PORTER v. SUPERIORCOURTOFMONTEREYCOUNTY

Filed 3/20/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

STORY CONTINUED FROM PART I..

2. Conviction of Lesser Offense

In addition to protecting against a second prosecution after acquittal, the double jeopardy clause protects against further prosecution for the same offense after conviction. (Brown v. Ohio (1977) 432 U.S. 161, 165 [97 S.Ct. 2221].) In that situation, the federal double jeopardy clause prohibits "attempts to secure additional punishment after a prior conviction and sentence [citations]." (Id. at p. 166.) Although the People correctly assert that the grant of a new trial was not an implied acquittal, the People fail to discuss the prior conviction aspect of double jeopardy protection. They merely assert that petitioner waived any double jeopardy claim by requesting a new trial.

In Brown v. Ohio, supra, 432 U.S. 161, 165-166, the U.S. Supreme Court concluded that the " same offense" test established by Blockburger v. United States (1932) 284 U.S. 299 [52 S.Ct. 180] to determine whether convictions obtained in a single trial may be subject to multiple punishment also applied to the determination whether there could be further prosecution. In Blockburger, the court had stated: "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Gavieres v. United States, 220 U. S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489, and authorities cited." (Blockburger v. U.S., supra, 284 U.S. at p. 304.) In Brown v. Ohio, the court concluded: "If two offenses are the same under this [Blockburger] test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 U.S. 176, 187-188, 9 S.Ct. 672, 675-676, 33 L.Ed. 118 (1889); cf. Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings." (Brown v. Ohio, supra, 432 U.S. at p. 166.)

"Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 . . . establishe[d] the general rule that the Double Jeopardy Clause prohibits a State or the Federal Government from trying a defendant for a greater offense after it has convicted him of a lesser included offense. 432 U.S., at 168-169, 97 S.Ct., at 2226-2227." (Jeffers v. U. S. (1977) 432 U.S. 137, 150 [97 S.Ct. 2207] (plur. opin.).) "Brown reaffirm[ed] the rule that one convicted of the greater offense may not be subjected to a second prosecution on the lesser offense, since that would be the equivalent of two trials for 'the same offense.' 432 U.S., at 168, 97 S.Ct., at 2226. See In re Nielsen, 131 U.S. 176, 187, 9 S.Ct. 672, 675, 33 L.Ed. 118 (1889). Because two offenses are 'the same' for double jeopardy purposes unless each requires proof of an additional fact that the other does not, 432 U.S., at 168, 97 S.Ct., at 2226, it follows that the sequence of the two trials for the greater and the lesser offense is immaterial [fn. omitted] and trial on a greater offense after conviction on a lesser ordinarily is just as objectionable under the Double Jeopardy Clause as the reverse order of proceeding. [Fn. omitted.] Cf. Waller v. Florida, 397 U.S., at 390, 90 S.Ct., at 1186." (Id. at pp. 150-151; see Illinois v. Vitale (1980) 447 U.S. 410, 421 [100 S.Ct. 2260].) "Any adjustment in punishment for the fact that the defendant already has been punished for the lesser offense is not adequate to cure the injury suffered because of multiple prosecutions, since the double jeopardy problem inheres in the very fact of a second trial for the 'same' offense. See Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 2103-2104, 40 L.Ed.2d 628 (1974); Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 1761, 26 L.Ed.2d 300 (1970)." (Jeffers v. U. S., supra, 432 U.S. at p. 151, fn. 18.)

Apprendi v.New Jersey, supra, 530 U.S. at page 494, footnote 19, has added the understanding that "when the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict." It seems unassailable that, under Apprendi, a statutorily defined offense and that same offense plus one or more allegations increasing punishment, other than the fact of a prior conviction, constitute the "same offense" within the meaning of the Fifth Amendment's double jeopardy clause under the under the Blockburger test. The People have not asserted otherwise.

The prosecution, by attempting to retry petitioner on the challenged allegations following conviction of the charged offenses and the other remaining true findings, is seeking second convictions for the "same offenses," a proceeding ordinarily barred under the due process clause of the federal constitution. The only question is whether any exception applies to this principle.

In Brown v. Ohio (1977) 432 U.S. 161, the U.S. Supreme Court suggested by way of footnote "[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." (Id. at p. 169, fn. 7.) A different exception was recognized in Jeffers v. U. S., supra, 432 U.S. 137. In Jeffers, defendant, who had been convicted in the two separate prosecutions on two separate indictments, asserted that the second prosecution placed him twice in jeopardy because he had already been convicted of lesser included offenses in the first prosecution. (Id. at pp. 145-146.) A four justice plurality of the U.S. Supreme Court rejected this double jeopardy claim, noting that the Government had affirmatively sought a single trial but the defense had successfully opposed consolidation. (Id. at pp. 142-143, 152, fn. 20.) The plurality opinion concluded that double jeopardy protection did not apply where a "defendant expressly asks for separate trials on the greater and the lesser offenses, or, in connection with his opposition to trial together, fails to raise the issue that one offense might be a lesser included offense of the other . . . ." (Id. at p. 152.) The defendant in Jeffers had argued that he had not waived the constitutional guarantee against double jeopardy (id. at pp. 146-147), but the Supreme Court did not squarely rest its decision on whether or not the defendant had intentionally relinquished a known right (see Johnson v. Zerbst (1938) 304 U.S. 458, 464 [58 S.Ct. 1019] ["A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege"]) but rather on the "policy behind the Double Jeopardy Clause." (Jeffers, supra, 432 U.S. at p. 152.) The plurality opinion reasoned: "Both the trial after the appeal and the trial after the mistrial are, in a sense, a second prosecution for the same offense, but, in both situations, the policy behind the Double Jeopardy Clause does not require prohibition of the second trial. Similarly, although a defendant is normally entitled to have charges on a greater and a lesser offense resolved in one proceeding, there is no violation of the Double Jeopardy Clause when he elects to have the two offenses tried separately and persuades the trial court to honor his election." (Ibid., fn. omitted.) The Jeffers court concluded that the petitioner was "solely responsible for the successive prosecutions" and "his action deprived him of any right that he might have had against consecutive trials." (Id. at p. 154.)

There has been no affirmative showing in this case that petitioner intentionally relinquished his constitutional right to avoid double jeopardy by bringing a new trial motion but that does not end our inquiry. The U.S. Supreme Court has rejected the "contention that the permissibility of a retrial following a mistrial or a reversal of a conviction on appeal depends on a knowing, voluntary, and intelligent waiver of a constitutional right." (U. S. v. Dinitz (1976) 424 U.S. 600, 609 [96 S.Ct. 1075], fn. 11.) In evaluating double jeopardy claims, the court has focused instead on whether any interest protected by the double jeopardy clause has been infringed. (See e.g. Ohio v. Johnson (1984) 467 U.S. 493, 501-502 [104 S.Ct. 2536] ["principles of finality and prevention of prosecutorial overreaching" underlying the protection against double jeopardy were not violated by continuing prosecution on the charges remaining after defendant's guilty pleas to lesser included offenses in single prosecution]; U.S. v. Scott (1978) 437 U.S. 82, 100 [98 S.Ct. 2187] ["No interest protected by the Double Jeopardy Clause is invaded when the Government is allowed to appeal" the trial court's midtrial grant of defendant's motion to dismiss a count on the ground of preindictment delay]; see also U.S. v. Tateo (1964) 377 U.S. 463, 466 [84 S.Ct. 1587] ["While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle [permitting retrial after reversal of a conviction] are the implications of that principle for the sound administration of Justice"].)

In deciding whether further prosecution offends principles of double jeopardy, we are cognizant of the purposes of the protection. "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." (Green v. United States (1957) 355 U.S. 184, 187-188 [78 S.Ct. 221].) Retrial of a greater offense after a defendant has successfully brought a statutory new trial motion is not the type of governmental oppression or prosecutorial overreaching targeted by the double jeopardy clause. (See U.S. v. Scott, supra, 437 U.S. at p. 91 ["to require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect"].) As the United States Supreme Court concluded in a different factual context, "the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice." (United States v. Scott, supra, 437 U.S. at p. 99.)

In this case, the People commenced a single prosecution, not multiple prosecutions, and petitioner was convicted as charged. It was petitioner who created the need for a second trial by bringing a motion for a new trial on the premeditation allegations and gang enhancement allegations. Defense counsel agreed to imposition of sentence on the remaining verdicts and findings. Although conviction of a lesser included offense ordinarily precludes a subsequent trial on the greater offense under the federal double jeopardy clause, there is an argument that further prosecution should not be barred by the judgment of conviction under the circumstances of this case. We need not resolve this issue, however, because we find the further prosecution is barred by section 1023, California's Penal Code provision implementing the double jeopardy protection conferred by our state Constitution, and by Apprendi. [1]

B. Penal Code Section 1023

"Protection against double jeopardy is also embodied in article I, section 15 of the California Constitution, which declares that '[p]ersons may not twice be put in jeopardy for the same offense.' . . . [T]he California Constitution is a document of independent force and effect that may be interpreted in a manner more protective of defendants' rights than that extended by the federal Constitution, as construed by the United States Supreme Court. [Citations.]" (People v. Fields (1996) 13 Cal.4th 289, 297-298.) Penal Code section 1023 "implements the protections of the state constitutional prohibition against double jeopardy, and, more specifically, the doctrine of included offenses. [Citations.]" (Id. at pp. 305-306.)

Section 1023 provides: "When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading." "Under Penal Code section 1023, as construed in People v. Greer (1947) 30 Cal.2d 589, 596-597 [184 P.2d 512], when an accused is convicted of a lesser included offense, the conviction bars a subsequent prosecution for the greater offense." (People v. Fields, supra, 13 Cal.4th at p. 296, fn. omitted.) This rule applies even where the jury deadlocks on the greater offense and its verdict of guilty on the lesser included offense does not imply intent to acquit the accused of the greater offense. (Id. at pp. 295-296, 305-307.)

In People v. Fields, supra, 13 Cal.4th 289, as in this case, the doctrine of implied acquittal was inapplicable to the greater offense. The California Supreme Court concluded: "[N]otwithstanding the jury's deadlock on the greater offense, defendant could not be subjected to retrial on that charge. As we explain, once the verdict of guilty on the lesser included offense was received by the trial court and recorded, and the jury was discharged, defendant stood convicted of the lesser included offense within the meaning of section 1023. Pursuant to that statute, when an accused is convicted of a lesser included offense, the conviction bars a subsequent prosecution for the greater offense. (People v. Greer (1947) 30 Cal.2d 589, 596-597.)" (Id. at p. 305.) The court declared that "once a conviction on the lesser offense has been obtained, ' "to [later] convict of the greater would be to convict twice of the lesser." ' [Citations.]" (Id. at p. 306.)

We find this authority controlling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Even if the trial court's limited grant of a new trial was not an implied acquittal, California's constitutional protection against double jeopardy as implemented by section 1023 bars further prosecution of the greater offenses and, consequently, precludes further trial of the allegations on which the trial court granted a new trial (see Apprendi v. New Jersey, supra, 530 U.S. at p. 494, fn. 19).

C. Apprendi

In Apprendi v. New Jersey, supra, 530 U.S. 466, the United States Supreme Court stated its now familiar holding: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.) The court made clear that "practice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond reasonable doubt." (Id. at pp. 483-484.) It recognized that a sentence enhancement, other than a prior conviction allegation, must be treated as an element of a greater offense if it increased punishment beyond the prescribed statutory maximum for a crime. (Id. at p. 494, fn. 19.)

The court subsequently announced that the "decision in Apprendi v. New Jersey, 530 U.S. 466 . . . , clarified what constitutes an 'element' of an offense for purposes of the Sixth Amendment's jury-trial guarantee." (Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 111 [123 S.Ct. 732].) "Put simply, if the existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact -- no matter how the State labels it -- constitutes an element, and must be found by a jury beyond a reasonable doubt. Id., at 482-484, 490, 120 S.Ct. 2348." (Ibid.) The California Supreme Court has likewise recognized that "Apprendi treated the crime together with its sentence enhancement as the 'functional equivalent' of a single 'greater' crime." (People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) The U.S. Supreme Court also observed post-Apprendi, there is generally "no principled reason to distinguish . . . between what constitutes an offense for purposes of the Sixth Amendment's jury-trial guarantee and what constitutes an 'offence' for purposes of the Fifth Amendment's Double Jeopardy Clause. Cf. Monge v. California, 524 U.S. 721, 738, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998) (SCALIA, J., dissenting) ('The fundamental distinction between facts that are elements of a criminal offense and facts that go only to the sentence' not only 'delimits the boundaries of important constitutional rights, like the Sixth Amendment right to trial by jury,' but also 'provides the foundation for our entire double jeopardy jurisprudence')." (Sattazahn v. Pennsylvania, supra, 537 U.S. at pp. 111-112.)

The idea that a penalty provision or sentence enhancement, such as section 664, subdivision (a), or 186.22, subdivision (b)(1), is separate from the underlying offense and does not set forth an element of a greater offense has been firmly rejected in the wake of Apprendi v. New Jersey, supra, 530 U.S. 466. (See People v. Seel (2004) 34 Cal.4th 535, 541, 545, 548-549, 551 [section 664(a), although designated a penalty provision, is an element of an offense for double jeopardy purposes], disapproving People v. Bright (1996) 12 Cal.4th 652; People v. Sengpadychith, supra, 26 Cal.4th at p. 327 [gang enhancement under section 186.22, subdivision (b)(1), is subject to Apprendi].) Nevertheless, the People now make the astounding assertion that "nothing in Apprendi prohibits retrial of discrete elements of an offense if retrial is by jury using the beyond a reasonable doubt standard." The People's statement is impossible to reconcile with the Sixth Amendment's jury trial guarantee as elucidated by Apprendi and its progeny.

The court recognized in its opinion in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] that its commitment to Apprendi reflected "the need to give intelligible content to the right of jury trial." (Id. at p. 305.) Justice Scalia had stated in his concurring opinion in Apprendi, supra, 530 U.S. 466, that "the guarantee that '[i]n all criminal prosecutions, the accused shall enjoy the right to trial, by an impartial jury,' has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury." (Id. at p. 499.) The court in U.S. v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738] declared: "It has been settled throughout our history that the Constitution protects every criminal defendant 'against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). It is equally clear that the 'Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.' United States v. Gaudin, 515 U.S. 506, 511, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)." (Id. at p. 230.)

A defendant's right to a jury trial in a criminal case, guaranteed by the Sixth and Fourteenth Amendments (see Duncan v. Louisiana (1968) 391 U.S. 145, 149 [88 S.Ct. 1444]), a right recognized as "fundamental to the American scheme of justice" (ibid.), would be eviscerated if the government could obtain a criminal conviction that did not reflect a single jury's determination that all elements of an offense (the statutory offense plus all sentence enhancements and penalty provisions constitutionally required to be tried to a jury) had been proved beyond a reasonable doubt. The People's position would permit a succession of trials on discrete elements of an offense following the grant of a new trial on fewer than all elements until each element had been found true by some jury and a new trial had not been granted.

As Justice Scalia has articulated: "The right to be tried by a jury in criminal cases obviously means the right to have a jury determine whether the defendant has been proved guilty of the crime charged. And since all crimes require proof of more than one element to establish guilt . . . , it follows that trial by jury means determination by a jury that all elements were proved." (Neder v. U.S. (1999) 527 U.S. 1, 31 [119 S.Ct. 1827], concur. and dissent. opn. of Scalia, J.; see Neder v. U.S., supra, 527 U.S. 1, 12 [improper instruction on an element of the offense violates the Sixth Amendment's jury trial guarantee].) The prospect of piecemeal jury trials utterly conflicts with the constitutional right to trial by jury and is constitutionally untenable absent a valid waiver by a defendant.

"The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards." (Boykin v. Alabama (1969) 395 U.S. 238, 243 [89 S.Ct. 1709].) "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." (Brady v. U.S. (1970) 397 U.S. 742, 748 [90 S.Ct. 1463], fn. omitted.) The record of petitioner's motion for a new trial does not affirmatively show that petitioner, with sufficient awareness of the relevant circumstances, intelligently and voluntarily waived his constitutional right to have a jury determine that all the elements of the greater offenses had been proved beyond a reasonable doubt. (Cf. Brady v. U.S., supra, 397 U.S. at p. 749 [voluntariness of plea "can be determined only by considering all of the relevant circumstances surrounding it"]; Boykin v. Alabama, supra, 395 U.S. at pp. 242-243 [a trial court may not accept a guilty plea unless there is "an affirmative showing that it was intelligent and voluntary" and a waiver of the constitutional rights relinquished by such plea "cannot be presumed from a silent record"]; Johnson v. Zerbst, supra, 304 U.S. at p. 464 [" 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights" and " 'do not presume acquiescence in the loss of fundamental rights' " and "[a] waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege"]; see also People v. Howard (1992) 1 Cal.4th 1132, 1175 ["a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances"].) An effective waiver of the right to a jury trial requires "the express and intelligent consent of the defendant." (Patton v. United States (1930) 281 U.S. 276, 312 [50 S.Ct. 253].)

We take judicial notice that petitioner sought the dismissal, not retrial, of the premeditation and gang enhancement allegations in his motion for a new trial. (Evid. Code,  452, subd. (d).) The trial court chose not to modify "the verdict, finding or judgment" without granting a new trial as it was empowered to do if it concluded petitioner was not guilty as convicted but was guilty of a lesser included crime ( 1181, subd. 6). Defense counsel's acquiescence in the court's decision to proceed with sentencing on the standing jury verdicts and findings following the court's ruling on the new trial motion does not demonstrate defendant effectively waived his right to a full jury trial on the greater offenses.

Let a peremptory writ of mandate issue directing respondent superior court to enter an order dismissing the premeditation allegations ( 664, subd. (a)) and the gang enhancement allegations ( 186.22, subd. (b)). The stay order issued by this court is vacated.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

Trial Court: Monterey County Superior Court

Trial Judge: Hon. Russell D. Scott

Attorney for Petitioner: Glenn A. Nolte,

Public Defender,and

Romano Clark,

Deputy Public Defender

No Appearance for Respondent:

Attorneys for Real Party

In Interest: Bill Lockyer and

Edmund G. Brown, Jr.,

Attorneys General,

Robert R. Anderson,

Chief Assistant Attorney General,

Gerald A. Engler,

Sr. Assistant Attorney General,

Seth K. Schalit and

William Kuimelis,

Deputy Attorneys General

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[1] It is premature for us to address the third strand of double jeopardy protection, the proscription against multiple punishment for the same offense, but we are puzzled how the trial court would lawfully implement the results of any new true findings reached by a jury since it already entered a final judgment of conviction imposing punishment on "lesser included offenses" and a trial court generally lacks jurisdiction to resentence a criminal defendant after execution of sentence begins. (People v. Karaman (1992) 4 Cal.4th 335, 344-345; cf.  1170, subd. (d) [authorizing trial court to recall sentence and commitment previously ordered within 120 days of the date of commitment on its own motion].)