Lead Opinion
Opinion
This case concerns two questions we did not resolve in People v. Seel (2004)
BACKGROUND
In January 2003, Donna Divens saw A.B. and E.M. following defendant around a block of units in the apartment complex where Divens lived. Both girls were five years old. Divens followed them around a comer and saw A.B.
Defendant was charged in count one with committing a lewd and lascivious act on A.B., a child five years of age. (Pen. Code, § 288, subd. (a).)
During the second day of deliberations, the jury announced it had reached verdicts on the lewd act and pornography charges but could not reach a verdict on the substantive kidnapping counts or on the section 667.61, subdivision (e)(1) kidnapping allegations. After further deliberations produced the same result, the court received the jury’s verdicts of guilty on the lewd act, attempted lewd act and child pornography charges, and declared a mistrial on the kidnapping counts and factual sentencing allegations. Defendant waived time for sentencing, and the court scheduled a retrial on the mistried counts and sentencing allegations. Months later, but before defendant’s second trial, the prosecutor amended the information to add another, harsher, kidnapping allegation under the One Strike law in connection with the crime against A.B. In addition to the allegation of kidnapping under
At his second trial, defendant stipulated that he had been convicted of molesting one little girl, attempting to molest the other, and of possessing child pornography. The jury in this second trial found defendant guilty of both substantive kidnapping charges (§ 207, subd. (b)) and found true both the 15-year and 25-year factual allegations charged in connection with the crimes against A.B. After receiving these verdicts, the court sentenced defendant to an indeterminate term of 25 years to life imprisonment under the One Strike law (§ 667.61, subd. (d)(2)) for violation of section 288, subdivision (a), plus a consecutive determinate term of 11 years for kidnapping E.M. in violation of section 207, subdivision (b). (A three-year sentence for the attempted lewd act against E.M. was ordered to run concurrently, and an 11-year sentence for the kidnapping of A.B. was stayed pursuant to § 654.)
Defendant appealed on several grounds. The Court of Appeal rejected all but one of his arguments, on an issue not contested here.
I. Overview of California Sentencing Law
“Every crime consists of a group of elements laid down by the statute or law defining the offense and every one of these elements must exist or the statute is not violated. This group of essential elements is known as the ‘corpus delicti,’ the body or the elements of the crime. [Citation.]” (Fricke, Cal. Criminal Law (1970) p. 26.) A criminal offense is thus a collection of specific factual elements that the Legislature has chosen to define as a crime. Some substantive crimes are further divided into degrees. For example, the substantive crime of burglary is defined by its elements as: (1) entry into a structure, (2) with the intent to commit theft or any felony. (§ 459; see also CALCRIM No. 1700.)
The Legislature has prescribed a range of determinate sentences for most substantive crimes. (See § 1170.)
The Legislature has also concluded that some substantive crimes should be punished more severely because of particular facts attendant upon their commission. The Legislature has implemented this policy in several ways. It has provided for greater sentences if certain enhancements are pled and proven. (See Cal. Rules of Court, rule 4.405(3).) Enhancements have their own factual elements, such as the personal use of a firearm (§§ 12022.5, 12022.53) or the infliction of great bodily injury (§ 12022.7). So, a defendant
The Legislature and California voters have also enacted a “parallel sentencing scheme” for repeat offenders. (People v. Anderson (1995)
The One Strike law (§ 667.61) was added to the Penal Code in 1994. (Stats. 1994, 1st Ex. Sess., ch. 14X, § 1, p. 8570; see People v. Hammer (2003)
Under the One Strike law, certain factual allegations may have the same elements as a substantive offense. Such was the case here. Kidnapping a child to commit a lewd and lascivious act is a substantive offense. (§ 207, subd. (b).) The same conduct may also be alleged as a factual sentencing allegation under the One Strike law. (§ 667.61, subds. (c)(4), (e)(1).) The elements of both the substantive crime and the sentencing allegation are the same. Here, the prosecution charged kidnapping as both a substantive offense and as a sentencing allegation attached to the lewd and lascivious conduct offense.
Defendant’s first jury found him guilty of the substantive offense of committing a lewd and lascivious act on A.B. (§ 288, subd. (a).) However, because the jury could not agree about whether he kidnapped her for the purpose of committing this offense, it hung on both the substantive kidnapping charge (§ 207, subd. (b)) and the One Strike sentencing allegation (§ 667.61, subd. (e)(1)). These facts demonstrate the flaw in defendant’s double jeopardy argument. It is well settled that when the jury convicts a defendant on some counts but hangs on others, resulting in a mistrial, the mistried counts may be tried to a new jury. (§ 1160.)
II. Constitutional Double Jeopardy Protection
The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15, of the California Constitution provide that a person may not be twice placed “in jeopardy” for the “same offense.” “The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects
“The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal.” (Arizona v. Washington (1978)
However, when a trial produces neither an acquittal nor a conviction, retrial may be permitted if the trial ended “without finally resolving the merits of the charges against the accused.” (Arizona v. Washington, supra,
The jury in this case convicted defendant of committing a lewd act but deadlocked on the One Strike kidnapping allegation attached to that offense.
A. Double Jeopardy Clause Applies to Penalty Allegations
In Bright, supra,
We revisited this holding after the United States Supreme Court questioned the constitutional significance of the distinction between penalty provisions and elements of offenses. In Apprendi, supra,
Citing the “functional equivalence]” language from Apprendi, defendant here argues that a factual allegation charged in connection with an underlying felony effectively transforms the underlying felony into a greater offense. He then maintains that a conviction of the underlying offense alone bars retrial on state and federal double jeopardy grounds of an attached penalty allegation on which the jury has deadlocked. We have not previously discussed Apprendi’s effect on mistried sentencing allegations, nor has the United States Supreme Court spoken to the issue directly.
In Seel, supra,
Seel did not completely overrule Bright, however, because for double jeopardy purposes the procedural posture of the cases differed in an important way. In Seel, the section 664, subdivision (a) finding was reversed because the evidence was insufficient as a matter of law. In Bright, on the other hand, the jury was unable to reach a verdict on the premeditation allegation. (Seel, supra,
Defendant in this case was charged with the substantive crime of lewd and lascivious conduct on a child under age 14. (§ 288, subd. (a).) It was also alleged, as a question of fact to be proven under Apprendi, that he kidnapped the victim in order to commit the substantive offense. (§ 667.61, subd. (e)(1).)
Accordingly, unless a defendant waives its protection, the Sixth Amendment requires that a One Strike allegation be tried to a jury and proven beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at.p. 490.) Our inquiry does not end here, however, because the factual sentencing allegation in this case did not result in an acquittal or its legal equivalent (see ibid.), but in a mistrial. The next question is whether the double jeopardy clause permits retrial of such a factual sentencing allegation when the first trial did not result in an express or implied acquittal.
B. No Constitutional Bar to Retrial of Allegation After Mistrial
In general, the double jeopardy clause of the Fifth Amendment prohibits the government from prosecuting a defendant for a greater offense after it has convicted him of a lesser included offense. (Brown v. Ohio, supra, 432 U.S. at pp. 168-169.) However, the United States Supreme Court has recognized several exceptions to this rule. In Jeffers v. United States (1977)
The same is true when the court enters a mistrial on a greater offense based on the “manifest necessity” of a juror deadlock. “[Wjithout exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords
When a jury expressly deadlocks on a greater offense and, at the same time, convicts on a lesser included offense, we have interpreted the federal authorities to mean that “the conviction on the lesser offense does not operate as an implied acquittal of the greater.” (Fields, supra,
Ohio v. Johnson (1984)
The high court explained that continued prosecution did not implicate the prohibition on multiple punishments for the same offense (see Brown v. Ohio, supra,
Defendant here did not try to manipulate the system by entering preemptive guilty pleas, and unlike the defendant in Johnson he was required to face trial twice on the One Strike allegation. However, a more recent Supreme Court decision suggests the overriding lesson is that double jeopardy does not bar retrial of sentencing facts when there is not an implied acquittal.
In Sattazahn, supra,
The United States Supreme Court concluded the double jeopardy clause did not prevent the state from seeking the death penalty at the second trial. (Sattazahn, supra,
Sattazahn teaches that double jeopardy principles do not bar retrial of an aggravated sentencing allegation if the first trial did not produce an express or implied acquittal on the allegation. (Sattazahn, supra, 537 U.S. at pp. 106-110.) Sattazahn was originally sentenced to life, not because a jury acquitted him at the penalty phase, but because a state statute called for this sentence if the jury hung on the question of death. (Id. at pp. 104-105.) Sattazahn’s reasoning guides the application of Fifth Amendment principles to other penalty allegations that must be tried to a jury and proven beyond a reasonable doubt.
Sattazahn is also instructive because a plurality of the high court went on to consider the double jeopardy question in light of the court’s ruling in Apprendi, supra,
We have rejected defendant’s argument that the attachment of factual sentencing allegations to a substantive offense creates a new “greater offense.” But even if we were to accept this proposition, defendant’s argument would fail under Sattazahn. Defendant’s first jury could not agree on the truth of the kidnapping allegations. Just as in Sattazahn, the mistrial entered on these sentencing allegations did not constitute an acquittal, and thus they could be retried without offending the double jeopardy clause.
The procedural circumstances here parallel those in Sattazahn. The jury convicted defendant of a substantive offense but expressly deadlocked on an allegation that would have increased his penalty for that offense. Even if Apprendi requires us to consider the One Strike allegation as the equivalent of a greater offense, conferring a jury trial right, the double jeopardy clause does not prohibit retrial simply because a judgment was entered on the lewd act offense alone. Because the jury announced it could not reach a verdict on the One Strike allegation, its verdict on the underlying offense cannot be construed as an acquittal under either the federal double jeopardy clause or the California Constitution. (See Fields, supra, 13 Cal.4th at pp. 302-303, 305.) Moreover, under federal constitutional law, the mistrial due to jury deadlock was not an event that terminated jeopardy on the allegation. (See Sattazahn, supra,
III. Statutory Double Jeopardy Protection'. Section 1023
Although the double jeopardy clause of the Fifth Amendment permits retrial of the One Strike allegation at issue here, we have observed that “federal law sets the minimum standards of double jeopardy protection,” and, “[ujnder California law, in some instances, an accused may be entitled to greater double jeopardy protection than that afforded under the federal Constitution. [Citations.]” (Fields, supra,
Section 1023 states: “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.” “The statute implements the protections of the state constitutional prohibition against double jeopardy, and, more specifically, the doctrine of included offenses. [Citations.] Underlying this principle — that a conviction of a lesser included offense is a bar to a subsequent prosecution for the greater offense — is the notion that, once a conviction on the lesser offense has been obtained, ‘ “to [later] convict of the greater would be to convict twice of the lesser.” ’ [Citations.]” (Fields, supra, 13 Cal.4th at pp. 305-306.)
In Fields, the defendant was charged with several offenses after he caused a fatal collision while driving intoxicated. (Fields, supra,
Nearly 50 years before Fields, we interpreted section 1023 to mean that a conviction for a lesser included offense bars a later prosecution for the greater offense. (People v. Greer (1947)
The problem in Fields arose because the defendant’s jury was not advised of its obligation to return a verdict on the greater offense first, before rendering a verdict on the lesser included offense. We explained that a jury’s verdict on a lesser included offense only is “incomplete” and constitutes an “irregular verdict” that is “ ‘mistaken in the law.’ ” (Fields, supra, 13 Cal.4th at pp. 310-311.) If the jury renders only a verdict of guilty on the lesser offense, we stated that the trial court should decline to receive the verdict and should direct the jury to reconsider its lone verdict in light of the acquittal-first rule of People v. Kurtzman. (Fields, at p. 310.) If the court fails to do so, and instead records the partial verdict and discharges the jury, we held section 1023 requires the consequences of this “ ‘mistake in the law’ ” to be borne by the People, not the defendant, such that the conviction of the lesser offense will bar the People from retrying the greater, notwithstanding the jury’s deadlock on that charge. (Fields, at p. 311.) When the jury is instructed on the acquittal-first rule and hangs on the more serious offense, the prosecution is put to a choice: It may either move for a mistrial and set the entire matter for a retrial (§§ 1140, 1141), or, if it wishes to accept a verdict on the lesser charge and forgo a chance to convict on the greater, the prosecution may ask the court to dismiss the greater charge in the interest of justice (§ 1385). (Fields, at p. 311.) As we recognized in Fields, the whole point of the
Defendant seeks to divorce Fields from this intricate context and extend its holding to the retrial of penalty allegations. Starting from the premise that Apprendi, supra,
As discussed, ante, at pages 101 to 103, the penalty provisions set forth in our state’s Penal Code differ in significant ways from both greater and lesser included offenses and greater and lesser degrees of the same offense. “[A] penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances.” (Bright, supra,
Another important difference between a greater offense and a penalty provision, for our purposes, is that “[t]he jury does not decide the truth of the penalty allegation until it first has reached a verdict on the substantive offense charged. [Citation.]” (Bright, supra,
For these reasons, we have previously rejected the argument that a conviction on an underlying offense is enough in itself to bar retrial of attached sentencing allegations. As noted in Bright, supra, 12 Cal.4th at pages 661-662, “a defendant’s conviction of the underlying substantive offense does not (on double jeopardy grounds) bar further proceedings, such as retrial, on a penalty allegation. [Citation.] Thus, the circumstance that the jury has returned a verdict on the underlying offense, but is unable to make a finding on the penalty allegation, does not constitute an ‘acquittal’ of (or otherwise bar retrial of) the penalty allegation on the ground of double jeopardy. [Citations.]” The question now is whether Apprendi requires us to overrule this holding by treating penalty allegations as substantive elements of an offense for purposes of section 1023, the state statute governing retrial of included offenses. We conclude it does not.
Apprendi held that every finding that exposes the defendant to punishment, or increases the punishment possible for a crime, must be submitted to a jury and proved beyond a reasonable doubt. (Apprendi, supra,
Izaguirre addressed the application of Apprendi to California's multiple conviction rule. “In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. . . . Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same ‘act or omission.’ When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. [Citations.]” (People v. Reed (2006)
We disagreed and found Apprendi’s holding inapposite to the question of whether enhancements must be considered in defining necessarily included offenses for purposes of the multiple conviction rule. (Izaguirre, supra,
Defendant here also seeks to expand Apprendi to a state statute relating to an area entirely under the aegis of state law. However, the United States Supreme Court has made it clear that Apprendi, and cases following it, did not alter state substantive law. In Schriro v. Summerlin (2004)
Our holding in Izaguirre illustrates that sentencing enhancements or other penalty provisions need not be treated as actual elements of offenses for all conceivable state law purposes, but only where the defendant’s claim implicates a federal constitutional right under the Fifth or Sixth Amendment. In California, “sentence enhancements are not ‘equivalent’ to, nor do they ‘function’ as, substantive offenses.” (People v. Wims (1995)
Under California law, the One Strike allegation on which defendant’s first jury deadlocked was not a greater offense that incorporated the underlying lewd act crime as a lesser included offense. It was simply a penalty allegation. While Fields does not apply, Bright does. Bright holds that a conviction on an underlying substantive offense does not bar retrial of a penalty allegation on which the first jury deadlocked. (Bright, supra,
IV. Scope of Retrial
Having concluded the retrial of a penalty allegation is permitted, we turn to the proper scope of such a retrial. Defendant argues it was structural error to retry the One Strike kidnapping allegation “in isolation” because, even if retrial did not violate double jeopardy, the law requires all elements of a crime to be tried together. Construing the One Strike allegation as an element of a greater offense, defendant contends retrial had to encompass both the kidnapping allegation and the underlying lewd act offense to which it was attached.
The premise of defendant’s argument fails. As we have explained, the fact that a penalty allegation must be treated like an element for certain federal constitutional purposes does not convert the allegation into an actual element of a substantive offense. A sentencing enhancement or other penalty provision is not an element of an offense under California law. (People v. Wims, supra, 10 Cal.4th at pp. 304, 307; see People v. Wolcott, supra,
A criminal defendant has a right under both the United States and the California Constitutions to have every element of an offense tried to a jury and proved beyond a reasonable doubt. (United States v. Gaudin (1995)
Several cases have approved of the retrial of sentencing allegations after a defendant has been convicted of the offense to which they were attached. In People v. Saunders (1993)
Courts of Appeal have reached the same conclusion with respect to sentencing enhancements. In People v. Schulz (1992)
In other circumstances, we have disapproved of “piecemeal jury litigation,” in which penalty issues are reserved for a second trial. (People v. Najera (1972)
Najera was a case in which the prosecution failed to allege a potentially relevant enhancement and then tried to invoke the enhancement for the first time on the defendant’s appeal from the judgment. (People v. Najera, supra, 8 Cal.3d at pp. 509-511; see also People v. Salas (2001)
The proper scope of sentencing allegation retrial has also arisen when resentencing has been required as a result of Blakely v. Washington (2004)
Defendant has not identified, nor have we found, a single decision holding that aggravating factors must be retried together with all the elements of the underlying offenses to which they attach. If Apprendi truly required such a dramatic change in resentencing proceedings, one would expect to find case law reaching this conclusion, as well as clear guidance from the United States Supreme Court about how the change should be implemented. There is none, and we decline to create it.
Besides this lack of precedential support, defendant’s view that a penalty allegation cannot be retried apart from its underlying offense would create significant practical problems. The most fundamental of these concerns the effect of the conviction rendered at the first trial. If a jury convicted on a substantive offense but hung on an attached penalty allegation, and if retrial were ordered on both the offense and the allegation, should the second jury be told that the defendant has been convicted of the offense?
V. Conclusion
For these reasons, we conclude that retrial of a penalty allegation on which the jury has deadlocked does not violate federal or state double jeopardy principles, and retrial may be limited to the deadlocked allegation alone. Apprendi gives criminal defendants the right to a jury trial for all
DISPOSITION
The judgment of the Court of Appeal is affirmed. The case is remanded to the trial court for further proceedings in accordance with the Court of Appeal’s decision.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
Notes
All statutory references are to the Penal Code unless otherwise noted.
The Court of Appeal interpreted subdivisions (d)(2) and (e)(1) of section 667.61 as being mutually exclusive. Thus, a true finding under subdivision (d)(2) would preclude imposition of an additional penalty under subdivision (e)(1). The trial court had imposed an indeterminate sentence of 15 years to life for the jury’s subdivision (e)(1) finding but stayed it under section 654. The Court of Appeal’s ruling meant the finding and sentence had to be stricken, not stayed. This interpretation is not before us and we express no opinion thereon.
Defendant did not enter a plea of once in jeopardy before his second trial; therefore, the double jeopardy issues raised herein were not preserved for review. (People v. Memro (1995)
We refer to this simplified description of burglary by way of example. The burglary statute includes within its scope entry into “any house, room, apartment, tenement, shop, warehouse, store, mill, bam, stable, outhouse or other building, tent, vessel,... floating home,. . . railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, . . . any house car,... inhabited camper,. . . vehicle .. ., when the doors are locked, aircraft. . . , or mine or any underground portion thereof . . . .” (§ 459.)
Specifically, section 460 defines first degree burglary as “[e]very burglary of an inhabited dwelling house, vessel, . . . which is inhabited and designed for habitation, floating home, . . . or trailer coach ... or the inhabited portion of any other building . . . .” (§ 460, subd. (a).)
The exceptions are crimes, like murder, for which the Legislature has prescribed only indeterminate sentences. (See, e.g., § 190, subd. (a) [sentence for second degree murder is 15 years to life; sentence for first degree murder is 25 years to life].)
We disapproved Bright on a related ground in Seel, supra,
Section 1160 provides, in relevant part: “Where two or more offenses are charged in any accusatory pleading, if the jury cannot agree upon a verdict as to all of them, they may render a verdict as to the charge or charges upon which they do agree, and the charges on which they do not agree may be tried again.”
As noted, the jury also deadlocked on charges that defendant committed the substantive crime of kidnapping (§ 207, subd. (b)); however, defendant does not claim retrial of these charges was improper. Accordingly, we restrict our discussion to issues concerning retrial of the sentencing allegation.
In addition to the One Strike allegation, the prosecution also alleged a kidnapping enhancement to the lewd act offense. (§ 667.8, subd. (b) [providing for additional 15-year term].) Unlike a penalty allegation that, if proven, invokes an alternate and harsher sentencing scheme, a sentencing enhancement merely adds an additional term of imprisonment to the base term imposed for an offense. (Cal. Rules of Court, rule 4.405(3); see Bright, supra,
As we made clear in Sengpadychith, the constitutional requirements of Apprendi apply only when a penalty or enhancement has the potential to increase a defendant’s punishment beyond the statutory maximum. (Sengpadychith, supra, 26 Cal.4th at pp. 320, 327.) When such an increase is not possible, Apprendi does not apply.
In considering the double jeopardy consequences of a mistrial granted due to prosecutorial misconduct, we have observed that “a criminal defendant who is in the midst of trial has an interest, stemming from the double jeopardy clause, in having his or her case resolved by the jury that was initially sworn to hear the case — and in potentially obtaining an acquittal from that jury. [Citation.]” (People v. Batts (2003)
The Legislature has distinguished between being armed with a firearm, i.e., having the weapon available for use, and actually using a firearm in the commission of a felony. (People v. Bland (1995)
A related penalty allegation was added in defendant’s second trial. In addition to the section 667.61, subdivision (e)(1) allegation presented to the first jury, the People amended the information to add a second kidnapping allegation under section 667.61, subdivision (d)(2), which carries á harsher sentence of 25 years to life imprisonment. (See § 1009; People v. Flowers (1971)
Cf. Fields, supra,
Concurrence Opinion
Concurring. — I concur in the majority opinion. The possible effect of the majority’s holding, however, is a cause for some concern. Rather than being required to find a defendant guilty beyond a reasonable doubt of the underlying offense, the jury that tries a penalty enhancement separately will presumably be told that a defendant has been found guilty of that offense, otherwise it would not be able to convict on the enhancement. In this circumstance, there is the potential that the presumption of innocence for the penalty enhancement, in practical terms, will be eroded, and that therefore a defendant being retried on the enhancement alone will be in a more disadvantageous position than he was in the original trial when the offense and the enhancement were tried together. Whether current standard jury instructions are adequate to safeguard the presumption of innocence in this situation, or a new instruction is needed, remains to be determined.
On August 26, 2009, the opinion was modified to read as printed above.