THE PEOPLE, Plaintiff and Respondent, v. CLIFTON C. WIMS et al., Defendants and Appellants.
No. S036641
Supreme Court of California
June 5, 1995
293
Susan D. Shors, John Halley, Alex Reisman and Eric S. Multhaup, under appointments by the Supreme Court, for Defendants and Appellants.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Laurence K. Sullivan, Thomas A. Brady, Ronald S. Matthias, Clifford K. Thompson and Jeremy Friedlander, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WERDEGAR, J.—In this case we decide what standard a reviewing court must apply when deciding whether a trial judge‘s failure to instruct the jury as to the factual elements necessary to support a sentence enhancement for use of a deadly and dangerous weapon, under
Facts
On the evening of November 12, 1991, Paige D‘Agostino and his fiancee Elizabeth Gebhardt were walking home from the Powell Street BART (Bay
According to Gebhardt, as Wims hit D‘Agostino with the crutch, Ford held him and said, “Give us your money.” After Wims beat D‘Agostino with the crutch, he threw it down, and Gebhardt saw him holding a knife. Gipson displayed another knife and threatened Gebhardt with it. Gebhardt testified Ford also had a knife, but on cross-examination acknowledged she had told police she was not sure if either Ford or Wims had a knife, since she had been concerned about Gipson‘s knife. After the incident, Gebhardt accompanied police to the scene and identified Wims, Ford and Gipson as the perpetrators. As police approached, Wims threw down a set of keys identified by Gebhardt as belonging to her and D‘Agostino. Ford and Wims each possessed a knife when arrested.
McCoy, the passing motorist, testified he saw Wims hitting a White man and Ford pulling at the man‘s jacket. McCoy also testified both Wims and Ford were holding knives. He acknowledged, however, he had told police about only one knife. He had not mentioned a second knife because he had not specifically been asked about a second knife.
Finally, Gipson, testifying in her own defense, stated she first saw Ford, and then Wims, with a knife.
Defendants Wims, Ford and Gipson were each charged by information with second degree robbery (against D‘Agostino) (
Wims was also charged, in the alternative to the robbery charge, with receiving stolen property, i.e., Gebhardt‘s keys. Ford was alleged to have suffered two prior serious felony convictions (both robberies, one in Missouri and one in California).
The charges against defendants Ford, Wims and Gipson were tried to a jury. After the People rested, the court granted motions to dismiss the assault charge as to Ford and Wims.
After evidence had been presented, the court instructed the jury on general matters, elements of the charged offenses, and lesser included offenses. The court did not specifically instruct the jury on the elements of a
In closing argument, the prosecutor noted the robbery count in the information “also has a knife allegation, each of them used a knife while in the commission of this crime.” She also reviewed some of the evidence dealing with knife use:
“Underneath the robbery charge [on the verdict forms] as I mentioned there is a knife allegation. It‘s alleged that each of these three defendant[]s used a knife in the commission of the robbery. . . . I think you will agree that there was testimony that defendant Ford had a knife. In fact, there‘s a knife that was taken from him that evening and booked and it‘s the knife that was marked as People‘s 5B, the knife identified as being similar to what they saw defendant Ford have in his possession that night.
. . .
“With respect to defendant Wims . . . [Gebhardt] stated that defendant Gipson had a long knife which is consistent with [People‘s exhibit 5C], but she also stated that defendant Wims had a knife as did Mr. McCoy [the passing motorist]. This [People‘s exhibit 5C], however, is the knife that was taken from the back of defendant Wims’ pocket when he was arrested for this charge. So far while we have two knives and not three, you may be asking yourself; well . . . where‘s the third knife? Well, unfortunately I don‘t know where the third knife is. Maybe she does. However, I don‘t. But, in any event, Elizabeth Gebhardt clearly . . . saw a knife being waved in front of her face and [heard] defendant Gipson saying, “Let go of the jacket or I‘ll cut you. . . . So the knife allegation is as to all three and I think the evidence suggests it.”
Wims‘s counsel argued that Wims was “probably guilty of some other things, but he is not guilty of robbery,” because he lacked the intent to take property. He said: “Clearly he jumped into the assault. You know, Mr. Wims is no boyscout. What you see in evidence is definitely not a boyscout knife.”
As the People concede, the trial court did not instruct the jury on the elements of
During deliberations, the jury inquired in writing of the court whether a crutch constitutes a deadly weapon. The court answered that “it could under some circumstances. However, there‘s no allegation here against Mr. Wims regarding the use of a deadly weapon, to wit, a crutch. . . . [¶] He is charged with using a deadly weapon in the commission of a robbery. However, by the terms of the pleadings it‘s limited to the knife. [¶] So whether or not a crutch is a deadly weapon or not, is really irrelevant. . . .”
The jury also asked for “[a] copy of/or reading of Mr. D‘Agostino‘s and Mr. McCoy‘s testimony regarding the presence/display or lack of presence/display of a knife during the incident by Mr. Wims.” The court responded: “My court reporter has gone through the entire transcripts of the proceedings, finds no reference to any questions asked of Mr. D‘Agostino one way or the other as to whether or not Mr. Wims had a knife, displayed a knife,
The jury delivered written general verdicts finding defendants Ford and Wims each guilty of second degree robbery as charged. The jury further found the
The jury acquitted defendant Gipson of the robbery charge, found the weapon use allegation not to be true as to her, and found her guilty of misdemeanor battery as a lesser included offense of the assault charge.
Defendant Ford waived his jury trial right on the prior serious felony conviction allegation. The court found Ford had suffered one prior serious felony conviction. Ford was sentenced to a term of eleven years (comprised of the upper term of five years for robbery, plus one year for the
Defendants Ford and Wims (hereafter defendants) complained on appeal the trial court erred in failing to instruct the jury as to the elements of the
Discussion
A. Did the Trial Court Commit Error?
In order to find “true” a
The trial court failed to instruct defendants’ jury as to the factual elements the prosecution was required to prove before the jury could properly find true the
In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to and governing the case. (People v. Cummings (1993) 4 Cal.4th 1233, 1311 [18 Cal.Rptr.2d 796, 850 P.2d 1]; see also People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d 370]; People v. Graham, supra, 71 Cal.2d 303, 318.) In this case, the court‘s omission of CALJIC No. 17.16 or an equivalent instruction, mitigated only by the court‘s reading of the “deadly weapon use” verdict form and the prosecutor‘s discussion of the “knife allegation,” left the jury uninformed as to all of the factual elements necessary to a “true” finding under
We have held a defendant is entitled to proper jury instructions regarding the meaning of a weapon use enhancement allegation which is tried to a jury. (People v. Najera (1972) 8 Cal.3d 504, 510 [105 Cal.Rptr. 345, 503 P.2d 1353] (regarding
Trial court error, of course, does not necessarily mandate reversal. The question remains whether the instructional error was prejudicial.
B. Did the Trial Court‘s Error Violate the Federal Constitution?
1. Jury Trial
Defendants argue the trial court‘s error impaired their right to trial by jury under the
Defendants argue the court‘s instructional omissions implicated their
California courts have long recognized that “[a]n enhancement is not a separate crime or offense . . . .” (People v. Waite (1983) 146 Cal.App.3d 585, 593 [194 Cal.Rptr. 245], disapproved on other grounds People v. Jones (1988) 46 Cal.3d 585, 592-594 [250 Cal.Rptr. 635, 758 P.2d 1165]; see also People v. Bouzas (1991) 53 Cal.3d 467, 479 [279 Cal.Rptr. 847, 807 P.2d 1076]; In re Shull (1944) 23 Cal.2d 745, 749 [146 P.2d 417] [discussing predecessor to
“The
In McMillan v. Pennsylvania, supra, 477 U.S. 79 (McMillan), the high court considered an aspect of the Pennsylvania Mandatory Minimum Sentencing Act of 1982, pursuant to which anyone convicted of an enumerated felony is subject to a mandatory minimum sentence of five years’ imprisonment, if the sentencing judge finds, by a preponderance of the evidence, the person visibly possessed a firearm during the commission of the offense. The act does not authorize a sentence exceeding that otherwise allowed for the underlying offense, but divests the judge of discretion to impose any sentence of less than five years. (Id. at pp. 81-82 [91 L.Ed.2d at pp. 73-74]; see 42 Pa. Cons. Stat. § 9712 (1982).)
The high court in McMillan held the Pennsylvania act did not deny the defendants their
In McMillan, the high court acknowledged a concern that state legislatures not circumvent due process by recharacterizing elements of offenses as sentencing factors. The court considered “the specter raised by petitioners of States restructuring existing crimes in order to ‘evade’ the commands of [due process]. . . .” (477 U.S. at p. 89 [91 L.Ed.2d at p. 78].) In concluding such concerns were not implicated by the Pennsylvania law, the court noted the enumerated felonies involved “retain the same elements they had before the Mandatory Minimum Sentencing Act was passed. The Pennsylvania Legislature did not change the definition of any existing offense.” (Ibid.)
The Supreme Court concluded Pennsylvania‘s law “simply took one factor that has always been considered by sentencing courts to bear on punishment—the instrumentality used in committing a violent felony—and dictated the precise weight to be given that factor if the instrumentality is a firearm. Pennsylvania‘s decision to do so has not transformed against its will a sentencing factor into an ‘element’ of some hypothetical ‘offense.‘” (McMillan, supra, 477 U.S. at pp. 89-90 [91 L.Ed.2d at pp. 78-79].)
Similarly, there is no indication our Legislature, in enacting
In dissent, Justice Kennard suggests “the inference is strong that the Legislature must have intended enhancements to be the functional equivalent of criminal offenses.” (Conc. and dis. opn. of Kennard, J., post, at p. 324.) Her opinion, however, cites neither statutory language nor legislative history
Contrary to the dissent‘s suggestion, in our statutory scheme sentence enhancements are not “equivalent” to, nor do they “function” as, substantive offenses. Most fundamentally, a sentence enhancement is not equivalent to a substantive offense, because a defendant is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense. (See, e.g.,
While in McMillan the high “court made it clear that state legislatures do not have unfettered discretion to define the elements of an offense . . . it has consistently rejected any bright line test . . . .” (Nichols v. McCormick (9th Cir. 1991) 929 F.2d 507, 510.) We agree with the People that defendants mistake one factor underlying McMillan for the entire rationale. McMillan‘s holding rests on several factors; that the disputed statute imposed a mandatory minimum sentence rather than increasing the maximum penalty was not
First, the high court in McMillan noted its traditional deference to state legislative judgment in “defining crimes and prescribing penalties.” (McMillan, supra, 477 U.S. at pp. 85-86 [91 L.Ed.2d at pp. 75-76].) Second, in the challenged statute the Pennsylvania legislature was neither “discarding the presumption of innocence” (id. at p. 87 [91 L.Ed.2d at p. 77]) “[n]or . . . reliev[ing] the prosecution of its burden of proving guilt.” (Ibid.) Third, the “Pennsylvania legislature did not change the definition of any existing offense” so as to circumvent due process requirements. (Id. at p. 89 [91 L.Ed.2d at p. 78].) Fourth, the disputed statute enhanced punishment based upon a “factor that has always been considered by sentencing courts to bear on punishment—the instrumentality used . . . .” (Ibid.) In light of these factors, the high court declared Pennsylvania‘s sentencing statute was constitutional. (Id. at p. 91 [91 L.Ed.2d at pp. 79-80]; see also Nichols v. McCormick, supra, 929 F.2d at p. 510.)
The United States Court of Appeals for the Ninth Circuit has applied the McMillan factors to a state sentencing statute similar in important respects to
In considering McMillan‘s impact upon the Montana statute, the Ninth Circuit noted “the Montana statute, unlike that of Pennsylvania in McMillan, allows the sentencing court to impose a penalty in excess of that permitted by the underlying offense.” (Nichols v. McCormick, supra, 929 F.2d at p. 510.) The court did not find this difference dispositive, noting the additional penalty factor was, under McMillan, only one of the “factors relevant to making this determination.” (Nichols v. McCormick, supra, 929 F.2d at p. 510.) The court concluded that, as “Montana properly treats weapon use as a sentencing factor, it follows that there is no Sixth Amendment right to a trial by jury.” (Nichols v. McCormick, supra, 929 F.2d at p. 509, citing McMillan, supra, 477 U.S. at p. 93 [91 L.Ed.2d at pp. 80-81].)
We agree with the Ninth Circuit that the “import of McMillan is that a state is free to define possession of a weapon as a sentencing factor.” (Nichols v. McCormick, supra, 929 F.2d at p. 511.) Although defendants
2. Due Process
Defendants argue the trial court‘s error arbitrarily deprived them of a state-created liberty interest in the exercise of jury sentencing discretion in contravention of Hicks v. Oklahoma (1980) 447 U.S. 343 [65 L.Ed.2d 175, 100 S.Ct. 2227]. We disagree.
In Hicks, a state law provided for discretionary jury determination of the punishment to be imposed. A state statute, however, mandated a 40-year term for habitual offenders. Finding defendant, who had been convicted of unlawfully distributing heroin, to be an habitual offender, the jury imposed the mandatory 40-year term. Thereafter, the habitual offender statute was declared unconstitutional. The appellate court nonetheless affirmed the sentence, concluding the defendant had not been prejudiced by application of the invalid statute, because the 40-year sentence was within the range of punishment for the underlying offense in any event. (Hicks v. Oklahoma, supra, 447 U.S. at pp. 344-345 [65 L.Ed.2d at pp. 178-179].)
In reversing, the high court stated “[w]here . . . a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant‘s interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of liberty only to the extent determined by the jury in the exercise of its statutory discretion [citation] and that liberty interest is one that the
Defendants here suffered no deprivation of state-mandated jury discretion analogous to that suffered by the defendants in Hicks. Defendants were not entitled under
The high court has made plain that Hicks does not invalidate every true finding rendered on a sentencing provision when the jury has received flawed instructions. (See Clemons v. Mississippi (1990) 494 U.S. 738 [108 L.Ed.2d 725, 110 S.Ct. 1441].) In Clemons, the court held the federal Constitution does not prevent a state appellate court from upholding a death sentence imposed by a jury “that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review . . . .” (Clemons v. Mississippi, supra, 494 U.S. at p. 741 [108 L.Ed.2d at p. 733].) In so holding, the high court noted that, “[c]ontrary to the situation in Hicks, the state [appellate] court in [Clemons] asserted its authority under Mississippi law to decide for itself whether the death sentence was to be affirmed . . . .” (Clemons v. Mississippi, supra, 494 U.S. at p. 747 [108 L.Ed.2d at p. 737].) “We specifically pointed out [in Hicks], however, that the [appellate court there] did not ‘purport to cure the deprivation by itself reconsidering the appropriateness’ of the 40-year sentence, [citation] thus suggesting that appellate sentencing, if properly conducted, would not violate due process of law.” (Ibid.)
The high court‘s reasoning in Clemons applies to California‘s scheme for
Nor did the court‘s failure to read CALJIC No. 17.16 or an equivalent instruction render defendants’ trial fundamentally unfair. Contrary to defendants’ suggestion, People v. Hernandez, supra, 46 Cal.3d 194 does not compel a contrary result.
In Hernandez, we concluded a sentencing judge may not constitutionally impose an additional three-year term under
Our decision in Hernandez depended upon a circumstance—lack of notice—not present in this case. Because the enhancement at issue had not even been pled, we said, “[i]t is possible that defendant failed to testify or otherwise put on additional evidence as to his degree of intoxication and precise mental state at the time of the crimes . . . . He did not know he faced . . . the
Most importantly, any discussion in Hernandez relating to the instructional omission was dictum, as our holding depended solely upon lack of notice. (People v. Hernandez, supra, 46 Cal.3d at pp. 197, 210-211.) It is true we noted no instruction had been given requiring that the jury find “the crucial fact” the defendant committed kidnapping with the specific intent to commit rape. (People v. Hernandez, supra, 46 Cal.3d at p. 211.) We did not,
Hernandez, therefore, is not authority for the proposition that failure to instruct the jury on the elements of a sentence enhancement violates the
Defendants also assert the jury instructions in this case created “structural defects in the constitution of the trial mechanism” (Arizona v. Fulminante (1991) 499 U.S. 279, 309 [113 L.Ed.2d 302, 331, 111 S.Ct. 1246]) such as would fall within the limited category of error that is reversible per se under the federal Constitution. We disagree. The trial court‘s failure to read CALJIC No. 17.16 neither wholly withdrew from jury consideration substantially all of the elements of a charged substantive offense (cf. People v. Cummings, supra, 4 Cal.4th 1233, 1315, citing Carella v. California (1989) 491 U.S. 263, 265, 267 [105 L.Ed.2d 218, 221-223, 109 S.Ct. 2419] and Yates v. Evatt (1991) 500 U.S. 391 [114 L.Ed.2d 432, 111 S.Ct. 1884]),8 nor so vitiated all of the jury‘s findings as to effectively deny defendants a jury trial altogether. (Cf. Sullivan v. Louisiana (1993) 508 U.S. 275 [124 L.Ed.2d 182, 113 S.Ct. 2078].)
Defendants were vigorously represented at trial by counsel who presented evidence and argument before a judge and jury whose impartiality is not
disputed. Defendants thus received the “basic protectio[n]” to which they were entitled. (Sullivan v. Louisiana, supra, 508 U.S. at p. ___ [124 L.Ed.2d at p. 191, 113 S.Ct. at p. 2083], quoting Rose v. Clark (1986) 478 U.S. 570, 577 [92 L.Ed.2d 460, 470, 106 S.Ct. 3101].) The jury was charged with determining whether each defendant committed robbery and whether each used a deadly weapon. The jury was properly instructed on the elements of robbery and received some guidance (albeit incomplete) with respect to the weapon use allegation. The court‘s instructional error thus was not one which “either aborted the basic trial process [citation] or denied it altogether [citations].” (See Rose v. Clark, supra, 478 U.S. at p. 578, fn. 6 [92 L.Ed.2d at p. 470].) The jury was instructed to find the facts underlying its verdict true “beyond a reasonable doubt.” There was no “misdescription of the burden of proof, which vitiates all the jury‘s findings.” (Cf. Sullivan v. Louisiana, supra, 508 U.S. at p. ___ [124 L.Ed.2d at p. 190, 113 S.Ct. at p. 2082].)
Finally, relying on Morgan v. Illinois (1992) 504 U.S. 719 [119 L.Ed.2d 492, 112 S.Ct. 2222], defendants assert federal due process requires the same standard of reversal be applied for a state violation of a state-conferred right to a jury trial as for a state violation of a federally mandated jury trial. Again, we do not agree.
In Morgan v. Illinois, supra, the high court affirmed that due process requires the exclusion from state-law-mandated capital sentencing juries of jurors who would automatically vote in favor of the death penalty. (504 U.S. at pp. 729-732 [119 L.Ed.2d at pp. 503-505, 112 S.Ct. at pp. 2230-2231].) The high court based its holding on “the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment” (id. at p. 729 [119 L.Ed.2d at p. 503, 112 S.Ct. at p. 2229]), an incident of due process defendants have not claimed was absent from their hearing. As relevant to this case, Morgan v. Illinois stands for no more than the indisputable proposition that defendants, being statutorily entitled to a jury trial, were therefore constitutionally entitled to “‘a fair trial by a panel of impartial, “indifferent” jurors‘” (504 U.S. at p. 727 [119 L.Ed.2d at p. 501, 112 S.Ct. at p. 2228], quoting In re Oliver (1948) 333 U.S. 257 [92 L.Ed. 682, 68 S.Ct. 499]), that is, to fundamental fairness in the context of their jury trial. As previously discussed, defendants here were not denied fundamental fairness.
3. Equal Protection
Defendants also advance an equal protection argument, premised on the notion that “[d]efendants who face a substantial loss of liberty from a jury trial on an enhancement are similarly situated to defendants who face a
As we have recognized, the Legislature has classified personal use of a deadly or dangerous weapon during commission of a felony as a sentence enhancement, not a separate crime. (People v. Hernandez, supra, 46 Cal.3d at p. 207.) The Supreme Court has repeatedly indicated states have wide discretion in defining crimes and their elements. (See, e.g., Patterson v. New York (1977) 432 U.S. 197, 201-202 [53 L.Ed.2d 281, 286-287, 97 S.Ct. 2319]; Schad v. Arizona (1991) 501 U.S. 624, 636 [115 L.Ed.2d 555, 568, 111 S.Ct. 2491].) Like the high court, we reject defendants’ contention that, because some elements of enhancements may be similar to elements of offenses, states are required to treat enhancement determinations exactly like determinations on substantive offenses.
In summary, the trial court‘s instructional omissions did not deny defendants any federal constitutional right.9
C. Was the Trial Court‘s Error Prejudicial?
As already mentioned, the trial court‘s failure to instruct on the elements of a section 12022(b) enhancement was erroneous. When “state standards alone have been violated, the State is free ... to apply its own state harmless-error rule to such errors of state law.” (Cooper v. California (1967) 386 U.S. 58, 62 [17 L.Ed.2d 730, 734, 87 S.Ct. 788].) “[T]he
The test for harmlessness we articulated in People v. Watson, supra, 46 Cal.2d 818, which gives effect to the constitutional provision, is “generally applicable under current California law.” (See People v. Cahill, supra, 5 Cal.4th at p. 492.) Under Watson, the trial court‘s judgment may be overturned only if “it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.” (People v. Watson, supra, 46 Cal.2d at p. 836.) “In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.” (People v. Guiton (1993) 4 Cal.4th 1116, 1130 [17 Cal.Rptr.2d 365, 847 P.2d 45].)
Applying the Watson test, we conclude neither defendant Wims nor defendant Ford was actually prejudiced by the trial court‘s instructional error.
First, we consider the record as to defendant Wims. Three witnesses, McCoy, Gebhardt and codefendant Gipson, testified Wims displayed a knife during the robbery. Gebhardt described in detail the menacing manner in which he displayed it. She saw Wims, after beating her fiancé with a crutch and then throwing it down, hold a knife “up in the air” “above his shoulders.” Wims possessed a knife (People‘s exhibit 5C) at the time of his arrest. His counsel, in arguing to the jury, did not deny Wims had possessed a knife; indeed, he implicitly conceded the point: “Clearly he jumped into the assault. You know, Mr. Wims is no boyscout. What you see in evidence is definitely not a boyscout knife.”
In contrast, the evidence Wims did not personally use a knife was weak. Gebhardt acknowledged on cross-examination she had told officers immediately after the attack she was not certain whether anyone other than Gipson had used a knife, but she described herself as “mostly concerned” at that time about the knife with which Gipson had been threatening her. Likewise, McCoy acknowledged on cross-examination he had not told officers about a second knife, but redirect examination revealed he had not been asked. D‘Agostino testified he did not see anything in Wims‘s hands other than a
Our examination of the record likewise reveals no reasonable probability of prejudice as to defendant Ford‘s
Conclusion
For the foregoing reasons, the judgment of the Court of Appeal is reversed insofar as it reversed imposition of the
Lucas, C. J., Arabian, J., Baxter, J., and George, J., concurred.
MOSK, J., Concurring and Dissenting.—In all respects save one, I concur in the judgment. The Court of Appeal was correct to uphold the second
As to the sentence enhancements of defendants Wims and Ford for personal use of a deadly or dangerous weapon in the commission or attempted commission of a felony under
For the foregoing reasons, I would affirm the judgment of the Court of Appeal in its entirety.
KENNARD, J., Concurring and Dissenting.—In California, the Legislature has decreed that certain conduct, such as the use of a deadly weapon or the infliction of great bodily injury, during the commission of a felony increases the seriousness of that felony. A defendant found by a jury to have engaged in such conduct is subject to a sentence “enhancement” or increase in punishment, to be added to the term for the underlying offense.
Under the
In this case, both defendants contend that the trial court violated their constitutional right to a jury trial, with proof beyond a reasonable doubt, because it failed to instruct the jury on the elements of the enhancement with
I disagree. Previous decisions of this court have held that enhancements are more than just sentencing factors. Enhancements, which in this state carry with them the statutory right to jury trial, bear a close similarity to criminal offenses both in the procedures created by the Legislature for their pleading and proof and in the consequences to the defendant that arise when a jury finds the existence of an enhancement. An enhancement is the functional equivalent of a criminal offense, adding new elements to an underlying crime to create a new, more serious offense. Because an enhancement is, in essence, part of the criminal offense to which it is attached, defendants charged with an enhancement must be accorded the same rights to which they are entitled on the underlying crime: to have a jury determine the elements of the charge, and to have the prosecution prove those elements beyond a reasonable doubt.
I
Defendants Ford and Wims were charged with second degree robbery. (
Tom McCoy, a passing motorist who saw the robbery, called the police, who quickly located and arrested defendants. When arrested, both Ford and Wims had knives in their possession.
At trial, victims D‘Agostino and Gebhardt and witness McCoy all testified that defendant Ford had threatened D‘Agostino with a knife. McCoy stated
Neither defendant testified at trial. Codefendant Gipson, testifying in her own defense, admitted that she was present during the robbery, but denied participating in it. Gipson said that both Ford and Wims had knives during the robbery. On cross-examination, Gipson acknowledged telling the police that only defendant Ford had used a knife during the robbery.
Ford‘s counsel argued to the jury that the prosecution had not proved beyond a reasonable doubt that Ford was one of the persons who had robbed D‘Agostino. Defense counsel for Wims admitted his client‘s participation in the assault on D‘Agostino, but claimed that Wims had no intent to rob D‘Agostino.
The trial court failed to instruct the jury on the elements of the charged enhancement pertaining to use of a deadly weapon. The verdict form, however, required the jury to decide whether it found the “Use of Deadly Weapon Allegation” to be “True [or] Not True“; it made no mention of the requirement that the jury could find the enhancement true only if it concluded that the defendant had “personally” used a deadly weapon.
During deliberations, the jury sent the trial court a note asking to hear “Mr. D‘Agostino and Mr. McCoy‘s testimony regarding the presence/display or lack of presence/display of a knife during the incident by Mr. Wims.” The court ordered the court reporter to provide the jury with the relevant testimony of witness McCoy, but the court erroneously told the jury that D‘Agostino gave no testimony on the issue.2 The note also asked, “does a crutch constitute a deadly weapon?” In response, the trial court told the jury that whether a crutch is a deadly weapon was not relevant to its decision, because the only deadly weapon that the pleadings charged defendant Wims with using was a knife.
The jury convicted both Ford and Wims of robbery, and found that each had used a deadly weapon within the enhancement provision of section
II
It is undisputed that the trial court violated state law by failing to instruct the jury on the elements of the enhancement for use of a deadly weapon. (People v. Najera (1972) 8 Cal.3d 504, 510 [105 Cal.Rptr. 345, 503 P.2d 1353].) At issue is whether the court‘s instructional error also violated the federal Constitution. If it did, the jury‘s enhancement finding as to each defendant can be affirmed only if it can be said that, beyond a reasonable doubt, the error did not contribute to the verdict. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065].) If, however, the error violated only state law, the enhancement finding is reversed only if the trial court‘s instructional error resulted in a “miscarriage of justice” (
The
In McMillan, supra, 477 U.S. 79, 81-82 [91 L.Ed.2d 67, 73-74], each of four Pennsylvania defendants in unrelated cases was convicted of a criminal offense. In each case, the prosecutor asked the trial court to find that the defendant possessed a firearm during the commission of the offense, thereby bringing the defendant within the purview of Pennsylvania‘s “mandatory sentencing statute.” Under that provision, a sentencing judge who, by a preponderance of the evidence, found that a defendant “visibly possessed a firearm” while committing specified crimes was required to impose a sentence of not less than five years for the underlying offense. In each case, the Pennsylvania trial court refused to make findings under the mandatory sentencing statute, ruling that application of the state statute would violate the federal Constitution because the statute did not entitle the defendants to have a jury determine the question of gun possession and to have the prosecution prove such possession beyond a reasonable doubt.
By a narrow (five to four) margin, the high court upheld the constitutionality of the Pennsylvania statute. To determine whether the federal Constitution‘s due process clause required the prosecution to prove the defendants’ firearm possession “beyond a reasonable doubt,” the court looked to the intent of the Pennsylvania legislature: did the legislature intend possession of a firearm to be an element of the crime with which the defendants were charged (in which case due process required proof beyond a reasonable doubt), or did it intend firearm possession to be merely a sentencing factor (in which case the federal Constitution did not require proof beyond a reasonable doubt except in limited circumstances)?4 (McMillan, supra, 477 U.S. at pp. 85-86 [91 L.Ed.2d at pp. 75-76].)
The McMillan court pointed out that the Pennsylvania legislature had expressly chosen to make visible possession of a firearm during a crime not an element of the crime but a “sentencing factor” to be determined by the judge at the time of sentencing. Consequently, the court concluded, due process did not require the prosecution to establish the defendants’ firearm
The high court then swiftly disposed of the defendants’ contention that the
Therefore, under McMillan, supra, 477 U.S. 79, resolution of the issue here—whether a defendant charged with a “deadly weapon use” enhancement has a federal constitutional right to have a jury determine the elements of the enhancement, and whether the prosecution must prove the enhancement beyond a reasonable doubt—is largely dependent on the intent of the Legislature. If the Legislature intended enhancements to be roughly analogous to criminal offenses, then a defendant is entitled to a jury trial, as guaranteed by the
III
Determining the Legislature‘s intent with regard to enhancements is complex, because enhancements cannot be categorized neatly either as sentencing factors or as elements of an offense. They share characteristics of each. As the majority points out (maj. opn., ante, p. 304), an enhancement “is not a separate crime or offense” (People v. Waite (1983) 146 Cal.App.3d 585, 593 [194 Cal.Rptr. 245]), but “‘an additional term of imprisonment added to the base term‘” (People v. Hernandez (1988) 46 Cal.3d 194, 207 [249 Cal.Rptr. 850, 757 P.2d 1013]). Unlike most criminal offenses, an enhancement is not independent of other charges; rather, it is attached to some
Nonetheless, enhancements have far more characteristics in common with criminal offenses than with sentencing factors. As shown below, enhancements closely resemble criminal offenses in the manner in which they are pleaded and proven and in their consequences to the defendant.
In California, the pretrial procedures that the Legislature has established to govern the manner in which enhancements are charged are identical to those pertaining to criminal offenses. For instance, an enhancement must be pleaded in the same manner as a substantive criminal offense. (
Also, the statutory procedures governing the proof of enhancements at trial are identical to those applicable to criminal offenses. Most significantly, unlike sentencing factors, whose existence is ordinarily determined by the trial judge, the Legislature has created a statutory right to have a jury determine the truth or falsity of an enhancement. (People v. Wiley, supra, 9 Cal.4th at p. 588; People v. Najera, supra, 8 Cal.3d 504, 509-510.) The jury performs that task not at the time of sentencing, but at the time it decides the defendant‘s guilt of the underlying crime charged. Additionally, the prosecution has the burden of proving an enhancement beyond a reasonable doubt (People v. Santamaria (1994) 8 Cal.4th 903, 918 [35 Cal.Rptr.2d 624, 884 P.2d 81]; People v. Morton (1953) 41 Cal.2d 536, 539 [261 P.2d 523]), a
Furthermore, enhancements are more like criminal offenses than sentencing factors in their consequences to the defendant. Unlike the Pennsylvania sentencing factor in McMillan, which operated solely to “limit the sentencing court‘s discretion in selecting a penalty within the range already available to it” by prohibiting the court from imposing a sentence below the statutorily prescribed minimum (McMillan, supra, 477 U.S. at p. 88 [91 L.Ed.2d at pp. 77-78]), our state‘s statutory enhancements increase a defendant‘s sentence beyond the maximum sentence prescribed for the underlying offense, thereby exposing the defendant “to greater or additional punishment. ...” (Id.) In certain instances, a sentence for the enhancement can substantially exceed the sentence for the underlying offense. For example, second degree nonresidential robbery carries a maximum penalty of five years (
Because, as discussed above, the pleading and proof requirements pertaining to enhancements are the same as those governing criminal offenses, and the consequences flowing from them are the same as from a criminal offense, the inference is strong that the Legislature must have intended enhancements to be the functional equivalent of criminal offenses. Consequently, the federal constitutional right to jury trial and proof beyond a reasonable doubt must also apply to enhancements.
IV
Decisions of this court lend further support to my conclusion that enhancements are the functional equivalent of criminal offenses.
In Mendella, supra, 33 Cal.3d 754, we explored the historical antecedents of enhancements. There, the issue was whether a defendant could challenge
We observed that several enhancements are based on facts that formerly “were contained in the statutory definitions of the particular offenses.” (Mendella, supra, 33 Cal.3d at p. 762.) For example, being armed with a deadly weapon was formerly an element of the crime defined as robbery of the first degree (former
With the enactment of the determinate sentencing law (DSL) in 1976, these acts, scattered through the
The majority‘s holding is also at odds with this court‘s decision in People v. Hernandez, supra, 46 Cal.3d 194 (hereafter Hernandez). In Hernandez, the jury had convicted the defendant of rape; at the time of sentencing, the trial court increased the defendant‘s sentence by applying
In Hernandez, this court held that “a pleading and proof requirement [for
In this case, the majority revives the Attorney General‘s argument that this court unanimously rejected in Hernandez, supra, 46 Cal.3d 194. Overlooking this court‘s holding in Hernandez that enhancements are not “sentencing factors,” and that they are therefore subject to the federal due process requirements of pleading and proof, the majority concludes that enhancements are indeed sentencing factors, and therefore not subject to federal due process protections. At the same time, however, the majority cites Hernandez with approval, apparently blissfully unaware that its reasoning cannot be reconciled with our decision in that case.
Trying to find support for its conclusion that enhancements are sentencing factors, the majority cites a decision by the Ninth Circuit Court of Appeal, Nichols v. McCormick (9th Cir. 1991) 929 F.2d 507. There, the court considered the constitutionality of a Montana law providing that a defendant who “displayed, brandished, or otherwise used a firearm” in the commission of an offense was to receive an increase in punishment of between two and ten years. The federal court upheld the constitutionality of the statute, concluding that under Montana law use of a firearm was a sentencing factor, not an element of an offense.
But a closer look at the Montana statute at issue in Nichols v. McCormick, supra, 929 F.2d 507, soon reveals that it bears no resemblance to the California statutory scheme governing enhancements. As I explained earlier, our Legislature has elected to treat enhancements as extensions of the
To summarize, because under California law enhancements are not simply sentencing factors, but are the functional equivalent of substantive offenses, the federal Constitution entitles a defendant charged with an enhancement to have a jury determine the existence of the elements of the enhancement, and to have the prosecution prove the elements beyond a reasonable doubt. Here, the trial court‘s failure to instruct the jury on the elements of the enhancement alleged against defendants effectively denied them these rights.
V
The remaining question is whether the trial court‘s error was prejudicial, that is, whether it can be said beyond a reasonable doubt that the court‘s failure to instruct on the elements of the enhancement had no effect on the jury‘s verdict. (Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at p. 710].) I conclude the error was prejudicial as to defendant Wims, but not as to defendant Ford.
As I mentioned earlier,
The third element of the enhancement, that is, the requirement that the use be “personal,” did not appear on the verdict form submitted to the jury. Thus, because the trial court did not inform the jury of this element of the enhancement, the jury did not determine the truth or falsity of this element when it found the enhancement allegation true as to both defendants.
With respect to defendant Ford, the trial court‘s failure to instruct the jury on the third element of the enhancement was harmless beyond a reasonable doubt. Every witness at the trial testified that Ford had used a knife during the robbery, and all but battery victim Gebhardt so told the police shortly after the robbery.9 Because the undisputed evidence overwhelmingly showed that Ford had used a knife during the robbery, the trial court‘s instructional error as to him is harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at p. 710]; People v. Harris (1994) 9 Cal.4th 407, 431 [37 Cal.Rptr.2d 200, 886 P.2d 1193].)10 That, however, cannot be said of the error pertaining to defendant Wims.
Robbery victim D‘Agostino never saw a knife in Wims‘s hands. Although witnesses McCoy, Gebhardt, and Gipson all testified that Wims had a knife,
The jurors were clearly troubled about the question whether Wims had used a knife during the robbery, for they sent the trial judge a note asking for a readback of testimony relating to this point and inquiring whether the crutch was a deadly weapon. It may well be that the jury, not informed by the trial court that personal use of the weapon was required, but instructed on the principles of accomplice liability, ultimately found the weapon use enhancement charged against defendant Wims to be true because he was an accomplice of defendant Ford, who unquestionably had used a knife during the robbery. Thus, I cannot say beyond a reasonable doubt that the trial court‘s failure to instruct on the elements of the enhancement was harmless as to defendant Wims. As to him, therefore, I would reverse the finding of deadly weapon use.