply to the states”). Gautt’s con-
structive amendment argument thus lacks merit.
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offense separate and distinct from the offense described in”
§ 1. Id. at 198, 200. Thus, to satisfy the Sixth Amendment,
“an information [must] state the elements of an offense
charged with sufficient clarity to apprise a defendant of what
he must be prepared to defend against.” Givens v. House-
wright, 786 F.2d 1378, 1380 (9th Cir. 1986) (citing Russell v.
United States, 369 U.S. 749, 763-64 (1962)). An explicit cita-
tion to the precise statute at issue is best, but a “brief factual
recitation in the information” can also suffice. Id. at 1381.
Besides the information, Cole also considered as part of its
due process analysis the content of jury instructions. See 333
U.S. at 199. The Court did not, however, treat those instruc-
tions as a means of providing defendants with notice of the
charges against them. Rather, the Court looked to the instruc-
tions only as evidence of the ultimate grounds for conviction.
In particular, Cole explained that because the trial judge
instructed the jury on the elements of § 2 “at the request of the
prosecuting attorney,” “[w]ithout completely ignoring the
judge’s charge, the jury could not have convicted petitioners
for having committed the separate, distinct, and substantially
different offense defined in § 1.” Id. at 199-200. As a result,
by affirming defendants’ convictions on the grounds that they
had violated § 1 — “when in truth they had been tried and
convicted only of a violation of a single offense charged in
§ 2” — the state supreme court, Cole held, had deprived
defendant of their due process rights. Id. at 202; see also id.
at 201 (“If, as the State Supreme Court held, petitioners were
charged with a violation of § 1, it is doubtful both that the
information fairly informed them of that charge and that they
sought to defend themselves against such a charge; it is cer-
tain that they were not tried for or found guilty of it.” (relying
on De Jonge v. Oregon, 299 U.S. 353, 362 (1937)).
[1] Cole was, of course, a Supreme Court case, as was De
Jonge before it. We therefore conclude that, for purposes of
AEDPA’s “clearly established Federal law” requirement, it is
“clearly established” that a criminal defendant has a right,
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guaranteed by the Sixth Amendment and applied against the
states through the Fourteenth Amendment, to be informed of
any charges against him, and that a charging document, such
as an information, is the means by which such notice is pro-
vided. To satisfy this constitutional guarantee, the charging
document need not contain a citation to the specific statute at
issue; the substance of the information, however, must in
some appreciable way apprise the defendant of the charges
against him so that he may prepare a defense accordingly.11
B
Gautt presented his “right to notice” claim to the California
Court of Appeal on direct appeal, arguing that the trial court
erred in imposing the twenty-five-year-to-life sentence
11Because the Supreme Court has written relatively sparingly on a
defendant’s right to notice in the Sixth and Fourteenth Amendment con-
texts, our analysis is based on Cole and the case on which it relies for its
due process notice, De Jonge. To be sure, other Supreme Court cases have
recognized this constitutional right, but none have shed additional light on
what sources may be used to determine whether a defendant has, in fact,
been given adequate notice. See Oliver, 333 U.S. at 273-74 (holding that
a state court judge cannot charge a witness with contempt, immediately
convict him, and thereupon sentence him to jail, without implicating his
constitutional right to reasonable notice of a charge against him); Jackson,
443 U.S. at 314 (recognizing that “a person cannot incur the loss of liberty
for an offense without notice and a meaningful opportunity to defend,”
before proceeding to its more central holding that “[a] meaningful oppor-
tunity to defend . . . presumes . . . that a total want of evidence to support
a charge will conclude the case in favor of the accused”); In re Ruffalo,
390 U.S. 544, 550 (1968) (holding that a lawyer involved in disbarment
proceedings is, like a criminal defendant, entitled to “fair notice of the
charge,” but never explaining how such notice can be provided). The
Tenth Circuit, presented with a similar substantive question in an AEDPA
context — whether notice of charges was provided in a criminal proceed-
ing — has relied on the same small set of Supreme Court cases for direc-
tion on what sources it may consider for evidence that the defendant
received adequate notice. See Hain v. Gibson, 287 F.3d 1224, 1231 (10th
Cir. 2002) (citing Cole and Jackson in addition to other related circuit
court cases).
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enhancement because section 12022.53(d) was never properly
charged in the information. He separately argued that the jury
never found this sentence enhancement and that, as a result,
his rights under Apprendi v. New Jersey, were violated by the
sentence enhancement. See 530 U.S. 466, 490 (2000) (“Other
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt.”).12 In an unpublished opinion, the state appellate court
rejected these claims.
1
The California Court of Appeal began its analysis with gen-
eral descriptions of the information, the jury instruction, the
verdict form, the abstract of judgment, and the relevant stat-
utes. See People v. Gautt, No. B136634, slip op. at 13-15
(Cal. Ct. App. May 7, 2001). It then proceeded — as it should
have — to hone in on the information, explaining that
“[r]eference to an incorrect penal statute in an information is
of no consequence provided the pleading document ade-
quately informs the defendants of the acts he is accused of
committing.” Id. at 15 (citing People v. Thomas, 43 Cal. 3d
818, 826 (1987)). The state appeals court added that “[a]s
long as the acts themselves are sufficiently stated, the infor-
mation is sufficient even if it refers to the wrong Penal Code
section.” Id. at 16 (citing People v. Haskin, 4 Cal. App. 4th
1434, 1439 (1992)).
Having so heavily emphasized the role of the charging doc-
ument in providing the defendant with adequate notice, how-
ever, the California Court of Appeal never actually
scrutinized the information to see if it contained any factual
allegations that would have sufficiently informed Gautt of a
12Gautt renewed his Apprendi argument before us. Because we grant
Gautt’s habeas petition on “right to notice” grounds, we do not reach his
Apprendi claim.
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charge under section 12022.53(d). Instead, it summarily con-
cluded that “[t]he question of whether Gautt intentionally shot
Fields was fully presented to the jury by the trial evidence, the
jury instructions and closing argument” — an analysis that
seems to go only to Gautt’s Apprendi claim. Id.
At no point in its opinion did the court explain how exactly
this triumvirate — the evidence, the jury instructions, and the
closing argument — provided Gautt with sufficient notice of
a section 12022.53(d) charge,13 nor did it discuss whether
notice via these means could ever satisfy the Sixth Amend-
ment requirements at issue. Still, the state appellate court
clearly rejected Gautt’s “right to notice” claim, as it ultimately
affirmed both his conviction under section 12022.53(d) and
the concomitant sentence. Finally, at the tail end of its deci-
sion, in a ruling akin to that of the state supreme court in Cole
— which affirmed the defendants’ convictions on grounds for
which they were never charged, tried, or convicted, see 333
U.S. at 200-01 — the California Court of Appeal ordered the
abstract of judgment “amended” to reflect the fact that Gautt’s
13To be sure, the state appellate court did discuss some of the trial evi-
dence regarding whether Gautt intentionally discharged the firearm. Gautt,
slip. op. at 8-9. That discussion, however, was in the context of addressing
a separate claim brought by Gautt — whether there was sufficient evi-
dence to support a finding of intentional discharge — and not in the con-
text of his Sixth Amendment right to notice claim. Id. Determining,
through the benefit of hindsight, that enough evidence was presented to
support an intentional discharge finding is not the same as determining
that Gautt had adequate notice to defend against this charge during the
course of his trial.
Similarly, although the state appellate court discussed the prosecutor’s
closing argument, it did so in the context of an entirely different claim
raised by Gautt — namely, whether the prosecutor engaged in misconduct
when she (1) explained the difference between felony murder and misde-
meanor manslaughter to the jury during closing argument, despite the fact
that Gautt was never charged with felony murder; and (2) exhorted the
jury not to “give [Gautt] a break.” Id. at 9-13. This discussion is inapposite
to the question whether the closing argument provided Gautt with suffi-
cient notice of a potential conviction under section 12022.53(d).
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sentence was enhanced pursuant to section 12022.53(d), not
section 12022.53(b). See Gautt, slip op. at 18. In doing so, the
state appeals court did not acknowledge the multiple discrep-
ancies that existed between the information, the jury instruc-
tions, the verdict form, and the ultimate sentence.
[2] As the foregoing analysis indicates, the California Court
of Appeal did correctly recite federal law, by explaining that
a court must examine the information and factual allegations
made therein to determine if a defendant has received ade-
quate notice of a charge. We therefore cannot say that its deci-
sion to deny Gautt relief was “contrary to . . . clearly
established Federal law, as determined by the Supreme
Court.” 28 U.S.C. § 2254(d)(1). We must separately examine,
however, whether the state appeals court’s decision consti-
tuted an “unreasonable application of” such law. Id.
2
[3] We begin our review of the state court’s decision with
the text of the information. In relevant part, the information
stated:
The District Attorney of the County of Los Angeles,
by this Information alleges that:
. . . .
On or about January 10, 1998, in the County of
Los Angeles, the crime of MURDER, in violation of
PENAL CODE SECTION 187(a), a Felony, was
committed by DARRELL ANTHONY GAUTT,
who did unlawfully, and with malice aforethought
murder SAMANTHA FIELDS, a human being. . . .
It is further alleged that in the commission and
attempted commission of the above offense, the said
defendant(s), DARRELL ANTHONY GAUTT, per-
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sonally used a firearm(s), to wit: HANDGUN,
within the meaning of Penal Code sections
1203.06(a)(1) and 12022.5(a)(1) . . . .
It is further alleged that said defendant(s), DAR-
RELL ANTHONY GAUTT personally used a fire-
arm, a handgun, within the meaning of Penal Code
sections 12022.5(a)(1) and 12022.53(b).
(Emphases added.) So the information cited only section
12022.53(b), not section 12022.53(d), and recited section
12022.53(b)’s defining element — that Gautt “personally
used a firearm.” It did not mention either section 12022.53(d)
or that section’s separate and distinct elements, not required
for conviction under section 12022.53(b) — namely, that
Gautt “intentionally and personally discharged a firearm and
proximately caused great bodily injury.” Therefore, the infor-
mation did not provide any notice whatsoever of the enhance-
ment ultimately applied.
This is not a situation, in other words, in which the numeri-
cal citation was incorrect but the verbal description of the
crime corresponded to the crime of which the defendant was
convicted. Nor is this a situation in which citation to one stat-
ute necessarily encompassed another lesser-included offense,
thus sufficiently putting the defendant on notice of the need
to defend against both statutes. See, e.g., Salinas v. United
States, 277 F.2d 914, 918 (9th Cir. 1960) (holding that the
defendant had notice of lesser offenses included within an
indictment charging a more aggravated degree of that offense
because a first-degree arson charge for burning a house pro-
vides notice of a second-degree arson charge for burning a
structure).
3
[4] Nor did any other language in the information suffi-
ciently put Gautt on notice of a charge under section
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12022.53(d). The information, for example, contains no sug-
gestion of “proximate causation.” Further, the words “person-
ally used” do not subsume section 12022.53(d)’s “personal[ ]
discharge[ ]” element, since Gautt could have “personally
used” his handgun without ever firing it. See CAL. JURY INSTR.
CRIM. 17.19 (explaining that the term “personally used a fire-
arm,” for purposes of California Penal Code sections
1203.06(a)(1), 12022.5(a), and 12022.53(b), “means that the
defendant must have intentionally displayed a firearm in a
menacing manner, intentionally fired it, or intentionally
struck or hit a human being with it”) (emphasis added); Peo-
ple v. Johnson, 38 Cal. App. 4th 1315, 1319-20 (Ct. App.
1995).
[5] In its briefs to this court, the state argues that the infor-
mation’s allegation of “malice aforethought” as an element of
the murder charge was enough to put Gautt on notice that he
would have to defend against section 12022.53(d)’s element
of “intentionally and personally discharg[ing],” including its
requirement that any discharge be intentional. But as Califor-
nia courts have defined the term “malice aforethought,” its
appearance in the information could not have been enough to
adequately inform Gautt of an intent requirement.
[6] As defined under state law, “malice aforethought”
encompasses theories of both “express” and “implied” malice.
See People v. Swain, 12 Cal. 4th 593, 600 (1996) (citing CAL.
PENAL CODE § 188). Malice “is express when there is mani-
fested a deliberate intention unlawfully to take away the life
of a fellow creature.” Id. at 600 (quoting CAL. PENAL CODE
§ 188); see also People v. Saille, 54 Cal. 3d 1103, 1114
(1991) (explaining that “express malice and an intent unlaw-
fully to kill are one and the same”). Malice is implied under
one of at least two distinct standards: either “when no consid-
erable provocation appears, or when the circumstances attend-
ing the killing show an abandoned and malignant heart,” id.
(quoting CAL. PENAL CODE § 188), or “when the killing results
from an intentional act, the natural consequences of which are
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dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of
another and who acts with conscious disregard for life,” see
People v. Dellinger, 49 Cal. 3d 1212, 1215 (1989); Swain, 12
Cal. 4th at 601 (citing CAL. JURY INSTR. CRIM. 8.31, which
defines “implied malice” for purposes of murder in the second
degree).
[7] Under either implied malice definition, it cannot be said
that the information’s use of the term “malice aforethought”
gave Gautt sufficient notice that he was being charged with
“intentionally . . . discharg[ing]” a firearm, under section
12022.53(d). To meet the “malice aforethought” requirement,
the state could have tried to show that Gautt intentionally
committed some act in the course of killing Fields that sup-
ported an implied malice inference — for example, intention-
ally displaying and waving the handgun around in a taunting
and threatening manner,14 or intentionally striking Fields with
it. Such a showing, however, would not have been sufficient
to prove that Gautt “intentionally . . . discharged” a firearm,
which is what 12022.53(d) requires. In short, nothing in the
information — neither the statutes it cites nor the language it
uses — adequately informed Gautt that he was being charged
under section 12022.53(d).
4
Of course, if Gautt was ultimately convicted of the crime
actually alleged in the information — a violation of section
12022.53(b) — his constitutional right to notice was not actu-
ally violated. See Cole, 333 U.S. at 199 (examining the con-
tent of the jury instructions and the state supreme court’s
judgment to find the basis of the defendants’ conviction and,
thus, to determine if there was a discrepancy between that
14In fact, this is exactly what the state set out to prove during Gautt’s
trial, a point evidenced by the prosecutor’s closing argument. See infra pp.
6793-97.
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conviction and the content of the information). In this case,
however, there is no doubt that Gautt was convicted of a
crime not charged — and sentenced to at least fifteen addi-
tional years as a result. The trial judge calculated his sentence
using a twenty-five-years-to-life enhancement, the operative
enhancement under section 12022.53(d), rather than the ten-
year enhancement applicable under section 12022.53(b). The
California Court of Appeal only compounded the constitu-
tional injury by affirming Gautt’s conviction and sentence and
“amending” the abstract of judgment to reflect that his
twenty-five-year-to-life sentence enhancement was imposed
under section 12022.53(d), the statute not alleged in the infor-
mation.
[8] In sum, Gautt was charged with a violation of section
12022.53(b), carrying a ten-year enhancement, but convicted
of a violation of section 12022.53(d), requiring proof of three
additional elements and carrying a twenty-five-year-to-life
enhancement. Gautt’s constitutional right to be informed of
the charges against him was violated by this stark discrepancy
between the crime charged and the crime of conviction. The
California Court of Appeal’s conclusion to the contrary was
unreasonable. Although that court correctly recited “clearly
established Federal law, as determined by the Supreme Court
of the United States” in its decision, it did not acknowledge
that the substance of the information, not only the statute
cited, never alleged the crime of conviction. Having failed to
note this fatal flaw, the California Court of Appeal did not
explain why there was no constitutional violation arising from
the discrepancy, as we conclude there was. Given this critical
oversight, the California court’s analysis and judgment consti-
tuted “an unreasonable application of . . . clearly established
Federal law.” 28 U.S.C. § 2254(d)(1).
C
The state urges us to consider other sources, beyond the
information, as evidence that Gautt was sufficiently informed
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of a pending charge under section 12022.53(d). In particular,
it asks us to mine the evidence it presented at the preliminary
hearing and during its case-in-chief as well as the jury instruc-
tions issued by the trial judge for indications that Gautt knew
or should have known that he was being tried under that stat-
ute and come prepared to defend against the additional ele-
ments never alleged in the information. The California Court
of Appeal seemed to rely on at least some of this evidence,
as well as the state’s closing argument, in its decision.
[9] Our circuit has held that in certain circumstances — for
example, when a defendant has argued that he received insuf-
ficient notice of a particular theory of the case — a court can
examine sources other than the information for evidence that
the defendant did receive adequate notice. See Murtishaw v.
Woodford, 255 F.3d 926, 953-54 (9th Cir. 2001) (relying on
the state’s opening statement, evidence presented at trial, and
the instructions conference to hold that the defendant had
notice of the prosecution’s felony-murder theory); Calderon
v. Prunty, 59 F.3d 1005, 1009-10 (9th Cir. 1995) (looking to
the opening statement and transcript from a hearing after the
close of the prosecution’s case to assess whether the defen-
dant had notice that the prosecution was proceeding under a
lying-in-wait theory of murder); Morrison v. Estelle, 981 F.2d
425, 428-29 (9th Cir. 1992) (holding that the defendant
received constitutionally adequate notice of felony murder
theory through the jury instructions the prosecutor submitted
two days before closing arguments and from the overall evi-
dence presented at trial); Sheppard v. Rees, 909 F.2d 1234,
1236 n.2 (9th Cir. 1989) (suggesting, in dicta, that “[a]n
accused could be adequately notified of the nature and cause
of the accusation by other means — for example, a complaint,
an arrest warrant, or a bill of particulars” or “during the
course of a preliminary hearing,” and adding that the “[t]he
Constitution itself speaks not of form, but of substance”) (cit-
ing Gray v. Raines, 662 F.2d 569, 574 (Tang, J., specially
concurring)). We have never held, however, that these same
non-charging-document sources can be consulted when the
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defendant claims, like Gautt, that he never received sufficient
notice of the actual underlying charge — carrying a much
heavier penalty than the crime alleged — rather than merely
the operative theory of the case.15 Finally, and most impor-
tantly, the Supreme Court — the only court whose jurispru-
dence is relevant for purposes of AEDPA — has never held
that non-charging-document sources can be used to satisfy the
Constitution’s notice requirement in the present context.16
This stance strikes us as an exceedingly sensible one. Oth-
erwise, the state would almost always be able to point to some
portion of its case-in-chief — some shred of evidence pre-
sented during the trial or a handful of discrete questions asked
during the course of a direct examination — as proof of “no-
tice” to the defendant. And yet, it is not uncommon for prose-
cutors to “over-prove” their cases — that is, to introduce
evidence that could support a more severe charge, in the hope,
perhaps, of conveying to the jury the seriousness of the crime.
15Some of the aforementioned cases can be distinguished on other
grounds as well. In Calderon, for example, we looked to non-charging-
document sources only to corroborate our initial conclusion that the alle-
gation at issue had, indeed, been sufficiently made in the information. 59
F.3d at 1009. In Sheppard, the state fully conceded that it had failed to
give the defendant sufficient notice of its felony-murder theory. 909 F.2d
at 123. Although in subsequent analysis we looked to non-charging-
document sources and observed that “the prosecutor ‘ambushed’ the
defense with a new theory of culpability after the evidence was already in,
after both sides had rested, and after the jury instructions were settled,” we
did so only to bolster the conclusion that this error could not have been
“harmless” because the prosecution’s theory “was neither subject to adver-
sarial testing, nor defined in advance of the proceeding.” Id. at 1237-38.
16The Supreme Court has held that when determining whether a defen-
dant’s guilty plea was voluntary — in the sense that the defendant had
“real notice of the true nature of the charge against him” — a court can
look to the formal charges as well as to the record for evidence that the
trial judge or defense counsel explained “the nature of the offense in suffi-
cient detail to give the accused notice of what he is being asked to admit.”
Henderson v. Morgan, 426 U.S. 637, 645-47 (1976) (citing Smith v.
O’Grady, 312 U.S. 329, 334 (1941)). The Court, however, has not applied
Henderson outside the plea context.
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When that happens, the defendant may decide not to rebut or
refute evidence supporting only the higher charge, concentrat-
ing his defense instead on the lesser charge actually at issue.
Even more troublesome is the idea that jury instructions or
closing arguments — sure signs that the end of a trial is draw-
ing near — could substitute for sufficient notice to a defen-
dant of the charges that have been leveled against him. While
an instruction may be informative in indicating the common
understanding of the parties and the court as to what was at
stake in the trial, it cannot itself serve as the requisite notice
of the charged conduct, coming as it does after the defendant
has settled on a defense strategy and put on his evidence. The
same limitations are generally true of closing arguments as
well. After all, if the purpose behind a defendant’s constitu-
tional right to notice is “to enable him to prepare his defense,”
James, 24 F.3d at 24, a rule that allows the state to satisfy this
due process consideration via two late-stage trial events can
hardly advance that objective.
Nevertheless, for purposes of our analysis today, we will
assume — without deciding — that such sources can be
parsed for evidence of notice to the defendant and that the
California Court of Appeal did so use those sources.17 Yet,
even after consulting these sources, we still conclude that
none sufficiently alerted Gautt to a potential sentence
enhancement under section 12022.53(d). Even taken together,
these sources are insufficient. If anything, they bolster the
contrary conclusion — that the state never asked the jury to
decide whether Gautt intentionally discharged his handgun.
17As noted earlier, it is not entirely clear from the text of the California
Court of Appeal’s opinion whether that court actually relied on trial evi-
dence, jury instructions, and the closing argument when rejecting Gautt’s
right to notice claim, or whether it considered these sources solely for pur-
poses of Gautt’s Apprendi claim. See supra pp. 6782-84. We err on the
side of caution, however, assume that the state appeals court did rely on
these portions of the record when dismissing Gautt’s Sixth Amendment
claim, and review its analysis accordingly.
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As a result, the state appellate court’s decision constituted “an
unreasonable application of” what we assume for present pur-
poses to be “clearly established Federal law.” 28 U.S.C.
§ 2254(d)(1).
[10] The state contends, first, that evidence it presented at
a preliminary hearing should have alerted Gautt to a charge
under section 12022.53(d). In particular, in its briefs to this
court, the state points to testimony that Gautt was “violently
upset” with Fields, that he “stood over Fields while she sat in
chair scared and whimpering,” and that Gautt did not try to
help Fields after shooting her but rather ordered others in the
room to help him conceal the crime. While such evidence
may suggest that Gautt acted in an especially callous manner,
it does not indicate that Gautt pulled the trigger on purpose —
as opposed to, for example, threatening her with the gun,
which then went off unintentionally. So the evidence intro-
duced at the preliminary hearing could not have been enough
to put Gautt on notice of a potential sentencing enhancement
under section 12022.53(d), requiring an intention to discharge
the handgun.
Moreover, at the end of the preliminary hearing, the judge
found true “that the defendant was personally armed within
the meaning of . . . 12022.53(b).” She did not find probable
cause of any of the additional elements of section
12022.53(d), nor did she mention that section. At the end of
the preliminary hearing, consequently, the only reasonable
conclusion Gautt and his lawyer could have drawn is that he
would have to defend against only section 12022.53(b), not
against the additional elements contained in section
12022.53(d).
The evidence the state presented at trial provides a simi-
larly flimsy basis for determining that Gautt had notice of a
potential conviction for “intentionally and personally dischar-
g[ing]” the handgun. The only evidence the government
points to in its briefs that is, in fact, uniquely relevant to a
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showing of intentional and personal discharge is testimony
from a firearms expert, who explained that the design of
Gautt’s handgun made it unlikely that his weapon discharged
accidentally. This piece of evidence alone, however, was
insufficient to put Gautt on notice that the state’s objective
was to secure a sentencing enhancement under 12022.53(d),
when the charging document said otherwise, the other evi-
dence presented at trial supported only the “personal[ ] use[ ]”
allegation explicitly set forth in the information, and the thrust
of the firearm expert’s testimony was subject to other interpreta-
tions.18
[11] The government also asks us to consider the trial
judge’s instructions to the jury as another source of notice to
Gautt. As we have already explained, though, those instruc-
tions were particularly muddled, given that the trial judge rat-
tled off the citation to the latter statute but the substance of the
former. See supra pp. 6772-73. As a result, and given their
timing, the instructions could not have been enough, alone, to
inform Gautt adequately of a charge under section
12022.53(d), rather than section 12022.53(b).
Finally, we turn to the content of the prosecution’s closing
argument, which we believe is the clearest indication that the
18The federal district court, which denied Gautt habeas relief, recog-
nized this point. According to that court, the state’s firearms expert testi-
fied about the loaded and cocked nature of the gun and the fact that it was
pressed up against the victim’s clothing at the time she was shot. Gautt v.
Lewis, No. CV 01-6771-PA, slip op. at 23 (C.D. Cal. Feb. 27, 2003). The
district court concluded that this evidence should have put petitioner on
notice “that the prosecutor intended to try and prove that petitioner either
intentionally fired the weapon or fired it as a result of brandishing it in a
reckless manner.” Id. (emphases added). Based on this interpretation of
the testimony, Gautt could have believed that the prosecution sought only
to prove the second point — that he fired the handgun after recklessly
brandishing it — rather than the first — that he intentionally discharged
the gun. That second point sufficed for a second-degree murder conviction
and would have satisfied the section 12022.53(b) enhancement actually
charged.
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state never sought to prove that Gautt “intentionally . . . dis-
charged” the handgun — and that the prosecutor, therefore,
could not have been behaving over the course of the trial in
a manner that would have put Gautt on notice of such a
charge. We quote from the prosecution’s closing argument at
length:
The defendant in this case, I’m asking you to con-
vict him of second degree murder. The verdict form
will say “murder.” I’m not proceeding against the
defendant on first degree murder. If I were, I would
have to prove intent to kill. To convict the defendant
of first degree murder, you have to find that he
intended to kill. That means that he meant for her to
die. I’m not asking you to do that.
I think there’s room for arguing for that, but I
won’t ask you to do that in this case. I’m just asking
you to convict the defendant of second degree mur-
der because it’s warranted on the facts of this case.
Forget about express malice because that applies
to first degree murder, and we don’t have that. What
we care about in this case is implied malice. A per-
son is guilty of second degree murder if they kill
someone with implied malice, and the law in the
State of California holds, if you quali[f]y for these
three things, if you commit an act so dangerous that
it warrants holding you accountable for murder, then
you’re accountable for murder, and that’s what
implied malice is. The killing has to have resulted
from an intentional act.
I want to stop here, and I’ll come back to it. I want
to make this really clear. I want you to be clear,
when it says [ ]intentional act,[19] that doesn’t mean
19Although the transcript reads “unintentional act,” we know the prose-
cutor meant to say “intentional act” because the implied malice jury
instruction uses the word “intentional.”
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he intentionally pulled the trigger. There’s room for
arguing that. That is not required. The intentional
act need only be, in this case, the act of having a
loaded gun. The act of pointing a loaded gun.
Even if you were to accept the defendant’s version
of waving around a loaded gun, the intentional act
is having the gun and pointing it in a dangerous
manner and waving it in a dangerous manner.
That’s the act. Not the pulling of the trigger. . . .
(Emphases added.)
Later in her argument, the prosecutor continued:
It does not matter whether he pulled the trigger or
not. . . .
. . . .
He was standing over here pointing a loaded hand-
gun at her, and he pulled the trigger. Whether he
truly meant to pull that trigger or not, he pulled the
trigger. His finger was on that trigger. It had to have
been. That gun didn’t just go off.
You had the firearms expert who testified the trig-
ger pull is five pounds, and it’s normal on that gun.
Nothing wrong with that gun. That gun went off
because he was mad and he had his finger on the
trigger, and it’s a small gun and small trigger area.
There’s no way, and there’s no testimony in this
case she got up and somehow got her finger in that
trigger hole and forced him to pull the trigger or
pushed on his finger. There’s no evidence of that in
this case. He pulled the trigger. I submit to you at
that moment he meant to. But that’s not at issue in
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this case because I’m not asking you to find he
intended to do it.
What I’m asking you and hope actually showing
you, looking at the law and applying the facts in this
case, that killing in this case resulted from the inten-
tional act of pointing a loaded handgun at Samantha
Fields with his finger on the trigger, and that [the]
natural consequence[ ] of that act [is] certainly dan-
gerous to human life.
There is no disputing that. And . . . that act was
deliberately performed as he meant to do it. His pur-
pose was to scare, but he meant to pull out that gun
and point it and he did it with knowledge of the dan-
ger and with . . . total disregard for the danger to life
that it posed . . . .
(Emphases added.)
The prosecutor only mentioned the words “personal dis-
charge” toward the close of her final argument, as she read the
court-prepared verdict form aloud to the jury. As we
explained earlier, though, that form was flawed, describing as
it did section 12022.53(b), not section 12022.53(d), as an
offense that contained the elements of personal discharge and
proximate causation, but failing also to mention section
12022.53(d)’s element of intent. See supra 6774-75. It should
come as no surprise then that when the prosecutor recited this
portion of the verdict form to the jury, she simply parroted its
errors. So even when the prosecutor came closest to address-
ing the substance of section 12022.53(d), she still failed to
mention its most critical element — that of intentional dis-
charge. Consistent with that omission, the prosecutor told the
jury — three times — that to convict on the personal dis-
charge charge, intent to pull the trigger was irrelevant; all they
needed to find was that “he’s the one that had his finger on
the trigger . . . [h]e had his finger on the trigger when the mur-
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der took place . . . because he had his finger on the trigger and
because the murder happened, that’s what caused the murder
or the death.”
[12] The prosecutor’s closing argument thus makes clear
that the state did not understand the case as one requiring it
to prove that Gautt intentionally discharged his handgun and
did not so present the case to the jury. Instead, the state
emphasized to the jury that all the prosecution needed to
prove was that Gautt intentionally displayed, pointed, or
waved the handgun in a “dangerous manner,” and had his
hand on the trigger when it went off. Those facts were cer-
tainly enough to secure a conviction for “personally using” a
firearm, the element endemic to section 12022.53(b). More-
over, while the prosecutor told the jury that she might have
been able to argue from the evidence presented that Gautt
intended to pull the trigger — “He pulled the trigger. I submit
to you at that moment he meant to” — she quickly backed
away from the burden of having to prove the element of “in-
tentional[ ] . . . discharge[ ],” as she also told the jury that
“that’s not at issue in this case because I’m not asking you to
find he intended to do it.”
The purpose behind a closing argument is “to explain to the
jury what it has to decide and what evidence is relevant to its
decision.” Sandoval v. Calderon, 241 F.3d 765, 776 (9th Cir.
2000). The government’s closing argument is that moment in
the trial when a prosecutor is compelled to reveal her own
understanding of the case as part of her effort to guide the
jury’s comprehension. In Gautt’s case, the prosecution’s final
argument makes clear that the prosecutor did not see herself
as having the burden to convince the jury beyond a reasonable
doubt that the handgun was “intentionally . . . discharged.”
That being the prosecution’s understanding, there is no reason
in the world Gautt or his lawyer would have had a different
understanding — that he had to defend himself against a dif-
ferent set of allegations, defining an extremely serious
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enhancement and resulting in a longer sentence than the
enhancement alleged in the information.
[13] In conclusion, even if we assume that Supreme Court
precedent allows us to consider sources beyond the charging
document when deciding whether Gautt had been given con-
stitutionally sufficient notice of a charge under section
12022.53(d), a close examination of those sources does not
alter, but reinforces, our earlier outcome. We remain steadfast
in our conviction that Gautt’s constitutional right to be
informed of the charges against him was violated when he
was charged under section 12022.53(b) but had his sentence
enhanced pursuant to the harsher penalties afforded by section
12022.53(d), and that the state court was “objectively unrea-
sonable” in concluding otherwise. See Andrade, 538 U.S. at
75.
IV
We must now consider how best to cure this constitutional
defect. Gautt argues that his conviction under section
12022.53(d) should be automatically reversed; the state, on
the other hand, urges us to undertake a harmless error review.
Existing case law on this point is less than clear. As a result,
although we see many arguments in favor of Gautt’s position,
we take the more cautious route here and assume, without
deciding, that harmless error review governs. Under this more
stringent mode of analysis, Gautt prevails.
We begin by explaining our hesitation in automatically
reversing Gautt’s conviction under section 12022.53(b), the
route the Supreme Court took in both Cole, see 333 U.S. at
202, and Stirone, Cole’s Fifth Amendment counterpart, see
361 U.S. at 219. In Stirone, in particular, the Court empha-
sized that a variance between the charges in the indictment
and the evidence presented during the trial allowed the jury to
convict on grounds not charged in the indictment and “de-
stroyed the defendant’s substantial right to be tried only on
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charges presented in an indictment returned by a grand jury.
Deprivation of such a basic right is far too serious to be
treated as nothing more than a variance and then dismissed as
harmless error.” Id. at 217. Instead, the Court characterized
the error as “fatal,” and reversed the conviction. Id. at 219. In
so doing, it specifically cited to Cole. Id.
Our own circuit has employed both automatic reversal and
some form of harmless error review when assessing appeals
involving a “right to notice” claim. Compare Sheppard, 909
F.2d at 1237 (automatically reversing a conviction), with Giv-
ens, 786 F.2d at 1381 (applying harmless error review).20 Giv-
ens, however, held that the notice error is harmless only if
defendants received notice through other means besides the
charging document. 786 F.2d at 1381. Thus, although Shep-
pard and Givens may at first appear in tension, they both hold
that if a defendant does not receive notice of a charge through
a charging document or through some other means, the con-
viction must be reversed.
A competing factor gives us pause, however, and would
require a close examination before we could accept automatic
reversal as the appropriate course of action here. Both Cole
and Stirone were decided before the Supreme Court distin-
guished between “structural” constitutional errors that can be
cured only through automatic reversal and those errors that
can be corrected through harmless-error review. See Chapman
v. California, 386 U.S. 18, 22-23 (1967) (holding that “some
constitutional errors . . . in the setting of a particular case are
so unimportant and insignificant that they may, consistent
with the Federal Constitution, be deemed harmless,” while
20In Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000), we also assumed a
structural error where the defendant had not been given notice of a specific
charge. For the reasons set forth below, though, we do not base our analy-
sis on that assumption. More generally, we note that Jones bases its analy-
sis on the Fifth Amendment’s right to a grand jury indictment,
notwithstanding that this right has not been incorporated to apply to the
states.
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other “constitutional rights [are] so basic to a fair trial that
their infraction can never be treated as harmless error”). In
fashioning these two categories, Chapman explicitly referred
to three constitutional errors as falling into the former group,
all of which had been recognized by earlier Supreme Court
decisions. See id. at 23 n.8 (the admission of a coerced con-
fession, deprivation of a right to counsel, and a partial judge).
It made no mention, however, of the right to “notice of the
specific charge” that had been set forth pre-Chapman in Cole,
333 U.S. at 201, or of the right not to be convicted of grounds
not set forth in the indictment set forth in pre-Chapman Sti-
rone, 361 U.S. at 217.
Since Chapman, the Supreme Court has periodically re-
recited this list of “structural errors” and, on occasion,
expanded it. See Arizona v. Fulminante, 499 U.S. 279, 310
(1991) (adding the “unlawful exclusion of members of the
defendant’s race from a grand jury,” “the right to self repre-
sentation at trial,” and “the right to a public trial” to Chap-
man’s list of structural errors); Sullivan v. Louisiana, 508 U.S.
275, 281-82 (1993) (adding constitutionally deficient
reasonable-doubt instructions to the list of “structural
error[s]”); Johnson v. United States, 520 U.S. 461, 468-69
(1997) (reciting the list of structural errors, as of Sullivan);
Neder v. United States, 527 U.S. 1, 8 (1999) (same); Wash-
ington v. Recuenco, 126 S. Ct. 2546, 2551 (2006) (same).
Never, though, has the Court included the rights identified by
Cole or Stirone on its short, purposely limited roster of struc-
tural errors. See Fulminante, 499 U.S. at 306 (recognizing that
“most constitutional errors can be harmless”). Yet the Court
has never included the rights articulated in Cole and Sti-
rone on a list of mere “trial” errors, subject only to harmless-
error review, either. See id. at 306-07 (detailing seventeen
constitutional errors that can be harmless, without mentioning
a violation of one’s right to notice).
We are thus at a bit of loss as to how to interpret these
clearly non-exhaustive lists. On the one hand, and for reasons
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already stated, we hesitate to pronounce the constitutional
violation in question structural in nature, without an explicit
“green light” from the Court. While our own circuit certainly
adopted an automatic reversal approach in Sheppard, we can-
not ignore the fact that Sheppard predates Fulminante, Sulli-
van, Johnson, and similar Supreme Court cases, all of which
stressed the limited number of “structural errors.” On the
other hand, the Court’s prior characterization of the right to
be informed of charges against you — as both “basic in our
system of jurisprudence,” Oliver, 333 U.S. at 273 (emphasis
added), and as a “principle of procedural due process” that is
unsurpassed in its “clearly established” nature, see Cole, 333
U.S. at 201 — makes us inclined to believe that this type of
constitutional deprivation must be structural, because it “af-
fect[s] the framework within which the trial proceeds, rather
than simply [being] an error in the trial process itself,” Fulmi-
nante, 499 U.S. at 310; see also Brecht v. Abrahamson, 507
U.S. 619, 629-30 (1993) (describing structural defects as
those that “infect the entire trial process” and “which defy
analysis by ‘harmless-error’ standards” (quoting Fulminante,
499 U.S. at 309) (internal quotation mark omitted)).
Fortunately, and as stated earlier, we need not resolve this
question today. For, even if harmless-error review applies, the
due process problem in this case was not harmless.
Under AEDPA, “even where the state court has committed
constitutional error under § 2254(d), ‘habeas relief may still
be denied absent a showing of prejudice.’ ” Buckley v. Ter-
hune, 441 F.3d 688, 697 (9th Cir. 2006) (en banc) (quoting
Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004), cert.
denied 2007 WL 1174407 (U.S. Apr. 23, 2007)). To deter-
mine prejudice, we apply the harmless-error standard from
Brecht. See Bains v. Cambra, 204 F.3d 964, 977 (9th Cir.
2000) (holding that federal courts “always should apply the
Brecht standard when conducting their own independent
harmless error review, regardless of what, if any, type of
harmless error review was conducted by the state courts”).
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Under this standard, we grant relief where we believe the
error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht, 507 U.S. at 623 (quot-
ing Kotteakos v. United States, 328 U.S. 750, 776 (1946)
(internal quotation marks omitted)). As the Supreme Court
has explained, under the Brecht standard, we ask, “Do I, the
judge, think that the error substantially influenced the jury’s
decision.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). In
a case where the record is so evenly balanced that a “consci-
entious judge is in grave doubt as to the harmlessness of an
error,” the petitioner must prevail. Id. at 438. Thus, in the
course of a Brecht inquiry, the state bears the “risk of doubt.”
See Valerio v. Crawford, 306 F.3d 742, 762 (9th Cir. 2002)
(en banc).
[14] Applying this standard, and after carefully reviewing
the record before us, we hold that the state’s failure to inform
Gautt of a charge under section 12022.53(d) was prejudicial
under Brecht. We cannot conclude otherwise, given the facts
before us.
In particular, we cannot ignore the fact that Gautt was sen-
tenced fifteen-years-to-life for second-degree murder, but had
his sentence enhanced twenty-five-years-to-life under section
12022.53(d), rather than ten years under section 12022.53(b).
In other words, the enhancement alone comprised more than
half of his sentence,21 and fifteen-years-to-life — as much as
the underlying second-degree murder sentence — more than
the enhancement of which he had notice. Had Gautt realized
that so much hinged on whether the jury found that he dis-
charged the handgun intentionally, we have no doubt that he
would have prepared a different defense and made different
tactical choices.
21As noted earlier, Gautt was sentenced to a term of imprisonment of
forty-nine years and eight months to life. See supra pp. 6776 & n.8.
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For example, the record before us indicates that Gautt con-
centrated at trial on defending against the second-degree mur-
der charge rather than on the enhancement. This was a
perfectly sensible focus given the charging document, even
though the chosen defense to second-degree murder was, as
the prosecution pointed out, exceedingly weak.22 Conviction
for the “personal use” enhancement was pretty much a fore-
gone conclusion if there was a second-degree murder convic-
tion, as Gautt clearly did “use” the gun by flailing it around
and threatening the victim, and as that enhancement had no
proximate cause or intent to discharge element. So, with good
reason, Gautt’s counsel devoted no separate attention to that
enhancement. Yet the government’s direct evidence that Gautt
pulled the trigger purposely, rather than accidentally, was
somewhat scant. Gautt’s lawyer may well have chosen to con-
centrate on refuting that evidence, rather than putting on a
weak defense to second-degree murder, had he known that a
fifteen-year-to-life additional sentence turned on it. For
instance, he could have presented evidence about Gautt’s
mental state at the time of Fields’s shooting, relying on the
fact that Gautt had used cocaine shortly before Fields’s mur-
der to rebut the notion that his client was capable of forming
the mens rea required under section 12022.53(d).
Perhaps most importantly, had Gautt been aware of a
potential conviction under section 12022.53(d), he would
most probably have structured his closing argument differ-
ently, using his last opportunity before the jury to drive home
the point that while he held the gun in the moments before
Fields’s murder, and may even have recklessly and con-
sciously disregarded the known risk that the gun could go off
and kill, he did not intend to pull the trigger. As the record
stands, Gautt’s lawyer never addressed the intent to discharge
point during his closing argument, even in the alternative —
i.e., “even if you find Gautt guilty of second-degree murder,
22The prosecutor argued, fairly convincingly, that even on the defen-
dant’s version of events, he would still be guilty of second-degree murder.
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you should not find him guilty of personal discharge of a fire-
arm because if he set off the trigger, he did not do so inten-
tionally.” He had no reason to, given the prosecutor’s
repeated disavowal, during her own closing argument, of any
need for the jury to find the intentional discharge of the hand-
gun. Moreover, the prosecution’s decision to charge only
second-degree murder and expressly and repeatedly to dis-
avow any need for the jury to find intentional discharge of the
firearm is the strongest of indications that finding such an
intent beyond a reasonable doubt was far from a foregone
conclusion, given the available evidence. Instead, such a find-
ing might well have been headed off by a properly focused
defense.
We have little doubt that Gautt’s understandable failure
fully and adequately to focus his defense on disproving intent
to discharge the gun and to properly frame his closing argu-
ment resulted from the failure to notify him of any need to do
so, and that that decision had a substantial influence on the
jury’s verdict. The result was that the trial court enhanced his
sentence twenty-five years to life, instead of the ten years that
had been so clearly alleged on the face of the information,
without providing Gautt a fair opportunity to defend against
the more stringent enhancement. The state’s error was not
harmless, and habeas relief is warranted.
* * * *
On remand, the district court shall grant a conditional writ
of habeas corpus, ordering that the state release Gautt unless
it re-sentences him. We note that the jury found that Gautt
“personally used” the handgun for purposes of two different
statutes, sections 12022.5(a)(1) and 1203.06(a)(1), and the
jury’s finding that Gautt “personally discharged” the handgun
is a finding of “personal use.”23 Thus, nothing in this opinion
precludes the state from re-sentencing Gautt under the ten-
23See CAL. JURY INSTR. CRIM. 17.19.
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year sentence enhancement provided for by section
12022.53(b).
REVERSED AND REMANDED.
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