People v. Monge

S055881.Aug. 1997.] [No. PEOPLE, Plaintiff and Respondent,

THE MONGE, Defendant and Appellant. ANGEL JAIME Counsel Gardner, under H. Pierce and Clifford appointments

David Court, and Appellant. for Defendant Williamson, General, Chief Assistant Lungren, Attorney George

Daniel E. General, Pollack, General, Carol Wendelin Assistant Attorney Attorney Hamanaka, Fuster Carl N. D. Pamela Jaime L. and Susan C. Martynec, General, for Plaintiff and Henry, Deputy Attorneys Respondent.

Opinion case,

CHIN, J. of the federal this we consider the state and applicability to a to determine the truth against proceeding prohibitions jeopardy that, We of a conviction conclude prior allegation, case, the state not apply. and federal do prohibitions against the extent Accordingly, we reverse to the judgment Appeal allegation bars retrial conviction on double judgment prior grounds. Background and Facts Procedural afternoon as Pomona Police During January Department undercover West officers were an unmarked car on Ninth Street in driving Pomona, a near the curb. City they spotted 13-year-old boy standing over, The motioned the officers to instead into an boy pull they pulled but that led to rear of an alley police where had earlier apartment complex observed narcotics Once in the area at the rear of the activity. carport Monge. the officers defendant Jaime Defendant complex, spotted Angel car, and one of the officers rolled down window and approached answer, asked where he did not but walked could Defendant buy marijuana. then the young to a The officers turned their car around and noticed carport. over, had distance standing who earlier motioned them to now some boy pull their car. Defendant returned and several gave boy plastic bags. behind asked then the officers and how much wanted. The boy approached they $10 officers two “dime two bills for two requested bags” exchanged After the officers bags marijuana. leaving alley, reported plastic officers, sale to other Pomona who arrested defendant and the Police boy. $10 defendant and found the two bills that the officers had given searched the boy.

The District of Los defendant with Attorney Angeles County charged Code, (Health sell & (a)), a minor to Saf. subd. using marijuana § Code, 11360, (Health (a)), sale or & Saf. subd. transportation marijuana § Code, (Health 11359). & for sale Saf. marijuana possession § had district also defendant suffered serious attorney alleged prior felony Code, (Pen. conviction within the of the “Three Strikes” law meaning 1170.12, (b)-(i), (a)-(d)),1 §§667, subds. subds. and a term prior prison 667.5, (b). within the of section subdivision meaning Specifically, 2, 1992, district attorney alleged July conviction and term for prison assault with a (§ (a)(1)). subd. Defendant deadly weapon pleaded and denied all guilty sentencing allegations.

Defendant waived his trial of the right term and the court his to bifurcate deter- prison allegations, granted request mination A of those found defendant of the substan- allegations. guilty week, tive When reconvened the the court charges. proceedings following conviction, if asked defense counsel defendant wanted to admit the prior said, correct, defense counsel “That’s Your The court then Honor.” asked understood, said, if defendant he and defendant an off-the- “Yes.” After discussion, the if record asked defendant wanted to admit the again conviction, said, “No, and defense counsel he doesn’t. He wishes the prior court to without the try prior jury.”

The asserted that the assault conviction was a serious prosecutor prior for felony the Three Strikes law. Defense counsel purposes disagreed, involved in the crime was not a arguing weapon prior deadly weapon. The court out that defendant had interrupted point pleaded guilty with assault “a and thus had admitted the deadly weapon” weapon The court stated it would take notice of the conviction deadly. judicial prior submitted and asked if the on evidence alone. The matter parties (see then offered as a additional evidence prosecution “prison packet” 17, 1995, 969b) This dated and an abstract of addi- February judgment. § 245(a)(1) tional evidence characterized defendant’s conviction as “PC prior (245(a)(l)PC).” GBI” submitted ADW and “ASLT W/DW Defense counsel statutory 1All further references are to the Penal Code. evi- documentary the prosecution’s whether questioning matter after

the dence, to defendant. related fingerprints, photograph which included a con- felony a serious prior true that defendant suffered court found a violation viction, use of deadly weapon felony being personal [of] “[t]he term found true the 245(a)(1).” prior prison The court also section sentence, five years including an eleven-year The court allegation. imposed years the court doubled to ten minor to which marijuana, for sell using 1170.12, (c)(1)), (e)(1), subd. law subd. (§§667, the Three Strikes under 667.5, (b)) subd. (§ term prior enhancement for prison a one-year plus for sale. Under marijuana to run concurrently and two years possessing conviction of the sentence for defendant’s the court stayed section marijuana. selling Three as a violation of Strikes law

On defendant challenged appeal, motion, requested On the Court of Appeal his to due its own process. right the trial on whether sufficient evidence briefing supported supplemental serious conviction felony that defendant had suffered prior court’s finding law, Under the Three Strikes the Three Strikes law. meaning within if offense present conviction affect sentence for felony may 1192.7, subdivi- of a as defined section felony” conviction was “serious 1170.12, (d)(1), (b)(1).) subd. Of the felonies and (c). (§§667, sion subd. 1192.7, (c), defendant’s of felonies listed in section subdivision categories as a “serious felony” have July felony might qualified . . in which the (c)(8), under either subdivision which refers . “any felony than other an defendant inflicts personally great injury any person, bodily (italics added), (c)(23), refers to “any . .” or subdivision which . accomplice in which the used a dangerous deadly weap- defendant felony personally added.) (Italics on.” conviction, but reversed the affirmed defendant’s Appeal true on the serious felony holding court’s finding allegation, had In

evidence insufficient to establish that defendant acted personally. addition, constitutional the Court held that the state federal Appeal double barred retrial of serious against jeopardy felony protections prior Thus, the Court remanded for allegation. resentencing. Appeal whether the state and federal We review in order to consider granted to a a noncapital double prohibitions against jeopardy apply proceeding, case, determine the of a felony truth serious allegation. Jeopardy

Double Federal Constitution Constitution provides

The Fifth Amendment of the United States to be twice put for the same offence shall ... be subject person “[n]o 832 life . . .” other constitutional Among things, or limb .

jeopardy clause, known the double a second “protects against as guaranty, (North offense v. Pearce the same after Carolina acquittal.” prosecution 2076, 711, 2072, (Pearce), (1969) U.S. S.Ct. 23 L.Ed.2d 395 717 [89 656] omitted.) (1969) In Benton v. S.Ct. Maryland fn. 796 [89 2056, 2063, 707], the 23 L.Ed.2d held that the Supreme “ to the scheme of jus ‘fundamental American jeopardy prohibition ” states as an element of the due tice’ and therefore enforceable against Nevertheless, in the embodied Fourteenth Amendment. protection process held Court has never that the applies case, in this to determine whether like one proceedings, generally We longer should receive a sentence because convictions. defendant a few noted and declined to decide this ques have on occasions expressly (1996) Cal.Rptr.2d tion. Valladoli Cal.4th (People [54 999]; 580, 593, fn. 8 9 Cal.4th Wiley 918 P.2d People [38 541]; P.2d v. Saunders 5 Cal.4th Cal.Rptr.2d 1093].) Cal.Rptr.2d 593 [20 that,

At the we in the absence of a statutory outset emphasize entitled as a federal constitutional criminal defendant provision, trial, issues, informal, when the matter to a formal or even sentencing as the of prior turns on factual determinations such existence sentence York 337 U.S. 241 S.Ct. convictions. Williams v. New (Williams), murder degree L.Ed. convicted the defendant first (Id. at pp. and recommended life at S.Ct. imprisonment. however, after 1080-1081].) the defendant to death sentenced judge, “in the obtained evidence of additional information considering light ” (Id. through the court’s ‘Probation other sources.’ through Department, 1081].) noted that things, S.Ct. at other p. p. Among judge “in . in and about the burglaries defendant had been involved . . ‘thirty ” had ever (Id. at No court vicinity.’ same informa- but “the had judge convicted the defendant of these burglaries, as identified had confessed to some had been tion [the defendant] informal rather (Ibid.) some others.” judge’s perpetrator law, which New York factfinding applicable was consistent with procedure “ aid the that will court to ‘seek information any permitted ” “obtained 1081]), information (id. including court’ not been permit- from whom a defendant has outside the courtroom persons 1082]). (id. 245 S.Ct. at ted to confront or cross-examine” at p. [69 high the sentence. The United Court upheld States Supreme (notice in a trial on guilt the procedural protections noted that applicable witnesses, to adverse opportunity to cross-examine charges, opportunity counsel) applied have not evidence, traditionally by and representation offer (Williams, S.Ct. at pp. at 245-246 pp. [69 sentencing. at out, could sentencing judges the court 1082-1083].) Historically, pointed (Id. S.Ct. at of a defendant. knowledge [69 on their personal even rely concluded, clause should not due 1082-1083].) process “The The court at pp. of sentencing the evidential procedure device for freezing as a be treated (Id. S.Ct. [69 of trial procedure.” the mold Due “that the Williams as holding described broadly court has high not a judge Amendment require of the Fourteenth [does] Process Clause an opportunity participate a convicted person to give have hearings to be the sentence imposed.” he to determine when those hearings [comes] 1209, 1210, 605, U.S. S.Ct. (1967) 386 [87 v. Patterson (Specht Moreover, from Williams court has retreated 326], though L.Ed.2d 1197, 430 U.S. 349 S.Ct. (Gardner v. Florida cases capital last term. as as 393]), recently it otherwise reaffirmed Williams L.Ed.2d _ 633, 635, 136 L.Ed.2d (U.S. v. Watts 2199, 2205, 554]; (1995) 515 U.S. see also Witte v. U.S. ‘that courts Due Clause not require 132 L.Ed.2d Process [does] [“[T]he information their of seeking the Nation abandon throughout age-old practice toward a more enlightened from their guide judgment out-of-court sources ”].) just sentence.’ Because, case, a sentencing in a a state need provide all, can a trial of these a state that elects allegations allegations provide So the state circumscribe the boundaries of that trial. as long procedural law, affords minimal due it need not all provide procedural process Thus, a state that a trial on or innocence. characterize guaranties a a trial. trial of need not sentencing allegations provide jury provides v. Vera 15 Cal.4th (People Cal.Rptr.2d 1279]; (1995) 10 Cal.Rptr.2d v. Wims Cal.4th People 584-585, 77]; Wiley, 895 P.2d 9 Cal.4th reason, sentencing allegations For a a trial of provides the same state that need not arguably jeopardy protection. provide trial of allegations, states need not a Though provide to a California has elected to defendants statutory right Legislature grant Section 1025 trial of conviction jury allegations. provides: “[T]he whether or not has suffered previous question defendant] [a] [a must be tried which tries the issue of not plea jury upon guilty, for that . A case ...” plea by jury impaneled purpose guilty, of our indicates that we have section 1025’s bare survey expanded decisions For of a trial to include various grant procedural guaranties. example, 834 must conviction that the prosecution prove in dictum

we have stated (1993) 6 Cal.4th v. Tenner (People a reasonable doubt beyond allegation 840, (Tenner); In re Yurko 559, 862 P.2d 840] Cal.Rptr.2d [24 513, 857, 561]) and that the accused 519 P.2d Cal.Rptr. Cal.3d [112 Yurko, (In 10 Cal.3d supra, re self-incrimination the privilege against enjoys held that the rules of evidence 5). apply we have fn. Similarly, at p. 217, 224 13 Cal.4th Cal.Rptr.2d v. Reed [52 these trials. (People 1193, 1201 184]; Cal.Rptr.2d 5 Cal.4th Myers v. [22 P.2d in a trial of a that a defendant 301].) we have stated Finally, “ with witnesses to ‘be confronted allegation right ” Reed, witnesses. (People those him to cross-examine’ against [and] Patterson, supra, fn. Specht at quoting 13 Cal.4th p. supra, Yurko, 1212-1213]; 10 Cal.3d at In re S.Ct. pp. U.S. at p. [87 of these logical progression the next Arguably, step fn. against the constitutional protections us now to hold that decisions is for however, law, inevita grow does Constitutional apply. double jeopardy rather, merits. accretion; falls on its individual rises or each question bly by mind, the double jeopardy we turn to an analysis With this point its terms clause by The double jeopardy the federal Constitution. clause of Const., (U.S. 5th “for the same a second jeopardy proscribes offense.” Amend., sentencing reference to added.) makes no express italics The clause indicates that Court’s decisions review of the Supreme determinations. Our In Stroud clause to determinations. reluctant to court is (Stroud), a 64 L.Ed. (1919) 251 U.S. 15 States v. United “ capital murder ‘without degree of first guilty the defendant found jury ” (Id. statute. its under applicable which was one of options punishment,’ Court reversed 51-52].) After the Supreme S.Ct. at pp. murder, of first degree the defendant on retrial convicted judgment, trial court and the punishment, against capital but omitted the stipulation 51].) The S.Ct. at (Id. to death. sentenced the defendant in second had not been “placed that the defendant Court held life imprisonment in his from sentence change jeopardy” despite . . . “guilty verdict of not consider the the court did death. Specifically, ” “The fact offense. of a lesser as a conviction ‘without capital punishment’ life did to imprisonment the punishment thus mitigate jury may (Id. at p. murder.” one for first degree less than not render the conviction Pearce, at page Stroud Court reaffirmed The Supreme in which Pearce, two cases the court resolved S.Ct. at page 2078]. convictions, receive only their challenged successfully the defendants Moreover, neither defendant retrials. following sentences overall longer

835 2074- (Id. S.Ct. at pp. at 713-715 pp. [89 for time served. credit received the clause entitled that the double 2075].) jeopardy Court held Supreme S.Ct. at (Id. pp. time at 718-719 pp. credit for served. [89 defendants to Nevertheless, the not preclude double clause did 2077-2078].) jeopardy the con- after retrial. “Long-established sentence longer court from imposing time credit for the that exception makes clear doctrine [with stitutional upon restrictions no the double jeopardy imposes guarantee against served] S.Ct. (Id. at reconviction.” [89 a sentence imposed upon the length 2077-2078].) at pp. 17, 23-24 S.Ct. (1973) 412 U.S. v. Stynchcombe [93

In Chaffin 714], instead which the the sentence imposed 36 L.Ed.2d jury Court, discussion, the that without reaffirmed again the judge, Supreme retrial. does not sentence longer following preclude U.S. (1980) v. S.Ct. United States DiFrancesco [101 Finally, sen- (DiFrancesco), the court considered a statutory 66 L.Ed.2d 328] court of to review appeals scheme that allowed the federal tencing and, court at the sentence that the federal district had imposed prosecution’s the record’” considering to increase that sentence “‘after request, “ ” 429].) (Id. fn. 2 The high ‘after S.Ct. hearing.’ [101 clause, that this did not violate the double jeopardy determined scheme of sentence has never carried “[historically, noting pronouncement to an S.Ct. at (Id. p. that attaches finality acquittal.” Thus, contexts, extend declined to variety Supreme the federal sentencing proceedings. guaranty against 451 U.S. 430 S.Ct. 68 L.Ed.2d Bullington Missouri marked the first from this consistent (Bullington) approach. departure law. concerned of the death under Missouri imposition penalty Georgia accord with the Court’s decisions in Furman v. 346], U.S. 238 L.Ed.2d Gregg Georgia 859], cases decided on capital U.S. 49 L.Ed.2d as statute included intricate the same Missouri’s death day Gregg, penalty For had to conduct a separate the trial court procedural safeguards. example, The hearing for a defendant convicted murder. presentence hearing capital At the had to be held before the same that found the defendant guilty. jury any additional and determined whether considered evidence hearing, jury existed, circumstances whether or mitigating aggravating aggravating the mitigating warranted the death and whether penalty, circumstances had to circumstances circumstances. jury outweighed aggravating had to the court Finally, its a reasonable doubt. findings make beyond if found even it penalty need death impose instruct it circumstances that circumstances did not mitigating sufficient aggravating S.Ct. at outweigh. (Bullington, supra, pp. 1855-1856].) As re Bullington

A convicted Robert murder. jury capital Missouri and returned a verdict held the hearing, jury the court a presentence quired, or for 50 for for parole life without eligibility probation “imprisonment 1856].) The at 451 U.S. at 436 S.Ct. p. (Bullington, supra, p. years.” [101 trial, in error finding for a new Bullington’s trial court then motion granted Stroud, 251 Despite Supreme selection. the Court’s decision jury 15, ruled, that prosecu court also on double the jeopardy grounds, U.S. the the 451 (Bullington, supra, tion could not seek death on retrial. penalty a writ 1856-1857].) at for at S.Ct. The prosecution petitioned p. pp. [101 mandamus, writ, or and the state the supreme granted prohibition from did bar the prosecution that holding jeopardy principles 1856-1857].) at (Id. pp. death at 436-437 S.Ct. seeking penalty. pp. the [101 reversed, The United States that the double holding (Id. S.Ct. bar of the death at imposition pp. clause did penalty. [101 that, 1862-1863].) under the Missouri death Noting applicable penalty at pp. law, did not the determined the sentence at “a and hearing” separate jury alternatives,” discretion,” but chose two have “unbounded rather “between the certain establishing and that “the . . . undertook burden prosecution (id. 1858]), at beyond p. facts a reasonable doubt” at S.Ct. [101 “the of a Missouri trial had capital court reasoned that the high penalty phase (id. or S.Ct. at p. of the trial on innocence” guilt [101 hallmarks (id. at 1858]) therefore that the double prohibition applied pp. 438, 1857-1858, 1862]). Bulling The court reaffirmed S.Ct. pp. [101 2305, S.Ct. ton in v. 467 U.S. Rumsey Arizona 2310-2311, 164], a in which not the jury, 81 L.Ed.2d case the judge, sentence. determined appropriate face, determines its a section 1025 trial at which California

On of the trial also has “the hallmarks allegation truth of a counsel, notice, Thus, innocence.” has a right defendant on Boles 368 U.S. (Oyler to be heard. v. and an opportunity 503-504, must 7 L.Ed.2d prosecution “plead S.Ct. 1170.12, (c) and subds. (§§ conviction allegation (g), prove” burden of (e)) (§ 1025). (a) prosecution a “trial” subds. 566.) (Tenner, doubt. 6 Cal.4th at a reasonable beyond proof alternatives. (§ faces a choice between two the trier fact Finally, below, Nevertheless, “hall we Bullington’s we discuss believe reasons here. does not marks of the trial” analysis apply that Bull- suggested court in cases has Significantly, subsequent v. For Pennsylvania cases. example, does not ington 183], L.Ed.2d the court U.S. 28 S.Ct. (1985) 474 Goldhammer “ that in a establish its ‘clearly decisions reaffirmed finality that of constitutional not have qualities does noncapital case] ” 353-354], bracketed (Id. at an attend acquittal.’ Bohlen, Goldhammer, added.) Caspari Similarly, italics language circumstances based largely unique “was Bullington court noted that Bohlen (Caspari of a sentencing proceeding.” capital 948, 954, added: The court (Caspari).) L.Ed.2d 392 (104 S.Ct. (1984) 466 U.S. 668 Washington and Strickland “Goldhammer [v. was limited 674)] strongly 80 L.Ed.2d suggested S.Ct. at p. 510 U.S. at (Caspari, supra, p. 393 sentencing.” capital 955].)

Moreover, a that in section 1025 protections apply of the many procedural hand, constitutional, theOn other not federal statutory, grounds. trial rest a at of trial of elaborate the penalty phase capital the many procedures the federal Court’s decisions the originate directly interpreting because, when a This is relevant to our analysis Constitution. distinction a to proceeding has elected at its trial-like option provide state legislature a that a could otherwise resolve with no hearing resolve factual issue judge all, all provide at sense that need not the suggests legislature common the in a mandated trial. constitutionally that procedural protections apply Furthermore, the sentencing some common despite procedural protections, First, unlike than alike. the Bullington here and that are more proceeding the find no trial-like that of death procedures regulate penalty imposition at cases. Unlike death penalty procedure parallel under section issue in a trial of conviction Bullington, allegations of existence of a broad does not trier fact determine the require range of and circumstances defendant’s relating aggravating mitigating A section does not then a that the require finding character. 1025 trial a a sentence or aggravating longer weighing circumstances warrant a circumstances. Nor does aggravating circumstances against mitigating even if its reject longer 1025 trial allow the trier of fact to sentence section the sentence. the breadth and Considering factual determinations support failure of determinations at issue in Bullington, factual subjectivity of a guilt in that more like an at the phase at issue case was proof acquittal is at here. criminal trial than the failure issue proof that the rule general the court reaffirmed Bullington, In deciding (Bulling to sentencing clause does not apply proceedings. ton, 1857-1858].) then The court U.S. at pp. at S.Ct. supra, p. did (Ibid.) The court not rule. carved out narrow exception general Stroud, which also involved imposition overrule Rather, it Stroud on the basis of the distinguished procedural penalty. death from modem jurisprudence. (Bullington, arise death penalty safeguards 1862].) those Most of procedural do are to death determinations and simply penalty safeguards unique here. Second, of the and emotional burden sentencing proceeding financial from this case. The court in Bullington distinguishes Bullington at issue ‘embarrassment, and ordeal’ expense stressed “[t]he at the faced a defendant insecurity’ by phase ‘anxiety penalty least to that faced surely equivalent Missouri murder are at capital trial.” (Bullington, supra, defendant at the a criminal any guilt phase a trial U.S. at By comparison, though to a allegations important defendant—possibly undoubtedly embarrassment, term to a level of a short life term—the increasing prison to that faced ... involved not “equivalent expense, anxiety (Ibid.) This lesser financial and emotional burden trial. phase” increase even when the conviction trial the may substantially exists prior of the sentence. length is not of an criminal offense the carrying

The trial a additional prosecution determination, criminal is a rather it a merely associated with stigma charge; which, status, like of the or age for defendant’s punishment, purposes when, Moreover, record. as is determinable from the readily public gender, issue, here, the conviction the defendant begins the court bifurcated prior the suffered embarrassment the having the conviction trial already prior increase in embarrassment attributable to conviction. The marginal present to the trial is not embarrassment an the conviction prior comparable conviction trial and Finally, simple criminal charge. prior unproved the of a trial. as criminal Often it straightforward compared guilt phase of a copy the certified the conviction only prior involves presentation cases, fingerprints. many with the and photograph defendant’s along all, is relatively predictable. offer and the outcome defendants no evidence trial, case, more for the which looked like In this conviction example, prior trial, a few of a than a fills only pages 244-page an informal hearing at which the prosecution This abbreviated proceeding, reporter’s transcript. evidence, no defendant presented evidence and only documentary presented trial, which the of a capital to the penalty phase is hardly comparable at issue Bullington. trial-like proceeding when, here, some factual point trial involves as the conviction

Even prior crime, personally, defendant acted such as whether the to the prior relating (Bullington, “the guilt” is not like trial the proceeding 1858]) only may present because prosecution Guerrero (People of the conviction prior from the record evidence (Guerrero)). Cal.Rptr. 748 P.2d 44 Cal.3d before defendant, review that record of the can and member any public, aWhen the trial’s outcome. trial forecast accurately conviction prior trial, trial, way, short and readily predictable even a very important embarrassment, less expense, defendant suffers correspondingly or does need to sit weeks the defendant anxiety. Significantly, describe in detail to a public months while witnesses reasons, we conclude unlawful activities. For these of his alleged specifics is minor as burden of a conviction trial prior financial and emotional DiFrancesco, (Cf. 449 U.S. at to a trial. compared and anxiety obviously S.Ct. at defendant’s concern primary 437] [“The to the of innocence or and that is behind guilt, already relate determination him.”].)

Third, the nature of the issues involved at the a capital penalty phase from this case. The sentence determination in distinguishes facts case on the of the defendant’s capital necessarily depends specific crime, as well an overall assessment of the defendant’s character. as present at the The evidence or the evidence offered usually overlaps supplements hand, trial. On other in a trial guilt phase factual from the determinations are divorced facts allegation, generally offense, and the evidence does not Like a trial present overlap all. issue, in which is at conviction trial the defendant’s age gender status, determines a of the defendant’s merely continuing irrespec question offense, tive of the and the present prosecution may reallege retry in status as successive cases as it is relevant v. 9 many (People Biggs 508, 214, 205]; Cal.2d 512 116 A.L.R. Dutton People P.2d v. 9 [71 505, 218]), Cal.2d if 507 P.2d even a jury rejected prior Rice 200 654-656 allegation (People Cal.App.3d v. 177]). If a it

Cal.Rptr. rejects allegation, acquitted has not jury (Ibid.) defendant his “A cannot be conviction status. defendant prior of that he be a any being status more than can ‘acquitted’ ‘acquitted’ (Ind. 1984) or age (Durham certain or sex other inherent fact.” v. State any 321, 324.) 464 N.E.2d distinctions,

Given these we do not believe application requires “the that have all jeopardy proceedings 451 (Bullington, supra, hallmarks of the trial on or innocence.” U.S. Nevertheless, other state courts and the 439 S.Ct. at courts divided federal double jeopardy federal circuit are as to whether the 840 to the one here. Some courts analogous

clause applies proceedings that, involves conviction determination a trial-like conclude where the certain has the burden of proving at which the prosecution proceeding facts, tantamount to an of the facts a is finding acquittal disputed negative sentence, bar a and double protections to establish longer necessary 109, 113, (8th 1992) revd. v. Cir. F.2d (See, Caspari retrial. Bohlen 979 e.g., S.Ct. at 396-397 Caspari, supra, pp. other grounds 359; (9th v. 956-957]; 1989) Cir. 882 F.2d Briggs Durosko v. Lewis 368, 371; (Colo. 1985) Quintana v. (5th 764 F.2d Procunier Cir. 413, 419; 1982) State 631 S.W.2d 1981) Cooper P.2d v. (Tex.Crim.App. 508, 513-514; (1983) 100 Wn.2d State v. Hennings courts, however, 256, 259-262].) not fully unique These do appreciate com as origins capital sentencing nature and constitutional proceedings more we find Accordingly, persuasive pared proceedings. courts which involving sentencing proceedings those decisions (See, clause did not apply. e.g., Carpenter found the federal double jeopardy 1996) (6th do not believe the v. Cir. F.3d Chapleau [“We is felony Double Clause Jeopardy implicated persistent offender] [a 144, 148 (7th 1989) Cir. 873 F.2d Denton Duckworth proceeding.”]; [“We statute, create . which does not a separate . . that habitual offender agree facts on the substantive offense or consideration of require underlying thus issue in Bullington, from the statute at charge, distinguishable attach.”]; 1982) Cir. (10th not Linam v. does Griffin “is an as to whether F.2d habitual criminal proceeding inquiry [The not man the court is the same who before standing person answers or no accordance charged. yes convicted as previously to in with evidence. This is not the kind referred adjudication State, amendment.”]; Durham v. N.E.2d fifth [“The defendant offender . . . is a status a habitual status continuing particular a time the defendant commits .... The state use this status any may not habitual that a defendant is further crime determination jury’s is not of that defendant’s an ‘acquittal’ offender during particular 1994) offender.”]; (Mo. 875 S.W.2d status a habitual State Cobb as does speak constitutional double jeopardy prohibition [“The cases.”]; State N.M. Aragon v. sentencing except capital 948, are our habitual criminal proceedings 271 [861 952] [“Because or inno of does not sentencing imply an ‘offense’ and ‘prosecutions’ attach.”]; crime, cf. does not cence . . . double any greater jeopardy 451, a 1994) 456 (3d Bullington, Cir. 30 F.3d Wilmer v. Johnson [“[I]n case, that the to the rule general carved out an exception Court capital context.”]; v.U.S. sentencing Double Clause does not Jeopardy apply 177, . . 181 on . (2d 1990) Cir. F.2d Rodriguez-Gonzalez [“Reliance 899 context in the unique . . arose since Bullington inapposite. case[] [that] 72, (1993) 157 Ill.2d Ill.Dec. v. Levin People [191 capital sentencing.”]; 317, hearing procedure conclude that separate 623 N.E.2d 325] [“We formalities of Act insufficient bears under our Criminal] [Habitual in the separate hearing procedure factor analogous render that Sailor trial on the issue guilt.”]; and to this defendant’s 701, 112, 224, 480 N.E.2d 708] [“[T]here N.Y.S.2d 65 N.Y.2d 231-236 [491 the death between imposition difference is a qualitative quantitative or second as sentencing persistent issue in Bullington] penalty [at N.E.2d .”]; (Ind. 1989) 542 see v. State offender . . . but Perkins felony 321, State, but N.E.2d Durham [overruling 551-552 U.S. (1988) 488 of Lockhart v. Nelson on clear misreading relying 37-38, 265].) L.Ed.2d fn. S.Ct. [109 discus- court’s most recent Our finds some support conclusion case, issue 510 U.S. 383. In as in Caspari, sion of the in Caspari, supra, court of reversed a sentence because the record contained state appeals (Id. was a offender.” at insufficient evidence that the defendant “persistent remand, the offered 951-952].) 386-387 S.Ct. at On pp. prosecution pp. evidence, The additional and the trial court the same sentence. state imposed sentence, court that the federal double affirmed the appeals concluding therefore did clause does not jeopardy apply sentencing proceedings (State not bar retrial of the offender issue. v. Bohlen (Mo.Ct.App. persistent 1985) 578.) The 698 S.W.2d defendant subsequently petitioned federal district for a writ of The district court denied the court habeas corpus. writ, reversed, the double holding but federal court of appeals The Su- proceedings. does jeopardy apply Court U.S. granted (Caspari, supra, certiorari. preme pp. 951-952].) S.Ct. pp.

In deciding Teague v. Lane Caspari, applied 489 U.S. 288 which held that (Teague), L.Ed.2d new rules of law do not so as to retroactively constitutional generally apply final convictions of habeas permit reopening way corpus petitions. that, Caspari court if of the federal double application reasoned clause to a “new consti noncapital sentencing would constitute proceedings tutional rule of would new procedure” ground criminal “break[] a new 489 U.S. at impose[] obligation (Teague, supra, States” pp. 1069, 1070] O’Connor, J.)), then the (plur. opn. court the writ district denied of habeas correctly corpus. (Caspari, its refusal to S.Ct. at noted historic with the only the double clause to sentencing proceedings, as the one at issue exception being sentencing proceedings such capital S.Ct. at 510 U.S. at pp. 391-392 Bullington. (Caspari, supra, pp. [114 842 in

954-955].) sentencing proceedings noncapital The court then compared in in cases. that case Noting capital to those capital cases not in cases that do capital procedural safeguards apply that unique (id. 954-955]), court at S.Ct. at the pp. in other cases 392-393 pp. [114 apply rule in this Court of announced new “that the Appeals [federal] concluded U.S. cases 510 Bullington (Caspari, supra, by extending case” 956]). sentence was S.Ct. at defendant’s Accordingly, at 395 p. p. [114 as the time the constitutional standards’” of “‘consistent with established U.S. 306 S.Ct. p. final at at (Teague, supra, p. sentence became [109 O’Connor, J.), States of Desist v. United quoting (plur. opn. 1073] 1030, 1040-1041, (dis. 22 L.Ed.2d 262-263 248] [89 Harlan, J.)), of erred in directing federal court appeals opn. 510 U.S. at court to the writ (Caspari, supra, pp. district grant [114 956-957]). S.Ct. at pp. conclusion, court declined to decide whether

Given this high (Cas- proceedings. apply noncapital sentencing Nevertheless, 957].) the court 510 U.S. at pari, supra, p. p. [114 Indeed, in that context. confirmed that none of its decisions the clause our would precedents” the court asserted that “a reasonable jurist reviewing Thus, we (Id. not S.Ct. at p. though conclude otherwise. p. us, know would resolve the issue now before do not how that, here is we “ know like sentence sentence imposed Caspari, do ” established constitutional standards.’ (Teague, ‘consistent with O’Connor, J.).) Further- S.Ct. at p. p. (plur. opn. 1073] more, reasoning. flaw of the dissent’s Caspari highlights basic federal the dissent is premise Bullington requires application whether capital clause whenever a sentencing proceeding, (Bull- “the or innocence.” hallmarks noncapital, 1858].) The S.Ct. at Missouri U.S. at ington, supra, p. section offender statutes at issue Bohlen v. like Caspari, persistent “hallmarks,” beyond a including with all these proceeding proof created 112-113.) (Bohlen If the 979 F.2d Caspari, supra, reasonable doubt. correct, the court of were then Bullington’&holding dissent’s articulation issue, retrial of the offender decision Caspari, barring persistent appeals’ of established would have a straight precedent. constituted application “ with estab- ‘consistent court would have found retrial high ” U.S. at (Teague, standards’ lished constitutional O’Connor, would not J.)), and the S.Ct. at (plur. opn. rule a new “that the Court of announced Appeals have concluded 956].) In S.Ct. at p. light 510 U.S. at (Caspari, supra, case.” result in this case. does not dictate the Caspari, simply

843 issue, that, it would if faced with the court suggested Finally, Caspari determination clause inapplicable find the double jeopardy a fact ascertainable objectively status is “Persistent-offender here. involved has the Either a defendant available evidence. basis of readily on the convictions, him to does not. Subjecting or he number requisite to show those has the opportunity which the State proceeding second of the accuracy proceeding will enhance is not unfair and convictions evidence.” basis of is made on the competent the determination ensuring 956-957].) S.Ct. at pp. U.S. at supra, [114 (Caspari, does clause conclusion, hold that the federal In we in this case. of the conviction allegation to the trial not apply 56, 78, course, (1991) 1 Cal.4th (Marks) v. People Superior Of 613], we double jeopardy 820 P.2d applied footnote Cal.Rptr.2d [2 in a allegation of a sentence-enhancing to bar retrial protections case, constituted an express the allegation] “The saying: jury’s rejection [of Marks, we relied forecloses retrial.” on the enhancement and any acquittal (1988) v. Pettaway on the Court of decision People Appeal primarily 436], which in turn relied on Cal.Rptr. Cal.App.3d [254 77, 386 P.2d v. Henderson 60 Cal.2d 482 Cal.Rptr. 677] People 686, 577 P.2d v. Collins 21 Cal.3d 208 Cal.Rptr. and People Collins, that, Henderson, held when a defend we reaffirmed which 1026]. conviction, his the state double jeopardy ant successfully challenges retrial, thus of a sentence following preventing prohibits imposition greater from an defendant’s an right appeal impairment]” “[a] “unreasonabl[e] 497; Henderson, see v. 60 Cal.2d at erroneous judgment.” (People 216; Collins, (1969) 1 v. Hood People 21 Cal.3d at People also 370]; Ali 462 P.2d People Cal.3d Cal.Rptr. in Marks Our reference

Cal.2d Cal.Rptr. a broader on the enhancement” might suggest to “an express acquittal but because and its than mere Henderson progeny, holding application case, in this we issues we address Marks included no complex analysis (See v. Santamaria a narrow of Marks is reading appropriate. think 903, 914, [stating 884 P.2d (1994) 8 Cal.4th fn. Cal.Rptr.2d retrial of enhancem barring Henderson as a reason underlying policy on an ents].)2 based our decision in Marks interpretation Because we here, has no bearing upon that is not relevant Marks California Constitution of the federal Constitution. our interpretation Constitution

California protection We must also determine whether the double jeopardy bars retrial of conviction allegation California Constitution the prior Marks us. Henderson rule correctly applied is not before 2Whether be may put Constitution twice provides “[p]ersons case. The state Const., I, (Cal. 15.) By same offense.” art. comparison, for the jeopardy § shall... be subject Constitution person the federal provides “[n]o Const., (U.S. to be twice life or limb.” put jeopardy the same offense a document Amend.) indepen The “California Constitution is 5th be in a manner more protective dent force and effect that may interpreted .. . .” Constitution than that extended the federal rights by defendants’ 282, 289, P.2d 914 Fields 13 Cal.4th Cal.Rptr.2d v. 298 (People [52 Nevertheless, Consti 832].) California when we interpret provision “ Constitution, ‘cogent is similar to a of the federal tution that provision ” will Constitutions differently must exist’ before we construe the reasons “ Court placed and from construction ‘depart ” 336, (Raven 353 United States.’ v. 52 Cal.3d Deukmejian [276 1077], (1938) 12 P.2d v. Knickerbocker Gabrielli Cal.Rptr. quoting Cal.2d P.2d and federal double provisions

The behind state jeopardy purpose clause, the federal double jeopardy is the same. Like decisions interpreting of the California Constitution under the double clause jeopardy “[decisions the stress re avoiding . . the defendant’s interest both recognize . conviction.” (People the enhanced risk erroneous peated prosecutions contexts, Fields, this court has v. 13 Cal.4th certain supra, that, clause jeopardy the state double furthering decided purpose, rule, than The which we its federal greater counterpart. provides protection discussed, if from sentence receiving greater defendants already protecting Collins, (see Cal.3d People supra, after a successful v. reconvicted appeal 459; Ali, 216; Hood, v. supra, v. 1 Cal.3d at People supra, People at p. Henderson, 281; 495-497) Cal.2d at pp. Cal.2d v. at p. we have the state double interpreted one instance where Pearce, (Cf. clause. broadly pp. more than federal of the federal no violation [finding 719-721 2077-2079] circumstances].) instance is similar A second clause under trial declared a mistrial without the rule retrial after the court has prohibiting (1970) 2 v. Court Cal.3d Superior the defendant’s consent. (Curry 345]; v. Superior Cardenas 715-718 Cal.Rptr. 889]; 363 P.2d cf. Gori Cal.2d (1961) 56 Cal.Rptr. 1523, 1524, L.Ed.2d United States similar clause under no violation of the federal double jeopardy [finding circumstances].) case, reason to construe we find no of the present

Under the circumstances than the federal Constitution afford greater protection the California above, on a the effect defendant’s though As we described Constitution. embarrassment, anxiety expense, significant, be may sentence minor, the risk of an are relatively allegation a prior trying is the embarrassment source of result is slight. primary erroneous offense, of a conviction. not an allegation defendant’s present outcome is and the is relatively perfunctory, conviction allegation of a context, reason, interpret no in the present We see usually predictable. Saunders, (Cf. People federal. from the differently state Constitution that the 596.) we conclude Accordingly, 5 Cal.4th at supra, not to the trial does apply of the state Constitution jeopardy provision double (Cf. Morton v. People in this case. conviction allegation of the prior conviction retrial of a prior [permitting 41 Cal.2d here, double discussing to but without facts similar those under allegation jeopardy].)

Conclusion do not federal double jeopardy protections conclude that the state and We course, in this case. Of conviction allegation to the trial of the prior apply the Court of issues. For example, conclusion raises numerous secondary insufficient to defend- that the evidence was prove determination Appeal’s is, least, the law of of a serious felony very ant’s conviction was prior Thus, additional evidence would have to present this case. prosecution a different result. in order to obtain retrial of the conviction allegation prior (other than the this additional evidence What limitations might apply Reed, 13 Cal.4th limitations we identified in decide, Guerrero, 343) the Court of we do not because Cal.3d reason, no we express that issue. For the same did address Appeal (or some other applicable provision) about whether section opinion as a conviction allegation in some cases bar retrial of the might prior we constraints. Finally, express matter of constitutional statutory irrespective no due preclude prosecution about whether process protections opinion Pearce, (Cf. U.S. at supra, 395 from retrying allegation. 2079-2080]; Blackledge Perry 723-724 S.Ct. at pp. pp. 2098, 2102-2103, 628].) L.Ed.2d S.Ct. 28-29 [94 do not protections apply

Because the state and federal jeopardy case, we reverse the in this the trial of the conviction allegation retrial of that the extent it barred of the Court of Appeal judgment on double grounds. allegation Baxter, J., J., concurred. C.

George, result, I would although I concur BROWN, J., Concurring. has proven approach. favor a more cautious “ and remains one the most ‘misunderstood difficult singularly law, of time served the main to burden having in the the passage maxims ’’ Drubel, (Westen & Toward a General confusion.’ upon it with confusion 81, 82, Ct. fn. Rev. Theory Sup. Double Jeopardy, characterized as hardly that its could be acknowledging precedents While (Burks v. United States clarity” “models of consistency 2141, 2146, 1]), 57 L.Ed.2d the United States 9 conviction is when a not entitled to retrial has held the prosecution 2146- (Id. evidence. pp. reversed for insufficient similarly in this case is whether the prosecution question allegation a prior-conviction-sentence-enhancement from retrying barred evidence. true is reversed for insufficient finding when the (Bull- has never addressed. specifically This is a question 1861-1862, 1852, 68 (1981) 451 U.S. 445 S.Ct. v. Missouri ington [101 270]; S.Ct. v. 510 U.S. 397 Caspari L.Ed.2d Bohlen [114 whether the 236].) In the court considered Bullington, L.Ed.2d 127 the death barred the from prosecution seeking pen- double clause jeopardy of lesser on reversal an earlier conviction imposing retrial alty following time the court had the marked the first Bullington applied penalty. Missouri, su- (Bullington v. clause to determination. jeopardy 1857-1858].) 438 at S.Ct. pra, p. pp. [101 life impose of the first decision jury’s characterization Bullington’s “ ‘whatever necessary impose as an acquittal imprisonment ” Missouri, 445 at p. v. 451 U.S. (Bullington supra,

death sentence’ (Mo. 1980) 1861], State ex rel. v. Mason quoting S.Ct. at p. Westfall (dis. J.)), C. reminiscent of Bardgett, strongly S.W.2d opn. v. U.S. 184 in Green United States court’s decision Green, barred the double clause 2 L.Ed.2d In held 199]. first trial after the at the defendant’s retrial of a offense greater (Id. at S.Ct. at p. him the lesser included offense. convicted its 225-226].) greatest In the failure prove both settings, prosecution Characterizing a failure to case-in-chief. charge implicated prove fully consistent as an under these circumstances failure of proof acquittal it clause that protects double jeopardy with objectives on “run forced to being gantlet... with a crime from defendant charged 225]) more than once. (id. S.Ct. at charge” “foreclosed the cases have not Court’s While the United States Supreme (Cas- sentencing” Clause to noncapital of the Double Jeopardy application Bohlen, 955]), none v. pari context, and the applied particular question remains unresolved. the wake of considerable Caspari confusion exists, First, but a few seem clear. the double propositions jeopardy clause second, does to some sentencing proceedings; where the clause ap- its is absolute and there can be no plies, sweep of the balancing equities; finally, does not application on the mechanical depend of a formula. It application instead on the nature of the depends determina- tion to be made and its to the offense. relationship underlying

As the court stated in Caspari: “Persistent-offender status is a fact objec ascertainable on the basis of tively available readily evidence. Either a convictions, defendant has the number of requisite or he does not. him to a second at which Subjecting the State has the proceeding opportunity unfair, to show those convictions is not and will enhance the accuracy that the proceeding by determination ensuring is made on the basis of Bohlen, evidence.” competent (Caspari U.S. at pp. 396-397 956-957].) at pp. [114 S.Ct.

Other have jurisdictions found the reasoning Bullington inapplicable where the facts at issue in the sentencing determination have no bearing facts to the relating (Denton crime. present (7th 1989) Duckworth Cir. F.2d death penalty [unlike determination in Bullington, habitual offender statute does not consideration of facts require substan underlying offense]; tive Linam (10th 369, v. 1982) Cir. [same]; 685 F.2d Griffin People (1985) v. Sailor 112, 65 N.Y.2d 224 701, N.Y.S.2d 480 N.E.2d [491 [Bullington implicitly 707] death recognizes penalty substantive part murder].) offense of

When the prosecutor fails to a prove conviction prior allegation, retrial does not a fact require finder to reevaluate the evidence underlying substantive offense. Under these circumstances a retrial does not subject defendant to the risk of repeated within prosecution of the meaning double clause. jeopardy

WERDEGAR, I dissent.With due I respect, J. believe the fails majority to appreciate import United States Court Supreme decisions issue, on touching this difficult especially meaning of Bullington v. Missouri 1852, 451 U.S. 430 S.Ct. (hereafter [101 68 L.Ed.2d 270] sometimes I Bullington). As explain, Bullington and its progeny compel conclusion that the federal double clause jeopardy from precludes retrying prior Moreover, felony allegation this case. even the federal double assuming here, clause does not jeopardy I conclude apply the double Const., clause of the jeopardy I, state (Cal. 15) Constitution art. § from retrials sentence enhancement multiple allega Californians

protects tions, enhancement concerning law such statutory allegations at least as the is now written. Jeopardy Under the Federal Constitution

I. Double never held “the Court has recognizes, Supreme As the majority correctly like one clause to applies generally proceedings, that the double jeopardy case, a longer should receive determine whether a defendant this to ante, 832; (Lead conc. convictions.” opn., p. sentence because J., ante, Brown, (“This is a court has the high opn. question observation, addressed.”].) force of this The persuasive never specifically however, also is the fact the court has never held diminished high i.e., reverse, to it never held the double jeopardy inapplicable has this Just as we have avoided resolving all sentencing noncapital proceedings. (1996) 13 Cal.4th Cal.Rptr.2d issue v. Valladoli (People [54 deciding 918 P.2d without [assuming protections 999] Wiley allegations]; People conviction enhancement 580, 593, decide fn. 8 Cal.Rptr.2d Cal.4th 541] [need issue]), the to avoid similarly managed United States on most recent avoidant example a definitive decision the issue. The 948, 127 510 U.S. 383 S.Ct. behavior Bohlen Caspari court (hereafter in which the Caspari), high explained L.Ed.2d 236] “[bjecause we have no of our resolution of this case Teague[1])grounds, whether the Double Clause Jeopardy applies noncapital occasion decide S.Ct. at . . .” 510 U.S. at (Caspari, supra, . 250]; (1988) 488 U.S. also Lockhart v. Nelson L.Ed.2d see 285, 289, state conceded the fn. 102 L.Ed.2d 265] [because issue, “assumefd], applied without deciding,” (1991) 502 Hunt v. New York U.S. 964 sentencing proceedings]; White, cert.) J. dis. from denial 116 L.Ed.2d (opn. resolve authority court should certiorari to grant split [arguing . . Double Clause . whether the Jeopardy concerning “key question in cas proceedings to trial-like sentence enhancement applies one, a clean es”].) majority As I the slate is explain, entirely although 430, 451 its U.S. Bullington, supra, importance misapprehends progeny. “No provides:

I The Fifth Amendment person with first principles. begin life to be same offense be twice put shall... subject through states applicable or limb. . . .” This made provision 1060, 334], governing the (1989) Teague 288 S.Ct. 103 L.Ed.2d v. Lane 489 U.S. [109 1See federal corpus via habeas retroactivity newly proceeding announced rules to cases courts.

849 Court’s decision Benton v. by Fourteenth Amendment 2056, 23 The federal (1969) U.S. 784 S.Ct. L.Ed.2d 707]. Maryland [89 a second for the same “protects against prosecution a second for the same It prosecution offense after protects against acquittal. for the after And it protects against multiple punishments offense conviction. 711, (1969) (North Carolina v. Pearce 395 U.S. S.Ct. same offense.” [89 2076, idea, 2072, 656], omitted.) fns. “The one that is 23 L.Ed.2d underlying in at least the is deeply ingrained Anglo-American system jurisprudence, that the State its resources and should not be allowed to make with all power offense, convict for an repeated an individual attempts alleged thereby embarrassment, him and ordeal and him to subjecting compelling expense live state of as well as anxiety insecurity, enhancing continuing be (Green that even innocent he found possibility though may guilty.” 184, 221, 223, (1957) United States 187-188 S.Ct. 2 L.Ed.2d [78 199, 1119].) 61 A.L.R.2d is that the general rule federal double does not jeopardy prohibition a retrial reversal of the on

operate prevent following judgment appeal. (North Pearce, Carolina v. U.S. at supra, 395 719-720 S.Ct. at pp. [89 2077-2078]; 463, 1587, (1964) United States v. Tateo 377 U.S. [84 1588-1589, rule, L.Ed.2d An to this important exception general however, when the applies is reversed for insufficient judgment evidence. (Burks (1978) v. United States 57 L.Ed.2d (hereafter cases, Burks).) such retrial barred the federal jeopardy clause because “the . . . has been one fair prosecution given Moreover, to offer whatever could opportunity it assemble. such proof an appellate reversal means that the case was so government’s that it lacking should not have been even submitted to the Since we afford jury. necessarily absolute to a verdict of finality jury’s matter how erroneous acquittal—no its decision—it is difficult to conceive how interest in society any greater when, review, a defendant retrying it decided as a of law matter that the could not (Id. have returned a verdict of properly guilty.” 2149-2150].) S.Ct. at pp. Inasmuch Burks as delineates the scope federal law, constitutional we have followed the rule set forth in consistently (See case. v. Trevino People 39 Cal.3d 694-699 Cal.Rptr. 719], 704 P.2d disapproved on another ground, People v. Johnson 1047]; Cal.3d Cal.Rptr. v. Belton 23 Cal.3d 526-527 & fn. 13 Cal.Rptr. 485]; 591 P.2d see Criminal (2d Witkin & Cal. Law generally, Epstein, ed. 1988) Defenses, 319(b), Burks been pp. 368-369 rule has adhered to [“The § the by courts.”].) California

The Court of in this case reversed the on the Appeal jury’s finding alleged conviction, serious prior failed to felony explaining produce 850 or injury inflicted personally great bodily evidence defendant

sufficient mere in crime. This was not a reversal for weapon used personally trial. admission or exclusion of evidence at error such as erroneous Instead, reversal evidence. action was a for insufficient court’s appellate to sentence enhancements clause applies If the federal (i.e., at issue in this case Pen. or to the enhancement particular generally, 1170.12, Code, 667, law], Three Strikes subds. (b)-(i) subds. [legislative §§ law]), Burks would retrial Three Strikes rule (a)-(d) prohibit [initiative does not reasons the Burks rule lead allegation. opinion the enhancement sentencing the federal double clause inapplicable finding apply, the lead opin- the death is involved. As I explain, unless hearings penalty is precedent flawed. reading applicable Supreme ion’s that do not apply The lead correct double jeopardy protections opinion criminal sentencing proceedings. “Historically, to traditional pronounce- carried that attaches an ment of sentence never the finality acquittal.” 435, 426, 117, (United v. DiFrancesco U.S. S.Ct. States (hereafter DiFrancesco).) L.Ed.2d Most recently, 328] have not into courts taken “[traditionally, ‘[sentencing only explained convictions, also a defendant’s but have considered consideration behavior, if no from that criminal even conviction resulted defendant’s past 1921, States, 738, 511 U.S. S.Ct. behavior.’ Nichols United York, 1928, (1994). in Williams v. New explained 128 L.Ed.2d We 754] 1079, 1082-1083, (1949), L.Ed. S.Ct. nation, in this ‘both before and since the American colonies became a courts under which a sentencing judge and country England practiced policy wide of evidence used types could exercise discretion the sources kind extent of be imposed assist him in determining punishment ” (Witte within limits fixed law.’ v. United States 362-363].) 132 L.Ed.2d “Against claim we have background history, specifically rejected sentencing punishment bar a later prosecution that double jeopardy principles for a has been considered activity activity criminal where that (Id. at 132 L.Ed.2d at crime.” separate We, course, in Califor have such “traditional” sentencing proceedings verdict, within the trial court must set a jury’s hearing nia. Following Code, (Pen. pronouncement of verdict for judicial days judgment. (see 1191.) At this the trial considers the hearing, judge probation report § Court, 411.5 [presentence Cal. Rules of rules investigations reports], broad and exercises investigation officer’s presentence report]) [probation deciding probation justified sentencing option discretion whether as a (id., term (id., affecting probation]), rule 414 the base selecting [criteria 420) rule and whether to concurrent or choosing consecutive terms impose (id., rule 425 sentences]). concurrent or consecutive affecting In [criteria determinations, these the trial considers making the circumstances in judge (id., 421) (id., rule aggravation 423), rule which mitigation need not be either (See pleaded proved by People v. Her People. generally, 46 Cal.3d Cal.Rptr. nandez difference between [noting “a trial court’s decision in fashioning appropriate from the need to establish before punishment the trier of fact the wrongful criminal conduct for which is v. Bet punishment People being imposed”]; terton Cal.App.3d Cal.Rptr. panoply 537] [“full not rights” required sentencing v. Thomas hearing]; People Cal.App.3d Cal.Rptr. Rules of Court intended to guide 483] [Cal. courts, cases, not sentencing give acts].) notice of prohibited most number of potential sentencing dispositions as is permutations great, the discretion of the Such sentencing judge. “traditional” sentencing pro case, are not ceedings at issue in this and I agree double jeopardy principles do not proceedings this type.

As is apparent, “traditional” sentencing are held proceedings without a jury, consideration of permit probation and involve broad reports sentencing court discretion to choose among variety outcomes. Such must hearings be distinguished from the of criminal type sentencing hearing follows the trial on the substantive criminal offenses and is addressed (but typically to the exclusively) existence of enhancements. In this latter type formal hearing, notice of the sentence enhancement must be allegation given, determines jury historical facts that can lead to enhanced or longer sentences, the bear the burden of a reasonable proof beyond doubt by evidence, admissible and the sentencer must choose one of two outcomes. This latter type constitutes hearing a separate trial or a “trial-like” I proceeding punishment. As the lesson of explain, Bullington, cases, and its progeny that in such federal double jeopardy protections apply.

A. Bullington and Its Progeny Bullington involved a defendant convicted in Missouri of murder. capital law, Under Missouri the defendant in Bullington was entitled to a separate on the presentence hearing question State law penalty. him the guaranteed following procedural him rights the same hearing: that found jury guilty evidence; murder would hear additional notice of the aggravating evidence must be must given; jury consider 10 and 6 aggravating law; mitigating factors specified must weigh various factors identify writing which factors it found beyond a proved reasonable doubt; must find that the evidence warrants aggravating imposition the jury doubt; and the decision must a reasonable beyond jury’s of the death penalty 451 U.S. at S.Ct. at (Bullington, supra, pp. pp. be unanimous. eschewed the death 1855-1856].) After a hearing, jury presentence no parole on a sentence of life with for and the defendant penalty imposed 50 years. a of or for acquittal then for Bullington judgment defendant in moved

The motion, the prosecution trial court the new trial new trial. When the granted retrial, seek the death that, again it would announced its decision during clause, the federal The defendant objected, citing penalty. it “has noted resisted Court first that and the The high agreed. court The sentencing. imposi to extend jeopardy principles] attempts [double any of ‘acquittal’ as an usually regarded tion a sentence particular of The generally that have been imposed. more severe sentence could concluded, therefore, no absolute Clause the Double Jeopardy imposes a sentence at retrial after of a harsher against prohibition imposition (Bull conviction set aside.” defendant has succeeded in his having original 1857-1858].) S.Ct. at For 451 U.S. at ington, supra, relies, on which the lead opinion court cited cases proposition, DiFrancesco, i.e., Pearce, U.S. v. North Carolina (1973) 412 U.S. 17 Stynchcombe Chaffin 714], 251 U.S. 15 United States L.Ed.2d Stroud Stroud). (hereafter L.Ed. 103] declined, however, to this line of reasoning. follow Bullington

The to this from the rule critical diverging Because its explanation previous case, I it quote extensively: life of the sentence of

“The that resulted the imposition procedure trial, however, first differs at his imprisonment upon petitioner cases where the those the Court’s any from significantly employed sentencing. jury Double Clause has been held inapplicable Jeopardy to select an given appropriate in this case was not unbounded discretion Rather, statute. by separate from a wide authorized punishment range held, both was a choice presented was hearing required guide making two and standards to choice. between alternatives what it felt to be an Nor recommend appropriate did prosecution simply It the burden certain establishing beyond undertook punishment. facts two its the harsher alternative reasonable doubt in obtain quest and, indeed, in all relevant resembled hearing verdicts. presentence guilt trial the issue immediately preceding was like the respects on the issue so punishment precisely innocence. It was defined itself the Missouri statutes. contrast, “In sentencing procedures considered the Court’s previous Pearce, cases did not have the hallmarks the trial on or innocence. In Stroud, there was no separate at which the sentencing proceeding Chaffin was to a prosecution required prove—beyond reasonable doubt or other- wise—additional facts in order to the sentence. In each of justify particular cases, moreover, those the sentencer’s discretion was unfettered. essentially Stroud, no standards had been enacted to the guide discretion. In jury’s Pearce, the had a wide judge from which to range punishments choose with no standards to explicit him. And in imposed guide Chaffin, the discretion defendant, to the given broad. That jury extremely convicted death, could Georgia have been sentenced to robbery, to life imprison- ment, or to a term of between 4 prison and 20 years. The statute [Citation.] (Bull- contained no standards to guide jury’s exercise of its discretion.” ington, 451 U.S. at supra, 1858-1859], 438-440 S.Ct. pp. at pp. italics [101 added, omitted.) fns.

“In the however, usual sentencing it is proceeding, to conclude impossible that a sentence less than the maximum statutory a decision to ‘constitute^] the effect that the government has failed to its case.’ In the prove normal process sentencing, ‘there are no virtually rules or tests or standards—and thus no Frankel, issues to resolve . . . .’ M. Criminal Sentences: Law Thus, Without Order (1973). discretion of the ‘[t]he ... judge [sentencing] matters is free of virtually substantive control or guidance. Where the has judge to power select a term of imprisonment within a range the exercise of that Kadish, authority left fairly large.’ Norm Legal Discretion in Processes, the Police and Sentencing 75 Harv. L. Rev.

(1962).” (Bullington, U.S. at 443-444 pp. pp. 1860-1861], omitted.) fn.

“By a enacting capital sentencing procedure that resembles a trial on the innocence, issue guilt however, Missouri explicitly requires jury determine whether the has prosecution its ‘proved case.’ . . . therefore [W]e refrain from extending rationale of Pearce to the different very facts of the present case. Chief Justice in his Bardgett, dissent from the ruling Missouri Supreme Court majority, observed that the sentence of life impris- onment which petitioner received at his first trial meant that ‘the jury already acquitted defendant of whatever was necessary to impose death 2d, sentence.’ 594 S. W. at 922. We agree.” (Bullington, U.S. at 1861], S.Ct. at italics added p. omitted.) “Having received ‘one fair opportunity offer whatever it proof could assemble,’ [citation], the State is (Id. not entitled to another.” p. 1862],

S.Ct. at Burks, quoting supra, 437 U.S. at at p. clear, from Bullington distinguishable court found As is Unlike sentencing of the nature involved. proceeding cases because cases, Bullington bore “the hall- the separate proceeding past (451 or innocence” S.Ct. at marks of be 1858]), a notice to the defendant of the facts to right jury, including of evidence and sentenc- submission presentation argument, proved, alternatives, two circumscribed discretion with standards choice between ing discretion, and of requirement unanimity such guide proof doubt. reasonable beyond Court followed three later years

The Supreme Arizona (hereafter (1984) 467 U.S. 203 81 L.Ed.2d Rumsey first the of armed and Rumsey, robbery defendant was convicted Rumsey). no murder. The trial without a found circum- jury, aggravating degree judge, sentence under state law stances and thus determined the appropriate present On years. without the of for parole life imprisonment possibility been the Arizona Court found the trial had mistaken Supreme judge appeal, and a new in no circumstance existed remanded for concluding aggravating the sentenced the hearing, new the sentencing hearing. Following judge to the death On once the defendant again, defendant penalty. appeal the violated the claimed death sentence retrial Rumsey imposition as Bullington, supra, federal double interpreted life agreed 430. The state and reduced the sentence to supreme court imprisonment. for United Arizona’s a writ petition

The States granted and affirmed. The sentenc- capital certiorari high explained “[t]he of the Missouri in Arizona shares characteristics ing proceeding proceed- it for of the Double Clause. Jeopardy that make resemble a trial ing purposes The choose sentencer—the trial Arizona—is between required judge death, for of parole two and life without imprisonment possibility options: statutory make decision detailed years. guided by sentencer must circumstances; in aggravating mitigating particular, standards defining one circumstance and aggravating death be unless least may imposed found, must be if there imposed no circumstance is whereas death mitigating sufficiently and no circumstance mitigating one circumstance aggravating must with findings The sentencer make leniency. substantial call circumstances, and mitigating to each of the respect statutory aggravating the submission evidence and and the involves sentencing hearing govern usual evidence the admission rules presentation argument. circumstances, must existence prove State aggravating evidence As the reasonable doubt. circumstances beyond [Citations.] aggravating of Supreme held, Arizona make the these characteristics Court of Arizona . . . from the indistinguishable sen- capital sentencing proceeding capital in Missouri. 467 U.S. at (Rumsey, supra, tencing proceeding pp. [Citation.]” 2309], added.) S.Ct. at italics 209-210

The court in thus underscored core Rumsey Bullington's holding federal double clause will when sentencing proceedings such bear “the hallmarks of the trial on proceedings innocence” 1858]). 451 U.S. at S.Ct. at (Bullington, supra, Stated we must ask whether the involves char differently, sentencing proceeding acteristics “that make it resemble a trial for of the Double purposes Jeopardy Clause.” 467 U.S. at (Rumsey, supra, court’s both

Despite analysis Bullington Rumsey, majority declines follow of those As I teaching cases. explain, majority’s approach analytically insupportable.

B. Attempts Distinguishing Are Unpersuasive The lead opinion the existence of acknowledges Bullington, supra, “ and its as well as progeny, that case’s ‘hallmarks of the trial on ” (See ante, or innocence’ 836.) lead analysis. at opn., p. opinion declines to that apply analysis because it finds this case is distinguishable and, from Bullington accordingly, . . . “Bullington's analysis does not apply ante, First, (Lead here.” 836.) at opn., the lead contends the opinion Court has Supreme it would not suggested to apply Bullington noncapital ante, (Lead Second, 836-837.) hearings. opn., at pp. aside from Court, any direction from perceived the the Supreme lead finds it opinion that significant “many procedural protections apply [Penal section constitutional, 1025 trial rest on Code] not federal statutory, ante, (Lead grounds.” 837.) at opn., the lead finds Additionally, opinion to cases procedures applicable “find no capital parallel” noncapital (ibid.); cases of mental degree faced a criminal anguish defendant by to subject of enhancement multiple prosecutions is insufficient to provisions warrant double (id. 838); jeopardy protection capital sentencing are proceedings distinguishable because of facts linked to they rely proof 839; facts of the (id., substantive crimes see also conc. opn. Brown, J., ante, 847). at p.

As I explain, any from the court in suggestions high cases post -Bullington are, most, ambiguous. Nothing itself its is Bullington suggests analysis cases; limited to more capital no Court case has ever importantly, Supreme held addition, and its are so Bullington limited. In the distinction progeny drawn lead by opinion between and constitutional statutory protections indeed, wholly unsupported; Bullington itself involved statutory procedural the lead federal Finally, Constitution. not mandated protections this case on their Bullington respective opinion’s distinguish to attempt facts wholly unpersuasive. Is Limited to Bullington

1. The Court Has Never Held Cases Capital suggested asserts court in cases has subsequent

The lead “the high opinion ante, (Lead at p. not cases.” opn., does ante, Brown, J., added; see but conc. opn. italics unresolved”].) such Any “suggestion,” “the remains [noting question court, course, which constitutional independent not bind this has an would it. More before rights litigants constitutional obligation adjudicate over, making the lead cites as opinion “suggestion,” two cases (1985) 474 v. Goldhammer Pennsylvania Caspari, supra, curiam) (hereafter Goldham (per U.S. 28 L.Ed.2d 183] mer), distinguishable. are readily an Eighth court confronted Caspari, supra, high in the Bullington analysis,

Circuit Court of decision Appeals applying to conclude context of a Missouri state habeas prisoner’s corpus petition, were offender persistent convictions under Missouri’s statutes prior felony thus, a state court’s protections; appellate federal subject offender, due to was a finding persistent reversal of the the petitioner retrial of the enhancement. insufficient evidence of the barred charged priors, (B 1992) (8th court did Cir. 979 F.2d Caspari ohlen instead, the court discussed the merits of this holding; address directly whether Circuit’s decision Eighth applying jeopardy protection new of law requiring in a case was a rule sentencing noncapital prospective Lane, It was in (Teague supra, 489 only. application were Bullington Rumsey Court noted that “Both context Supreme cases, on the those was based and our cases reasoning largely capital supra, of a (Caspari, circumstances sentencing proceeding.” unique capital 247].) S.Ct. at 127 L.Ed.2d at p. p. p. [114 limited cases. did was Bullington capital court not “hold” Caspari Rather, above its conclusion merely support it made the observation noted our at the time precedents respondent’s that “a jurist reviewing reasonable the appli would not have considered sentence became final Clause to sentencing proceeding cation the Double Jeopardy noncapital 510 U.S. at our (Caspari, supra, p. [114 to be dictated by precedents.” 248].) state courts that federal and Noting S.Ct. at 127 L.Ed.2d at p. p. (id. p. on the issue” p. “reached conflicting had holdings concerned a 249]), concluded “that conflict the court 127 L.Ed.2d at p. ” disagree’ which reasonable jurists [could] in the law over ‘developmen[t] Lane, erred in Circuit Eighth under (ibid.)', Teague accordingly, for our benefit. Significantly to defendant’s retroactively its ruling applying in Caspari stating: concluded its by Court opinion Supreme purposes, Clause applies the Double Jeopardy to decide whether “we have no occasion scheme persistent-offender or whether Missouri’s sentencing, to noncapital (Caspari, supra, double jeopardy protections.” trial-like to invoke sufficiently 250], added.) As is L.Ed.2d at italics S.Ct. at p. p. therefore, clear, “hold” was limited to Bullington did not Caspari capital cases; so neither did the it would high “suggest” more to the point, found court held that it had not previously hold in the future. The only cases, so the Circuit’s deci Eighth Bullington applicable challenged so the first time in the context of a final conviction sion to do for of a for federal habeas corpus improper. by way petition Goldhammer, evi- supra, similarly unimpressive presents dence of a court would limit Bullington “suggestion” high capital case, cases. In that curiam decided on per summary disposition, opinion whether, the issue was a successful a defendant as to 34 following appeal of 112 counts of theft and the state was entitled to a remand for forgery, been resentencing other counts which had sentencing suspended. words, other the case did not concern sentence enhancement proceedings, DiFrancesco, or otherwise. In a U.S. at capital passage quoting supra, 449 436], S.Ct. at Goldhammer noted: “the decisions of this page page establish that a in a does not have ‘clearly sentencing noncapital case] (Goldhammer, of constitutional an finality attend qualities acquittal.” added, 353-354], 474 U.S. at S.Ct. at italics brackets in original.) be

It would a mistake to draw inferences from the brack any significant and, eted phrase. DiFrancesco was decided one before at that year time, the general rule was indeed that the court’s “decisions area establish that a sentence does not have the clearly qualities (DiFrancesco, constitutional that attend an finality acquittal.” U.S. at S.Ct. at Court in Goldhammer no doubt added the bracketed take into to to simply phrase adjust quotation account the At the time Goldhammer was decided holding Bullington. now, (1985), as two cases in which the court has found a only high to the double clause have been sentencing proceeding subject jeopardy 430; cases. 451 U.S. 467 U.S. (Bullington, supra, Rumsey, supra, capital however, As we have those cases did turn on fact explained, the death was involved. penalty Goldhammer, thus 474 U.S. and 510 U.S.

Caspari, supra, Court whether the Supreme at best for discerning weak evidence provide Moreover, if we are case. noncapital to a analysis Bullington’s would apply (as to what it court would hold opposed what the high to predict attempting Nelson, 488 U.S. Lockhart v. held), must also consider we has enhancements sentence noncapital to determine involving hearing case “assume[d], court without The Lockhart convictions. felony based (Id. to such at p. clause proceedings. the double jeopardy applied deciding,” Court was of the opinion If the Supreme fn. to here was an say opportunity was limited Bullington capital proceedings, clause was wholly inapplicable court felt the jeopardy so. If the appears the death no reason not involving penalty, sentencing proceedings at all. have decided Lockhart and Goldhammer event, Caspari even assuming argument

In any ante, 836-837) that the (lead Supreme at pp. opn., contain a “suggestion]” clause noncapital the federal Court would not now apply has never is the actually fact simple sentencing proceedings, otherwise Until directed are so limited. Rumsey “held” Bullington in Supreme not bound “suggestions” we are by perceived definitive ruling, based on constitutional the case before us case law. We must decide Court court—may court—even a higher of what another not predictions principles, never having controversy. do if faced with a justiciable cases, I would follow limited to Rumsey capital to be held Bohlen v. (see, have done e.g., the country several courts from around what 109, 113, in Caspari, supra, other grounds revd. on 979 F.2d Caspari, supra, 357, 359; 1989) 383; (9th 882 F.2d v. Lewis Cir. Durosko 413, 419; v. State 1981) (Tex.Crim.App. P.2d (Colo. Cooper Quintana (hereafter Hennings Cooper); State 1982) 631 S.W.2d (hereafter Hennings) (1983) 100 Wn.2d 379 259-262] or innocence” test to this trial on guilt “hallmarks of the Bullington’s apply the federal double to determine whether case here. applies Are Protections That Procedural

2. It Is Irrelevant Defendant’s Constitutional Rather Than Statutory “relevant” that “many procedural next asserts it is

The lead opinion rest on statutory, 1025 trial in a Code section Penal protections ante, 837.) It is true constitutional, (Lead opn., grounds.” not federal sentence in a trial of rights defendant’s of a criminal procedural that many or a decision of in either a statute find their origins allegations enhancement a trial court court, For example, federal Constitution. and not truth of the prior to determine hearing to order a separate discretion Cal.Rptr.2d Cal.4th 69 v. Calderon (People convictions bifurcated, is the defendant and, trial is or not the 83]), whether must be Code, 1025). enhancements The sentence (Pen. a entitled to jury § 1170.12, (c), Code, subd. subd. Pen. (see, e.g., and proved pleaded §§ in the charge open must answer 667.5, and the defendant (d)), subd. (a), Code, convic 1025; Code, Pen. see also 969½ [when (Pen. § § he has pleaded guilty, after defendant is added to complaint allegation tion bear the burden The People on the allegations]). must be arraigned (People reasonable doubt. enhancement beyond the sentence proving 840]; see 862 P.2d (1993) 6 Cal.4th Cal.Rptr.2d Tenner doubt to Code, a reasonable standard of beyond also Pen. 1096 [applying § actions”].) “criminal these protections, origins procedural the nonconstitutional

Despite however, that when a state Bullington, supra, it is the lesson of are in a facts adjudicated erects a in which sentence-enhancing system (id. at on or innocence” “the hallmarks of the trial hearing bearing 1858]), the federal double jeopardy applies. S.Ct. at is its this analysis dependent Nothing Bullington progeny suggests mandated. are constitutionally whether the applicable procedural protections Indeed, protec the State Missouri required procedural in Bullington itself, in the Consti its that were not capital grounded tions federal defendants must both designate Missouri law provided tution. For example, (Mo.Rev.Stat. 565.012.4 factors it found true writing aggravating which § doubt standard to of those (1978)) proof reasonable apply beyond (ibid.; 451 U.S. at factors see Bullington, supra,

1855-1856]). is mandated. constitutionally Neither requirement procedural (See Cal.Rptr. 42 Cal.3d Rodriguez for this aspect 726 P.2d The lead fails to account opinion Bullington. the constitu- the lead is wrong claiming

Accordingly, opinion simply ante, (lead involved is “relevant” opn., tional nature of the protections here. should 837) whether determining Bullington’s analysis a state for the adjudi- or not the offered protections procedural Whether are mandated constitutionally simply cation of facts sentence-enhancing to the before us. question not a relevant consideration Present Case From the Distinguishable 3. Is Not Bullington that, “suggestion” post- next asserts any perceived The lead opinion aside, different from the Bullington substantively decisions case, and “the trial-like the death penalty, because it involved present of the death find no penalty parallel imposition that regulate procedures ante, 837.) also finds (Lead lead p. opinion cases.” opn., nature ... sentenc- capital due to “the unique Bullington distinguishable (Lead opn., as to proceedings.” ing compared proceedings fails, however, ante, 839-840.) to identify any The lead opinion at reasons, limited can or should be in law or logic, why Bullington persuasive cases. capital different, as a execution of a human being for the state’s Death is indeed irreversible, modem most serious society’s both final and sanction is penal (Lockett (1978) 438 U.S. S.Ct. v. Ohio criminal penalty. J.) difference C. “qualitative (opn. Burger, [the 57 L.Ed.2d 973] reliability degree other calls for a penalties greater between death and (1977) 430 U.S. Gardner v. Florida when the death sentence is imposed”]; Stevens, 1197, 1204, J.) 51 L.Ed.2d (plur. opn. S.Ct. 393] “[ijt vital of the death is of penalty, finality severity [because decision to any impose to the defendant and the community importance be, be, than based on reason rather caprice the death sentence and appear Bullington, of double emotion”].) or For purposes applying however, or “different” ob- the death as “unique” labeling penalty simply is the death in what relevant way scures the namely, pertinent inquiry, different for of double jeopardy?2 penalty purposes mere fact the itself did not on the rely Significantly, Stroud, Indeed, involved. it declined to overrule death penalty defendant, sentenced to life initially in which a 251 U.S. case capital on retrial following was sentenced to suffer the death penalty imprisonment, found no double jeopardy a new trial. The Stroud court a reversal and Had Bullington the death retrial. against imposing penalty prohibition different, Stroud. it should have overruled held cases se were capital per Instead, in which the penalty Stroud as a case Bullington distinguished the trial on the not one “like Bullington—was the one trial—unlike innocence.” 451 U.S. (Bullington, supra, question Stroud, enacted to 1862].) “In no standards had been guide S.Ct. 451 U.S. at (Bullington, supra, discretion.” jury’s Bull- “Although Court of Washington recognized: As the Supreme neither the reasoning involved the death sentencing provision, ington penalty observed, of an idea does not frequent repetition 2As Justice Oliver Wendell Holmes become of the law that ideas necessarily logical force. “It is one of the misfortunes add to its (Hyde analysis.” further long provoke time cease to encysted phrases and thereafter for 793, 811, (dis. opn. of 56 L.Ed. United States 391 [32 Holmes, J.).) of the death case the upon presence penalty.” in that holding depends nor the 256, 260.) of the death the mere Clearly presence 670 P.2d (Hennings, not here. key is the penalty Missouri’s governed capital trial-like that

Nor can we the say procedures the proce- from way any meaningful are different sentencing proceedings the used to determine sentencing proceeding dures the bifurcated governing of proceed- In both types conviction here. felony allegation truth of the prior be notified what hearing, a must separate defendant obtain ings, may the In to both to a counsel. the to entitled prove, jury People plan standards and the trier of fact is established guided by types proceedings, In Missouri the one of two alternative verdicts. proceeding, must choose are or life without parole years. choices death imprisonment case, alleged in this must decide whether the convic- prior hearing tion or Like the Missouri hearing, is true untrue. capital presentence in the case are to sentence present required prove alleged stated, a As beyond Bullington presen- enhancement reasonable doubt. “[t]he and, indeed, like tence resembled in all relevant was hearing respects trial a on the issue of or innocence. It itself immediately preceding guilt trial . . . (Bullington, supra, on the issue of .” at punishment p. 1858].) S.Ct. at Stated on the differently, prior p. hearing bore conviction “the hallmarks trial felony allegations (Id. innocence.” that Missouri’s sen- the trial-like

Accordingly, govern capital procedures are identical to those that the bifurcated hearing nearly tencing held in this case to determine defendant’s convic- proceeding prior felony tions. thus I cannot with lead conclusion agree contrary opinion’s (Lead “find no cases.” noncapital Missouri’s capital procedures parallel ante, opn., Bullington

The lead also reasons that whereas held the relative opinion a level of embarrassment and defendant would feel anxiety facing capital a trial was to the mental sufficiently anguish penalty phase comparable a in the of a criminal suffered criminal defendant substantive by guilt phase 1861-1862]), 451 U.S. at S.Ct. at (Bullington, supra, pp. be same cannot said for a defendant a facing sentencing hearing. (Lead ante, 838-839.) emotional From this assessment of the opn., lead content of the trial concludes should experience, opinion not extended to be noncapital sentencing proceedings.

What is from this discussion is a rationale missing supporting persuasive the bald assertion that criminal defendant’s when insecurity” “anxiety life sentence as a result crimes facing possible past equivalent a defendant tried for substantive by being criminal experienced “Three-Strikes-and-You’re-Out,” offense. In this era of the mental torment defendants in a bifurcated to determine the truth sentencing hearing faced by seems at least to that faced of allegations comparable convictions, of trial. Such if two or more defendants at the guilt phase sustained, term in are can lead a minimum prison years twenty-five life, with a maximum term of the balance of the defendant’s consisting Code, 1170.12, subd. (Pen. (e)(2)(A)(i)-(iii), natural life. subd. §§667, case, if, (c)(2)(A)(i)-(iii).) Even as in this one only felony qualifying prior conviction is conviction will require alleged, sustaining prior allegation essentially the sentence be doubled as much time length, adding prison Code, (Pen. as defendant received for the substantive offense. committing 1170.12, (e)(1), (c)(1).) subd. subd. The lead opinion’s comparison §§ of the mental suffered versus anguish by capital defendants thus unconvincing. finds trials are different in kind

Finally, majority capital penalty because the evidence in such or hearings “usually presented overlaps sup trial,” the evidence offered at the of the whereas “in a plements guilt phase allegation, a conviction the factual determinations are prior generally offense, divorced from the facts of the and the evidence does not present ante, 839; Brown, J., (Lead at all.” see also conc. overlap opn., opn. ante, true, 847.) Even if this distinction finds no proposed support or, indeed, I whatsoever. note the fails to cite majority Bullington factor any authority, indicating evidentiary any relevance to a double jeopardy analysis.

Nor am I convinced the is correct as an matter. majority empirical circumstances of the crime of which the defendant was Although “[t]he convicted in the is an circumstance in this present proceeding” aggravating Code, 190.3, (a)), (see death scheme Pen. factor and a state’s penalty § to doubt circumstance mitigating defendant is entitled as a argue lingering 12 Cal.4th 906 P.2d Cal.Rptr.2d (People Sanchez 1129]), evidence is often untethered to the facts the crime. penalty phase Instead, evidence recounts the defendant’s violent such frequently past conduct and/or of the defendant’s or explains aspects upbringing criminal evidence, words, mental health other that does not with history, overlap evidence at the the trial. presented guilt phase Moreover, even in a bifurcated hearing conviction prior allega felony tions, the evidence must sometimes establish some aspect present crime over the minimum and above verdict on necessary obtain a guilty a enhancement five-year to impose offense. For example, substantive to Penal Code section felony pursuant conviction term for the existence of a (a), only prove qualifying must not People subdivision conviction, as a present also prove qualifies but must 1192.7, (c). (See section subdivision under Penal Code felony” “serious 116, 722 P.2d 42 Cal.3d 456 Cal.Rptr. People Equarte for felony” eligible as “serious deadly weapon qualify assault with [for enhancement, infliction use or must personal personal state weapon prove Cal.Rptr. 41 Cal.3d 837 v. Thomas bodily injury]; “serious felony” for as a [observing burglary qualify 718 P.2d 94] enhancement, defendant used gun state must personally eligible prove residence].) or or entered a great bodily injury, inflicted weapon, deadly case, separate “the factual determinations say In such a we cannot [at . . .” the facts of the offense . are divorced from generally present hearing] Brown, J., ante, ante, 839; (Lead conc. see also opn., opn. sum, no its assertion reason proffers support majority persuasive the is “hallmarks of trial on or innocence” test limited Bullington’s guilt

to cases. capital Are

4. The Lead Other Opinion’s Arguments Unpersuasive for declining apply The lead announces other reasons to opinion case, but none is For persuasive. federal double clause jeopardy entitled as the lead asserts that “a criminal defendant opinion example, informal, trial, to a federal matter formal or of sentencing constitutional issues, as even when the sentence turns on factual determinations such ante, 832.) (Lead existence of convictions.” Because Cali- prior opn., thus for very protections fornia could choose to provide procedural few it reasons the lead could choose to sentencing allegations, opinion, certainly this, less than full From the lead concludes “a provide protection. opinion trial of need not double allegations arguably provide sentencing jeopardy (Id. added.) italics protection.” true our may Legislature

This is beside the While it be argument point. protections could choose to fewer for sentence enhance- provide procedural Cal.4th (see ments v. Vera Cal.Rptr.2d J.)), has If (dis. opn. anything, it not done so. Werdegar, direction, ensuring legislative high degree action moved opposite with sentence-enhancing for defendants procedural charged protection Code, (c) under (See, subd. convictions Pen. allegations. e.g., [prior §§ 1170.12, (a) subd. must Three Strikes law be legislative “pled proved”], law], 667.5, (d) term [prior Strikes subd. prison under initiative Three [same are and admitted or “shall not be unless imposed they charged enhancements enhancements], true”], felony to [right found “actions”]; Code, to criminal see also Pen. of evidence apply 1102 [rules case, evidence of criminal penalty capital activity 190.3 phase [in § was “for an offense for which defendant prosecuted shall not be admitted and acquitted”].) here cannot jeopardy

The lead also federal opinion suggests offense,” to “the the Fifth Amendment refers specifically “[t]he because determi- makes no reference sentencing clause jeopardy] express [double ante, 834.) Bullington (Lead This belied argument nations.” opn., itself, the federal double clause for the applied jeopardy no “offense” involved therein. although Missouri capital federal is limited to clause any suggestion jeopardy Clearly incorrect. criminal “offenses” is and Other States Authority

5. From the Federal Circuits states, from the federal circuits and other several cases various Citing admits “are as to whether the federal double these courts divided majority (Lead one here.” clause proceedings analogous applies ante, 839-840; Brown, J., ante, see also at p. conc. opn. opn., concedes, circuits and state courts have As the lead several federal opinion or inno of the trial on applied “hallmarks profitably to noncap test to find federal double cence” applicable (5th in Briggs For Procunier Cir. sentencing proceedings. ital example, the defendant for 1985) (hereafter F.2d Texas indicted Briggs), which, if required and convictions alleged felony proved, two burglary prior found the defendant guilty he be sentenced to life in After a prison. convictions, the charged the the state dismissed charged burglary, prior state joined The a new trial and the defendant citing proof problems. sought indicted the defendant for motion. When it was the state granted, again the however, time, the two different prior felony This state charged burglary. 369.) were (Id. at felonies convictions to enhance the sentence. prior to life imprisonment. true and the defendant sentenced found “hallmarks of the Appeals Bullington The Fifth Circuit Court applied denial of the district court’s trial on or innocence” test to reverse the in the discussion death-sentencing procedure on habeas “Like corpus. relief Missouri, U.S. 68 L.Ed.2d Bullington trial, beyond to the state (1981), prove the Texas scheme requires convictions, doubt, facts, necessary two prior reasonable the predicate must be ‘The two convictions the harsher sentence. the imposition indictment, the allegations the are treated and review upon in alleged offense.’ elements of a substantive [Citation.] as allegations same defend- evidence of the Therefore, to introduce sufficient if the state fails trial, Jeopardy first the Double offender at a as an habitual ant’s status aat an offender defendant as habitual Clause prohibits 371.) 764 F.2d at (Briggs, supra, second trial.” Hen- in same conclusion reached the Court of Washington

The with was charged The defendant Hennings 670 P.2d 256. nings, supra, habitual under Washington’s a habitual criminal being and with robbery but the trial guilty law. He ultimately pleaded robbery, offender failed prove charge, concluding the habitual criminal dismissed and conviction matter was knowingly defendant’s guilty plea obtained, (Id. law. Washington under statutory requirement voluntarily 257.) the People court held double Washington high jeopardy precluded The court and the habitual criminal allegation. from recharging retrying that, Bullington, supra, at issue like capital proceeding explained law takes Washington determination under a habitual offender in which the state bears the burden place proof separate proceeding addition, be a reasonable doubt. In should the allegation proved, beyond circumscribed: If the sentence not suspended, range strictly penalties no be there is habitual offender must sentenced life imprisonment; 258.) 670 P.2d The “similarities (Hennings, supra, other sentence. at p. indicate that Bullington habitual offender Washington [between law] should Washington’s under double jeopardy principles 670 P.2d at (Hennings, supra, habitual criminal proceedings.” Hennings, supra, As illustrated 764 F.2d Briggs, courts that has from the federal circuit rule emerged majority the trial on guilt state courts is this: “hallmarks of Bullington’s whether noncapital test is the standard to determine innocence” applicable As to clause. are the federal subject jeopardy sentencing proceedings to found double jeopardy applies courts have Briggs Hennings, many law issue because the state at of a bar retrial noncapital sentencing allegation (In 764 F.2d Briggs, supra, on addition to the hallmarks of trial guilt. bore see, Circuit], supra, [Washington], P.2d Hennings, 368 [Fifth revd. on other grounds v. F.2d at Bohlen Caspari, supra, e.g., Circuit, Missouri habitual interpreting Caspari, supra, [8th 447-448, 1987) law]; (8th Cir. 828 F.2d Nelson v. Lockhart offender Nelson, 488 U.S. 33 supra, [interpreting on Lockhart v. grounds, revd. other Lewis, law]; at 882 F.2d supra, Arkansas habitual offender Durosko law]; Quintana, Arizona People Circuit interpreting [Ninth [Colorado]; at 631 S.W.2d Cooper, supra, pp. 1982) [Texas]; 639 S.W.2d Augusta (Tex.Crim.App. Ex Parte (Miss. 1984) cf. DeBussi v. State 453 So.2d [following Cooper]; to conclude double analysis a Bullington-type 1032-1033 [applying habitual of- Constitution barred retrial of under Mississippi jeopardy fender allegation].) on guilt s “hallmarks of Bullington'

Other courts have applied to come to a contrary test to sentencing proceedings innocence” noncapital conclusion, i.e., law at issue did not bear sufficient that the sentencing these courts have to a trial on question guilt. Accordingly, similarity statutory did not a retrial under prohibit particular found double jeopardy (3d 1994) 30 F.3d in Wilmer v. Johnson Cir. scheme at issue. For example, sen Wilmer), to a trafficker (hereafter Pennsylvania drug a challenge scheme, “hall Bullington appellate applied tence enhancement did not or innocence” test to find double marks of the trial on jeopardy guilt the sentence in the particular the state was to appeal apply. Noting permitted issue, concluded there the Wilmer court scheme statutory sentencing of the no second “trial.” More importantly, only preponderance would be a more signifies “The lower standard of proof evidence test was applicable. not, in the Bullington in turn that a hearing lax which procedure signifies calculus, 457-458.) to (Wilmer, Contrary trial-like.” 30 F.3d held double could not of the that Wilmer suggestion majority of the absence of the death penalty, to because noncapital sentencing or inno “hallmarks of the trial Wilmer court applied Bullington's there was scheme at issue sentencing test and concluded the state cence” a trial on guilt. insufficiently analogous 317], Ill.Dec. 623 N.E.2d v. Levin 157 Ill.2d 138 statute, offender also applied

which with the Illinois habitual dealt did case before finding Bullington analysis fashioned the habitual-criminal “The apply. legislature Indeed, of due trial. the paucity formalized than a to be less proceeding that the legislature the conclusion at sentencing supports process protections stage proceeding defendant’s interests at has deemed the that the at trial. We conclude those than warrant fewer of protections of a formalities Act bears insufficient under our hearing procedure separate hearing procedure the separate analogous trial to render factor (623 issue of N.E.2d guilt.” trial on the and to this defendant’s to Illinois’s words, pursuant held hearing the separate other so of a trial on guilt, the hallmarks does not bear habitual offender statute does not apply. double jeopardy

867 of the trial on guilt “hallmarks Bullington the applying Other cases hall- such finding sentencing proceedings to innocence” test 77, 1995) (8th 72 F.3d 79-80 Cir. Woodall U.S. marks absent include Act), (1985) Criminal State v. Sowards Armed Career federal (interpreting 1994) 875 (Mo. State v. Cobb (Arizona), P.2d 515] 147 Ariz. Cobb) v. State (hereafter (Missouri),3 Fitzpatrick S.W.2d v. Sailor (Montana), and P.2d Mont. 310 1017] York). (New N.Y.S.2d 480 N.E.2d N.Y.2d 445-446] v. Avila 147 Ariz. (See also State (1997) 240 Conn. Ledbetter cf. State v. Sowards with approval]; [quoting to non- Bullington state’s applies [suggesting A.2d 717-718] law, claim].) the but defendant waived concluding offender capital persistent in whether determining the test recognize All of these cases applicable is the noncapital sentencing bar retrial whether jeopardy applies conclude, can to a trial on so one similarity guilt scheme bears sufficient an a true as finding “acquittal” as in not Bullington, operates U.S., (See, 72 F.3d at Woodall v. sentencing allegation. e.g., is of by burden of government’s proof only preponderance [emphasizing does not apply].) evidence conclude double 839-840; ante, (lead opn. conc. majority’s attempt opn., J., ante, Brown, 847) insuffi cases wholesale as these distinguish and constitutional the origins” with nature impressed “unique ciently flawed, unjustified is as it does on an embellishment of relying death penalty in involved a Bullington. Although Bullington Court’s rationale Supreme scheme, death was not the mere sentencing penalty capital possibility above, As court as central to its rationale. noted by Bullington cited the notion that Bull explicitly rejected Supreme Washington (See was there involved. ington was on fact the death premised penalty 260; (10th Cir. P.2d at see also Linam Hennings, supra, Griffin Anderson, J.) death 1982) (conc. penalty 685 F.2d opn. [fact opinion admittedly language in 3Although support, in some the lead cites this case Cobb suggests noncapital persistent offender law distin- opinion the court found Missouri’s Bullington ground guishable sentencing the Missouri law did not from the scheme on the sentencing “In the say: Court also had this to penalty, involve the death the Missouri offender, has a essentially judge of a trial discretion is unfettered. persistent court’s range by explicit from is not inhibited standards punishment wide which choose and DiFrancesco, addition, judge imposed by presented the choice statute. as sentencing persistent than that offenders is far broader faced DiFrancesco, Bullington from distinguishable defendant to death. For the same reasons that Pearce, Stroud, Therefore, Bullington applying distinguishable from this case. Chaffin Bullington, noncapital persistent not to Missouri’s the rationale of does attach (Cobb, supra, appears the Cobb sentencing.” It thus offender S.W.2d did bear the persistent offender law applied analysis to conclude Missouri’s or innocence. hallmarks a trial relied on nor even by was was “not articulated Bullington involved (italics omitted)].) To a for its the extent Court as basis holding” Supreme relies Bullington, relies on this view of it “death-penalty-only” majority in the an of that decision’s rationale that nowhere appears augmentation itself. body opinion which, not Bullington relies on cases find does admittedly, majority addition to sentencing proceedings. espousing rule, however, faulty reasoning of these cases many employ

minority in dicta. For in State announce their interpretation Bullington example, 948], cited the lead Aragon (1993) N.M. 267 by opinion ante, 840), New Court found (lead at Mexico support opn., habitual offender did not attach to New Mexico’s jeopardy because the law does not create a substantive criminal offense. proceedings (See P.2d at have determined that habitual offender pp. 950-951 [“we (italics do not a determination any involve proceedings offense” added)], not attach the habitual offender 953 [“double [does] (italics there an . . . because . . . was no proceeding prosecution offense” for, ante, the added)].) This misreads as Bullington, explained, reasoning also did a in the Missouri trial try capital Instead, life or was between Bullington jury deciding “offense.” separate or not a sentencing death an sentence. whether appropriate Clearly, as an is test. rea- Accordingly, scheme delineates “offense” not the Aragon's flawed. soning is Denton), (hereafter F.2d (7th 1989) v. Duckworth Cir.

Denton 840; ante, (lead also at conc. opn. cited by majority support opn., ante, Brown, J., (873 847), contains the same flaw F.2d analytical separate “does not habitual offender statute create [Indiana’s offense for more basic reason. In (italics added)]), . . . .” but unpersuasive Denton, be a convicted of and was also found to the defendant was rape his Indiana law based on four prior habitual offender under conviction, one the four prior felony felonies. After his rape unrelated moved to retry a different court. state convictions vacated the remaining felony allegations with three prior habitual offender allegation conviction. In these the now-vacated deleting two were (only necessary), circumstances, the held retrial was permissible. state, all its in which the with does not situation

Denton thus present Instead, resources, matter to convict. sufficient evidence present failed for which the federal was one of error (Burks, 2149- pp.

inapplicable. is a case of ‘trial “This clearly even the Denton court opined: As (Denton, 873 F.2d error,’ supra, of the evidence.” insufficiency not of and thus of of was 148.) Bullington in Denton the application discussion Any p. dictum. of interpretation 685 F.2d also declares its v. Griffin, supra,

Linam Linam, a found In Circuit Court of Appeals the Tenth dictum. Bullington “meets sentence enhancement of a noncapital state court’s reversal appellate of finding is not a true of trial error and Burks Court’s definition was error (Id. present trial only of evidence.” Because inadequacy that of Linam, irrespective no bar retrial double jeopardy applied (See Caspari, supra, v. on Bohlen Bullington. court’s views generally, as cases and are distinguishable Linam Denton F.2d [concluding evidence]; Carpenter Chap of trial error not involving insufficiency Moore, J.) 1996) (dis. of (6th [finding Cir. 72 F.3d opn. leau dictum].) The of to be majori Denton's and Linam's discussion Linam, Denton, supra, on 873 F.2d reliance dicta ty’s supra, thus F.2d misplaced. from the federal circuit courts and the high rule majority emerging from our states is this: The test to determine whether federal

courts sister clause to bar retrials of sentenc- multiple applies the trial on or inno- Bullington's determinations is “hallmarks of guilt ing its contrary cence” test. The cases cited by majority support rule, weakly delineate a and are for the most reasoned position minority part or I find the announce their in dictum. Because interpretation Bullington I would rule better reasoned and thus more majority apply persuasive, “hallmarks the trial on or innocence” test to the facts Bullington's guilt case. C. to This Case Applying Bullington

Bullington found the federal double Missouri’s applied because bore the “hallmarks of capital sentencing hearing hearing or innocence.” The court found it significant trial guilt and to a and that jury defendant enjoyed right separate hearing granted broad discretion to choose an appropriate punishment, by but was instead to choose between two alternates authorized required of estab most bore the burden prosecution statute. Perhaps importantly, hearing facts doubt. “The lishing necessary presentence reasonable beyond and, indeed, immediately was like the in all relevant respects resembled innocence. trial on the or It was itself a trial on the issue preceding guilt (Bulling statutes.” so defined the Missouri issue punishment precisely ton, at p. 451 U.S. at trial on innocence” to a

These same “hallmarks of the bear hearing, on a sentence enhancement such a allegation. beyond the sentence enhancement reasonable doubt proving burden Tenner, 566; Code, Cal.4th at see also Pen. (People § actions”]), standard of a reasonable doubt to “criminal beyond [applying Code, 1025). (Pen. to the defendant is entitled The sentence en jury § Code, (see, hancement be Pen. subd. must pleaded proved e.g., §§ 1170.12, 667.5, (c); (a), (d)), subd. and the defendant must answer the subd. Code, Code, (Pen. 1025; in court. see also Pen. 969½ charge open § § added defendant be on a conviction to [requiring arraigned prior allegation The to the after defendant has is limited two complaint pleaded guilty].) untrue) or the true and is not authorized to (finding alternatives allegation court choose a wider of choices. trial has sentencing among array to to determine the truth of the discretion order separate hearing Calderon, event, 69), but convictions 9 Cal.4th the (People any is to defendant entitled a contested “trial” on the enhancement allegations, to evidence. including present the right con-

This “trial” on sentence enhancement bemay allegations profitably bear trasted with a “traditional” in which the no hearing, from of the trial can receive evidence outside of court proof, burden (such as a the trial court wields broad discretion to fashion probation report), crime, and, course, to the defendant’s a defendant sentence appropriate the no As the “trial” on sentence enhance- right jury. Bullington, to a all to ment is for intents and identical the allegation purposes preceding the of the substantive on the defendant’s innocence question circumstances, Under the conclu- criminal these charges. compels case retrial clause to this to bar sion federal jeopardy applies defendant’s conviction sentence enhancement. felony Jeopardy

II. Double the California Constitution Under A. Constitution Relying on California is regarding nonapplica- whether the correct majority

Irrespective case, I retrial of this conclude federal double jeopardy bility the state constitutional prohibited by the prior felony allegation Const., I, (Cal. art. Our state counterpart clause. jeopardy § Constitu- in the California federal double clause first jeopardy appeared I, the federal article section where the tracked language tion I, article was moved provision essentially unchanged guarantee. to rest in 13 in came finally section the California Constitution I, Constitution; it of the provides: article section California present be . . . .” not twice offense “Persons for the same may put charter, I, vote in added popular 24 of state by Article section discussion; it “Rights guaranteed by our provides: also relevant to the United States by on those guaranteed are not dependent Constitution to state by That section was amended Proposition Constitution.” . . of a defendant to . “In criminal cases rights following qualification: . . . shall be construed for the same offense not be twice placed the Constitution state in a manner consistent with the courts of this by courts construed Constitution shall not be United States. This [state] criminal those afforded by defendants than to afford greater rights invali- This United States . . . .” latter provision Constitution of the dated, however, Cal.3d 336 Deukmejian Cal.Rptr. in Raven state (hereafter Raven), as an revision of the 801 P.2d improper Constitution. in we free to continue our long- Raven remain light holding situations, authorized in

standing constitutionally practice, appropriate state of our state Constitution to grant protection interpreting greater be the under the federal Con- residents than would afforded by true, notes, It we have stitution. as the lead that opinion previously “be reasons . . before a state court in there must . explained ‘cogent from con- construing a of the state Constitution will provision depart struction Court of the United States on similar placed by Supreme ” (Raven, in the federal 52 Cal.3d provision Constitution.’ at p. 391].) Gabrielli v. Knickerbocker P.2d quoting Cal.2d here, however, for, This finds no as admonishment explained, application ante, the Court has ruled on the whether the federal never Supreme question There applies to sentence enhancements. is thus no federal construction from which to depart. we most faced this federal versus state Constitution

Significantly, recently there, in a case a double we question specifically posing jeopardy question; reaffirmed “the Constitution is a document of independent that California force and in a manner more of protective effect that be may interpreted defendants’ v. (People than that extended federal Constitution." rights 832].) Fields 13 Cal.4th Cal.Rptr.2d 298 [52 Indeed, we exist on our state even before reasons Constitution good rely federal It is hornbook law consider whether the Constitution here. applies 1920’s, at the and until the time the Bill was ratified in Rights Bill of at all. was not understood to states against Rights (Barron (7 Pet.) L.Ed. Due to Baltimore 243 [8 doctrine, in century arose this selective nature of the which incorporation 10.2, (see Rotunda, (5th 1995) ed. Nowak & Law generally, Constitutional § 339-342), to the states of the various Bill of portions application was in a manner. federal consti- judicially sequential addressed Rights not to be twice in held placed applicable tutional guarantee (Benton Maryland, supra, until 1969. prosecutions state our state we had relied on own Constitution year, always solely Until our from twice being residents protect placed jeopardy.

Moreover, I, than obscure in article section other the rather provisions laws, bills of Constitution of ex facto (prohibitions post the federal attainder, contracts), no limitation interference with the Constitution placed Fourteenth area of liberties until ratification of the states personal almost two decades after California was granted Amendment First, we draw statehood. From bit of can two conclusions. history, no most the life of this nation the Federal Constitution offered “[f]or its for the intellectual and rights protection personal, religious, political with and local In California government. citizens their relations state were the Declaration of I Rights—Article those protections provided by constitution—which contains much like those of California provisions (Falk, Federal Bill 1971- Rights.” of California 1972, Foreword, The State Constitution: A More Than “Adequate" Nonfed- 273, 274, (hereafter (1973) 61 original eral Ground Cal.L.Rev. capitalization Second, article).) more our the Falk for important purposes, majority state, life, of it been the not Constitution that federal, this state’s has political the the to not twice protected right be personal liberties—specifically placed in jeopardy—of Californians. find

If we back even further in we that state constitutional go history, of liberties are not even derived from the Bill of individual protections otherwise; rather, the “The lesson of history reverse true. Rights; indeed, the Bill of drew corresponding drafters of the federal Rights upon the in the various state constitutions. Prior to adoption provisions Constitution, in federal rights eventually recognized federal each in more had been one or state constitu- Rights Bill of previously protected (Brennan, State and the Protection Individual Rights tions.” Constitutions 501.) When the Declaration drafting Rights 90 Harv. L.Rev. Constitution, in “the drafters again in state first in 1849 and our states, rather than federal looked to the constitutions of the other largely Constitution, (Raven, 353.) at p. models.” 52 Cal.3d supra, as potential for guidance. look first to state Constitution There is thus reason to our good this court of various personal liberty, extent interpreting rights the state and relied on in the eschewed federal document has past First, we relied our in two distinct situations. sometimes Constitution of an court’s high interpretation from diverge Constitution state concluded the when we provision federal constitutional analogous we liberties. For example, for individual sufficient did not provide protection 528, 545-552 Cal.Rptr. 13 Cal.3d Brisendine held must be justified to a lawful arrest a search incident 531 P.2d reasonableness, Court’s decision to the Supreme contrary a rule of 494, L.Ed.2d (1973) 414 v. Robinson United States reasonable.4 se 427], incident to a lawful arrest per which held search 354; Raven, see generally, 52 Cal.3d collected at (See supra, cases & al., 21-26 accom- et State Constitution pp. The California Grodin article, & notes; accom- Falk 61 Cal.L.Rev. panying notes.) panying 115 tying we invalidated Raven portion Proposition

Although Constitution, we nonetheless to the federal state constitutional interpretation state constitu- with remain electorate expressed displeasure cognizant criminal defendants greater procedural tional that granted interpretations al- under federal Constitution. Accordingly, than are rights required Raven, free, the state to continue to interpret we remain though light have more than its federal we declared counterpart, Constitution expansively “ ” (Raven, so. 52 Cal.3d at must be reasons’ to do ‘cogent there because, however, Here, as such a situation we are with presented ante, ruled on United States Court never Supreme explained, issue before us. precise are, rather, we of situation in which

We with the second presented type have the state Constitution provide protection historically interpreted liberties, authority individual no United States when namely, Mosk, we held the had For in an Justice yet emerged. example, opinion by California Constitution to counsel for right charged guaranteed persons 325, (In Cal.Rptr. with misdemeanors. re Johnson 62 Cal.2d 329 [42 228, time, rule 420].) At the no federal constitutional had yet 398 P.2d later, the found a federal constitutional Seven Court emerged. years Supreme cases, was a to counsel misdemeanor at least where imprisonment right 2006, 25 32 v. U.S. S.Ct. Hamlin 407 possibility. (Argersinger [92 L.Ed.2d us, we clearly

In the absence of federal constitutional authority binding Indeed, on the state reliance are free to look our state Constitution. course, superseded were Brisendine and other 4Of state-law-based search-and-seizure cases Const, 28, (See I, (d) [right Proposition to truth-in- by the 8. Cal. art. subd. enactment § 631, In re W. 694 P.2d Lance provision]; Cal.Rptr. 744] 37 Cal.3d 873 evidence [210 same].) [upholding 874 here, has the United States only Supreme

Constitution is preferable on of the federal double never ruled the applicability Court specifically sentence enhance proceedings noncapital sentencing jeopardy ments, the issue has declined several to address it had opportunities 383, Nelson, supra, 510 Lockhart v. 488 supra, time. U.S. (Caspari, each White, J., York, 33; dis. from Hunt New 502 U.S. 964 supra, (opn. U.S. v. 1269, 72 cert. cert.); also v. F.3d Carpenter Chapleau, supra, denial of see _ _ Wilmer, 108, (1996); supra, 136 L.Ed.2d 30 U.S. S.Ct. den. 61] [117 439, (1994); 451, 513 S.Ct. 130 L.Ed.2d cert. den. U.S. 970 [115 350] F.3d 341, 144, Denton, 107 F.2d cert. den. U.S. S.Ct. supra, 873 493 941 [110 Lewis, 357, v. F.2d cert. den. Durosko 882 495 (1989); supra, L.Ed.2d 330] 1930, (1990); Griffin, L.Ed.2d Linam v. supra, U.S. S.Ct. 109 294] 907 [110 1207, 369, U.S. L.Ed.2d cert. den. 459 S.Ct. 75 447] 685 F.2d 317, Levin, cert. den. sub nom. Levin v. (1983); v. N.E.2d People supra, Illinois, (1994); v. S.Ct. 130 L.Ed.2d U.S. 44] Sailor, nom. cert. den. sub Sailor N.Y.S.2d N.E.2d supra, York, (1985).) Not 88 L.Ed.2d v. New 982 [106 court, therefore, we with no from the holding are left definitive only, will resolve This uncertain we soon the question. cannot anticipate ” “ (Raven, 52 Cal.3d at supra, of affairs reasons’ ‘cogent state provides needed, (See our Ex 353), for us to state Constitution. were they rely under 639 S.W.2d at double Augusta, [applying jeopardy Parte supra, State, DeBussi sentencing proceeding]; Texas Constitution analysis So.2d [applying Bullington-type barred retrial of under Constitution Mississippi conclude jeopardy habitual offender allegation].) Constitution

B. Double Under State Jeopardy involved, we have not shows history When double are jeopardy principles Court United States to walk in the left footprints felt compelled (1961) 56 Cal.2d 273 Cardenas Superior For precedent. example, 371], held we 363 P.2d 100 A.L.R.2d Cal.Rptr. the defend- a mistrial over granted retrial following would preclude under the retrial would have been allowed Although a objection. ant’s (Gori (1961) 367 U.S. v. United States federal Constitution 901]), holding [in Gori] 6 L.Ed.2d we stated: simply “[the federal] upon uniform this court placed by construction does not accord with (Cardenas, . . .” Constitution. California provision Court Curry Superior v. 276.) We reaffirmed Cardenas in explicitly 361, 707, P.2d 470 (1970) 345]. 2 Cal.3d 715-716 Cal.Rptr. [87 77, 386 P.2d (1963) 677] 60 Cal.2d 482 Cal.Rptr. v. Henderson [35 People Henderson, was con- defendant Henderson) the (hereafter is similar. In life to victed, murder sentenced of first degree on his plea guilty, 875 in trial court error permit- On the court reversed for imprisonment. appeal, remand, to of not On original plea guilty. the defendant withdraw his ting convicted; time, he was sentenced to suffer the defendant was this again court, in argued imposition On this defendant death penalty. appeal set on violated his as right the death retrial against penalty I, 13 of the state Constitution. forth article then section Stroud, 15, that in Noting Supreme This court agreed. supra, not clause did prohibit imposition Court held federal double jeopardy to life the death a retrial for a defendant sentenced originally after penalty found state marked out a different Constitution imprisonment, “A defendant’s from an erroneous unrea- judgment path: right appeal when he is to risk his life invoke sonably right. impaired required it no Since the state has no interest in erroneous judgments, preserving interest in therefrom unreasonable condi- foreclosing appeals imposing (Henderson, 497.) tions 60 Cal.2d at right supra, appeal.” Pearce, Court followed Stroud with North Carolina v. supra, case, 711, a U.S. sentence after a noncapital holding greater 395 1969 retrial We our does violate the federal due clause. followed process again own cases state constitutional path, applying jeop Henderson, rule set forth 60 v. ardy (People Cal.2d 482. Hood supra, 444, 618, (1969) 1 Cal.3d 462 P.2d 459 Cal.Rptr. [following [82 Pearce].) Henderson but not As one Court of observed: mentioning Appeal ... with “Although presented opportunity [overrule Henderson] , . . . the court has never from the retreated rationale or Hend holding 1332, erson.” v. (People (Harris) (1990) 217 Superior Cal.App.3d alia, 563], 1337 (1978) inter v. 21 Cal.Rptr. People Collins citing [266 208, 686, 1026]; Cal.3d 216-217 v. 577 P.2d White People Cal.Rptr. [145 791, 769, 537]; (1976) 16 Cal.3d 802 v. 549 P.2d Cal.Rptr. People 289], (1973) Serrato Cal.3d P.2d Cal.Rptr. disapproved on other v. Fosselman 33 Cal.3d grounds People Court, 1144]; fn. 1 P.2d Curry v. Cal.Rptr. Superior 716-717; Hood, Cal.3d at Cal.3d at People Comingore Cal.3d Cal.Rptr. defendant, 723], and driven it to who had stolen a car in California use of vehicle. his Upon was convicted in of unauthorized Oregon, Oregon release, theft auto based on he California for prosecuted grand the same acts that rise to the conviction. gave Oregon Although essentially the California would have been under prosecution permissible (see court’s of the Fifth Amendment double jeopardy interpretation 729]), 3 L.Ed.2d Abbate v. United States 793, statute double implementing jeopardy held Code section a we Penal as it was on the same predicated the California trial principles, prohibited We did mention expressly basis of the trial. not Oregon facts that formed the Constitution, rule “does not but stated the in Abbate merely the state than is a greater jeopardy protection state from providing preclude . .” (Comingore, supra, Constitution . . Cal.3d the federal provided by (as not a 145.) state constitutional Although Comingore unequivocally case, congruent, at work seem statutory) to state principles opposed state merely implements Penal Code section because especially double jeopardy guarantee. constitutional on Constitution as court’s the state strong history relying of this light area, I in the double would jeopardy rely

a force independent document on document to resolve this case. that Principles State Double Sentence Applicability Jeopardy C.

Enhancement Allegations concedes, determined double jeopardy As the lead we opinion recently allegation, retrial of a firearm use enhancement charged principles precluded 12022.5, had where the defendant’s jury to Penal Code section pursuant (Marks) v. found the true. allegation (People Superior previously (hereafter (1991) 1 fn. 22 820 P.2d Cal.4th Cal.Rptr.2d Marks); Santamaria 8 Cal.4th People Cal.Rptr.2d cf. on that the ‘not true’ finding 884 P.2d parties agree(d) jury’s 81] [“The allegation”].) retrial of that the knife-use enhancement allegation precludes the defendant used personally had found the Noting allegation true,” an constituted rejection express firearm “not we held jury’s “[t]he (Marks, supra, enhancement and forecloses retrial.” any acquittal Cal.4th at fn. but a few old and years

Because Marks is applied enhancement, it one assume might on a sentence finding to a principles however, this case. lead authority opinion, relevant to decide provides to the resolu- it Marks is irrelevant proper two reasons believes posits why First, relies on line the lead Marks tion of case. opinion opines rule of double constitutional cases that are based on state a success- following a defendant with a sentence longer precludes penalizing Second, ante, 843.)5 (Lead his or her conviction. opn., ful appeal the complex no analysis that “because Marks included lead asserts opinion case, of Marks reading narrow we in this we think a issues address (Ibid.) appropriate.” Hood, 208, 216-217, Collins, People v. supra, 21 Cal.3d 5Such cases include 496-497, Pettaway Henderson, 444, 459, People v. 60 Cal.2d 1 Cal.3d

877 Marks founders to cabin the rationale lead attempt opinion’s on the fact the Marks decision’s emphasis it to account for the fails because true,” and Marks's “not found the enhancement allegation in that case jury of an an concept acquittal of this as finding “acquittal.” characterization double bar to retrial. the historic constitutional jeopardy implicates clearly it Indeed, against if clause jeopardy protects anything, the federal acquittal." for the same offense a second against prosecution “protects after 711, 2072, 2076], (North Pearce, 717 v. 395 U.S. supra, Carolina added, been settled under the Fifth omitted.) long italics fn. “[I]t final, defendant’s verdict of acquittal ending jeopardy Amendment that a States, at at (Green United 188 supra, . . . .” v. 223-224], added.) found the enhancement italics By emphasizing finding as an characterizing “acquittal,” “not true” allegation constitutional doctrine. clearly invoking “long-settled” Marks was 5, Moreover, (see ante) fn. cited the Henderson-Collins-Hood line cases Marks, all, retrial limits the does not but prohibit any merely aggregate Thus, Henderson, to more than achieved in first sentence no trial. 482, life where the defendant was sentenced to Cal.2d supra, imprison- trial, ment his first we did not retrial following purport prevent any whatsoever; we held he could not be sentence of the merely given greater Hood, People death retrial. the same rule in v. penalty following Invoking limited Cal.3d we a retrial but sentence permitted aggregate If, (Id. to that achieved in the first trial. as the lead suggested was based on the state constitutional Marks opinion, solely right against of a a successful following sentence retrial imposition greater appeal, Instead, Marks should a retrial. Marks concluded have opinion permitted constituted an jury’s rejection express acquittal [of “[t]he enhancement] (Marks, on the any enhancement retrial." Cal.4th forecloses added.) fn. italics The lead belated to redefine attempt opinion’s of Marks is thus meaning unpersuasive. Moreover, the lead restrictive opinion’s reading authori- the California Constitution fails to address the following ties, conclude double which sentence enhancements and analogous pose v. People Brookins jeopardy applies: Cal.App.3d (double section retrial of Penal Code Cal.Rptr. precludes it was for insufficient 667.7 habitual offender enhancement because reversed evidence); v. reversed People Pettaway, supra, Cal.App.3d page nom., (9th 1991) grounds Pettaway on other sub Plummer Cir. F.2d (state retrial Penal constitutional double prohibits jeopardy provision Asbury 436], 206 Cal.App.3d Cal.Rptr. Cal.App.3d Cal.Rptr. 366 [218 902]. 12022.5 firearm and Penal Code section 12022.7 [personal Code section use] enhancements infliction great bodily injury] following jury [personal as Jones enhancements were “not true” to murder v. charge); People verdict 840], (1988) 460 on an disapproved 203 Cal.Rptr. [249 Cal.App.3d Tenner, 6 2 v. Cal.4th at footnote other point, People page Code (double felony retrial of Penal section 667.5 prior jeopardy precludes enhancement); (1986) v. 591 Raby conviction People Cal.App.3d en (double felony retrial precludes Cal.Rptr. jeopardy 576] 573, 575 hancement); v. People Bonner 97 Cal.App.3d narcotics (double weight jeopardy prohibits reprosecution Cal.Rptr. 821] evi reversal for insufficient following enhancement allegation appellate dence); Cal.App.4th see also v. Guillen People Bonner, en on but mistrial (reaffirming finding weight Cal.Rptr.2d 653] retrial); hancement does not v. preclude People Reynolds (double not prevent does Cal.Rptr. jeopardy Cal.App.3d 352] enhancement under Penal Code section 667 because retrial serious felony evidence). it for error and not for insufficient was reversed that “the double no mere ‘technical- It bears repeating it is framework of which ity’; part procedural protections an ‘the integral (United of a criminal trial.’ the Constitution establishes for the conduct 547, 554, [470,] [(1971)] v. 27 L.Ed.2d States Jorn 479 [91 well the letter of its as as opn.).) Effectuating spirit (plur. 553] have mechanical” rules liberality, ‘disparaged “rigid, interpre- courts [its] [377,] [(1975)] tation .... United States (Serfass [Citation.]’ 1055, 1063-1064, 265, 267].) our L.Ed.2d animating ‘vital refused to safeguard,’ expressly own we have perpetuate independent at the risk of our constitutional ‘spurious ‘giving prohibition distinction[s]’ “narrow, by twice in against grudging application” unsupported [640,] (Gomez [(1958)] 50 Cal.2d either or reason.’ logic Superior 78-79.) .)” (Marks, . . . Cal.4th 649 [328 with its since decision—understandably, a bit uncomfortable Perhaps on the same allega- of a defendant retried innumerable times being specter dis- them true is indeed until succeed People finally proving tions not list of what it is concludes detailing long lead turbing—the opinion by prohibited are deciding. although People It explains enhancement, felony from retrying jeopardy principles true on retrial to obtain a ability People other limits curtail might on retrial the opinion example, The lead finding. opines, if the as for even same evidence initially presented, cannot on the rely solely retrial, more does not bar bedrock of double jeopardy principle The lead will apply. of law of the case amorphous prudential principles elaborate, it declines to also opinion, although suggests unspecified limita- tions restrict such might additional evidence. required the lead Similarly, hints there may be due limits in such opinion process (Lead a retrial. opn., ante, One can what only guess these intimations mean for future cases; defendant, what is clear is that for this on the facts of this particular case, retrial following acquittal permitted.

Such contortions legal are Not unnecessary. does this court have only long history relying the state constitutional double jeopardy clause rather than its federal there counterpart, this state unbroken line an cases the double applying to sentence en- principles noncapital hancement allegations. The majority breaks from this without history per- suasive reasons for so. doing I Accordingly, would find the Court of decision that the

Appeal’s adduced People insufficient evidence to prove enhancement alleged to pursuant Penal Code sections subdivisions 1170.12, (b)-(i) and (a)-(d), subdivisions retrial of prohibits the same en- I, hancement allegation article pursuant section 15 of the California Constitution. The had People having one good chance to prove truth of conviction prior allegation, should now they be barred the state constitutional double clause from a second chance to prove same charge.

Conclusion The lead twice opinion mentions the ease with which the can prove a prior felony conviction such that it bemay used to increase an offender’s trial,” sentence: “a told, prior conviction we are “is simple straightfor ward,” and “the outcome is (Lead ante, relatively predictable.” opn., 838.) itself, And again, repeating “[Tjrial the lead declaims: opinion of a allegation relatively perfunctory, the outcome is usually predictable.” (Id. circumstances, I Under such agree. I see no reason to do violence to double jeopardy principles merely permit People multiple opportunities prove existence of such convic I tions. dissent.

Mosk, J., Kennard, J., concurred. The United States granted for a writ of petition certiorari (No. January 97-6146), limited to the whether the question Double Clause Jeopardy applies sentencing proceedings have the hallmarks of a trial on innocence.

Case Details

Case Name: People v. Monge

Court Name: California Supreme Court

Date Published: Aug 27, 1997

Citation: 941 P.2d 1121

Docket Number: S055881

Court Abbreviation: Cal.