People v. Sengpadychith

BROWN, J., Concurring.

Because it apparentlyfollows from a literal reading of certain language in Apprendi v. New Jersey (2000) 530 U.S. 466 [ 120 S.Ct. 2348 , 147 L.Ed.2d 435 ] (Apprendi), I concur in the result as to the standard of review of the trial court’s instructional error.

I write separately, however, to question the anomaly created in applying that literal reading to a sentencing enhancement such as Penal Code section 186.22 that contains a series of escalating additional penalties. Defendant’s several crimes were subject to enhanced punishment upon the jury’s finding that he committed them “for the benefit of, at the direction of, or in association with any criminal street gang” with the requisite specific intent. (Pen. Code, § 186.22, subd. (b)(1).) As the majority correctly concludes in light of Apprendi , instructional error as to that finding is reviewed under the Chapman harmless beyond a reasonable doubt standard (Chapman v. California (1967) 386 U.S. 18, 24 [ 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 , 24 A.L.R.3d 1065 ]) with respect to those offenses coming within section 186.22, subdivision (b)(1) and (4) because that subdivision “increases the penalty for a crime beyond the prescribed statutory maximum . . . .” (Apprendi, supra, 530 U.S. at p. 490 [120 S.Ct. at pp. 2362-2363].) With respect to offenses coming within Penal Code section 186.22, subdivision (b)(5), however, the very same error on the very same facts does not invoke *330 Apprendi and therefore is assessed according to the Watson miscarriage of justice standard (People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ]) because only the mandatory minimum punishment is increased, not the statutory maximum of life in prison. (See Apprendi, supra, 530 U.S. at pp. 482-483, 487, fn. 13 [120 S.Ct. at pp. 2354-2356, 2361]; McMillan v. Pennsylvania (1986) 477 U.S. 79, 87-88 [ 106 S.Ct. 2411, 2416-2417 , 91 L.Ed.2d 67 ] (McMillan).)

The language of Apprendi may not be quite so categorical as the majority implies. Quoting Justice Scalia’s dissent in Almendarez-Torres v. United States (1998) 523 U.S. 224, 251 [ 118 S.Ct. 1219, 1234-1235 , 140 L.Ed.2d 350 ], the high court majority expressly noted, “Since Winship [In re Winship (1970) 397 U.S. 358 [ 90 S.Ct. 1068 , 25 L.Ed.2d 368 ]], we have made clear beyond peradventure that Winship's due process and associated jury protections extend, to some degree, ‘to determinations that [go] not to a defendant’s guilt or innocence, but simply to the length of his sentence.' [Citation.]” (Apprendi, supra, 530 U.S. at p. 484 [ 120 S.Ct. at p. 2359 ], italics added.) The court also emphasized that “the relevant inquiry is one not of form, but of effect—does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” (Id. at p. 494 [ 120 S.Ct. at p. 2365 ], fn. omitted.) These passages suggest an enhancement that increases the defendant’s actual punishment must surmount constitutional hurdles, even if the potential maximum remains the same.

The majority relies substantially on the fact the Apprendi court did not overrule McMillan, supra, 477 U.S. 79. Granted, McMillan has ostensibly survived, but only barely and only for the moment—as the New Jersey Supreme Court persuasively concluded in State v. Johnson (2001) 166 N.J. 523 [ 766 A.2d 1126 ] (Johnson), which also involved an enhancement increasing the defendant’s mandatory minimum sentence. (But see, e.g., U.S. v. Aguayo-Delgado (8th Cir. 2000) 220 F.3d 926, 933 [finding the rule of Apprendi does not apply to a factual determination that “only narrows the sentencing judge’s discretion” within a previously authorized range].) Drawing on the views of a collective majority of the United States Supreme Court justices expressed in separate opinions, the court inferred “that the continuing vitality of McMillan itself may be in question. . . . [B]oth the principal concurrence and dissent in Apprendi . . . construed the majority opinion as mandating reversal of McMillan and invalidation of the mandatory minimum statutes in the mold of the Pennsylvania law. [Citations.]” (Johnson, supra, 766 A.2d at p. 1136 .)

“The [Apprendi] majority noted specifically that its reasoning did not necessarily conflict with the narrow holding[] of McMillan . . . , because *331 the statute in McMillan did not increase the overall maximum prison term, [citation] .... However, an undeniable tension, explicitly recognized in Justice O’Connor’s dissent, [citation] exists between the formal distinctions drawn between the cases and the language of the Apprendi majority indicating that ‘the relevant inquiry is not one of form, but of effect—does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?’ [Citation.] fl[] Recognizing that tension, the majority made explicit its reservations about the future application of McMillan , although it specifically avoided reconsideration of McMillan’s holding . . . .” (Johnson, supra, 766 A.2d at p. 1134 ; see Apprendi, supra, 530 U.S. at p. 487, fn. 13 [ 120 S.Ct. at p. 2361 ].)

As the Johnson court noted, Justice Thomas’s concurrence evinced no such reserve. “Considering McMillan in light of those common-law roots [informing the majority’s rationale], the concurrence found it ‘clear that the common-law rule would cover the McMillan situation of a mandatory-minimum sentence’: ‘No doubt a defendant could, under such a scheme, find himself sentenced to the same term to which he could have been sentenced absent the mandatory minimum. . . . (Of course, a similar scenario is possible with an increased maximum.) But it is equally true that his expected punishment has increased as a result of the narrowed range and that the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. The mandatory minimum entitles the government to more than it would otherwise be entitled .... Thus, the fact triggering the mandatory minimum is part of the punishment sought to be inflicted; it undoubtedly enters into the punishment so as to aggravate it, and it is an act to which the law affixes punishment.’ [Citation.]” (Johnson, supra, 766 A.2d at p. 1135 , quoting Apprendi, supra, 530 U.S. 466, 521 [ 120 S.Ct. 2348, 2379 ] (conc. opn. of Thomas, J.); see also Apprendi, supra, 530 U.S. 466, 533 [ 120 S.Ct. 2348, 2385-2386 ] (dis. opn. of O’Connor, J.) [“The essential holding of McMillan conflicts with at least two of the several formulations the Court gives to the rule it announces today”].)

In concluding that the rule of Apprendi applies to a mandatory minimum increase, the New Jersey Supreme Court also found support in its own jurisprudence, which “ ‘always recognized that real time is the realistic and practical measure of the punishment imposed.’ [Citations.]” (Johnson, supra, 766 A.2d at p. 1137 , italics added; cf. Weaver v. Graham (1981) 450 U.S. 24, 31 [ 101 S.Ct. 960, 965 , 67 L.Ed.2d 17 ] [finding reduced accumulation of monthly gain-time credits constituted punishment for ex post facto analysis: “it is the effect, not the form, of the law that determines”].) California statutory and decisional law accords with this recognition: For example, the *332 three strikes law is intended “to ensure longer prison sentences and greater punishment” for certain recidivists. (Pen. Code, § 667, subd. (b).) To that end, the statutory scheme allows fewer conduct credits to be awarded against a mandatory indeterminate term (id., § 667, subd. (c)(5); see In re Cervera (2001) 24 Cal.4th 1073, 1076 [ 103 Cal.Rptr.2d 762 , 16 P.3d 176 ]) and provides that the minimum term for an indeterminate sentence is doubled (Pen. Code, § 667, subd. (e)(1); see People v. Jefferson (1999) 21 Cal.4th 86, 96 [ 86 Cal.Rptr.2d 893 , 980 P.2d 441 ]). As this court explained in Jefferson , “under the present law the prison ‘term’ is the actual time served in prison before release on parole . . . .” (Jefferson, at p. 95, italics omitted.)

Penal Code section 2900.5 credits “all days of custody of the defendant, including days served as a condition of probation . . . , upon his or her term of imprisonment . . . .” This provision in part “eliminate[s] the unequal treatment suffered by indigent defendants who, because of their inability to post bail, serve[] a longer overall confinement than their wealthier counterparts. [Citations.]” (In re Rojas (1979) 23 Cal.3d 152, 156 [ 151 Cal.Rptr. 649 , 588 P.2d 789 ].) In People v. Olivas (1976) 17 Cal.3d 236, 243 [ 131 Cal.Rptr. 55 , 551 P.2d 375 ], this court concluded Penal Code section 1731.5 violated equal protection because it authorized certain juvenile offenders committed to the Youth Authority to “be subjected to significantly greater terms of incarceration” “despite the fact that they are treated in the same manner as any competent adult during the process which results in their convictions . . . .” This court has also found ineffective assistance of counsel where the attorney’s advice to reject a plea bargain failed to include the mandatory minimum sentence the defendant would receive if convicted at trial. (In re Alvernaz (1992) 2 Cal.4th 924, 937 [ 8 Cal.Rptr.2d 713 , 830 P.2d 747 ].) Moreover, “In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute . . . .” (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 [ 119 Cal.Rptr. 302 , 531 P.2d 1086 ].)

Since Apprendi did not involve an enhancement increasing the defendant’s mandatory minimum sentence, the United States Supreme Court could justifiably avoid for the present determining the application of its rationale in that circumstance. (See Apprendi, supra, 530 U.S. at p. 487, fn. 13 [ 120 S.Ct. at p. 2361 ].) This court cannot. The rationale of Apprendi—as well as the express views of a majority of the justices—effectively eviscerates the holding in McMillan; yet the majority demurs to filling the resulting interstices, a reluctance uncharacteristic of the court. (See, e.g., People v. Monge (1997) 16 Cal.4th 826, 834-843 [ 66 Cal.Rptr.2d 853 , 941 P.2d 1121 ].)

This case illustrates why McMillan ultimately must fall. It makes no constitutional sense to apply the federal standard to an enhancement when it *333 adds two, three, or four years to defendant’s total sentence for gross negligence in discharging a firearm but not when it “merely” ensures he will remain in prison eight additional years before becoming eligible for conditional release. (See maj. opn., ante, at p. 327.) In Apprendi , the majority rejected the state’s reliance on McMillan based simply on the possibility of a comparable increase in punishment: “[I]t can hardly be said that the potential doubling of one’s sentence—from 10 years to 20—has no more than a nominal effect. Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance.” (Apprendi, supra, 530 U.S. at p. 495 [ 120 S.Ct. at p. 2365 ].) Regardless of any other consideration, an increased penalty of eight years imprisonment counsels closer analysis, not rote invocation of dictum.

We have once already misjudged the implications of McMillan in People v. Wims (1995) 10 Cal.4th 293, 305-308 [ 41 Cal.Rptr.2d 241 , 895 P.2d 77 ], The anomaly created by the majority’s interpretation of Apprendi suggests we have done so again.

Appellant’s petition for a rehearing was denied October 17, 2001, and the opinion was modified to read as printed above.