*1 July S152695. 2009.] [No. PEOPLE,
THE Plaintiff Respondent, ANDERSON, LANE Defendant and Appellant. BARRY *6 Counsel Kozik, Court,
Kat under for Defendant and appointment Supreme Appellant. Brown, Jr., General,
Bill and Edmund G. Robert R. Lockyer Attorneys Gillette, General, Jo Mary Anderson and Dane R. Chief Assistant Attorneys Farrell, General, Graves and Michael P. Assistant Janet E. Attorneys Neeley, General, Charles A. French and Brook A. Bennigson, Attorneys Deputy Plaintiff and Respondent.
Opinion
CORRIGAN,
we did not resolve in
case concerns two questions
J . This
v. Seel
(2004)
BACKGROUND and E.M. following In Donna Divens saw A.B. January Both Divens lived. of units in the where apartment complex around a block and saw A.B. them around a comer were five old. Divens followed years girls *7 E.M. was defendant behind her. with her down while standing squatted pants The Divens defendant quickly departed. When standing nearby. appeared, them candy had followed him because he promised girls explained they kittens. and lascivi- in count one with a lewd committing
Defendant was charged Code, 288, A.B., (a).)1 That (Pen. of subd. ous act on a child five years age. § two notices that containing was followed charge paragraphs 1192.7, would (§ (c)) was a serious subd. and that conviction felony require (§ 290). The went on to defendant to as a sex offender register complaint one, A.B. “for the in connection with count that defendant allege, kidnapped 667.8, offense,” . section . . in violation of committing purpose (b), and that the of section meaning subdivision fell within kidnapping 667.61, 667.61, (e)(1). subdivision Under section a defendant who is con- victed of a lewd and lascivious act and also found to have kidnapped victim for that must be sentenced to 15 to life years purpose imprisonment. 667.61, (§ (b), (e)(1).) subds. The for a lewd and lascivious act three, (§ without is a term of six or kidnapping allegation eight years. 667.61, indeterminate (a).) subd. Section which sentences for felony provides circumstances, sex crimes committed under is sometimes called the particular “One Strike” law. Cal.4th (People Rayford 884 P.2d also substantive alleged complaint separate four) (count three) (count counts A.B. and E.M. kidnapped (§ (b)), a lewd and lascivious act subd. purpose committing 664, 288, (§§ (a)) commit the lewd act offense on E.M. subd. attempted (count two), (§311.11, (a)) (counts child subd. possessed pornography 15). five through deliberations, announced it
During second had reached day verdicts on the lewd act and but could not reach a charges pornography 667.61, verdict on the substantive counts or on the section kidnapping (e)(1) subdivision After further deliberations kidnapping allegations. produced result, the same the court received the verdicts of on the lewd guilty jury’s act, lewd act and child and declared attempted charges, pornography Defend- mistrial on the counts and factual sentencing allegations. kidnapping ant waived time for and the court scheduled a retrial on the sentencing, later, mistried counts and Months but before defend- sentencing allegations. trial, another, ant’s second amended the information to add prosecutor harsher, under the One Strike law in connection with kidnapping under the crime A.B. In addition to the against kidnapping 1 statutory All references are to the Penal Code unless otherwise noted.
100 667.61, (e)(1), section subdivision the amended information defend- alleged ant had A.B. to commit a lewd act and that the move- kidnapped 667.61, (§ (d)(2).) ment increased the risk of harm. subd. This substantially true, second factual if found carried a of 25 to allegation, punishment years 667.61, (§ (a).) life subd. Defendant did not to the object imprisonment. amendment. trial,
At his that he of second had been convicted stipulated other, one little and of molesting girl, to molest attempting possessing child The in this second trial found defendant of guilty pornography. 207, (§ (b)) both substantive subd. and found true both kidnapping charges factual in connection with 15-year 25-year allegations charged verdicts, the crimes A.B. After these court sentenced against receiving defendant to an indeterminate term of 25 to life under the years imprisonment 288, 667.61, (§ (d)(2)) One law subd. for violation of section subdivi- Strike (a), sion a consecutive determinate term of 11 E.M. years plus kidnapping 207, (b). (A for the in violation of section subdivision sentence three-year lewd act E.M. was ordered to run and an against concurrently, attempted sentence for the of A.B. was 11-year stayed pursuant kidnapping § The Court of all rejected Defendant on several appealed grounds. Appeal but not contested here.2 In all other one his issue arguments, it affirmed the We review to decide whether judgment. granted respects, retrial of the factual federal and state double allowed jeopardy principles dead- on which defendant’s first sentencing allegation kidnapping and, so, concern the sentencing allegation locked if whether could alone had lewd act or to encompass charge.3 2 (d)(2) (e)(1) being as Appeal interpreted The Court subdivisions of section 667.61 Thus, (d)(2) mutually finding preclude imposition a true under would exclusive. subdivision (e)(1). imposed had an indeterminate an additional under subdivision trial court (e)(1) finding stayed years jury’s life for the subdivision but it under section sentence of 15 stricken, ruling finding and had to be Appeal’s 654. The Court of meant sentence stayed. interpretation express opinion is not before us and we no thereon. This 3 trial; therefore, before his second plea jeopardy Defendant did not enter a of once (1995) (People v. Memro 11 preserved double issues raised herein were not for review. 219, 1305].) attorney Cal.Rptr.2d P.2d Because defendant claims his Cal.4th [47 however, the Court of by failing plea, of counsel to assert the rendered ineffective assistance (See People jeopardy arguments. the merits of the double We do as well. Appeal addressed 354]; People Marshall Scott Cal.Rptr.2d P.2d 15 Cal.4th 799, 824, fn. 1 P.2d
DISCUSSION Law Sentencing I. Overview of California *9 laid down the statute by of a of elements crime consists
“Every group or the these elements must exist law the offense and one of every or defining elements is known as This of essential statute is not violated. group (Fricke, delicti,’ the crime. or the elements of ‘corpus body [Citation.]” of is thus a collection (1970) 26.) A criminal offense Cal. Criminal Law crime. to define as a that the has chosen Legislature factual elements specific For are further divided into degrees. example, Some substantive crimes (1) into a is defined its elements as: by entry substantive crime of burglary 459; structure, also (§ to commit theft or see any felony. with the intent 1700.)4 If these elements are the crime of second CALCRIM No. proven, 459, 460, However, if, (§§ (b).) subd. has been committed. degree burglary elements, was inhabited addition to these there is also structure proof from second to first degree at the time of the the crime is elevated entry, 1701.)5 First (§ (a); subd. see also CALCRIM No. degree burglary. burglary a substantive offense than second greater degree is degree burglary burglary because it of all the elements of second degree requires proof dwelling. element that the area entered was used as a additional determinate sentences for most The has of Legislature prescribed range (See 1170.)6 For first degree burglary substantive crimes. example, § two, (§ 461.) a term of either four or six in state years prison. punished be substantive crimes should The has also concluded some Legislature their more because of facts attendant upon punished severely particular It ways. The has this in several commission. Legislature implemented policy are has for sentences if certain enhancements pled provided Court, their (See 4.405(3).) Enhancements have Cal. Rules of rule proven. 12022.5, elements, (§§ factual such as the use of a firearm own personal So, 12022.7). infliction a defendant 12022.53) (§ bodily or great injury 4 way burglary The statute simplified description burglary by example. We refer to this tenement, warehouse, house, room, “any shop, scope entry apartment, includes within its into home,. tent, vessel,... store, mill, bam, stable, floating . . railroad building, outhouse or other coach, container, vehicle, car, trailer . . . cargo whether or not mounted on a locked or sealed , locked, car,... ., . . when the doors are aircraft. any camper,. house inhabited . . vehicle .. (§ 459.) any underground portion or or thereof . . . .” mine 5 degree burglary “[e]very burglary of an inhabited Specifically, defines first as section 460 habitation, home, house, vessel, designed floating . . . dwelling . . inhabited and . which is (§ (a).) portion any building other . . . .” subd. or trailer coach ... or the inhabited 6 crimes, murder, only Legislature prescribed has The are like for which the exceptions (See, (a) degree is 15 e.g., for second murder indeterminate sentences. subd. § [sentence life; life].) years degree years murder is 25 to sentence for first who takes cash from a victim to strike the by threatening victim if he does not surrender the be with money may charged (§ 211). robbery if the defendant at the victim in points handgun order to obtain the he money, and be may charged with the substantive crime of robbery enhancement that he used commit a firearm to personally the robbery (§ 12022.5). If the finds that both the substantive crime and the enhance- ment have been the defendant be sentenced proven, may base term of two, three or five for the years (§ (a)(2)) subd. robbery and an additional three, term of 12022.5, four or 10 for the years (§ use of the firearm (a)). subd. and California Legislature voters have also enacted a sentenc- “parallel (People Anderson scheme” for
ing
offenders.
repeat
35 Cal.App.4th
587, 592-593,
law,
Under the “Three
Strikes”
*10
defendant who is accused of a
also be
with
felony may
charged
having
been convicted of other crimes. If the
previously
convictions meet
previous
true,
definitions of “strikes” and are
statutory
the defendant
proven
may
term,
be sentenced not to a determinate
but to an indeterminate term of 15 or
§§667,
(See
enhancements,
25
years
1170.12.)
life.
As with
a jury
a Three Strikes
considering
allegation must
determine whether the
separately
defendant has committed the new substantive
and whether the
felony
allega-
tions of
strike
have
prior
convictions
been
It is well settled
if the
proven.
a
jury’s
strike
is
finding
reversed on
for insufficient
appeal
evidence,
jury. (People Barragan
the allegation
be retried to a new
may
v.
76,
People Monge
(2004)
480];
Defendant’s first found guilty (§ (a).) subd. a lewd and lascivious act on A.B. committing he her for because the could not about whether agree kidnapped offense, it on both the substantive hung kidnap this committing purpose (§ (b)) sentencing allegation subd. and the One Strike ping charge 667.61, the flaw in defendant’s (§ (e)(1)). subd. These facts demonstrate It well settled that when the convicts double jeopardy argument. *11 mistrial, others, a defendant on counts but on in hangs resulting some 8 (§ 1160.) Under defendant’s mistried counts be tried to a new may jury. a retrial of the substantive double would not theory, prevent jeopardy four, but it would bar retrial offenses in counts three and alleged kidnapping 667.61, under section for the same conduct as a factual sentencing allegation anomalous result is neither (e)(1). subdivision As we will this explain, constitutional mandate. consistent with intent nor legislative compelled II. Constitutional Double Protection Jeopardy Amendment to the United
The double
clauses of the Fifth
jeopardy
15,
I,
of the California Constitution
States Constitution and article
section
for the “same
not be twice
“in
may
jeopardy”
that a person
placed
provide
a second
“The double
bar
against
prosecution
offense.”
jeopardy
protects
conviction,
or
and also protects
the same offense
an
following
acquittal
7
Seel, supra,
Bright
page
against for the same multiple punishment offense. (Bright; supra, [Citations.]” 12 Cal.4th 660.) arise, at Although some differences in both application federal and California law treat and lesser included generally greater offenses as the 660-661; “same offense” for of double purposes jeopardy. 161, 187, see Brown v. (1977) Ohio 432 U.S. 165-169 L.Ed.2d 97 S.Ct. [53 2221].) It is this treatment that upon defendant’s both argument relies and founders. ultimately
“The constitutional
double
protection against
jeopardy unequivocally
(Arizona
second trial
prohibits
following
(1978)
v.
acquittal.”
Washington
497,
717,
434 U.S.
L.Ed.2d
824].)
503
S.Ct.
same is true when a
[54
conviction is reversed or set aside
(Hudson
because of insufficient evidence.
v.
(1981)
30,
970];
Louisiana
450 U.S.
L.Ed.2d
101 S.Ct.
Burks v. United
[67
1,
(1978)
States
2141].)
The in this case convicted attached to allegation deadlocked on the One Strike kidnapping but in what whether and facts raise about These questions offense.9 procedural is crime retried. If a substantive could be sentencing allegation manner this facts additional alleges a against defendant charged prosecution of substantive crime allegation that collective on does bearing sentencing, a of the a offense” than charge factors “greater constitute sentencing plus a crime a count alleging plus alone? We conclude standing substantive crime for double jeopardy purposes. factors is not a offense” sentencing “greater Thus, crime but the jury is of the substantive if defendant convicted federal nor state neither allegations, deadlocks attached factual sentencing on allegations. bar a retrial of those double jeopardy principles Applies Penalty Allegations Double Clause A. Jeopardy Bright, In the defendant was with charged attempted Cal.4th willful, It he murder. was further the murder was alleged attempted deliberate, have A true on would allegation this premeditated. finding five, seven, life years elevated his sentence from or nine imprisonment (§ (a).) convicted possibility with subd. parole. on murder but not reach a finding could attempted premedi- state (Bright, allegation. tation We considered whether federal or held that the double retrial. We answer principles prevented depends jeopardy A on a of an offense degree on nature of conviction lesser allegation. the greater degree. considered to be an generally implied does not allegation failure to return a verdict on jury’s does not implicate constitute an and thus retrial of acquittal, (Id. we 661-662.) After much analysis, double principles. pp. jeopardy did (a) not create concluded the under section subdivision i.e., murder, rather but constituted premeditated attempted 662-669.) double (Bright, Accordingly, a penalty provision. did not bar retrial of the allegation. principles Court after the States We revisited this United holding Supreme questioned between penalty the constitutional distinction significance provisions 466, the court Apprendi, In 530 U.S. high and elements of offenses. conviction, that, “any relating the sole of facts to a prior ruled with exception 9 noted, charges that defendant committed the substantive As also deadlocked however, (§ (b)); not claim retrial of these defendant does kidnapping crime of subd. *13 concerning of to issues retrial charges improper. Accordingly, was we restrict our discussion sentencing allegation. the the fact that increases the for a crime beyond prescribed statutory penalty must be a reasonable beyond maximum submitted to a jury, proved (Id. 490, added.) at The court doubt.” italics that “the relevant p. explained form, but is one not of of effect—does the the inquiry required finding expose to a than that authorized the greater by jury’s guilty punishment so, verdict?” at If of a state the fact whether labels regardless factor or an element the Sixth Amendment requires that it be to a proven reasonable doubt. beyond (Apprendi, 494-495; 101, see also pp. Pennsylvania U.S. Sattazahn 588, Scalia, Thus, (lead J.) (Sattazahn)) 123 S.Ct. opn. 732] reasoned, the court “when the term ‘sentence is used high enhancement’ sentence, describe an increase the maximum authorized it beyond statutory the functional of an element of a the equivalent offense than one 494, covered the verdict.” by jury’s guilty (Apprendi, U.S. 19; 316, fn. see also Sengpadychith Cal.4th 326 [109 851, 27 P.3d the treated crime (Sengpadychith) [“Apprendi 739] with its sentence enhancement as the together ‘functional of a equivalent’ single crime.”].) ‘greater’
Citing “functional from equivalence]” language Apprendi, defendant here that a factual in argues allegation charged connection with an underlying felony effectively transforms into a underlying greater offense. He felony then maintains that a conviction of the offense alone bars on state and federal double of an attached jeopardy grounds allega- penalty tion on which has deadlocked. We not have discussed previously effect on Apprendi’s mistried nor has sentencing allegations, the United States Court the issue Supreme spoken directly. Seel,
In supra, we considered whether under- Apprendi mined our in that holding Bright (a) section subdivision ais to which double provision do involved jeopardy protections Seel apply. not a but jury, a reversal on Seel hung was convicted of appeal. attempted (§ (a)) murder subd. with true findings on that he acted allegations with (§ (a)) subd. premeditation intentionally discharged firearm 12022.53, (§ (c)) (Seel, subd. during offense.
Court of Appeal reversed as premeditation finding unsupported substantial evidence. It then remanded for a retrial based on allegation (Seel, our 540.) We held holding Bright. retrial of the allegation would double violate Because proof premeditation jeopardy. a defendant to exposes than a significantly greater punishment verdict jury’s murder without we concluded attempted premeditation, Apprendi required to be treated as the functional of an element of a equivalent greater offense and not as a simply without constitutional penalty provision (Seel, at significance. 548-550.) We rejected General’s Attorney argument Apprendi’s extends to Sixth Amendment reasoning only
107 the court has indicated noting principles trial “the high protections, hand, . the one and the . . to right clause on the double jeopardy (Seel, 547; other, at p. are distinct. wholly trial on the [Citations.]” Sattazahn, supra, see, 111.) at 537 U.S. p. e.g., Bright, however, Seel did not because double overrule completely in an important of the differed the cases jeopardy procedural posture purposes Seel, 664, (a) was reversed because the section subdivision finding In way. hand, In Bright, law. on the other the insufficient as a matter of evidence was (Seel, allegation. to on the premeditation the was unable reach a verdict Bright, supra, 550; 658.) supra, 12 at We described at Cal.4th p. p. “ does not constitute a mistrial “[s]ignificant[],” noting this difference as ‘[a] not arise double does from of and accordingly jeopardy termination jeopardy, 662.)” (Seel, ([Bright,] a the of mistrial. necessity legal [Citation.]’ Court, see also Stone Superior 550; v. 31 Cal.3d at As Court made clear in United States v. DiFrancesco U.S. Supreme 117, 328, 426], clause jeopardy 101 S.Ct. the double after a been reversed for insuffi- evidentiary retrial conviction has prohibits but allows it after a mistrial occasioned “manifest ciency by necessity.” Apprendi required be resolved Because to allegation premeditation finding evidentiary insufficiency and because court’s of jury, appellate (Burks was of a barring a classic termination example jeopardy States, United Seel 1), we concluded in that federal double U.S. (Seel, 548-550.) barred retrial of the We allegation. principles when, no on the these as expressed opinion application principles Bright, has due to the trial court declared a mistrial the penalty deadlock. juror crime of lewd and
Defendant in this case was with substantive charged (§ (a).) 14. subd. It also lascivious conduct on child under was age Apprendi, he under alleged, kidnapped as fact to be question proven 667.61, (§ order the substantive offense. victim in commit discussed, subd. As the One Strike law forth an alternative and (e)(1).)10 sets crimes, act including scheme for certain sex lewd sentencing harsher Mancebo (People 667.61, (§ (c)(8)). here subd. alleged 41 P.3d The One Strike law Cal.4th 10 alleged allegation, prosecution kidnapping In addition to the One Strike also 667.8, (b) (§ 15-year for additional [providing the lewd act subd. enhancement offense. that, term].) sentencing invokes and harsher proven, Unlike a if an alternate scheme, imprisonment to the base merely enhancement adds an additional term of Bright, supra, Court, (Cal. 4.405(3); rule see Cal.4th imposed term for an offense. Rules of dismissed sometime kidnapping it enhancement was appears fn. during not render a verdict on the truth section second trial. The did defendant’s 667.8, (b) or sentence for this allegation, judgment includes no conviction subdivision and the provision. if the defendant has been convicted of one seven applies previously *15 the enumerated offenses or if current offense was committed one or under 667.61, (Ibid.) more circumstances. the specified (e)(1), Section subdivision trial, at issue in allegation defendant’s first for an indeterminate provides sentence to life years if the finds that the defendant imprisonment jury 667.61, the victim while an committing (See enumerated offense. kidnapped § 667.61, (b).) subd. Without a (e)(1) true on the section finding subdivision a defendant can be a allegation, only sentenced to lower term. determinate Thus, (§ (a).) subd. the like at premeditation allegation issue in Bright Seel, and a One Strike a defendant to greater exposes punishment Seel, than would be authorized a verdict by (See on the offense alone. 548.) at Cal.4th p.
Accordingly, unless a defendant waives its the Sixth Amendment protection, that a One Strike be tried to a and a requires proven beyond 490.) reasonable doubt. (Apprendi, supra, U.S. Our does not at.p. inquiry here, however, end the because factual in did sentencing allegation this case ibid.), not result in an its legal (see or but in a equivalent mistrial. The next is whether the double question clause jeopardy permits such a factual trial allegation when the first did not result in an or express implied acquittal.
B. No Bar to Constitutional Retrial Allegation Mistrial After
In the double of the general, clause Fifth Amendment jeopardy the government from a defendant for a prohibits prosecuting greater offense Ohio, (Brown after it has convicted a lesser him of included offense. at 168-169.) 432 U.S. the States has United Court Supreme several to recognized this rule. In v. United exceptions States Jeffers 2207], 432 U.S. the 97 S.Ct. court held the Brown rule does not when the defendant expressly asks for apply separate and greater trials lesser offenses. The court likened this high situation retrial, others in which double does not bar a for jeopardy protection after a defendant’s successful for reasons other than insuffi example, appeal evidence, of the or after mistrial has been at the defendant’s ciency granted States, (Jeffers 152.) v. United the trial after “Both the request. appeal are, sense, and the trial after the in a second mistrial prosecution offense, but, situations, in same both behind Double policy Jeopardy (Ibid.) does not of the trial.” Clause second require prohibition The same is true when the court enters a on a based mistrial “[Wjithout of a on the “manifest deadlock. necessity” juror exception, have held judge discharge courts that the trial deadlocked may genuinely the defendant to submit to a trial. This rule require second accords one complete interest giving prosecution recognition society’s (Arizona v. its laws.’’ who have violated to convict those opportunity court has The high explained 434 U.S. Washington, supra, its if only Clause terms by applies Double Jeopardy “the protection event, the original which terminates been such as there has some acquittal, which is an event and “the to reach verdict not failure jeopardy,” States, U.S. v. United (Richardson terminates jeopardy.” defendant, Government, like is to resolution added.) “The entitled italics does terminate when jury, of the case verdict from it is discharged agree.” because unable to *16 and, the same a deadlocks a at greater When on expressly time, offense, on we have the federal convicts a lesser included interpreted mean does not operate authorities to that “the conviction on the lesser offense 302.) (Fields, Cal.4th at greater.” supra, p. as an implied acquittal (Id. under at The same the California Constitution. principle applies the double embodied in the California p. jeopardy principles [“under Constitution, deadlock on an on that when a jurors greater be included will not verdict of on a lesser charge by jury’s guilty implied Thus, offense”].) act offense defendant’s conviction of the lewd of the cannot be construed as an One Strike implied acquittal declared it unable to reach a verdict on because was expressly allegation. U.S.
Ohio v. Johnson S.Ct. 494-496 [81 offenses, 2536], involved and lesser greater included not factual There, the United States Court that allegations. rejected argument Supreme the double on of- greater clause continued jeopardy precludes prosecution on fenses a defendant been convicted and sentenced because has simply for and aggravated lesser included offenses. Johnson was indicted murder their and involuntary manslaughter and lesser included offenses of robbery Johnson, at Johnson offered (Ohio 495.) arraignment, theft. v. At his grand (Id. 496.) offenses at The trial court to to the lesser guilty only. plead dismissed the Johnson’s over the state’s and objection accepted guilty pleas double that were barred ground they by more serious offenses on 494-496.) Ohio’s (Id. ruling by at this was Although upheld jeopardy. pp. courts, Court holding the United States disagreed, appellate Supreme from to continuing prosecute double clause did not the state jeopardy prohibit Johnson, (Ohio at charges. on the murder and v. aggravated robbery Johnson 496, 502.) pp. did not implicate
The court continued high prosecution explained Ohio, v. (see the same offense Brown on prohibition multiple punishments 165) because is meant only prevent 432 U.S. this protection not to government from cumulative halt all imposing punishment, pro- (Ohio v. a ceedings that lead to cumulative might ultimately punishment. Johnson, addition, 499-500.) U.S. at In the court pp. strongly with Johnson’s claim that continued disagreed prosecution greater offenses would violate the double bar second a jeopardy against prosecution (Id. stated, 500-502.) a conviction. following court pp. “Respondent’s argument based on the that trial like apparently assumption proceedings, amoebae, subdivided, are that a determination capable being infinitely so guilt on one immediately count of multicount indictment punishment raises double bar to on jeopardy remaining continued prosecution any counts are or lesser included offenses of the con- charge just that, cluded. We have never held and decline to hold it now.” Because Johnson had been tried or yet conviction on the exposed murder and and the aggravated robbery trial court’s charges, acceptance lesser none guilty had of the hallmarks of an pleas charges implied no interest the double acquittal, protected by clause was implicated Johnson, (Ohio 501-502.) continuing “On the other prosecution. hand, ending now would the State its to one full prosecution deny right (Ohio fair to convict have its opportunity those who violated laws.” Johnson, at p.
Defendant here did not to the try manipulate system by entering preemp- was Johnson he tive unlike guilty and the defendant in pleas, to face required trial twice on the Strike One a more recent allegation. Supreme Court decision the lesson suggests is that double does not overriding jeopardy bar facts when is not an there implied acquittal. Sattazahn, 101, 103-104, supra, In 537 U.S. the convicted the defendant of first degree murder but could not reach at the a verdict penalty of trial. The trial the and phase judge hung as sentenced the discharged defendant to life as imprisonment, Pennsylvania was law in the required by (Id. of a 104-105.) absence unanimous verdict for death. at The murder pp. however, conviction on was reversed and the case appeal, when was re- trial manded for a new the an alleged additional prosecution aggravating trial, circumstance and again sought death At the second penalty. convicted the defendant of first murder death sentence. degree imposed (Id. at 105.)
The United States Court concluded the double Supreme clause did not state from death at the prevent second trial. seeking penalty (Sattazahn, U.S. at double Although jeopardy principles do to that “have the hallmarks apply capital sentencing proceedings v. Missouri (Bullington trial on guilt or innocence” 451 U.S. “it is Sattazahn in court stressed 1852]), the 101 S.Ct. L.Ed.2d bar” that raises double-jeopardy life sentence of a the mere imposition not (Sattazahn, at p. Rather, is whether procedures matters 107). what acquitted it signify verdict of life imprisonment the jury’s governing (Id. 106-107; death. pp. necessary impose of whatever was Missouri, Rumsey 467 U.S. 445; Bullington Arizona also see amounted findings jury’s S.Ct. 2305] [because merits,” the death seeking a retrial barred they to “an for double-jeopardy purposes “the relevant Accordingly, inquiry penalty].) around, time the first received a life sentence whether the defendant [i]s on findings based sentence was an ‘acquittal’ a first life but rather whether (Sattazahn, ....” to the life sentence entitlement legal sufficient to establish been an there has ‘acquit court noted that “whether 108.) The Sattazahn ” in capital-sentencing “the touchstone for double-jeopardy protection tal’ (Id. at p. proceedings.” retrial of do not bar teaches that double jeopardy principles
Sattazahn the first trial did not produce if sentencing allegation an aggravated (Sattazahn, 537 U.S. on the allegation. or implied acquittal express life, a jury not because 106-110.) Sattazahn was sentenced originally statute called for this but because a state him at the penalty phase, acquitted 104-105.) of death. at pp. if the on the jury hung sentence question of Fifth Amendment principles reasoning guides application Sattazahn’s beyond be tried to a proven to other that must allegations doubt. reasonable went on court high because a plurality
Sattazahn is also instructive of the court’s ruling in light to consider the double jeopardy question Apprendi, supra, to the Sixth Amendment’s regard U.S. 466. With that when an aggravating had held the court guarantee, previously jury-trial “ ‘the *18 death it is defendant for the eligible penalty circumstance makes the ” (Ring Arizona offense.’ of an element of a greater functional equivalent 2428].) A plurality 122 S.Ct. 536 U.S. 609 [153 in this reason to distinguish, found “no principled Sattazahn the justices of the Sixth context, an offense for purposes what constitutes between for an ‘offence’ what constitutes and guarantee Amendment’s jury-trial Clause. the Fifth Amendment’s Double Jeopardy [Citation.]” purposes Ring, Apprendi the court (Sattazahn, supra, 111.) 537 U.S. at Applying included to be a lesser understood murder is “properly first degree explained circumstance(s).’ murder ‘first-degree aggravating [Citation.]” offense of plus (Sattazahn, would have double court reasoned that 112.) jeopardy The offense, i.e., the from seeking the retrying greater the state from prohibited but only unanimously had sentencing jury the first death penalty, if if circumstance, aggravating any the state had failed prove concluded offense. of the greater as an acquittal have operated conclusion that would “But,” observed, Instead, the court “that is not (Ibid.) what happened.” the because deadlocked at the and did jury not penalty phase “acquit” offense, this concluded no greater court “there was high bar to on double-jeopardy Pennsylvania’s both the lesser retrying [him] offense; the greater his never terminated with ‘jeopardy’ to either. respect at p. [Citations.]”
We have rejected defendant’s that attachment of factual argument sentencing allegations to substantive offense creates a new of- “greater fense.” But even if we were this accept defendant’s proposition, argument would fail under Defendant’s first could not agree on truth jury Sattazahn. Sattazahn, Just as in the mistrial on kidnapping allegations. entered these did not sentencing allegations they constitute an and thus acquittal, be could retried without offending double clause. jeopardy
The here those in procedural circumstances parallel Sattazahn. convicted defendant of substantive offense but on expressly deadlocked would have increased his that offense. Even if penalty us to consider the One as the Apprendi requires Strike equivalent of a conferring trial double clause right, jeopardy not does because a was entered prohibit simply judgment on the lewd act offense alone. the jury Because announced it could not reach a verdict on One Strike its verdict on be allegation, offense cannot construed as an either under the federal double or clause jeopardy Fields, 302-303, (See the California Constitution. Cal.4th at supra, 305.) Moreover, law, under federal constitutional the mistrial due to jury terminated (See deadlock was not an on the event allegation. jeopardy Sattazahn, 113; States, v. United U.S. Richardson U.S. at constitutional double Accordingly, jeopardy principles (See (5th did bar retrial of the Strike U.S. v. Cir. allegation. One Williams 2006) F.3d 645-646 returned conviction on base offense [when factors, but deadlocked on double clause did not bar retrial penalty jeopardy (8th 1997) U.S. v. Cir. Bordeaux 121 F.3d allegations]; included not bar retrial lesser offense did of greater [verdict on which deadlocked].) had Statutory III. Double Protection'. Section Jeopardy the Fifth the double clause of Amendment Although per *19 here, retrial that mits of the One Strike at we have observed issue and, “federal law sets the minimum standards of double jeopardy protection,” law, instances, “[ujnder California in some an accused be entitled may under double than that afforded the federal greater jeopardy protection (Fields, 302.) at Accordingly, Constitution. 13 Cal.4th supra, p. [Citations.]” the One Strike second trial on defendant’s we consider whether statutory double against jeopardy. provision violated California’s or acquitted is convicted “When the Section 1023 states: accusatory an pleading, in jeopardy upon or has been once placed for the conviction, another is a bar to prosecution or jeopardy acquittal, to commit or for an attempt accusatory in such charged pleading, offense therein, of which he same, might included necessarily or for offense “The statute imple that accusatory been convicted under pleading.” have double against constitutional prohibition of the state ments protections and, offenses. the doctrine of included more [Citations.] jeopardy, specifically, included offense is a conviction of a lesser this Underlying principle —that that, the notion for the offense —is greater bar to a subsequent prosecution ‘ obtained, “to convict offense has been once a conviction on lesser [later] ’ (Fields, be to convict twice of the lesser.” of the would greater [Citations.]” supra, 305-306.) at 13 Cal.4th pp. Fields, he caused offenses after
In the defendant was with several charged (Fields, at a fatal collision while intoxicated. driving vehicular 296.) The on the offense of greater gross deadlocked p. 191.5, (§ (a)) but convicted on the while intoxicated subd. manslaughter while of vehicular manslaughter lesser included offense charged separately (c)(3)). (Fields, at 296-297.) Because of the (§ intoxicated subd. pp. deadlock, on the lesser included we concluded its conviction jury’s express Thus, retrial offense. his greater offense was not an implied (Id. constitutionally on the offense was not greater prohibited. law to conclude 298-305.) We nevertheless case existing applied barred statute. was by Fields, mean 1023 to before we section years interpreted
Nearly
a later
a lesser included offense bars
prosecution
that a conviction for
v. Greer
(People
P.2d
Cal.2d
offense.
greater
that,
Greer’s
. . . was the concern
of section 1023
“Underlying
interpretation
rule,
device
be vitiated
simple
not the
‘section 1023 could
if such were
of the lesser offense and proceeding up
with a
beginning
prosecution
Greer,
597.)” (Fields, supra,
(People
30 Cal.2d at
scale.’
Fields,
holding
307.)
We adhered to this interpretation
Cal.4th
after a defendant’s
the retrial of
section 1023 prohibits
there has been no express
offense even when
of a lesser included
conviction
(Fields, We observed
offense.
of the greater
or implied acquittal
practical
in “numerous
formidable
rule would result
contrary
difficulties,”
be advised
the second
should
such as whether
inconsistent
and how to resolve potentially
conviction
defendant’s previous
(Id. & fn.
on the lesser included offense.
verdicts
*20
Our decision in Fields was
in an
grounded
established rule of trial
procedure known as the
(Fields,
rule.”
“acquittal-first
Cal.4th at
Court,
309.) In
p.
Stone v. Superior
Cal.3d at
we held a
page
defendant’s constitutional rights
that the
be
require
jury
to render a
permitted
partial verdict of
on a
greater
they
offense when
are deadlocked only
as to a lesser included
To aid trial courts in
this constitu-
fillfilling
offense.
tional
we
obligation,
the
suggested
court provide
verdict forms for
separate
stressed,
each offense
cautioned,
course,
but
must be
“[t]he
that it
should first decide whether the defendant is
of the
guilty
offense
greater
before
the lesser
considering
(Ibid.)
offense . . . .”
We clarified this rule in
People
of its first, to return obligation a verdict on the before rendering verdict on the lesser included offense. We that a explained jury’s verdict on a lesser included offense only is “incomplete” constitutes an “ ” verdict” “irregular that is ‘mistaken in the (Fields, law.’ supra, 13 Cal.4th 310-311.) If the jury renders a verdict only on the guilty lesser offense, we stated that the trial court should decline to receive the verdict and should direct the to reconsider its lone verdict in of the light acquittal- first rule of (Fields, so, People 310.) If the court fails to do Kurtzman. and instead records the verdict and we partial discharges held section jury, “ ” requires this ‘mistake in the law’ consequences to be borne by defendant, such that People, the conviction of the lesser offense will bar the from retrying greater, notwithstanding jury’s deadlock (Fields, on that charge. When the is instructed on rule and on the acquittal-first hangs more serious the prosecution to a choice: It either put may move for a mistrial and set the entire matter (§§ or, 1141), if it wishes to a verdict on the lesser accept a chance charge forgo to convict on the greater, ask prosecution may the court to dismiss the greater (§ 1385). in the interest charge justice (Fields, Fields, As we recognized the whole point *21 intent the whereby jury’s to a procedure rule is provide Stone/Kurtzman are clear, and the of both the defendant and interests legitimate honored. and extend its Fields from this intricate context
Defendant seeks divorce the from allegations. Starting premise to the retrial of penalty holding to be Apprendi, supra, requires penalty 530 U.S. page his argues defendant the functional of a greater treated as equivalent the as a offense alone is same essentially conviction for the lewd act he stood convicted of included offense. Because conviction for a lesser trial, retrial of argues at the close of the first lewd act offense i.e., deadlocked, the One Strike the first offense” on which jury “greater in Fields. Under and our holding was barred section 1023 allegation, the accused of an offense but defendant’s time a convicts any reasoning, entire case would a related either the allegation, deadlocks on sentencing effect as have to be retried or the deadlock would have to be same given nor Fields Apprendi retrial of the Neither barring allegation. acquittal, this result. requires discussed, ante,
As set pages penalty provisions forth in our Penal Code differ in from both ways greater state’s significant and included and and lesser of the same degrees lesser offenses greater an added to be offense. penalty provision prescribes penalty imposed “[A] circumstances.” (Bright, supra, under when offense is committed specified law, enhancement or sentencing Under California not a in It is from the allegation is itself. penalty complete “separate offense and does not set forth elements of the offense or a underlying greater (Ibid) of the offense degree charged. Conceptually, penalty [Citations.]” and, is an that attaches to an offense if provision appendage proven, crime. (People Wolcott additional for the prescribes punishment Cal.3d P.2d Cal.Rptr.
Another difference between a offense and a penalty important decide the for our is that does not truth provision, purposes, “[t]he until it first has reached a verdict on the substantive offense penalty Here, defendant’s (Bright, supra, 12 Cal.4th at charged. [Citation.]” to extend Fields to penalty allegations encounters a significant attempt to decide first whether a obstacle. It is only logical practical before whether the considering defendant committed the substantive offense not facts are true. If the substantive offense is proven, appended there is no crime and thus no sentence to be Our aggravated. interpretation rule of Stone Fields was on the grounded section 1023 acquittal-first Fields, 308-311), but no such rule (see 13 Cal.4th at Kurtzman held the order on We have never sentencing allegations. of verdicts governs alone, that a conviction jury’s of an offense without an accompanying factors, alleged constitutes an verdict or a irregular Indeed, mistake of law. the whole point alleging enhancing factors separately, requiring determination under Apprendi, separate jury is that increase function to they for the punishment crime. If the determines are enhancing allegations proven, determina- separate stands, tion but it does not undermine the conviction on the jury’s substantive offense. *22 reasons,
For these we have previously rejected that a argument conviction on an offense is in itself underlying enough to bar retrial of attached sentencing allegations. As noted in Bright, supra, 12 Cal.4th at pages 661-662, “a defendant’s conviction of the substantive underlying (on does not double jeopardy grounds) bar further such as proceedings, retrial, Thus, on a penalty allegation. the circumstance that the jury [Citation.] has returned a verdict on the but is unable to make a on the finding not penalty allegation, (or does constitute an ‘acquittal’ of) otherwise bar retrial on the penalty allegation ground of double now Apprendi jeopardy. is whether question us requires [Citations.]” overrule this holding by treating as substantive elements penalty allegations 1023, of an offense for state statute of section purposes governing of included offenses. We conclude it does not.
Apprendi
held
that
that
every finding
the defendant
exposes
punishment,
crime,
or increases the
for a
punishment
must be submitted to a
possible
490;
reasonable doubt. (Apprendi,
proved beyond
supra,
530 U.S. at
p.
-
U.S.__,
v. Ice
517,
Oregon
see
555
129 S.Ct.
[172
711,
Apprendi
[listing
facts to which
has been
sentencing
applied].)
716-717]
The high court’s
stemmed from the Fifth
holding
Amendment
to due
right
and the Sixth Amendment
to a
(People
Izaguirre
process
right
trial.
126,
148,
(2007) 42 Cal.4th
131
P.3d
(Izaguirre)-,
164
Cal.Rptr.3d
[64
578]
Apprendi,
see
Apprendi
thus
requires
any sentencing provision
increases the
for a crime
maximum be
penalty
beyond
statutory
treated
as
“functional
of an element
aof
offense for
equivalent”
of a defendant’s federal
purposes
constitutional
under the Fifth and
rights
19;
Sixth Amendments.
(Apprendi,
Sengpadychith,
494 & fn.
26
Cal.4th at
This
the California
scheme.
holding parallels
Both substantive offenses and
that certain
sentencing allegations
facts
require
be established before the
can conclude the
allegations have been proven.
addition,
In
Apprendi
although
itself was “not
grounded
principles
federal double
(Izaguirre,
131),
we have extended
jeopardy
protection”
its
to bar retrial of a
after
reasoning
of an
penalty allegation
equivalent
(Seel,
under the federal double
clause.
rule convictions based on necessarily prohibits multiple 1031, 1227; (Id. v. 1034 Montoya (2004) at 33 Cal.4th People p. [16 902, to in Izaguirre sought 1098].) graft P.3d The defendant 94 Cal.Rptr.3d rules, his convictions for two firearm Apprendi onto these state law arguing necessarily enhancements should have been stricken because were they included of first murder with a degree in his conviction for greater 42 Cal.4th at (Izaguirre, supra, circumstance. driveby shooting special 129-130, 132.) He from directive argued Apprendi’s this result followed pp. that a crime and attached sentence enhancement be treated as its Seel, 130; (Izaguirre, functional of a crime. at see single greater p. equivalent 539, 2.) 34 Cal.4th at fn. p. We and found to disagreed Apprendi’s holding question inapposite included whether be in defining necessarily enhancements must considered 42 conviction rule. (Izaguirre, supra, of the offenses purposes multiple enhancements in 133.) Cal.4th at “To the extent the firearm-related p. on the stood to increase punishment, Apprendi’s holding, grounded question due Amendment to right Fifth Amendment Sixth right process trial, true beyond that be tried to a and found they requires only doubt, 133.) at We also observed (Izaguirre, reasonable which were.” they p. Seel, in 34 Cal.4th that the federal double concerns addressed 535, were at because the defendant’s claim concerned multiple not issue trial, (Izaguirre, convictions in a not successive unitary prosecutions. imposed 11 Apprendi apply Sengpadychith, requirements As we made clear in constitutional punishment a defendant’s only potential when a or enhancement has the to increase 320, 327.) When such (Sengpadychith, supra, beyond statutory pp. 26 Cal.4th at maximum. possible, Apprendi apply. an does not increase not 133-134.) at we Finally, defendant’s that “conduct rejected argument are the enhancements functional or equivalent offenses convic- completed rule,” tions for conviction it had no purposes multiple noting support (Id. 134.) case law. “Conduct enhancements cannot be imposed standing definition, alone as additional an enhancement is ‘an addi- punishment. By Court, tional term of (Cal. added to the base term.’ imprisonment Rules of rule 86, 4.405(3); (1999) see People Cal.Rptr.2d [86 Jefferson 893, alone, P.2d For that reason an enhancement cannot be (See with an offense. equated v. Chiu Cal.App.4th Thus, 193].)” that (Izaguirre, reasoning attach,” are “enhancements elements legal they which offenses we concluded should not be considered in they defining included necessarily offenses under the added.) conviction rule. multiple italics Defendant here also seeks to ato state statute expand Apprendi to an area relating under the of state law. entirely aegis United it, States Court has made it clear that and cases Supreme Apprendi, following did not alter state substantive law. In Schriro v. Summerlin 542 U.S. 2519], 124 S.Ct. the court rejected argument Arizona, Ring supra, 536 U.S. created a substantive in the law change because converted Apprendi aggravating factors into functional equivalent of elements of offenses. The court greater high explained Apprendi offenses; rather, did not create Ring new substantive elements of they simply held that when like elements of offenses findings increas by function ing must be made under the punishment, they reasonable doubt Summerlin, (See standard. Schriro v. More the court has recently, observed that the of states in sovereign their own authority maintaining *24 criminal counsels justice systems against its extending Apprendi beyond -_ Ice, context. (Oregon v. 555 U.S. at S.Ct. at specific supra, pp._ [129 noted, 718-719].) As Justice members of the court “have pp. Ginsburg high ‘wooden, warned insistence on against unyielding Apprendi expanding _ doctrine far its beyond necessary boundaries.’ at p. [Citation.]” 719].) S.Ct. at p. [129
Our in Izaguirre illustrates that enhancements or other holding sentencing need be treated not as actual elements of offenses for all penalty provisions conceivable state law but where the defendant’s claim only purposes, impli- cates a constitutional under the Fifth or Sixth Amendment. In right federal California, to, “sentence enhancements are not nor do they ‘equivalent’ as, ‘function’ substantive offenses.” Wims 10 Cal.4th v. (People 77], P.2d on overruled another ground 326.) or Sengpadychith, 26 Cal.4th does not supra, Apprendi require enable us to rewrite the Penal Code to convert such as penalty provisions one at issue here into elements of offenses. is the function of the “[I]t (In re . . . branch to define crimes and punishments legislative prescribe 503 P.2d Lynch (1972) 8 Cal.3d Cal.Rptr. law, which defendant’s first
Under California the One Strike allegation the underlying deadlocked was not a incorporated act crime as a included offense. It was simply penalty lewd lesser Bright While Fields does not holds that a apply, Bright does. allegation. not retrial of a conviction on an substantive offense does bar underlying (Bright, supra, on which the first deadlocked. penalty allegation Cal.4th at had to be tried Apprendi, allegation Under the One Strike Seel and under would have barred on the jury, allegation us retrial. these federal constitutional do requirements persuade under California even more double impose sweeping protections law. Retrial of the One Strike did not violate section statutory allegation 1023. Retrial Scope of
IV. Having concluded the retrial of a we turn to allegation permitted, a retrial. it error to proper such Defendant was structural scope argues because, the One Strike “in isolation” even if retry allegation kidnapping retrial did not violate double the law all elements of a jeopardy, requires crime to be tried the One Strike as an element together. Construing of a greater defendant contends retrial had to both the encompass and the lewd act offense to which it was kidnapping allegation attached. of defendant’s the fact fails. As we have premise argument explained, must be treated like an element for certain federal penalty allegation into an actual element
constitutional does not convert the purposes aof substantive offense. A enhancement or other penalty provision Wims, is not an element of an offense under California law. (People Wolcott, 304, 307; see 34 Cal.3d A criminal defendant has both the United States and under right element of an offense tried to a California Constitutions to have every *25 (United States v. Gaudin (1995) and a reasonable doubt. jury proved beyond 506, 444, v. Flood 2310]; People (1998) 515 U.S. 511 115 S.Ct. [132 470, 180, 869].) 18 Cal.4th P.2d we 479-480 957 Cal.Rptr.2d [76 a have not this to mean that the same that finds right jury interpreted decide the truth of an attached defendant of an offense must guilty always a On the decisions have held that trial allegation. contrary, penalty “prior on a court receive a verdict from a that is unable to may jury agree guilty alone, and declare a mistrial on the penalty provision, penalty provision 120 another to the consider issue of
empanel
jury
(People v.
penalty. [Citations.]”
193,
(2004)
551,
Posey
755].)
32 Cal.4th
216
82 P.3d
An
Cal.Rptr.3d
[8
190.4,
of
(a),
this
is codified in section
subdivision
which
example
procedure
that, if the
is unable to reach a verdict on
provides
jury
circumstance
special
attached
a
allegations
to first
murder
“the court
degree
charge,
shall dismiss
issues,
the
and shall order a new
jury
jury
to
but the issue
impaneled
try
Thus,
shall
be
guilt
tried
such
. . . .”
in the death
by
jury
penalty
context, which
arguably
most severe increase in
represents
punishment
mandates the retrial of
possible,
Legislature
factors
from
apart
190.4,
(§
their
(a);
(1990)
offense.
subd.
v.
underlying
People
Thompson
134,
309,
Cal.3d
785 P.2d
Cal.Rptr.
[266
Several cases have
of the retrial of
a
after
approved
sentencing allegations
defendant has been convicted of the offense which
were attached. In
they
638,
(1993)
1093],
v. Saunders
italics see id. at More in Posey, recently, People Cal.4th at we held that retrial limited to issue of venue is page after a has found the defendant but deadlocked permissible guilty venue, because venue is not an element of an offense.
Courts of have reached the same with conclusion Appeal respect enhancements. In Cal.App.4th Schulz 12 considering jeopardy consequences granted prosecutorial In the double of a mistrial due to misconduct, we have in the trial midst that “a criminal defendant who an observed has interest, clause, having stemming by from the double his or her case resolved initially potentially obtaining that was sworn to hear the case —and in from (People v. Batts jury. P.3d [Citation.]” different, course, 357], added.) quite The situation here is because the defendant’s italics over, in Batts concerned a different acquittal. trial is and it did not result in an Our statement brought against right allegations for all issue did not establish an absolute offenses single jury. to be decided *26 269], after a convicted the defendant of Cal.Rptr.2d murder attempted but deadlocked on an attached enhancement for inflicting great bodily injury, the defendant argued the enhancement could not be retried in isolation from the underlying murder offense. the attempted Raising same made argument here, asserted, the defendant in “when the on enhance- hung Schulz ment, the should prosecution have been the choice of either given accepting enhancement, murder verdict and attempted dismissal of the or requesting a mistrial to the requesting as murder count as well attempted retrying (Id. both the murder and its enhancement.” at attempted charge 568.) The Court of this Appeal rejected assertion. that section Noting 1160 expressly verdict, retrial of offenses permits charged on which the cannot reach a that, the court observed although no similar statute specifically permits enhancements, retrial of “no or legal barrier” practical retrial of prevents when, deadlock, an enhancement as in the case of a jury is not a bar. Schulz, v. (People 569.) the court in Similarly, (1994) v. Guillen People 756, 25 Cal.App.4th 653], relied on Cal.Rptr.2d to permit [31 Schulz retrial of a enhancement weight on which the had deadlocked following the defendant’s conviction of an drug offense. circumstances,
In other we have disapproved “piecemeal jury litigation,” in which issues are reserved for a second trial. (People Najera v. (1972) 504, 345, 8 Cal.3d 511-512 1353].) 503 P.2d Cal.Rptr. [105 There, facts were Najera different. quite a jury convicted the defendant of robbery (Id. and found he was armed with a revolver. A arose question toas whether he appeal could be for used punished having in the gun to section pursuant 12022.5. (People v. Najera, 506, 508-509.)13 pp. Because the prosecution failed to an instruction request under section 12022.5 and “took no whatever at trial to secure a steps verdict or judgment stating of section applicability 12022.5” v. (People Najera, 509), we determined the had judgment to be modified to that the specify enhancement could not be applied. at p.
Najera was a case in which the prosecution failed to allege potentially relevant enhancement and then tried to invoke the enhancement for the first time on the defendant’s from the appeal judgment. (People Najera, 509-511; Cal.3d at 1275, see also (2001) v. Salas People 89 Cal.App.4th 137].) Cal.Rptr.2d Although Najera’s [108 conviction was af- being firmed on appeal, us to remand the People urged case for a further jury 13 Legislature firearm, i.e., distinguished has armed with a being between having use, actually using weapon available for felony. (People a firearm in the commission of a Bland 391]; v. Chambers 898 P.2d 7 Cal.3d Cal.Rptr. generally 498 P.2d subject Firearm use is to more penalties. (Compare severe [extending 12022.5 years § sentence three to 10 for firearm firearm, [extending with year being use] § sentence one armed with a with additional punishment provided felonies].) for certain firearms and *27 122 v. imposed. (People could also be determine whether a use enhancement
trial to
Najera,
fundamental
fairness
this second
at
We concluded
prohibited
a second ‘trial’ on
should not have to undergo
“defendant
noting,
proceeding,
could have obviated such
since
People
the issue
penalty, especially
(Id.
511-512.)
the first trial.”
measures
timely
during
pp.
procedure
affirmed and there was no
basis
legal
Thus,
was
judgment
being
where
remand,
unfair to
the defendant
to
subject
we determined it would be
for
to seek an enhancement
to
an opportunity
second trial simply
give
People
510-512.)
Our statements
alleged.
pp.
had
they
previously
here, in which the
Najera
allegation
have no
on the situation
bearing
penalty
necessary
defendant’s
first
and retrial was
to
was properly presented
(See
on the issue.
not reach a unanimous verdict
because the
could
Schulz,
v.
People
consider-
[Najera’s
5
570
Cal.App.4th
policy
Sattazahn,
cf.
hung
aby
jury];
ations do not
when
required
apply
105,
of a second aggravat-
allegation
Besides this lack of defendant’s view that a precedential support, penalty cannot allegation be retried from its offense would create apart significant The practical problems. most fundamental of these concerns the effect of the conviction rendered at the first trial. If a convicted on a jury substantive offense but on an attached hung and if allegation, retrial penalty were ordered on both the offense and the should the second allegation, jury be told that the not, defendant has been convicted of the offense?15If what would become of the first conviction should the second reach a different result? Giving first conviction no effect in the second would proceeding fail to accord and to the proper respect finality initial unanimous verdict. These are problems when compounded multiple are penalty allegations involved. A single have several may or enhance- penalty allegations view, ments attached. Under defendant’s if the returned a unanimous verdict of on an guilty offense and true unanimous on findings every penalty one, except deadlock on this single would require retrial of the and underlying offense all other allegations which the jury had returned verdicts. Such a result would be both wasteful and inordinately unfair to the People.
V. Conclusion reasons,
For these we conclude that retrial of a allegation on which the has deadlocked does not violate federal or state double jeopardy be limited principles, may to the deadlocked allegation alone. criminal Apprendi gives defendants the to a right trial for all 15 Fields, Cf. 13 Cal.4th at page (noting juror footnote 5 the potential confusion and speculation they if are told the defendant was convicted in an earlier trial aof offense). lesser included does but Apprendi to increase that have the allegations potential punishment, in the double a mistrial the same effect as give us require context, to the nor it alter our state law with respect permis- does of retrial. sible scope
DISPOSITION remanded to Court of is affirmed. The case is The judgment Appeal accordance with the Court of trial court for further proceedings decision. Appeal’s J., Chin, J., J., Baxter, J., J., Kennard, Werdegar, C.
George, J., Moreno, concurred. in the
MORENO, J., majority possible concur Concurring. opinion. *29 —I however, concern. Rather is a cause some holding, effect of the majority’s a reasonable doubt of a defendant guilty beyond than to find being required offense, enhancement separately that tries penalty the underlying of that that a defendant has been found guilty be told will presumably In this be able to convict on the enhancement. otherwise it would not circumstance, of innocence for that the presumption there is potential terms, eroded, enhancement, therefore a be and that will practical in a more disadvan- the enhancement alone will be retried on being and the in the trial when than he was original tageous position instructions current standard jury were tried Whether together. enhancement situation, or a of innocence in this safeguard presumption are adequate needed, to be determined. remains new instruction 26, 2009, to read as above. was modified printed On August opinion