Lead Opinion
Opinion
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 Penal Code section 12022, subdivision (b),
Facts
On the evening of November 12, 1991, Paige D’Agostino and his fiancée 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) (§ 212.5, subd. (b)) and assault with a deadly weapon and by means of force likely to produce great bodily injury (against Gebhardt) (§ 245, subd. (a)(1)). In connection with the robbery count, it was further alleged that “in the commission and attempted commission of the above offense, the defendants, Wilbert Ford, Carolyn
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 section 12022(b) enhancement. The court did instruct the jury on aiding and abetting liability.
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 section 12022(b) except in reviewing the verdict forms. The court said: “If and when you reach a verdict as to [the robbery] count, then your foreperson is to fill in the appropriate word, guilty or not guilty, date it and sign it. This instruction has a further requirement on you [sic]. ‘We further find that the use of the deadly weapon allegation, violation of Penal Code section 12022(b) to be,’ there’s another blank, ‘true or not true.’ And when you reach a verdict as to this particular allegation, then your foreperson is to write in the correct true or not true, date it and sign it. And this is the same as to each of the three defendant[]s.”
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 section 12022(b) allegation true as to defendants Ford and Wims.
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 section 12022(b) enhancement and five years for the prior serious felony conviction enhancement). Defendant Wims was sentenced to a term of six years (comprised of the upper term of five years for robbery, plus one year for the section 12022(b) enhancement).
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 section 12022(b) enhancement allegation. The Court of Appeal held in favor of defendants and reversed the section 12022(b) enhancements. We granted the People’s petition for review.
Discussion
A. Did the Trial Court Commit Error?
In order to find “true” a section 12022(b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death. (People v. James (1978)
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 section 12022(b) allegations. The trial court only read to the jury the verdict forms, which simply referred to “the Use of Deadly Weapon Allegation.”
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)
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)
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 Sixth Amendment as incorporated in the Fourteenth Amendment. We disagree.
Defendants argue the court’s instructional omissions implicated their Sixth Amendment rights because section 12022(b) shares fundamental analytical and functional characteristics of a “crime,” although it is designated an “enhancement.” That an enhancement resembles a substantive offense, insofar as it imposes additional punishment based upon a factual finding that a defendant engaged in particular conduct, may be true. Such similarity, however, does not elevate to federal constitutional stature defendants’ section 12022(b) jury rights.
California courts have long recognized that “[a]n enhancement is not a separate crime or offense . . . .” (People v. Waite (1983)
“The Sixth Amendment never has been thought to guarantee a right to a jury determination” of the appropriate punishment to be imposed on an individual. (Spaziano v. Florida, supra,
In McMillan v. Pennsylvania, supra,
The high court in McMillan held the Pennsylvania act did not deny the defendants their Sixth Amendment right to trial by jury. (
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]. . . .” (
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 section 12022(b), sought to circumvent due process by renaming, as a sentencing enhancement, an element of a greater offense. Section 12022(b) does not change the definition of any existing offense.
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., section 12022(b), enhancing sentence only “upon conviction . . . .”) At that time, a defendant’s liberty interest “has been substantially diminished by a guilty verdict.” (McMillan, supra, 477 U.S. 79, 84 [
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)
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 [
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 section 12022(b). In Nichols v. McCormick, supra, 929 F.2d 507, the Ninth Circuit upheld against a due process challenge a Montana weapons enhancement statute that imposed, for weapon use during an “offense,” imprisonment of not less than two years or more than ten years “in addition to the punishment provided for the commission of” the offense. (Nichols v. McCormick, supra, 929 F.2d at p. 508 & fn. 1 [examining Mont. Code Ann. §46-18-221 (1989)].)
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. 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)
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 Fourteenth Amendment preserves against arbitrary deprivation by the State.” (Hicks v. Oklahoma, supra,
Defendants here suffered no deprivation of state-mandated jury discretion analogous to that suffered by the defendants in Hicks. Defendants were not entitled under section 12022(b) to jury sentencing discretion; at most they were entitled to a jury finding on whether the section 12022(b) enhancement
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)
The high court’s reasoning in Clemons applies to California’s scheme for section 12022(b) sentence enhancements. Defendants’ state statutory right to jury findings on a section 12022(b) enhancement is constitutionally qualified by the duty of California appellate courts to examine “the entire cause” when any “misdirection of the jury” is alleged and to affirm the judgment absent a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) Contrary to defendants’ suggestion, therefore, if we examine the record of this trial to determine whether the instructional error resulted in a miscarriage of justice, we do not engage in any impermissible attempt to “substitute” our determination for the jury determination a defendant may claim under section 969c. Indeed, the possibility of such a corrective appellate determination is inherent in the state statutory scheme for jury determination. When rendered, such appellate
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,
In Hernandez, we concluded a sentencing judge may not constitutionally impose an additional three-year term under section 667.8 (kidnapping for purposes of rape) when no violation of that statute was pled or proven. (The allegation in Hernandez was mentioned for the first time in the probation report.) (People v. Hernandez, supra,
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 section 667.8 enhancement . . . and from the prosecution’s failure to plead section 667.8 he could reasonably assume the prosecution had chosen not to pursue it.” (People v. Hernandez, supra,
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,
Hernandez, therefore, is not authority for the proposition that failure to instruct the jury on the elements of a sentence enhancement violates the Fourteenth Amendment. Hernandez merely confirms that section 667.8 enhancements must be pled and proven by the prosecution. That the section 12022(b) enhancements at issue in this case were pled and proven to defendants’ jury is undisputed.
Defendants also assert the jury instructions in this case created “structural defects in the constitution of the trial mechanism” (Arizona v. Fulminante (1991)
Defendants were vigorously represented at trial by counsel who presented evidence and argument before a judge and jury whose impartiality is . not
Finally, relying on Morgan v. Illinois (1992)
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 [
3. Equal Protection
Defendants also advance an equal protection argument, premised on the notion that “ [defendants 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,
In summary, the trial court’s instructional omissions did not deny defendants any federal constitutional right.
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)
The test for harmlessness we articulated in People v. Watson, supra,
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 boy scout. 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 section 12022(b) enhancement. Four witnesses testified Ford brandished a knife. Both victims testified Ford held the knife in D’Agostino’s face and threatened to “cut” him. Ford was found with a knife shortly after the robbery, which the victims said resembled the one he used in the robbery. Ford argued only that he never participated in the robbery at all, not that D’Agostino’s alleged attacker lacked a knife. The evidence did not permit a conclusion that Ford displayed a knife without menacing intent. We conclude that even had the court informed the jury of the elements of a section 12022(b) enhancement, it is not reasonably probable they would have found that allegation to be not true as to defendant Ford.
Conclusion
For the foregoing reasons, the judgment of the Court of Appeal is reversed insofar as it reversed imposition of the section 12022(b) sentence enhancements of defendants Wims and Ford. In other respects, the judgment of the Court of Appeal is affirmed.
Lucas, C. J., Arabian, J., Baxter, J., and George, J., concurred.
Notes
Hereafter section 12022(b). Unlabeled statutory references are to the Penal Code.
At relevant times, section 12022(b) read in its entirety: “Any person who personally uses a deadly or dangerous weapon in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one year, unless use of a deadly or dangerous weapon is an element of the offense of which he or she was convicted. [¶] When a person is found to have personally used a deadly or dangerous weapon in the commission or attempted commission of a felony as provided in this subdivision and the weapon is owned by that person, the court shall order that the weapon be deemed a nuisance and disposed of in the manner provided in Section 12028.”
Gipson has not appealed.
The portion of the verdict form respecting section 12022(b) read, in its entirety:
“We further find the Use of Deadly Weapon Allegation (Violation of Penal Code Section 12022(b) [)] to be____________”
True [or] Not True
In pertinent part, section 969c provides: “If the defendant pleads not guilty of the offense charged in any count which alleges that the defendant used a weapon or was armed with a firearm, the question whether or not he used a weapon or was armed with a firearm as alleged must be tried by the court or jury which tries the issue upon the plea of not guilty. If the defendant pleads guilty of the offense charged the question whether or not he used a weapon or was armed with a firearm as alleged must be determined by the court before pronouncing judgment.” (Italics added.)
Justice Kennard, in her concurring and dissenting opinion, directs our attention to People v. Superior Court (Mendella)
For example:
(1) Section 12022(b) enhances a convicted felon’s sentence “unless use of a ’deadly or dangerous weapon is an element of the offense of which he or she was convicted.” (Italics added.) That it used the italicized language plainly demonstrates our Legislature understood that, contrary to the dissent’s assertion, the conduct upon which this sentence enhancement is based is not “in essence, part of the [underlying] criminal offense. . . .” (Cone, and dis. opn. of Kennard, J., post, at p. 318.)
(2) Based upon “circumstances in mitigation of the additional punishment,” under section 1170.1, subdivision (h), “the court may strike the additional punishment” for numerous enhancements, including section 12022(b). By contrast, under our determinate sentencing laws, when a defendant is convicted of a substantive offense the court is generally bound to impose punishment within prescribed ranges. (See § 1170.)
(3) A defendant who pleads guilty to the underlying offense has no right to a jury trial on a section 12022(b) enhancement. (See § 969c.) By contrast, a defendant charged with two substantive offenses obviously may plead guilty to one of them without losing his federal constitutional right to a jury trial on the other. That the Legislature created only a conditional jury trial right for section 12022(b) enhancements demonstrates it understood such a right was not constitutionally compelled and that the enhancement was not intended to be (or to function as if it were) equivalent to a substantive offense.
Contrary to defendants’ suggestion, our decision in People v. Cummings, supra,
To the extent People v. White (1987)
Concurrence Opinion
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 Penal Code section 12022, subdivision (b), I dissent. The Court of Appeal was correct to set aside the underlying findings, and to vacate the resulting one-year terms, because the omission of an instruction on the elements was prejudicial error under the United States Constitution. As a general matter, I fully join in Justice Kennard’s analysis: it is irrefutable. But I cannot agree with her conclusion that the error was harmless as to defendant Ford on the ground that “overwhelming” evidence was introduced against him at trial. (See People v. Harris (1994)
For the foregoing reasons, I would affirm the judgment of the Court of Appeal in its entirety.
Concurrence Opinion
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 Sixth Amendment to the United States Constitution, a defendant in a criminal case is entitled to a jury trial. At that trial, the due process clauses of the Fifth and Fourteenth Amendments to the Constitution require the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. (Sullivan v. Louisiana (1993)
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. (Pen. Code, former § 212.5, subd. (b), now subd. (c).)
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.
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)
The Sixth Amendment to the federal Constitution entitles a defendant in a criminal case to a jury trial. Under the due process clause, the prosecution “bears the burden of proving all elements of the offense charged . . . and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements . . . .” (Sullivan v. Louisiana, supra,
In McMillan, supra, 477 U.S. 79, 81-82 [
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)?
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 Sixth Amendment to the federal Constitution entitled them to a jury trial on the question of firearm possession: “Having concluded that Pennsylvania may properly treat visible possession as a sentencing consideration and not an element of any offense, we need only note that there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.” (McMillan, supra, 477 U.S. at p. 93 [91 L.Ed.2d at pp. 80-81].)
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 Sixth Amendment, and the prosecution must prove the existence of the enhancement by proof beyond a reasonable doubt, consistent with the Fourteenth Amendment’s due process requirements. If, on the other hand, the Legislature intended enhancements to be mere sentencing factors, neither right would generally be implicated.
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)
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. (§ 1170.1, subd. (f).) And at the preliminary hearing on the underlying offense, the prosecution must offer evidence of any enhancement it wishes to charge; if the prosecution fails to do so, the defendant may move to dismiss the enhancement for insufficiency of evidence. (§ 995; People v. Superior Court (Mendella) (1983)
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,
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. . . .” (Ibid.) 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 (§ 213), but if the jury after its determination of guilt finds as an enhancement that the defendant had used a firearm during the robbery, the trial court has statutory authority to sentence the defendant to an additional ten years in prison (§ 12022.5, subd. (a)), double the maximum term for the underlying offense.
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,
We observed that several enhancements are based on facts that formerly “were contained in the statutory definitions of the particular offenses.” (Mendella, supra,
With the enactment of the determinate sentencing law (DSL) in 1976, these acts, scattered through the Penal Code, were brought together and labeled as “enhancements.” But as we explained in Mendella, the Legislature did not intend its relabeling to deprive criminal defendants of any procedural rights: “[B]efore the enactment of the DSL, allegations that could increase punishment, such as personal use of a firearm, great bodily injury, or being armed with a deadly weapon, were spread throughout the Penal Code; some were contained in the definitions of particular crimes (see, e.g., former §§ 209, 213, 460, 461), while others merited separate sections (see, e.g., former §§ 3024, 12022, 12022.5). With the advent of the DSL, the provisions for such allegations were deleted from the definitions of the substantive offenses, were placed in distinct sections, and are now known as ‘enhancements.’ (See, e.g., §§ 12022, 12022.5, 12022.6, 12022.7; Cassou & Taugher, Determinate Sentencing in California: The New Numbers Game (1978) 9 Pacific L.J. 5, 23, 31.) [¶] The DSL was designed to revise the Penal Code with regard to sentencing. Nothing in its history or form intimates that the Legislature intended by reorganizing the Penal Code to deprive the defendant of any procedural rights that he possessed prior to the new law." (Mendella, supra,
The majority’s holding is also at odds with this court’s decision in People v. Hernandez, supra,
In Hernandez, this court held that “a pleading and proof requirement [for section 667.8] should be implied as a matter of statutory interpretation and must be implied as a matter of due process” (Hernandez, supra,
In this case, the majority revives the Attorney General’s argument that this court unanimously rejected in Hernandez, supra,
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)
But a closer look at the Montana statute at issue in Nichols v. McCormick, supra,
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,
As I mentioned earlier, section 12022, subdivision (b)’s one-year enhancement for use of a weapon has three elements: (1) a deadly or dangerous weapon, that is, “any weapon, instrument or object that is capable of being used to inflict great bodily injury or death” (CALJIC No. 17.16); (2) the weapon’s use in the commission of the offense, that is, the defendant’s display of the weapon in a menacing manner or intentional use of the weapon to strike a human being during the offense (People v. James (1989)
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.
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.
All further statutory references are to the Penal Code unless otherwise indicated.
In fact, D’Agostino testified that Wims had held a crutch, and that he had seen nothing else in Wims’s hands. He also testified, however, that there were times during the robbery when he was unable to see Wims’s hands.
The jury acquitted codefendant Gipson of robbery, but convicted her of misdemeanor battery on Elizabeth Gebhardt. Gipson did not appeal her conviction.
In McMillan, supra,
The requirement that the prosecution present evidence to support an enhancement at the preliminary hearing does not apply to enhancements for prior convictions. (Mendella, supra,
If the prosecution presents insufficient evidence to sustain an enhancement allegation at trial, double jeopardy principles bar retrial of the enhancement, just as they would bar retrial of a criminal offense. (People v. Superior Court (Marks) (1991)
The Legislature’s failure to require pleading and proof of the enhancement was an apparent oversight, which the Legislature subsequently corrected. (Hernandez, supra,
As to each defendant, the first sentence of the verdict form asked the jury to state whether it found the defendant guilty or not guilty of robbery. The second sentence read: “We further find the Use of Deadly Weapon Allegation (Violation of Penal Code Section 12022(b) to be ______.” Beneath the line at the end of the sentence were typed the words “True [or] Not True.”
Battery victim Gebhardt originally told the police that she was unsure whether defendant Ford had a knife.
In performing this “harmless error” evaluation, I have attempted to apply the reasoning that a majority of this court used in People v. Harris, supra, 9 Cal.4th 407, when it relied on the overwhelming strength of the evidence against the defendant to conclude that instructional error of federal constitutional dimension was harmless beyond a reasonable doubt. Although stare decisis principles compel me to apply the majority’s analysis, I still adhere to the view that the majority’s reasoning in Harris is wrong and difficult to follow. (See id. at p. 452 (conc. & dis. opn. of Kennard, J.).) Because, as I explained in Harris, the United States Supreme Court has not clearly described how a reviewing court should conduct a harmless error evaluation when the trial court has inaccurately defined, or failed to define, the elements of a criminal offense to the jury (id. at pp. 460-463), I urge the high court to provide further elucidation.