Whether the 1936 rule set forth in People v Britton, 6 Cal.2d 1 violates Apprendi, Alleyne and the notice requirements of the Sixth Amendment

QUESTIONS PRESENTED Petitioner was charged with kidnapping for ransom, a violation of California Penal Code § 209. As amended in 1933, § 209 defined two different offenses, with two very different punishments. Simple kidnapping for ransom -where the victim of the kidnapping does not “suffer bodily harm” -was punishable by life with the possibility of parole. Aggravated kidnapping for ransom -where the victim does suffer bodily harm -was punishable by life without the possibility of parole. Under this scheme, proof that the victim suffered bodily harm was essential to imposition of the significantly harsher term of life without parole. Three years after § 209 was amended, the California Supreme Court addressed whether the fact of bodily harm essential to the increased punishment needed to be alleged in the charging document. In People v. Britton, 6 Cal.2d 1 (1936), a divided California Supreme Court held that bodily harm did not have to be alleged in the indictment in order for the state to impose a life without parole sentence. This was so, according to Britton, because the fact of bodily harm did not go to guilt. Instead, it merely involved an “increase [to] the penalty if the person forcibly taken suffers bodily harm.” 6 Cal.2d at 5-6. Sixty-four years later, this Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Court held that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” 530 U.S. at 476. Accord Alleyne v. United States, 570 U.S. 99, 109-111 (2013). i In all material respects, § 209 remains the same today as it was in 1933. Here, petitioner was charged with simple kidnapping for ransom, but ultimately convicted of aggravated kidnapping and sentenced to life without parole. On appeal he contended that in light of Apprendi and Alleyne, the 85-year old decision in Britton could not stand. Although the state appellate court rejected this argument, it recognized that petitioner “was originally charged with simple kidnapping for ransom.” People v. Handley, 2020 WL 58048, at *5 (2020). The court correctly noted that the charging document did not “include[] [any] allegations” which would have exposed defendant to a conviction for aggravated kidnapping for ransom. Jd. at *6. Furthermore, the court found that not only did “the information allege[] simple kidnapping for ransom, and that charge was never formally amended” but “appellant was never expressly informed he could be sentenced to LWOP if the jury found [aggravated kidnapping].” Jd. at *8,9. On reconsideration of the issue, the state appellate court again rejected petitioner’s Apprendi/Alleyne argument, explicitly relying on Britton and ruling that “as an intermediate appellate court, we must follow decisions of the California Supreme Court.” People v. Handley, 2021 WL 1138353, at *9 (2021). This ruling gives rise to the following question: 1. Whether the 1936 rule set forth in People v Britton, 6 Cal.2d 1 -that facts which expose a defendant to substantially enhanced punishment need not be pled in the charging document because they only go to punishment -violates Apprendi, Alleyne and the notice requirements of the common law incorporated into the Sixth Amendment guarantee that “in all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation . . . .” ii