# People v. Wims

> California Supreme Court · June 5, 1995 · 10 Cal. 4th 293

URL: https://www.frixlaw.com/law-library/cases/9846561

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. CLIFTON C. WIMS Et Al. Defendants and Appellants
- **Court:** California Supreme Court
- **Decided:** June 5, 1995
- **Citations:** 10 Cal. 4th 293; 41 Cal. Rptr. 2d 241; 95 Daily Journal DAR 7199; 895 P.2d 77; 95 Cal. Daily Op. Serv. 4194; 1995 Cal. LEXIS 3139
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kennard
- **Judges:** Werdegar, Mosk, Kennard
- **Cited by:** 118 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by People v. Sengpadychith, 109 Cal. Rptr. 2d 851 (2001).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9846561

## Opinion text

KENNARD, J., Concurring and Dissenting.
In California, the Legislature has decreed that certain conduct, such as the use of a deadly weapon or the infliction of great bodily injury, during the commission of a felony increases the seriousness of that felony. A defendant found by a jury to have engaged in such conduct is subject to a sentence “enhancement” or increase in punishment, to be added to the term for the underlying offense.
Under the Sixth Amendment to the United States Constitution, a defendant in a criminal case is entitled to a jury trial. At that trial, the due process clauses of the Fifth and Fourteenth Amendments to the Constitution require the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. (Sullivan v. Louisiana (1993) 508 U.S. _ [ 124 L.Ed.2d 182, 187-188 , 113 S.Ct. 2078, 2080 ]; In re Winship (1970) 397 U.S. 358, 364 [ 25 L.Ed.2d 368, 375 , 90 S.Ct. 1068 ].) A trial court’s failure to instruct the jury in a criminal case on the elements of the charged offenses denies the defendant these constitutional rights. (Cabana v. Bullock (1986) 474 U.S. 376, 384-385 [ 88 L.Ed.2d 704, 715-716 , 106 S.Ct. 689 ].)
In this case, both defendants contend that the trial court violated their constitutional right to a jury trial, with proof beyond a reasonable doubt, because it failed to instruct the jury on the elements of the enhancement with *318 which they were charged. The majority rejects their contention, holding that an enhancement is merely a sentencing factor to which the federal constitutional right to jury trial does not apply. (Maj. opn., ante, p. 307.)
I disagree. Previous decisions of this court have held that enhancements are more than just sentencing factors. Enhancements, which in this state carry with them the statutory right to jury trial, bear a close similarity to criminal offenses both in the procedures created by the Legislature for their pleading and proof and in the consequences to the defendant that arise when a jury finds the existence of an enhancement. An enhancement is the functional equivalent of a criminal offense, adding new elements to an underlying crime to create a new, more serious offense. Because an enhancement is, in essence, part of the criminal offense to which it is attached, defendants charged with an enhancement must be accorded the same rights to which they are entitled on the underlying crime: to have a jury determine the elements of the charge, and to have the prosecution prove those elements beyond a reasonable doubt.
I
Defendants Ford and Wims were charged with second degree robbery. (Pen. Code, former § 212.5, subd. (b), now subd. (c).) 1 The prosecution also alleged that each defendant had used a deadly weapon during the robbery, thus triggering the “enhancement” provision of section 12022, subdivision (b), which adds one year to the maximum possible prison sentence for the substantive offense. The prosecution’s evidence at trial showed that defendants Wims and Ford, accompanied by codefendant Carolyn Gipson, accosted victims Paige D’Agostino and Elizabeth Gebhardt as they were walking along a San Francisco street. Defendant Ford grabbed D’Agostino around the neck from behind while defendant Wims (whose leg was in a cast) hit D’Agostino with a crutch and his fists. Both Ford and Wims tried to remove D’Agostino’s leather jacket, while codefendant Gipson pushed Gebhardt, hit her in the head, and brandished a knife. When Ford held a knife inches from D’Agostino’s face and threatened him, D’Agostino gave up the jacket.
Tom McCoy, a passing motorist who saw the robbery, called the police, who quickly located and arrested defendants. When arrested, both Ford and Wims had knives in their possession.
At trial, victims D’Agostino and Gebhardt and witness McCoy all testified that defendant Ford had threatened D’Agostino with a knife. McCoy stated *319 that defendant Wims too had a knife in his hands, but on cross-examination McCoy acknowledged that he had not told police this. Similarly, Gebhardt testified that she saw defendant Wims hold a knife above his head, but Gebhardt conceded on cross-examination that after the robbery she had told the police she was unsure whether Wims and Ford had displayed knives.
Neither defendant testified at trial. Codefendant Gipson, testifying in her own defense, admitted that she was present during the robbery, but denied participating in it. Gipson said that both Ford and Wims had knives during the robbery. On cross-examination, Gipson acknowledged telling the police that only defendant Ford had used a knife during the robbery.
Ford’s counsel argued to the jury that the prosecution had not proved beyond a reasonable doubt that Ford was one of the persons who had robbed D’Agostino. Defense counsel for Wims admitted his client’s participation in the assault on D’Agostino, but claimed that Wims had no intent to rob D’Agostino.
The trial court failed to instruct the jury on the elements of the charged enhancement pertaining to use of a deadly weapon. The verdict form, however, required the jury to decide whether it found the “Use of Deadly Weapon Allegation” to be “True [or] Not True”; it made no mention of the requirement that the jury could find the enhancement true only if it concluded that the defendant had “personally” used a deadly weapon.
During deliberations, the jury sent the trial court a note asking to hear “Mr. D’Agostino and Mr. McCoy’s testimony regarding the presence/display or lack of presence/display of a knife during the incident by Mr. Wims.” The court ordered the court reporter to provide the jury with the relevant testimony of witness McCoy, but the court erroneously told the jury that D’Agostino gave no testimony on the issue. 2 The note also asked, “does a crutch constitute a deadly weapon?” In response, the trial court told the jury that whether a crutch is a deadly weapon was not relevant to its decision, because the only deadly weapon that the pleadings charged defendant Wims with using was a knife.
The jury convicted both Ford and Wims of robbery, and found that each had used a deadly weapon within the enhancement provision of section *320 12022, subdivision (b). Defendants appealed, contending, among other things, that the trial court had committed prejudicial error by failing to instruct the jury on the elements of the enhancement. 3 The Court of Appeal agreed, and as to each defendant reversed that portion of the judgment pertaining to the one-year enhancement for using a deadly weapon during the robbery.
II
It is undisputed that the trial court violated state law by failing to instruct the jury on the elements of the enhancement for use of a deadly weapon. (People v. Najera (1972) 8 Cal.3d 504, 510 [ 105 Cal.Rptr. 345 , 503 P.2d 1353 ].) At issue is whether the court’s instructional error also violated the federal Constitution. If it did, the jury’s enhancement finding as to each defendant can be affirmed only if it can be said that, beyond a reasonable doubt, the error did not contribute to the verdict. (Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ].) If, however, the error violated only state law, the enhancement finding is reversed only if the trial court’s instructional error resulted in a “miscarriage of justice” (Cal. Const., art. VI, § 13), that is, “it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ].)
The Sixth Amendment to the federal Constitution entitles a defendant in a criminal case to a jury trial. Under the due process clause, the prosecution “bears the burden of proving all elements of the offense charged . . . and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements . . . .” (Sullivan v. Louisiana, supra, 508 U.S. at p. _ [ 124 L.Ed.2d at p. 188 , 113 S.Ct. at p. 2080 ], citations omitted.) When the trial court fails to instruct the jury on the elements of an offense, the jury does not know what findings it must make to decide whether the defendant has committed the offense, and thus is unable to make them. Therefore, a trial court’s failure to instruct the jury on the elements of a criminal offense withdraws those elements from the jury’s consideration, in violation of the defendant’s right to due process under the Fourteenth Amendment and to trial by jury under the Sixth Amendment of the federal Constitution. (See Cabana v. Bullock, supra, 474 U.S. at pp. 384-385 [88 L.Ed.2d at pp. 715-716]; People v. Cummings (1993) 4 Cal.4th 1233, 1313 [ 18 Cal.Rptr.2d 796 , 850 P.2d 1 ].)
*321 Are these rights also violated when, as here, the trial court fails to instruct the jury on the elements of an enhancement? To answer this question, I start my analysis with a review of the United States Supreme Court’s decision in McMillan v. Pennsylvania (1986) 477 U.S. 79 [ 91 L.Ed.2d 67 , 106 S.Ct. 2411 ] (hereafter McMillan).
In McMillan, supra, 477 U.S. 79, 81-82 [ 91 L.Ed.2d 67, 73-74 ], each of four Pennsylvania defendants in unrelated cases was convicted of a criminal offense. In each case, the prosecutor asked the trial court to find that the defendant possessed a firearm during the commission of the offense, thereby bringing the defendant within the purview of Pennsylvania’s “mandatory sentencing statute.” Under that provision, a sentencing judge who, by a preponderance of the evidence, found that a defendant “visibly possessed a firearm” while committing specified crimes was required to impose a sentence of not less than five years for the underlying offense. In each case, the Pennsylvania trial court refused to make findings under the mandatory sentencing statute, ruling that application of the state statute would violate the federal Constitution because the statute did not entitle the defendants to have a jury determine the question of gun possession and to have the prosecution prove such possession beyond a reasonable doubt.
By a narrow (five to four) margin, the high court upheld the constitutionality of the Pennsylvania statute. To determine whether the federal Constitution’s due process clause required the prosecution to prove the defendants’ firearm possession “beyond a reasonable doubt,” the court looked to the intent of the Pennsylvania legislature: did the legislature intend possession of a firearm to be an element of the crime with which the defendants were charged (in which case due process required proof beyond a reasonable doubt), or did it intend firearm possession to be merely a sentencing factor (in which case the federal Constitution did not require proof beyond a reasonable doubt except in limited circumstances)? 4 ( McMillan, supra, 477 U.S. at pp. 85-86 [91 L.Ed.2d at pp. 75-76].)
The McMillan court pointed out that the Pennsylvania legislature had expressly chosen to make visible possession of a firearm during a crime not an element of the crime but a “sentencing factor” to be determined by the judge at the time of sentencing. Consequently, the court concluded, due process did not require the prosecution to establish the defendants’ firearm *322 possession beyond a reasonable doubt. The court noted that the defendants’ claim that visible possession of a firearm under the Pennsylvania statute was really an element of the crime for which they were being prosecuted “would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment.” (McMillan, supra, 477 U.S. at p. 88 [91 L.Ed.2d at pp. 77-78].) But that was not a consequence of the statute at issue, which simply raised the minimum sentence that the trial judge could impose. (Ibid.)
The high court then swiftly disposed of the defendants’ contention that the Sixth Amendment to the federal Constitution entitled them to a jury trial on the question of firearm possession: “Having concluded that Pennsylvania may properly treat visible possession as a sentencing consideration and not an element of any offense, we need only note that there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.” (McMillan, supra, 477 U.S. at p. 93 [91 L.Ed.2d at pp. 80-81].)
Therefore, under McMillan, supra, 477 U.S. 79, resolution of the issue here—whether a defendant charged with a “deadly weapon use” enhancement has a federal constitutional right to have a jury determine the elements of the enhancement, and whether the prosecution must prove the enhancement beyond a reasonable doubt—is largely dependent on the intent of the Legislature. If the Legislature intended enhancements to be roughly analogous to criminal offenses, then a defendant is entitled to a jury trial, as guaranteed by the Sixth Amendment, and the prosecution must prove the existence of the enhancement by proof beyond a reasonable doubt, consistent with the Fourteenth Amendment’s due process requirements. If, on the other hand, the Legislature intended enhancements to be mere sentencing factors, neither right would generally be implicated.
III
Determining the Legislature’s intent with regard to enhancements is complex, because enhancements cannot be categorized neatly either as sentencing factors or as elements of an offense. They share characteristics of each. As the majority points out (maj. opn., ante, p. 304), an enhancement “is not a separate crime or offense” (People v. Waite (1983) 146 Cal.App.3d 585, 593 [ 194 Cal.Rptr. 245 ]), but “ ‘an additional term of imprisonment added to the base term’ ” (People v. Hernandez (1988) 46 Cal.3d 194, 207 [ 249 Cal.Rptr. 850 , 757 P.2d 1013 ]). Unlike most criminal offenses, an enhancement is not independent of other charges; rather, it is attached to some *323 underlying criminal offense, and a jury determines the truth or falsity of the enhancement only after it has found the defendant guilty of the underlying crime.
Nonetheless, enhancements have far more characteristics in common with criminal offenses than with sentencing factors. As shown below, enhancements closely resemble criminal offenses in the manner in which they are pleaded and proven and in their consequences to the defendant.
In California, the pretrial procedures that the Legislature has established to govern the manner in which enhancements are charged are identical to those pertaining to criminal offenses. For instance, an enhancement must be pleaded in the same manner as a substantive criminal offense. (§ 1170.1, subd. (f).) And at the preliminary hearing on the underlying offense, the prosecution must offer evidence of any enhancement it wishes to charge; if the prosecution fails to do so, the defendant may move to dismiss the enhancement for insufficiency of evidence. (§ 995; People v. Superior Court (Mendella) (1983) 33 Cal.3d 754 [ 191 Cal.Rptr. 1 , 661 P.2d 1081 ], hereafter referred to as Mendella.) 5 I am unaware of any sentencing factor that is subject to similar requirements.
Also, the statutory procedures governing the proof of enhancements at trial are identical to those applicable to criminal offenses. Most significantly, unlike sentencing factors, whose existence is ordinarily determined by the trial judge, the Legislature has created a statutory right to have a jury determine the truth or falsity of an enhancement. (People v. Wiley, supra, 9 Cal.4th at p. 588; People v. Najera, supra, 8 Cal.3d 504, 509-510 .) The jury performs that task not at the time of sentencing, but at the time it decides the defendant’s guilt of the underlying crime charged. Additionally, the prosecution has the burden of proving an enhancement beyond a reasonable doubt (People v. Santamaría (1994) 8 Cal.4th 903, 918 [ 35 Cal.Rptr.2d 624 , 884 P.2d 81 ]; People v. Morton (1953) 41 Cal.2d 536, 539 [ 261 P.2d 523 ]), a *324 standard traditionally associated with proving a defendant’s guilt of an offense. 6
Furthermore, enhancements are more like criminal offenses than sentencing factors in their consequences to the defendant. Unlike the Pennsylvania sentencing factor in McMillan , which operated solely to “limit the sentencing court’s discretion in selecting a penalty within the range already available to it” by prohibiting the court from imposing a sentence below the statutorily prescribed minimum (McMillan, supra, 477 U.S. at p. 88 [91 L.Ed.2d at pp. 77-78]), our state’s statutory enhancements increase a defendant’s sentence beyond the maximum sentence prescribed for the underlying offense, thereby exposing the defendant “to greater or additional punishment. . . .” (Ibid.) In certain instances, a sentence for the enhancement can substantially exceed the sentence for the underlying offense. For example, second degree nonresidential robbery carries a maximum penalty of five years (§ 213), but if the jury after its determination of guilt finds as an enhancement that the defendant had used a firearm during the robbery, the trial court has statutory authority to sentence the defendant to an additional ten years in prison (§ 12022.5, subd. (a)), double the maximum term for the underlying offense.
Because, as discussed above, the pleading and proof requirements pertaining to enhancements are the same as those governing criminal offenses, and the consequences flowing from them are the same as from a criminal offense, the inference is strong that the Legislature must have intended enhancements to be the functional equivalent of criminal offenses. Consequently, the federal constitutional right to jury trial and proof beyond a reasonable doubt must also apply to enhancements.
IV
Decisions of this court lend further support to my conclusion that enhancements are the functional equivalent of criminal offenses.
In Mendella, supra, 33 Cal.3d 754 , we explored the historical antecedents of enhancements. There, the issue was whether a defendant could challenge *325 an enhancement allegation under section 995 on the ground it was not supported by the evidence at the preliminary hearing. This court concluded that enhancement allegations, like other criminal charges, must be supported by evidence at the preliminary hearing and that if the prosecution has not introduced sufficient evidence at the preliminary hearing, the defendant may move to dismiss the allegations.
We observed that several enhancements are based on facts that formerly “were contained in the statutory definitions of the particular offenses.” (Mendella, supra, 33 Cal.3d at p. 762 .) For example, being armed with a deadly weapon was formerly an element of the crime defined as robbery of the first degree (former § 211a; see Stats. 1961, ch. 1874, § 1, p. 3975) and of the crime defined as burglary of the first degree (former § 460; see Stats. 1955, ch. 941, § 1, p. 1827).
With the enactment of the determinate sentencing law (DSL) in 1976, these acts, scattered through the Penal Code, were brought together and labeled as “enhancements.” But as we explained in Mendella , the Legislature did not intend its relabeling to deprive criminal defendants of any procedural rights: “[B]efore the enactment of the DSL, allegations that could increase punishment, such as personal use of a firearm, great bodily injury, or being armed with a deadly weapon, were spread throughout the Penal Code; some were contained in the definitions of particular crimes (see, e.g., former §§ 209, 213, 460, 461), while others merited separate sections (see, e.g., former §§ 3024, 12022, 12022.5). With the advent of the DSL, the provisions for such allegations were deleted from the definitions of the substantive offenses, were placed in distinct sections, and are now known as ‘enhancements.’ (See, e.g., §§ 12022, 12022.5, 12022.6, 12022.7; Cassou & Taugher, Determinate Sentencing in California: The New Numbers Game (1978) 9 Pacific L.J. 5, 23, 31.) [¶] The DSL was designed to revise the Penal Code with regard to sentencing. Nothing in its history or form intimates that the Legislature intended by reorganizing the Penal Code to deprive the defendant of any procedural rights that he possessed prior to the new law." (Mendella, supra, 33 Cal.3d at p. 763 , italics added to last sentence.) Implicitly, the majority does just that here.
The majority’s holding is also at odds with this court’s decision in People v. Hernandez, supra, 46 Cal.3d 194 (hereafter Hernandez). In Hernandez , the jury had convicted the defendant of rape; at the time of sentencing, the trial court increased the defendant’s sentence by applying section 667.8 (three-year enhancement for a rape occurring in the course of a kidnap), an enhancement that was not charged in the accusatory pleading. At the time, *326 the Legislature had not explicitly imposed a requirement that a section 667.8 enhancement be pleaded and proved, as it had done with other enhancements. 7
In Hernandez , this court held that “a pleading and proof requirement [for section 667.8] should be implied as a matter of statutory interpretation and must be implied as a matter of due process” (Hernandez, supra, 46 Cal.3d at p. 197 , italics added.) Rejecting the Attorney General’s argument that section 667.8 was “a sentencing consideration for the judge” (id. at p. 204) similar to the sentencing factors in McMillan, supra, 477 U.S. 79, this court said: “Nothing in [McMillan] suggests that in our sentencing scheme section 667.8 should be read as a mere sentencing factor rather than a finding which must be pled and proven before the trier of fact.” (Hernandez, supra, 46 Cal.3d at p. 206 , fn. omitted.)
In this case, the majority revives the Attorney General’s argument that this court unanimously rejected in Hernandez, supra, 46 Cal.3d 194 . Overlooking this court’s holding in Hernandez that enhancements are not “sentencing factors,” and that they are therefore subject to the federal due process requirements of pleading and proof, the majority concludes that enhancements are indeed sentencing factors, and therefore not subject to federal due process protections. At the same time, however, the majority cites Hernandez with approval, apparently blissfully unaware that its reasoning cannot be reconciled with our decision in that case.
Trying to find support for its conclusion that enhancements are sentencing factors, the majority cites a decision by the Ninth Circuit Court of Appeal, Nichols v. McCormick (9th Cir. 1991) 929 F.2d 507 . There, the court considered the constitutionality of a Montana law providing that a defendant who “displayed, brandished, or otherwise used a firearm” in the commission of an offense was to receive an increase in punishment of between two and ten years. The federal court upheld the constitutionality of the statute, concluding that under Montana law use of a firearm was a sentencing factor, not an element of an offense.
But a closer look at the Montana statute at issue in Nichols v. McCormick, supra, 929 F.2d 507 , soon reveals that it bears no resemblance to the California statutory scheme governing enhancements. As I explained earlier, our Legislature has elected to treat enhancements as extensions of the *327 substantive offenses to which they attach, to be pleaded and proven before a jury in the same manner as any substantive crime. In contrast, the Montana statute in Nichols , like the Pennsylvania statute in McMillan, supra, 477 U.S. 79, made the question of whether the defendant had used a firearm in the commission of the offense a matter to be decided by the trial judge at sentencing on the underlying offense. (See State v. Madera (1983) 206 Mont. 140, 152 [ 670 P.2d 552, 558 ] [under Montana statute, trial court decides truth of enhancement at sentencing hearing].) Thus, Nichols correctly held that the Montana legislature had elected to treat firearm use as a sentencing factor, not as a substantive offense.
To summarize, because under California law enhancements are not simply sentencing factors, but are the functional equivalent of substantive offenses, the federal Constitution entitles a defendant charged with an enhancement to have a jury determine the existence of the elements of the enhancement, and to have the prosecution prove the elements beyond a reasonable doubt. Here, the trial court’s failure to instruct the jury on the elements of the enhancement alleged against defendants effectively denied them these rights.
V
The remaining question is whether the trial court’s error was prejudicial, that is, whether it can be said beyond a reasonable doubt that the court’s failure to instruct on the elements of the enhancement had no effect on the jury’s verdict. (Chapman v. California, supra, 386 U.S. at p. 24 [ 17 L.Ed.2d at p. 710 ].) I conclude the error was prejudicial as to defendant Wims, but not as to defendant Ford.
As I mentioned earlier, section 12022, subdivision (b)’s one-year enhancement for use of a weapon has three elements: (1) a deadly or dangerous weapon, that is, “any weapon, instrument or object that is capable of being used to inflict great bodily injury or death” (CALJIC No. 17.16); (2) the weapon’s use in the commission of the offense, that is, the defendant’s display of the weapon in a menacing manner or intentional use of the weapon to strike a human being during the offense (People v. James (1989) 208 Cal.App.3d 1155, 1163 [ 256 Cal.Rptr. 661 ]); and (3) “personal” use, that is, the defendant, rather than an accomplice, must have wielded the weapon. (People v. Cole (1982) 31 Cal.3d 568, 576 [ 183 Cal.Rptr. 350 , 645 P.2d 1182 ].) Although the trial court in this case failed to instruct the jury on the elements of the enhancement, the verdict form submitted to the jury required it to make findings on the first two of these elements: that there was *328 a deadly weapon, and that the weapon was “used.” 8 Accordingly, the jury was informed that in order to find the enhancement allegation true, it must find each of these two elements to be present. Although the trial court erred in not defining the terms “deadly weapon” and “use,” it is inconceivable that the failure to define these terms affected the jury’s verdict: defendants’ knives were incontestably deadly weapons and, assuming that the jury believed the testimony of the witnesses who observed the knives, there could be no doubt that the knives were used in the commission of the offense.
The third element of the enhancement, that is, the requirement that the use be “personal,” did not appear on the verdict form submitted to the jury. Thus, because the trial court did not inform the jury of this element of the enhancement, the jury did not determine the truth or falsity of this element when it found the enhancement allegation true as to both defendants.
With respect to defendant Ford, the trial court’s failure to instruct the jury on the third element of the enhancement was harmless beyond a reasonable doubt. Every witness at the trial testified that Ford had used a knife during the robbery, and all but battery victim Gebhardt so told the police shortly after the robbery. 9 Because the undisputed evidence overwhelmingly showed that Ford had used a knife during the robbery, the trial court’s instructional error as to him is harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24 [ 17 L.Ed.2d at p. 710 ]; People v. Harris (1994) 9 Cal.4th 407, 431 [ 37 Cal.Rptr.2d 200 , 886 P.2d 1193 ].) 10 That, however, cannot be said of the error pertaining to defendant Wims.
Robbery victim D’Agostino never saw a knife in Wims’s hands. Although witnesses McCoy, Gebhardt, and Gipson all testified that Wims had a knife, *329 none of them had told the police after the robbery that Wims had a knife: McCoy did not mention a knife, Gebhardt stated she was “unsure” whether Wims had a knife, and Gipson said that Wims did not have a knife. Furthermore, the witnesses saw Wims wielding a crutch, rendering his simultaneous use of a knife improbable.
The jurors were clearly troubled about the question whether Wims had used a knife during the robbery, for they sent the trial judge a note asking for a readback of testimony relating to this point and inquiring whether the crutch was a deadly weapon. It may well be that the jury, not informed by the trial court that personal use of the weapon was required, but instructed on the principles of accomplice liability, ultimately found the weapon use enhancement charged against defendant Wims to be true because he was an accomplice of defendant Ford, who unquestionably had used a knife during the robbery. Thus, I cannot say beyond a reasonable doubt that the trial court’s failure to instruct on the elements of the enhancement was harmless as to defendant Wims. As to him, therefore, I would reverse the finding of deadly weapon use.
All further statutory references are to the Penal Code unless otherwise indicated.
In fact, D’Agostino testified that Wims had held a crutch, and that he had seen nothing else in Wims’s hands. He also testified, however, that there were times during the robbery when he was unable to see Wims’s hands.
The jury acquitted codefendant Gipson of robbery, but convicted her of misdemeanor battery on Elizabeth Gebhardt. Gipson did not appeal her conviction.
In McMillan, supra, 477 U.S. at page 86 [ 91 L.Ed.2d at page 76 ], the high court held that state legislatures do not have “unbridled power to redefine crimes to the detriment of criminal defendants” and in some circumstances due process constraints will apply regardless of legislative intent. The court declined to define the extent to which due process circumscribes legislative power to reallocate or reduce the burden of proof in criminal cases.
The requirement that the prosecution present evidence to support an enhancement at the preliminary hearing does not apply to enhancements for prior convictions. (Mendella, supra, 33 Cal.3d at p. 764, fn. 9 ; People v. Shaw (1986) 182 Cal.App.3d 682, 685-686 [ 227 Cal.Rptr. 378 ].) This case does not involve an enhancement for a prior conviction, and I express no views on whether the federal Constitution entitles a defendant to a jury trial on such a question. Recently, a majority of this court held, without extended discussion, that a defendant has no such right (People v. Wiley (1995) 9 Cal.4th 580, 585 [ 38 Cal.Rptr.2d 347 , 889 P.2d 541 ]); Justice Werdegar’s dissenting opinion, which I joined, did not address the issue.
If the prosecution presents insufficient evidence to sustain an enhancement allegation at trial, double jeopardy principles bar retrial of the enhancement, just as they would bar retrial of a criminal offense. (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 78 [ 2 Cal.Rptr.2d 389 , 820 P.2d 613 ], fn. 22; People v. Pettaway (1988) 206 Cal.App.3d 1312, 1331-1332 [ 254 Cal.Rptr. 436 ].) The United States Supreme Court has not decided whether double jeopardy principles are applicable to noncapital sentencing proceedings. (Caspari v. Bohlen (1994) 510 U.S. _ , _._ [ 127 L.Ed.2d 236, 244-251 , 114 S.Ct. 948, 952-957 ].)
The Legislature’s failure to require pleading and proof of the enhancement was an apparent oversight, which the Legislature subsequently corrected. (Hernandez, supra, 46 Cal.3d at p. 206, fn. 12 .)
As to each defendant, the first sentence of the verdict form asked the jury to state whether it found the defendant guilty or not guilty of robbery. The second sentence read: “We further find the Use of Deadly Weapon Allegation (Violation of Penal Code Section 12022(b) to be ______.” Beneath the line at the end of the sentence were typed the words “True [or] Not True.”
Battery victim Gebhardt originally told the police that she was unsure whether defendant Ford had a knife.
In performing this “harmless error” evaluation, I have attempted to apply the reasoning that a majority of this court used in People v. Harris, supra, 9 Cal.4th 407, when it relied on the overwhelming strength of the evidence against the defendant to conclude that instructional error of federal constitutional dimension was harmless beyond a reasonable doubt. Although stare decisis principles compel me to apply the majority’s analysis, I still adhere to the view that the majority’s reasoning in Harris is wrong and difficult to follow. (See id. at p. 452 (conc. & dis. opn. of Kennard, J.).) Because, as I explained in Harris , the United States Supreme Court has not clearly described how a reviewing court should conduct a harmless error evaluation when the trial court has inaccurately defined, or failed to define, the elements of a criminal offense to the jury (id. at pp. 460-463), I urge the high court to provide further elucidation.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9846561. Public record. Not legal advice.