Does the 1883 rule set forth in People v Soto, 63 Cal. 166 -that facts which expose a defendant to substantially enhanced punishment need not be pled in the charging document -violate the notice requirements of the common law codified in the Sixth Amendment guarantee that 'in all criminal prosecutions, the accused shall enjoy the right . . . to be informed

QUESTION PRESENTED Under the common law there was “a well-established practice of including in the indictment, and submitting to the jury, every fact that was a basis for imposing or increasing punishment.” Alleyne v. United States, 570 U.S. 99, 109 (2013). Accord id. at 111 (“the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted.”); Blakely v. Washington, 542 U.S. 296, 301-302 (2004) (“an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the requirements of the common law, and it is no accusation in reason.”); Apprendi v. New Jersey (2000) 530 U.S. 466, 502 (conc. opn. of Thomas, J.) (noting “the common-law understanding that a fact that is by law the basis for imposing or increasing punishment” must be alleged in the charging document). This tule -that facts which increase the maximum penalty for a crime must be charged in the accusatory pleading -was codified in, and “reflected the original meaning of the . . . Sixth Amendment[].” Apprendi, 530 U.S. at 518 (conc. opn. of Thomas, J.). Thus, as the Court has frequently recognized, “[a]ny fact (other than [a] 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.” United States v. Jones, 526 U.S. 227, 243 n.6 (1999). Accord Ring v. Arizona, 536 U.S. 584, 600 (2002); Harris v. United States, 536 U.S. 545, 555 (2002) ; Apprendi, 530 U.S. at 476. But not in California. From 1883 on California has chosen a different, contrary path. Although facts which expose a defendant to increased punishment must be proven to a jury, and beyond a reasonable doubt, under California law they need not be charged in the accusatory pleading and no notice need be given. i This case presents the perfect illustration. Here, petitioner was charged with murder in violation of California Penal Code § 187. That section defines murder as the “killing of a human being . . . with malice aforethought.” Pursuant to Penal Code § 190, murder is punishable by a sentence of 15 years to life in state prison. Under California law, there are numerous situations in which a defendant guilty of murder can receive a significantly longer sentence. For example, if the state proves the victim was a police officer performing his or her duties, the sentence is 25 years-to-life or life without parole. Cal. Pen. Code, § 190 (b) and ©. Similarly, where the state proves the murder was premeditated, the crime is first degree murder and the punishment is “death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life.” Cal. Pen. Code, § 190(a). But the charging document here gave no notice that the state was charging first degree murder. Instead, the state elected to charge petitioner with murder simpliciter in violation of Penal Code § 187, and it did not allege either premeditation or deliberation -the facts which exposed Mr. McCoy to the substantially more serious punishment flowing from a first degree murder conviction. Petitioner was convicted of first degree murder, and sentenced to a 25 year-to-life term. He appealed, contending his conviction could not stand in light of the common law notice requirements codified in the Sixth Amendment. Put more simply, petitioner was convicted of a crime with which he never been charged. The state appellate court properly recognized that “[t]he information did not include an allegation that the murder was premeditated or that defendant was being charged with first degree murder under section 189.” People v. McCoy, 2022 WL 17948729, at *5 (2022). Nevertheless, relying on the California Supreme Court’s 1883 decision in People v. Soto, 63 Cal. 165 (1883) and its progeny, the appellate court here ii affirmed the conviction. In Soto the state supreme court held that facts wh