P. v. Massiet

Filed 7/26/07 P. v. Massiet CA4/1

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. Affirmed.

Defendant Cory Massiet appeals a judgment sentencing him to four years in state prison following convictions of driving under the influence of alcohol, having a measurable blood alcohol content of 0.08 percent or more, and a true finding he had been previously convicted of a serious or violent felony (strike). On appeal, Massiet contends the double jeopardy clause of the United States and California Constitutions barred retrial of his prior strike conviction allegation, which doubled his sentence.

FACTUAL AND PROCEDURAL BACKGROUND

Massiet was convicted on June 20, 2005, of driving under the influence of alcohol (count 1) and having a measurable blood alcohol content of 0.08 percent or more (count 2) in violation of California Vehicle Code section 23152, subdivisions (a) and (b), respectively. Massiet also admitted a prior conviction allegation for vehicular manslaughter under California Penal Code section 192, subdivision (c). The court found Massiet's vehicular manslaughter conviction constituted a serious felony under the Three Strikes Law (Pen. Code,  667, subds. (b)-(i)), and Massiet appealed.

In an unpublished decision, we reversed the trial court's finding of a prior strike conviction based on insufficient evidence that Massiet inflicted great bodily injury, which is required for a vehicular manslaughter conviction to constitute a strike conviction. On remand, the court found that Massiet had "personally cause[d] the death in the prior offense" and that Massiet's prior conviction for vehicular manslaughter was a serious felony conviction constituting a strike. The court sentenced Massiet to four years in prison: the midterm of two years for count 1, which the court doubled because of Massiet's prior strike conviction, and the midterm of two years for count 2, which the court stayed under Penal Code section 654.

DISCUSSION

Massiet contends the double jeopardy clause of the United States and California Constitutions barred retrial of his prior strike conviction allegation. Because the underlying facts are undisputed, and Massiet's assertions involve constitutional issues, we review his appeal de novo. (State of Ohio v. Barron (1997) 52 Cal.App.4th 62, 67.)

"The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee that a person may not be placed twice 'in jeopardy' for the 'same offense.' [Citation.] 'The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense. [Citations.]' [Citation.]" (People v. Seel (2004) 34 Cal.4th 535, 541-542.)

Double jeopardy protections generally do not extend to noncapital sentencing proceedings, including retrials of prior strike conviction allegations, which are considered enhancements rather than elements of the offense. (People v. Seel, supra, 34 Cal.4th at pp. 541-542; see also Monge v. California (1998) 524 U.S. 721 (Monge); People v. Monge (1997) 16 Cal.4th 826.) The determinations at issue in a prior strike conviction allegation proceeding do not place a defendant in jeopardy for an offense, and sentence enhancements have not been construed as an additional punishment for the previous offense. (Monge, 524 U.S. at p. 728.) An enhanced sentence imposed on a repeat offender is not viewed as either a new offense or an additional penalty for the earlier offense, but as a stiffened penalty for the latest offense, which is " ''considered to be an aggravated offense because a repetitive one.' " (Ibid.; see also People v. Barragan (2004) 32 Cal.4th 236, 241.)

Massiet concedes that the United States and California Supreme Courts have held retrial of strike conviction allegations is not prohibited by double jeopardy protections, but nevertheless contends the retrial was barred because the holding of Apprendi v. New Jersey (2000) 530 U.S. 466 undermined the rule of Monge.

Apprendi dealt with the doubling of the defendant's sentence on a finding by the trial court, and not the jury, that racial animus had motivated his underlying crime, triggering New Jersey's hate crime sentencing enhancement. (Apprendi v. New Jersey, supra, 530 U.S. at p. 470.) The high court found that "[o]ther than the fact of a prior conviction," any fact increasing the penalty beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (Id. at p. 490.)

Massiet's assertion that Apprendi undermined the rule in Monge regarding the inapplicability of double jeopardy protections to prior conviction proceedingsis not persuasive. Apprendi explicitly exempts prior convictions from its holding. The rule begins with the exception: "Other than the fact of a prior conviction . . . ." (Apprendi v. New Jersey, supra, 530 U.S. at p. 490; see also Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 154 ["Apprendi was absolutely clear in excepting the fact of prior convictions from its new rule"]; Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1303 ["Clearly, a plain reading of Apprendi refutes [the] conclusion that Apprendi 'superseded' the Monge decisions . . . .")

Moreover, Apprendi was not a double jeopardy case, but a jury trial case. (See, e.g., People v. Scott (2001) 91 Cal.App.4th 1197, 1212.) The Apprendi court distinguished Monge as a recidivism case in which the Court's analysis was related to the applicability of double jeopardy protections in sentencing. In contrast, Apprendi was concerned with how a trial court's (rather than a jury's) determination of a fact, other than a prior conviction, that increased the punishment for a crime beyond the statutory maximum affected a defendant's Sixth and Fourteenth Amendment rights. (Apprendi v. New Jersey, supra, 530 U.S. at p. 489, fn 14; see also Cherry v. Superior Court, supra, 86 Cal.App.4th at p. 1303.) The only issue Massiet raises on appeal is double jeopardy. Apprendi does not support his argument.

Massiet also relies on U.S. v. Blanton (2007) 476 F.3d 767, a Ninth Circuit Court of Appeals case resulting in a dismissal, on double jeopardy grounds, of the government's appeal after the trial court ruled that nonjury juvenile adjudications could not be predicate offenses for the purposes of the Armed Career Criminal Act ("ACCA") because the underlying conduct was never proven to a jury. (Id. at p. 769.) Blanton stated that Monge did not apply because "Monge's analysis of double jeopardy in the sentencing context was undertaken before the Court's decision in Apprendi," and Apprendi had embraced " 'an absolute rule that an enhancement constitutes an element of the offense any time that it increases the maximum sentence to which a defendant is exposed.' " (Id. at p. 772.) However, the Blanton court did not mention how Apprendi distinguished Monge as being a different kind of case, and did not recognize that Apprendi preserved the recidivism exception as part of its holding. Although Blanton is persuasive authority, we are bound by decisions of the United States Supreme Court on issues of federal constitutional law. (Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679, 692.) To the extent Blanton gives an incomplete reading of Apprendi to support its conclusion, it does not apply to our analysis.

Considering the Monge recidivism exception Apprendi retained, and the line of double jeopardy cases from both the United States and California Supreme Courts to which Massiet cited, all holding that double jeopardy protections do not apply to a retrial of a prior strike conviction allegation after a reversal for insufficient evidence, we hold the double jeopardy clause of the United States and California Constitutions did not bar retrial of Massiet's prior strike conviction allegation.

DISPOSITION

The judgment is affirmed.

McDONALD, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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