# Petition for Writ of Certiorari — Monge v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 721

## Text

K
OFFICE OF THE CLERK |

9r-61 46 4

wo. ORIGINAL

IN THE SUPREME COURT OF THE
UNITED STATES
October Term, 1996

ANGEL J. MONGE,
Petitioner,
vs.
PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF CALIFORNIA

CLIFF GARDNER
GARDNER & DERHAM
Ghirardelli Square

900 North Point

San Francisco, CA 94109
(415) 922-9404

'
Attorney for Petitionet
Angel J. Monge

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SEP zy 1997
GFP.Cz OF THE CLERK
SUrREME COURT, U.S,

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QUESTION PRESENTED vy.

Lalor
1) Does the Double Jeopardy Clause apply to non-capital sentence enhancement trials
which expose a defendant to a potential life sentence and which contain all the
hallmarks of a trial on guilt or innocence?

TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT .... 1... 2. eee ee ee ees

I. CERTIORARI MUST BE GRANTED TO RESOLVE A STARK SPLIT OF
AUTHORITY THROUGHOUT THE NATION AND DECIDE WHETHER
THE DOUBLE JEOPARDY CLAUSE PERMITS THE STATE MULTIPLE
CHANCES TO PROVE THE TRUTH OF NON-CAPITAL SENTENCE
ENHANCEMENTS IT WAS UNABLE TO PROVE AT A FIRST TRIAL

PEE CoOeb ees tober ecenqcereorcedieeceveessoveveeee

TABLE OF AUTHORITIES

CASES

Arizona v. Rumsey, 467 U.S. 203 (1984) 2.20... cee eee eee eee 5
Briggs v. Procunier, 764 F.2d 368 (Sth Cir. 1982)... 2... ee ee ee es ll
Bullington v, Missouri, 451 U.S. 430 (1981) 2.0... 2... cee eee dee ee ues 5
Gomenl e Deltes, SHBG. SEB CIDR) ow ch nc cic ccepecccvcpesobevnces 6
Cooper v, State, 631 S.W.2d 508 (Tex. 1982) 22... 2. cece eee ee eee ee 10
Denton v, Duckworth, 873 F.2d 144 (7th Cir. 1989) 2.0.2... cee eee eee 11
Durham v, State, 464 N.E.2d 321 (Ind. 1984) 2.0.0... cece eee eee eee 11
Durosko v. Lewis, 882 F.2d 357 (9th Cir. 1989)... 2... eee eee 10
Erench v, Estelle, 692 F.2d 1021 (Sth Cir. 1982)... ......00 0 cece eee eeeuee 11
Hunt v. New York, 502 U.S. 964 (1991)... 0.0... cee ee ee eee eens 6
DE, CRO. 5 vc habic chives VEOS eck c des cacbeeavees 9
Linam vy. Green, 685 F.2d 369 (10th Cir. 1982) .. 0.2... . ccc eee eee eee 11
Lockhart v, Nelson, 488 U.S. 33 (1988) 2.0... eee eee ees 6
People v. Braccamonte, 119 Cal.App.3d 644 (1981)... 2.0... eee eee eee 9
People v. Meyers, 5 Cal.4th 1193 (1993) 22... . eee eee eee eee ees 9
People v. Morton, 41 Cal.2d 536 (1953) .. 2... eee eee eee eee 9
People v, Quintana, 634 P.2d 413 (Colo. 1981)... ...... 000 cece eee eee ees 10
People v, Reed, 13 Cal.4th 217 (1996)... 1... eee eee eee 9
People v. Santamaria, 8 Cal.4th 903 (1994) .. 2... 0... eee eee eee eee 9
People v. Tenner, 6 Cal.4th 559 (1993) 2.0... ee eee eee eee enna 9

ee Se GE, Sa We, GOW CUED ccc cc ccc ccc c esc cceececcceceees 7

ee GUD Ls ME CUUE, BOD ccc ccc cc cc ccc ccc cccecces 10
EL OE eee ll
re ei. sk | lk ee ee ees eeeeees 6
United States v. DiFrancesco, 449 U.S. 117 (1980) ... 2... ee ee ee 5
STATUTES
PENAL CODE
EE EIS Oe ee ee 4
Section 667, subdivisions (b) through (i)... .. 2... 2... ee ee ees 3
I ge 4
EE en a ar 4
EE TE OP rr ie 6 2 ae s
a i. ks ke ee wed be obs 6hb cccees 4
Section 1170.12, subdivisions (a) through (d) ... 2... 2 2. eee 3
UNITED STATES CONSTITUTION
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OTHER AUTHORITIES
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iv

No. 96 - OPINION BELOW

UNITED STATES The Supreme Court of California issued its divided opinion in this case on August 26,

October Term, 1996 1997, reported as People v. Monge, _—Cal.4th _—s (1997). A copy of that opinion is
attached as Appendix A.

JURISDICTION

vs.
The opinion of the California Supreme Court was filed on August 26, 1997. This

PEOPLE OF THE STATE OF CALIFORNIA,
Court has jurisdiction pursuant to 28 U.S.C. section 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

STATE OF CALIFORNIA This case involves the Double Jeopardy guarantee of the Fifth Amendment to the
United States Constitution and the Due Process guarantee of the Fourteenth Amendment.
Petitioner Angel J. Monge respectfully prays that a Writ of Certiorari issue to review In relevant part, the Fifth Amendment provides that “[nJo person shall be . . . subject
the judgement and decision of the Supreme Court of the State of California entered on for the same offense to be twice put in jeopardy... .”

August 26, 1997.

The Fourteenth Amendment provides:

Nor shall any state deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

In 1994 the California electorate enacted a habitual offender statute commonly

referred to as the “three strikes” initiative. This law provided a minimum of a twenty-five

year to life sentence for a defendant convicted of a felony if that defendant had two prior

felonies which qualified as “strikes.” It also provided for a sentence doubling if the

defendant had one qualifying prior strike. Under state law, these increased penalties applied

only when the state could prove to a jury beyond a reasonable doubt that the defendant's

prior felonies involved the type of conduct specified in the habitual offender statute.

Here, the information charged appellant with the sale and possession of marijuana as

well as having served a prior prison term. In addition, the information charged that

appellant had suffered a prior serious felony conviction, a strike within the meaning of the

three-strikes law then codified at Penal Code § 667 (b) - (i) and Penal Code § 1170.12 (a) -

(d). In particular, the information charged that defendant had been convicted of an assault in
which he had personally used a dangerous weapon.

Defendant pled not guilty on the substantive charges and, pursuant to state law,

moved to bifurcate trial on the section 667 strike allegation. The motion was gran‘ed.

The jury found defendant guilty of the underlying substantive charges. Ata
bifurcated trial, the state presented its evidence to show that defendant had personally used a
weapon during a prior offense. The prior conviction allegation was found true, as was the

prior prison term allegation.

The court sentenced appellant on June 12, 1995, imposing a five year term for the
underlying criminal charge. Because of the true finding on the prior conviction allegation,
and pursuant to the mandatory terms of the state’s three strikes law, the court then doubled
that term to 10 years. See California Penal Code § 667(e)(1). Finally, the court added a

one-year term for the prior prison term allegation.

On appeal, the state conceded that it had presented insufficient evidence to sustain the
prior felony conviction allegation because it had failed to prove that defendant had used a
weapon during the prior offense. The Court of Appeal agreed and struck the true finding on
this allegation. Because the state had presented insufficient evidence to support this
allegation, the appellate court held that Double Jeopardy precluded the state from retrying the
allegation a second time.

~~.

The state sought review. The California Supreme Court granted review and, in a 4-3

decision, reversed. The seven justice state court was badly fractured on this issue. The
decision generated three separate opinions; a three-justice plurality which held Double
Jeopardy inapplicable, a short one-justice concurrence, and an exhaustive three-justice dissent
which concluded that Double Jeopardy did indeed apply. Each of the three opinions
accurately noted not only that this Court had, on several occasions, left this question open

but that courts around the country had reached conflicting views on this exact question.

This Petition for Writ of Certiorari is taken from the decision of the California

Supreme Court.

REASONS FOR GRANTING THE WRIT

In a line of cases culminating with United States v. DiFrancesco, 449 U.S. 117
(1980) this Court has held that the Double Jeopardy clause does not apply to traditional

criminal sentencing proceedings. In a separate line of cases the Court has held that the
Double Jeopardy clause does apply to certain criminal sentencing proceedings which have all
the hallmarks of a trial on the question of guilt or innocence. See Arizona v. Rumsey, 467
U.S. 203 (1984); Bullington v, Missouri, 451 U.S. 430 (1981).

Both Bullington and Rumsey involved sentencing proceedings in capita! cases. Thus,
the question has arisen as to whether application of the Double Jeopardy clause is limited to
formal trials in capital sentencing proceedings which have all the hallmarks of a trial or
whether it also applies to formal trials in non-capital sentencing proceedings that have such
hallmarks. This Court has, on several occasions, noted that this question remains
unresolved.

In Lockhart v, Nelson, 488 U.S. 33, 37-38, n.6 (1988) the Court explicitly declined
to decide whether the protection of the Double Jeopardy clause applied to trial like
sentencing proceedings in non-capital cases. Similarly, in Caspari v. Bohlen, 510 U.S. 383,
397 (1994) the Court once again explicitly left the question open, concluding that “we have
No occasion to decide whether the Double Jeopardy Clause applies to noncapital sentencing .
. + »" Caspari also noted that federal and state courts had “reached conflicting holdings on
the issue.” 510 U.S. at 395. Accordingly, the Court held that because reasonable jurists
could -- and had -- differed on the question, the issue could not be resolved in federal habeas
corpus proceedings under the new rule bar of Teague v. Lane, 489 U.S. 288 (1989).

Yet the issue has continued to arise in courts throughout the country. As this Court
noted in Caspari, and as each of the opinions below in this case noted, there is a stark split
of authority in the lower courts as to the proper approach to this issue. Indeed, prior to his
retirement, Justice White called on the Court to grant certiorari for this very reason and
resolve this split of authority. Hunt vy. New York, 502 U.S. 964 (1991).

In this case, a sharply divided California Supreme Court has now added its voice to I.

the fray, holding that the Double Jeopardy clause does not bar retrial on enhancement CERTIORARI MUST BE GRANTED TO RESOLVE A STARK SPLIT OF
AUTHORITY THROUGHOUT THE NATION AND DECIDE WHETHER

allegations on which the state has presented insufficient evidence during a first trial. THE DOUBLE JEOPARDY CLAUSE PERMITS THE STATE MULTIPLE
CHANCES TO PROVE THE TRUTH OF NON-CAPITAL SENTENCE

Certiorari is appropriate for three separate, but related, reasons. ENHANCEMENTS IT WAS UNABLE TO PROVE AT A FIRST TRIAL.

First, the sheer number of conflicting appellate decisions on this question shows that The question presented in this case is whether the Double Jeopardy Clause applies to
the issue is both an important and recurring one. Second, there is a stark split of authority non-capital sentence enhancements which contain all the hallmarks of a trial on oe question
as to whether the Double Jeopardy Clause applies to trial like sentence enhancements. As of guilt or innocence. The issue is squarely presented in this case because, as the opinions
Justice White's opinion in Hunt suggests, resolution of this issue in a particular case should below recognized, trial on the prior conviction enhancement at issue here has every hallmark
not depend on the fortuity of which jurisdiction a litigant happens to be in. of trial.

Finally, as Justive Kennedy has noted, when resolution of an important federal For example, the three-justice plurality below recognized that the “trial at which a
question in federal court is barred by the new rule doctrine of Teague v. Lane, 489 U.S. California jury determines the truth of a prior conviction allegation . . . has ‘the hallmarks of
288, it is appropriate to grant certiorari in a case which presents that issue on direct review. the trial on guilt or innocence.’" People v. Monge, Slip. Op. at 10. The three-justice
Spencer v. Georgia, 500 U.S. 960, 961 (1991). (Kennedy, J., concurring in the denial of dissent agreed, noting that the “same ‘hallmarks of the trial on guilt or innocence’ apply to a
certiorari). This case presents the very situation Justice Kennedy envisioned in Spencer; trial on a sentence enhancement allegation." People v. Monge, Werdegar J. dissenting, Slip
Caspari makes clear that federal review of this issue is precluded by Teague. As a practical Op. at 31.
matter, the only way for this Court to resolve the split of authority referred to in Caspari
itself, as well as each of the principal opinions in this case, is to grant certiorari in a case Both opinions are entirely correct. As with any criminal offense, the California
which presents the issue on direct review. Legislature has provided that defendants are entitled to formal notice of and arraignment on

prior conviction charges. See Penal Code § 667, subdivisions (c) and (g); § 1025.
This is just such a case. Certiorari is appropriate. Similarly, as with any criminal offense, the defendant is entitled to a formal adversarial trial
7 8

on the charges. This includes not only the right to confront and present evidence, but the
right to a jury trial as well. See Penal Code §§ 969'4, 1025, 1158; People v. Reed, 13
Cal.4th 217, 228 n.5 (1996); In re Yurko, 10 Cal.3d 857, 862-863 (1974). Indeed, unless a
defendant moves to bifurcate trial on the prior conviction allegations, the trial will occur at
the same time and in front of the same jury that is trying the underlying charged offenses.

See People v. Braccamonte, 119 Cal.App.3d 644 (1981).

At this trial, the formal rules of evidence apply. People v. Meyers, 5 Cal.4th 1193,
1201 (1993). Moreover, defendants are entitled to a special verdict on each prior conviction
alleged. See Penal Code § 1158. Finally, and perhaps of most importance, the prosecution
must prove each element of a prior conviction allegation true “beyond a reasonable doubt."

People v. Morton, 41 Cal.2d 536, 539 (1953). See also People v. Santamaria, 8 Cal.4th
903, 918 (1994); People v. Tenner, 6 Cal.4th 559, 566 (1993).

This constellation of protections -- particularly proof beyond a reasonable doubt -- is
identical to that provided during the trial on guilt or innocence. In California, a prior

conviction trial under the three strikes law is identical to the trial on guilt and innocence.

Thus, this case squarely presents the very issue this Court left open in boch Lockhart
y. Nelson, 488 U.S. at 37-38, n.6 and Caspari v. Bohlen, 510 U.S. at 397. To wit,
“whether the Double Jeopardy clause applies to noncapital sentencing, or whether

[California’s) persistent-offender scheme is sufficiently trial like to invoke double jeopardy

protections... ." Caspari v. Bohlen, 510 U.S. at 397.

In the case below, the three-judge plurality noted that “other state courts and the
federal circuit courts are divided as to whether the federal double jeopardy clause applies to
[trial-like, non-capital sentencing] proceedings analogous to the one here." People v.
Monge, Slip. Opn. at 14. The three-judge dissenting opinion also recognized that there was
a split of authority throughout the country. People v. Monge, Werdegar, J. dissenting, Slip.
Opn. at 23-31. This Court recognized the split of authority in Caspari, as did former Justice
White in an opinion issued several years before Caspari. Caspari v. Bohlen, 510 U.S. at 395
(noting that federal and state courts have “reached conflicting holdings on the issue."); Hunt

vy. New York, 502 U.S. 964 (White, J. dissenting from a denial of certiorari).

The various observations as to the split of authority are also entirely correct. By way
of example only, the highest courts of Colorado, Washington and Texas have all found that
Double Jeopardy does apply to habitual offender schemes so long as they have all the
hallmarks of a trial on the question of guilt or innocence. See State v. Hennings, 670 P.2d
256, 257-262 (Wash. 1983); Cooper v. State, 631 S.W.2d 508, 514 (Tex. 1982); People v.
Quintana, 634 P.2d 413, 417-418 (Colo. 1981). Prior to Caspari -- which precluded federal
courts from resolving the question under the new rule doctrine of Teague v. Lane -- the
feder>| circuit courts in the Fifth, Eighth and Ninth circuits reached the same result. See,

¢.g., Durosko v. Lewis, 882 F.2d 357, 359 (9th Cir. 1989), cert. denied, 110 S.Ct. 1930;

10

Nelson v. Lockhart, 828 F.2d 446, 449-451 and n.7 (8th Cir. 1987), overruled on other
grounds Lockhart v. Nelson 488 U.S. 33; Briggs v. Procunier, 764 F.2d 368, 372-373 (Sth
Cir. 1982); French v. Estelle, 692 F.2d 1021, 1023 (Sth Cir. 1982), cert. denied 461 U.S.
937.

On the other hand, federal circuit courts in the Seventh and Tenth Circuits have
reached a contrary conclusion, ruling that Double Jeopardy does not apply in this situation.
Denton v. Duckworth, 873 F.2d 144 (7th Cir. 1989); Linam v. Green, 685 F.2d 369 (10th
Cir. 1982). State courts in Missouri and Indiana have agreed with this conclusion. State v,

Lee, 660 S.W.2d 394 (Mo. 1983); Durham v. State, 464 N.E.2d 321 (Ind. 1984).

In sum, there are three points which counsel in favor of a grant of certiorari. First,
the question of whether double jeopardy applies to trial-like non-capital sentence
enhancements has been, and continues to be, a recurring one in jurisdictions throughout the

country. Virtually every jurisdiction has such enhancements.

Second, every court to address this issue -- including this Court -- has recognized that
there is a sharp divergence of views on this question. The two principal opinions below
reflect this very divergence. Uniformly, the lower courts have -- as in this case -- noted that

11

Third, in light of Caspari, this issue cannot be resolved in federal habeas corpus
proceedings. Thus, the only way for this Court to resolve this split of authority, and finally
put this divisive issue to rest, is to grant certiorari in a case which squarely presents the issue

and comes to the Court on direct review.

This is just such a case. Certiorari is appropriate.

12

CONCLUSION

For all the foregoing reasons, this Petition for Writ of Certiorari should be granted.

DATED: q/ LY / 49

Respectfully submitted,

GARDNER & DERHAM
CLIFF GARDNER*

Wk

By Oliff Gardner

*Counsel of Record AP PEN DIX A

13

SUPREME
FILED

AUG 27 i997

walked to a carport. The officers turned their car around and then noticed the young
boy who had earlier motioned them to pull over, now standing some distance behind
their car. Defendant returned and gave the boy several plastic bags. The boy then
approached the officers and asked how much they wanted. The officers requested
two “dime bags” and exchanged two $10 bills for two plastic bags of marijuana.
_After leaving the alley, the officers reported the sale to other Pomona officers, who

COPY
Robert Wandrutt Clerk

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) arrested defendant and the boy. Police searched defendant and found the two $10
Plaintiff and Respondent, bills that the officers had given to the boy.
f v. . yas The District Attorney of Los Angeles County charged defendant with using a
) Ct. App. 2/3 B094905 minor to sell marijuana (Health & Saf. Code, § 11361, subd. (a)), sale or
ANGEL JAIME MONGE, neninsetiicatlen transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), and possession
Defendant and Appellant. ) Super. Ct. No. KA025876 of marijuana for sale (Health & Saf. Code, § 11359). The district attorney also
)

alleged defendant had suffered a prior serious felony conviction within the meaning
of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-
(d)),! and a prior prison term within the meaning of section 667.5, subdivision (b).
Specifically, the district attorney alleged a July 2, 1992, conviction and prison term

allegation. We conclude that, in this noncapital case, the state and federal | | 7
ibitions against double jeopardy do not apply. Accordingly, we reverse the | for assault with a deadly weapon (§ 245, subd. (a)(1)). Defendant pleaded not guilty
- | and denied all sentencing allegations.

judgment of the Court of Appeal to the extent that judgment bars retrial of the prior |
| Defendant waived his right to a jury trial of the prior conviction and prior

conviction allegation on double jeopardy grounds.
prison term allegations, and the court granted his request to bifurcate determination of
FACTS AND PROCEDURAL BACKGROUND 1 on o
those allegations. A jury found defendant guilty of the substantive charges. When

During the afternoon of January 25, 1995, as Pomona Police Department i | ; |
undercover officers were driving an unmarked car on West Ninth Street in the City of proceedings reconvened the following week, the court asked defense counsel if
defendant wanted to admit the prior conviction, and defense counsel said, “That's

Pomona, they spotted a 13-year-old boy standing near the curb. The boy motioned . ,
the officers to pull over, but instead they pulled into an alley that led to the rear of an correct, Your Honor.” The court then asked defendant if he understood, and
apartment complex where police had earlier observed narcotics activity. Once in the defendant said, “Yes.” After an off-the-record discussion, the court again asked if
carport area at the rear of the complex, the officers spotted defendant Angel Jaime
Monge. Defendant approached the car, and one of the officers rolled down the
window and asked where he could buy marijuana. Defendant did not answer, but 1 All fort i tees

SEE CONCURRING AND DISSENTING OPINIONS 2

In this case, we consider the applicability of the state and federal prohibitions
against double jeopardy to a proceeding to determine the truth of a prior conviction

defendant wanted to admit the prior conviction, and defense counsel said, “No, he
doesn’t. He wishes the court to try the prior without the jury.”

The prosecutor asserted that the prior assault conviction was a serious felony
for purposes of the Three Strikes law. Defense counsel disagreed, arguing the
weapon involved in the prior crime was not a deadly weapon. The court interrupted
to point out that defendant had pleaded guilty to assault with “a deadly weapon” and
thus had admitted the weapon was deadly. The court stated it would take judicial
notice of the prior conviction and asked if the parties submitted the matter on that
evidence alone. The prosecution then offered as additional evidence a “prison
packet” (see § 969b) dated February 17, 1995, and an abstract of judgment. This
additional evidence characterized defendant’s prior conviction as “PC 245(a)(1)
ADW GBI” and “ASLT W/DW (245(a)(1)PC).” Defense counsel submitted the
matter after questioning whether the prosecution’s documentary evidence, which
included a photograph and fingerprints, related to defendant.

The court found true that defendant suffered a prior serious felony conviction,
“(t]he felony being personal use of a deadly weapon in violation [of] section 245,
245(a)(1).” The court also found true the prior prison term allegation. The court
imposed an eleven-year sentence, including five years for using a minor to sell
marijuana, which the court doubled to ten years under the Three Strikes law (§§ 667,
subd. (e)(1), 1170.12, subd. (c)(1)), plus a one-year enhancement for the prior prison
term (§ 667.5, subd. (b)) and two years to run concurrently for possessing marijuana
for sale. Under section 654, the court stayed the sentence for defendant’s conviction
of selling marijuana.

On appeal, defendant challenged the Three Strikes law as a violation of his
right to due process. On its own motion, the Court of Appeal requested supplemental
briefing on whether sufficient evidence supported the trial court’s finding that
defendant had suffered a prior serious felony conviction within the meaning of the
Three Strikes law. Under the Three Strikes law, a prior felony conviction may affect

3

the sentence for the present offense if the conviction was of a “serious felony” as
defined in section 1192.7, subdivision (c). (§§ 667, subd. (d)(1), 1170.12, subd.
(b)(1).) Of the felonies and categories of felonies listed in section 1192.7,
subdivision (c), defendant’s July 2, 1992, felony conviction might have qualified as a
“serious felony” under either subdivision (c)(8), which refers to “any . . . felony in
which the defendant personally inflicts great bodily injury on any person, other than
an accomplice .. . ,” or subdivision (c)(23), which refers to “any felony in which the
defendant personally used a dangerous or deadly weapon.” (Italics added.)

The Court of Appeal affirmed defendant’s conviction, but reversed the trial
court’s true finding on the prior serious felony allegation, holding the evidence
insufficient to establish that defendant had acted personally. In addition, the Court of
Appeal held that the state and federal constitutional protections against double
jeopardy barred retrial of the prior serious felony allegation. Thus, the Court of
Appeal remanded for resentencing.

We granted review in order to consider whether the state and federal
prohibitions against double jeopardy apply to a proceeding, in a noncapital case, to
determine the truth of a prior serious felony allegation. ~

DOUBLE JEOPARDY

Federal Constitution

The Fifth Amendment of the United States Constitution provides that “[n]Jo
person shall . . . be subject for the same offense to be twice put in jeopardy of life or
limb ....” Among other things, this constitutional guaranty, known as the double
jeopardy clause, “protects against a second prosecution for the same offense after
acquittal.” (North Carolina v. Pearce (1969) 395 U.S. 711, 717 (Pearce), fn.
omitted.) In Benton v. Maryland (1969) 395 U.S. 784, 796, the Supreme Court held
that the double jeopardy prohibition was “ ‘fundamental to the American scheme of
justice’ ” and therefore enforceable against the states as an element of the due process
protection embodied in the Fourteenth Amendment. Nevertheless, the Supreme

4

Court has never held that the double jeopardy clause applies generally to proceedings,
like the one in this case, to determine whether a defendant should receive a longer
sentence because of prior convictions. We have on a few occasions noted and
expressly declined to decide this question. (People v. Valladoli (1996) 13 Cal.4th
590, 608; People v. Wiley (1995) 9 Cal.4th 580, 593, fn. 8; People v. Saunders (1993)
5 Cal.4th 580, 593.) |

At the outset we emphasize that, in the absence of a statutory provision, a
criminal defendant is not entitled as a federal constitutional matter to a trial, formal or
informal, of sentencing issues, even when the sentence turns on factual
determinations such as the existence of prior convictions. In Williams v. New York
(1949) 337 U.S. 241 (Williams), a jury convicted the defendant of first degree murder
and recommended life imprisonment. (Jd. at pp. 242-243.) The judge, however,
sentenced the defendant to death after considering the evidence “in the light of
additional information obtained through the court’s ‘Probation Department, and
through other sources.’” (Jd. at p. 242.) Among other things, the judge noted that
the defendant had been involved in “ ‘thirty . . . burglaries in and about the same
vicinity.’ ” (Jd. at p. 244.) No court had ever convicted the defendant of these 30
burglaries, but “the judge had information that [the defendant] had confessed to some
and had been identified as the perpetrator of some of the others.” (/bid.) The judge’s
rather informal fact-finding procedure was consistent with applicable New York law,
which permitted the sentencing court to “ ‘seek any information that will aid the
court’ ” (id. at p. 243), including information “obtained outside the courtroom from
persons whom a defendant has not been permitted to confront or cross-examine” (id.
at p. 245).

The United States Supreme Court upheld the sentence. The high court noted
that the procedural protections applicable in a trial on guilt (notice of the charges,
opportunity to cross-examine adverse witnesses, opportunity to offer evidence, and
representation by counsel) traditionally have not applied at sentencing. (Williams,

5

supra, 337 U.S. at pp. 245-246.) Historically, the court pointed out, sentencing
judges could even rely on their personal knowledge of a defendant. (/d. at p. 246.)
The court concluded, “The due process clause should not be treated as a device for
freezing the evidential procedure of sentencing in the mold of trial procedure.” (/d. at
p. 251.)

The high court has broadly described Williams as holding “that the Due
Process Clause of the Fourteenth Amendment [does] not require a judge to have
hearings and to give a convicted person an opportunity to participate in those
hearings when he [comes] to determine the sentence to be imposed.” (Specht v.
Patterson (1967) 386 U.S. 605, 606. Moreover, though the high court has retreated
from Williams in capital cases (Gardner v. Florida (1977) 430 U.S. 349), it has
otherwise reaffirmed Williams as recently as last term. (U.S. v. Watts (1997)
U.S.__,__ [117 S.Ct. 633, 635]; see also Witte v. U.S. (1995)___—-U.S._ ,_
[115 S.Ct. 2199, 2205] [“[T]Jhe Due Process.Clause [does] not require ‘that courts
throughout the Nation abandon their age-old practice of seeking information from
out-of-court sources to guide their judgment toward a more enlightened and just
sentence.’ ”].) “

Because, in a noncapital case, a state need not provide a trial of sentencing
allegations at all, a state that elects to provide a trial of these allegations can
circumscribe the procedural boundaries of that trial. So long as the state affords
minimal due process of law, it need not provide all the procedural guaranties that
characterize a trial on guilt or innocence. Thus, a state that provides a trial of
sentencing allegations need not provide a jury trial. (People v. Vera (1997) 15
Cal.4th 269, 274, 277; People v. Wims (1995) 10 Cal.4th 293, 304-306; People v.
Wiley, supra, 9 Cal.4th at pp. 584-585, 589.) For the same reason, a state that
provides a trial of sentencing allegations arguably need not provide double jeopardy
protection.

Though states need not provide a trial of sentencing allegations, the California
Legislature has elected to grant defendants a statutory right to a jury trial of prior
conviction allegations. Section 1025 provides: “[T]Jhe question whether or not [a
defendant] has suffered [a] previous conviction must be tried by the jury which tries
the issue upon the plea of not guilty, or in case of a plea of guilty, by a jury
_impaneled for that purpose ... .” A survey of our decisions indicates that we have
expanded section 1025’s bare grant of a jury trial to include various procedural
guaranties. For example, we have stated in dictum that the prosecution must prove a
prior conviction allegation beyond a reasonable doubt (People v. Tenner (1993) 6
Cal.4th 559, 566 (Tenner); In re Yurko (1974) 10 Cal.3d 857, 862) and that the
accused enjoys the privilege against self-incrimination (Jn re Yurko, supra, 10 Cal.3d
at p. 863, fn. 5). Similarly, we have held that the rules of evidence apply in these
trials. (People v. Reed (1996) 13 Cal.4th 217, 224; People v. Myers (1993) 5 Cal.4th
1193, 1201.) Finally, we have stated that a defendant in a trial of a prior conviction
allegation has a right to “ ‘be confronted with witnesses against him [and] to cross-
examine’ ” those witnesses. (People v. Reed, supra, 13 Cal.4th at p. 228, fn. 6,
quoting Specht v. Patterson, supra, 386 U.S. at p. 610; In re Yurko, supra, 10 Cal.3d
at p. 863, fn. 5.) Arguably, the next step in the logical progression of these decisions
is for us now to hold that the constitutional protections against double jeopardy apply.
Constitutional law, however, does not grow inevitably by accretion; rather, each
question rises or falls on its individual merits.

With this point in mind, we turn to an analysis of the double jeopardy clause of
the federal Constitution. The double jeopardy clause by its terms proscribes a second
jeopardy “for the same offense.” (U.S. Const., Sth Amend., italics added.) The
clause makes no express reference to sentencing determinations. Our review of the
Supreme Court’s decisions indicates that court is reluctant to apply the clause to
sentencing determinations. In Stroud v. United States (1919) 251 U.S. 15 (Stroud), a
jury found the defendant guilty of first degree murder “ ‘without capital

7

punishment,’ ” which was one of its options under the applicable statute. (/d. at pp.
17, 18.) After the Supreme Court reversed that judgment, a jury on retrial convicted
the defendant of first degree murder, but omitted the stipulation against capital
punishment, and the trial court sentenced the defendant to death. (/d. at p. 17.) The
Supreme Court held that the defendant had not been “placed in second jeopardy”

despite the change in his sentence from life imprisonment to death. Specifically, the

court did not consider the verdict of “guilty . . . ‘without capital punishment’ ” as a
conviction of a lesser offense. “The fact that the jury may thus mitigate the
punishment to imprisonment for life did not render the conviction less than one for
first degree murder.” (Jd. at p. 18.)

The Supreme Court reaffirmed Stroud in Pearce, supra, 395 U.S. at page 720.
In Pearce, the court resolved two cases in which the defendants successfully
challenged their convictions, only to receive longer overall sentences following
retrials. Moreover, neither defendant received credit for time served. (/d. at pp. 713-
715.) The Supreme Court held that the double jeopardy clause entitled the defendants
to credit for time served. (Jd. at pp. 718-719.) Nevertheless, the double jeopardy
clause did not preclude the court from imposing a longer sentence after retrial.
“Long-established constitutional doctrine makes clear that [with the exception of
credit for time served] the guarantee against double jeopardy imposes no restrictions
upon the length of a sentence imposed upon reconviction.” (Jd. at p. 719.)

In Chaffin v. Stynchcombe (1973) 412 U.S. 17, 23-24, in which the jury
imposed the sentence instead of the judge, the Supreme Court, without discussion,
again reaffirmed that the double jeopardy clause does not preclude a longer sentence —
following retrial. Finally, in United States v. DiFrancesco (1980) 449 U.S. 117
(DiFrancesco), the high court considered a statutory sentencing scheme that allowed
the federal court of appeals to review the sentence that the federal district court had
imposed and, at the prosecution’s request, to increase that sentence “after considering
the record” and “after hearing.” (/d. at p. 120, fn. 2.) The high court determined that

j

this scheme did not violate the double jeopardy clause, noting that “[h]istorically, the
pronouncement of sentence has never carried the finality that attaches to an
acquittal.” (/d. at p. 133.)

Thus, in a variety of contexts, the Supreme Court has declined to extend the

federal guaranty against double jeopardy to sentencing proceedings. Bullington v.
Missouri (1981) 451 U.S. 430 (Bullington) marked the first departure from this
consistent approach.

Bullington concerned imposition of the death penalty under Missouri law. In
accord with the Supreme Court’s decisions in Furman v. Georgia (1972) 408 U.S.
238, Gregg v. Georgia (1976) 428 U.S. 153, and the capital cases decided on the
same day as Gregg, Missouri’s death penalty statute included intricate procedural
safeguards. For example, the trial court had to conduct a separate presentence
hearing for a defendant convicted of capital murder. The hearing had to be held
before the same jury that found the defendant guilty. At the hearing, the jury
considered additional evidence and determined whether any aggravating or mitigating
circumstances existed, whether the aggravating circumstances warranted the death
penalty, and whether the mitigating circumstances outweighed the aggravating
circumstances. The jury had to make its findings beyond a reasonable doubt.
Finally, the court had to instruct the jury that it need not impose the death penalty
even if it found sufficient aggravating circumstances that mitigating circumstances
did not outweigh. (Bullington, supra, 451 U.S. at pp. 433-435.)

A Missouri jury convicted Robert Bullington of capital murder. As required,
the court held a presentence hearing, and the jury returned a verdict of “imprisonment
for life without eligibility for probation or parole for 50 years.” (Bullington, supra,
451 U.S. at p. 436.) The trial court then granted Bullington’s motion for a new trial,
finding error in jury selection. Despite the Supreme Court’s decision in Stroud,
supra, 251 U.S. 15, the court also ruled, on double jeopardy grounds, that the
prosecution could not seek the death penalty on retrial. (Bullington, supra, 451 U.S.

9

at p. 436.) The prosecution petitioned for a writ of prohibition or mandamus, and the
state supreme court granted the writ, holding that double jeopardy principles did not
bar the prosecution from seeking the death penalty. (/d. at pp. 436-437.) The United
States Supreme Court reversed, holding that the double jeopardy clause did bar
imposition of the death penalty. (/d. at pp. 446-447.) Noting that, under the
applicable Missouri death penalty law, the jury determined the sentence at “a separate
hearing” and did not have “unbounded discretion,” but rather chose “between two
alternatives,” and that “the prosecution . . . undertook the burden of establishing
certain facts beyond a reasonable doubt” (id. at p. 438), the high court reasoned that
the penalty phase of a Missouri capital trial had “the hallmarks of the trial on guilt or
innocence” (id. at p. 439) and therefore that the double jeopardy prohibition applied
(id. at pp. 438, 446). The court reaffirmed Bullington in Arizona v. Rumsey (1984)
467 U.S. 203, 212, a case in which the judge, not the jury, determined the appropriate
sentence.

On its face, a section 1025 trial at which a California jury determines the truth
of a prior conviction allegation also has “the halimarks of the trial on guilt or
innocence.” Thus, the defendant has a right to counsel, notice, and an opportunity to
be heard. (Oyler v. Boles (1962) 368 U.S. 448, 452.) The prosecution must “plead
and prove” the prior conviction allegation (§§ 667, subds. (c) and (g), 1170.12, subds.
(a) and (e)) at a “trial” (§ 1025). The prosecution has the burden of proof beyond a
reasonable doubt. (Tenner, supra, 6 Cal.4th at p. 566.) Finally, the trier of fact faces
a choice between two alternatives. (§ 1158.) Nevertheless, for reasons we discuss
below, we believe Bullington’s “hallmarks of the trial” analysis does not apply here.

Significantly, the high court in subsequent cases has suggested that Bullington
does not apply to noncapital cases. For example, in Pennsylvania v. Goldhammer
(1985) 474 U.S. 28, the court reaffirmed that its decisions “ ‘clearly establish that a
sentenc[ing in a noncapital case} does not have the qualities of constitutional finality
that attend an acquittal.” (/d. at p. 30, bracketed language in Goldhammer, italics

10

added.) Similarly, in Caspari v. Bohlen, the court noted that Bullington “was based
largely on the unique circumstances of a capital sentencing proceeding.” (Caspari v.
Bohlen (1994) 510 U.S. 383, 392 (Caspari).) The court added: “Goldhammer and
Strickland [v. Washington (1984) 466 U.S. 668] strongly suggested that Bullington
was limited to capital sentencing.” (Caspari, supra, 510 U.S. at p. 393.)
3 Moreover, many of the procedural protections that apply in a section 1025 trial
rest on statutory, not federal constitutional, grounds. On the other hand, many of the
elaborate procedures at the penalty phase of a capital trial originate directly in the
Supreme Court’s decisions interpreting the federal Constitution. This distinction is
relevant to our analysis because, when a state legislature has elected at its option to
provide a trial-like proceeding to resolve a factual issue that a judge could otherwise
resolve with no hearing at all, common sense suggests that the legislature need not
provide all the procedural protections that apply in a constitutionally mandated trial.
Furthermore, despite some common procedural protections, the sentencing
proceeding here and that in Bullington are more unlike than alike. First, the trial-like
procedures that regulate imposition of the death penalty find no parallel in noncapital
cases. Unlike the death penalty sentencing procedure af issue in Bullington, a trial of
prior conviction allegations under section 1025 does not require the trier of fact to
determine the existence of a broad range of aggravating and mitigating circumstances
relating to the defendant’s character. A section 1025 trial does not then require a
finding that the aggravating circumstances warrant a longer sentence or a weighing of
aggravating circumstances against mitigating circumstances. Nor does a section 1025
trial allow the trier of fact to reject a longer sentence even if its factual determinations
support the sentence. Considering the breadth and subjectivity of the factual
determinations at issue in Bullington, the failure of proof at issue in that case was
more like an acquittal at the guilt phase of a criminal trial than is the failure of proof
at issue here.

11

Ot re ee - ——

In deciding Bullington, the court reaffirmed the general rule that the double
jeopardy clause does not apply to sentencing proceedings. (Bullington, supra, 451
U.S. at p. 438.) The court then carved out a narrow exception to this general rule.
(Jbid.) The court did not overrule Stroud, supra, 251 U.S. 15, which also involved
imposition of the death penalty. Rather, it distinguished Stroud on the basis of the
procedural safeguards that arise from modern death penalty jurisprudence.
(Bullington, supra, 451 U.S. at p. 446.) Most of those procedural safeguards are
unique to death penalty determinations and simply do not apply here.

: Second, the financial and emotional burden of the sentencing proceeding at
issue in Bullington distinguishes Bullington from this case. The court in Bullington
stressed that “[t]he ‘embarrassment, expense and ordeal’ and the ‘anxiety and
insecurity’ faced by a defendant at the penalty phase of a Missouri capital murder
trial surely are at least equivalent to that faced by any defendant at the guilt phase of a
criminal trial.” (Bullington, supra, 451 U.S..at p. 445.) By comparison, though a
trial of prior conviction allegations is undoubtedly important to a defendant—
possibly increasing a short prison term to a life term—the level of embarrassment,
expense, and anxiety involved is not “equivalent to that faced . . . at the guilt phase”
of the trial. (/bid.) This lesser financial and emotional burden exists even when the
prior conviction trial may substantially increase the length of the sentence.

The trial is not a prosecution of an additional criminal offense carrying the
stigma associated with a criminal charge; rather it is merely a determination, for
purposes of punishment, of the defendant’s status, which, like age or gender, is
readily determinable from the public record. Moreover, when, as here, the court has
bifurcated the prior conviction issue, the defendant begins the prior conviction trial
having already suffered the embarrassment of the present conviction. The marginal
increase in embarrassment attributable to the prior conviction trial is not comparable
to the embarrassment of an unproved criminal charge. Finally, a prior conviction trial
is simple and straightforward as compared to the guilt phase of a criminal trial. Often

12

it involves only the presentation of a certified copy of the prior conviction along with
the defendant’s photograph and fingerprints. In many cases, defendants offer no
evidence at all, and the outcome is relatively predictable. In this case, for example,
the prior conviction trial, which looked more like an informal hearing than a trial, fills
only a few pages of a 244-page reporter’s transcript. This abbreviated proceeding, at
which the prosecution presented only documentary evidence and defendant presented
no evidence, is hardly comparable to the penalty phase of a capital trial, which was
the trial-like proceeding at issue in Bullington.

~ Even when, as here, the prior conviction trial involves some factual point
relating to the prior crime, such as whether the defendant acted personally, the
proceeding is not like “the trial on guilt” (Bullington, supra, 451 U.S. at p. 439),
because the prosecution may only present evidence from the record of the prior
conviction (People v. Guerrero (1988) 44 Cal.3d 343, 355 (Guerrero)). The
defendant, and any member of the public, can review that record before the prior
conviction trial and accurately forecast the trial’s outcome. When a trial, even a very
important trial, is short and readily predictable in this way, the defendant suffers
correspondingly less embarrassment, expense, and anxiety. Significantly, the
defendant does not need to sit for weeks or months while witnesses describe in detail
to a jury and the public the specifics of his alleged unlawful activities. For these
reasons, we conclude the financial and emotional burden of a prior conviction trial is
minor as compared to a guilt trial. (Cf. DiFrancesco, supra, 449 U.S. at p. 136 [“The
defendant’s primary concern and anxiety obviously relate to the determination of
innocence or guilt, and that already is behind him.”].)

Third, the nature of the issues involved at the penalty phase of a capital trial
distinguishes Bullington from this case. The sentence determination in a capital case
necessarily depends on the specific facts of the defendant’s present crime, as well as
an overall assessment of the defendant’s character. The evidence usually overlaps or
supplements the evidence offered at the guilt phase of the trial. On the other hand, in

13

a trial of a prior conviction allegation, the factual determinations are generally
divorced from the facts of the present offense, and the evidence does not overlap at
all. Like a trial in which the defendant’s age or gender is at issue, the prior
conviction trial merely determines a question of the defendant’s continuing status,
irrespective of the present offense, and the prosecution may reallege and retry that
status in as many successive cases as it is relevant (People v. Biggs (1937) 9 Cal.2d
508, 512; People v. Dutton (1937) 9 Cal.2d 505, 507), even if a prior jury has
rejected the allegation (People v. Rice (1988) 200 Cal.App.3d 647, 654-656). Ifa
jury rejects the allegation, it has not acquitted the defendant of his prior conviction
status. (/bid.) “A defendant cannot be ‘acquitted’ of that status any more than he can
be ‘acquitted’ of being a certain age or sex or any other inherent fact.” (Durham v.
State (Ind. 1984) 464 N.E.2d 321, 324.)

Given these distinctions, we do not believe Bullington requires application of
the double jeopardy clause to all sertencing proceedings that have “the hallmarks of
the trial on guilt or innocence.” (Bullington, supra, 451 U.S. at p. 439.)
Nevertheless, other state courts and the federal circuit courts are divided as to
whether the federal double jeopardy clause applies to proceedings analogous to the
one here. Some courts conclude that, where the prior conviction determination
involves a trial-like proceeding at which the prosecution has the burden of proving
certain disputed facts, a negative finding is tantamount to an acquittal of the facts
necessary to establish a longer sentence, and double jeopardy protections bar retrial.
(See, e.g., Bohlen v. Caspari (8th Cir. 1992) 979 F.2d 109, 113, revd. on other
grounds in Caspari, supra, 510 U.S. at pp. 396-397; Durosko v. Lewis (9th Cir. 1989)
882 F.2d 357, 359; Briggs v. Procunier (Sth Cir. 1985) 764 F.2d 368, 371; People v.
Quintana (Colo. 1981) 634 P.2d 413, 419; Cooper v. State (Tex.Crim.App. 1982)
631 S.W.2d 508, 513-514; State v. Hennings (1983) 100 Wn.2d 379, 386-390 [670
P.2d 256, 259-262].) These courts, however, do not fully appreciate the unique
nature and constitutional origins of capital sentencing proceedings as compared to

14

prior conviction proceedings. Accordingly, we find more persuasive those decisions
involving noncapital sentencing proceedings in which courts found the federa! double
jeopardy clause did not apply. (See, e.g., Carpenter v. Chapleau (6th Cir. 1996) 72
F.3d 1269, 1274 [“We do not believe the Double Jeopardy Clause is implicated in [a
persistent felony offender] proceeding.”); Denton v. Duckworth (7th Cir. 1989) 873
F.2d 144, 148 [“We agree . . . that the habitual offender statute, which does not create
a separate offense or require consideration of the underlying facts on the substantive
charge, is distinguishable from tite statute at issue in Bullington, and thus double
jeopardy does not attach.”}; Linam v. Griffin (10th Cir. 1982) 685 F.2d 369, 376 [The
habitual criminal proceeding “is an inquiry as to whether or not the man standing
before the court is the same person who was previously convicted as charged. The
jury answers yes or no in accordance with the evidence. This is not the kind of
adjudication that is referred to in the fifth amendment.”)}; Durham v. State, supra, 464
N.E.2d at p. 324 (“The habitual offender status . . . is a continuing status of a
particular defendant .... The state may use this status any time the defendant
commits a further crime and a jury’s determination that a defendant is not a habitual
offender during a particular trial is not an ‘acquittal’ of that defendant’s status as a
habitual offender.”); State v. Cobb (Mo. 1994) 875 S.W.2d 533, 536 [“The
constitutional double jeopardy prohibition does not speak to sentencing except in
capital cases.”}; State v. Aragon (1993) 116 N.M. 267, 271 [861 P.2d 948, 952]
(“Because our habitual criminal proceedings are not ‘prosecutions’ of an ‘offense’
and sentencing does not imply guilt or innocence of any greater crime, . . . double
jeopardy does not attach.”); cf. Wilmer v. Johnson (3d Cir. 1994) 30 F.3d 451, 456
(“[I}n Bullington, a capital case, the Court carved out an exception to the general rule
that the Double Jeopardy Clause does not apply in the sentencing context.”}; U.S. v.
Rodriguez-Gonzalez (2d Cir. 1990) 899 F.2d 177, 181 [“Reliance on . . . Bullington is
inapposite . . . since [that] case[] arose in the unique context of capital sentencing.”);
People v. Levin (Ill. 1993) 623 N.E.2d 317, 325 [“We conclude that the separate

15

hearing procedure under our [Habitual Criminal] Act bears insufficient formalities of
a trial to render that factor analogous to the separate hearing procedure in Bullington
and to this defendant’s trial on the issue of guilt.”)}; People v. Sailor (1985) 65
N.Y.2d 224, 231-236 [480 N.E.2d 701, 708] [“[T]Jhere is a qualitative and
quantitative difference between imposition of the death penalty [at issue in
Bullington] and sentencing as a persistent or second felony offender . . . .”}; but see
Perkins v. State (Ind. 1989) 542 N.E.2d 549, 551-552 [overruling Durham v. State,
supra, 464 N.E.2d 321, but relying on a clear misreading of Lockhart v. Nelson
(1988) 488 U.S. 33, 37-38, fn. 6).)

Our conclusion finds some support in the high court’s most recent discussion
of the issue in Caspari, supra, 510 U.S. 383. In Caspari, as in this case, the state
court of appeals reversed a sentence because the record contained insufficient
evidence that the defendant was a “persistent offender.” (/d. at pp. 386-387.) On
remand, the prosecution offered additional evidence, and the trial court imposed the
same sentence. The state court of appeals affirmed the sentence, concluding that the
federal double jeopardy clause does not apply to sentencing proceedings and
therefore did not bar retrial of the persistent offender issue. (State v. Bohlen (Mo.
1985) 698 S.W.2d 577, 578.) The defendant subsequently petitioned the federal
district court for a writ of habeas corpus. The district court denied the writ, but the
federal court of appeals reversed, holding that the double jeopardy clause does apply
to noncapital sentencing proceedings. The Supreme Court granted certiorari.
(Caspari, supra, 510 U.S. at pp. 387-388.)

In deciding Caspari, the Supreme Court applied Teague v. Lane (1989) 489
U.S. 288 (Teague), which held that new rules of constitutional law do not generally
apply retroactively so as to permit reopening of final convictions by way of habeas
corpus petitions. The Caspari court reasoned that, if application of the federal double
jeopardy clause to noncapital sentencing proceedings would constitute a “new
constitutional rule of criminal procedure” that would “break[] new ground or

16

impose[] a new obligation on the States” (Teague, supra, 489 U.S. at pp. 299, 301
(plur. opn. of O’Connor, J.)), then the district court correctly denied the writ of
habeas corpus. (Caspari, supra, 510 U.S. at p. 390.) The court noted its historic
refusal to apply the double jeopardy clause to sentencing proceedings, with the only
exception being capital sentencing proceedings such as the one at issue in Bullington.
(Caspari, supra, 510 U.S. at pp. 391-392.) The court then compared sentencing
proceedings in noncapital cases to those in capital cases. Noting that sentencing in a
capital case is unique and that procedural safeguards apply in capital cases that do not
apply in other cases (id. at pp. 392-393), the court concluded “that the [federal] Court
of Appeals announced a new rule in this case” by extending Bullington to noncapital
cases (Caspari, supra, 510 U.S. at p. 395). Accordingly, the defendant’s sentence
was “ ‘consistent with established constitutional standards’ ” as of the time the
sentence became final (Teague, supra, 489 U.S. at p. 306 (plur. opn. of O’Connor, J.),
quoting Desist v. United States (1969) 394 U.S. 244, 262-263 (dis. opn. of Harlan,
J.)), and the federal court of appeals erred in directing the district court to grant the
writ (Caspari, supra, 510 U.S. at pp. 396-397).

Given this conclusion, the high court declined to decide whether the double
Jeopardy clause applies to noncapital sentencing proceedings. (Caspari, supra, 510
U.S. at p. 397.) Nevertheless, the court confirmed that none of its decisions applies
the clause in that context. Indeed, the court asserted that “a reasonable jurist
reviewing our precedents” would not conclude otherwise. (Jd. at p. 393.) Thus,
though we do not know how the Supreme Court would resolve the issue now before
us, we do know that, like the sentence imposed in Caspari, the sentence here is
“ ‘consistent with established constitutional standards.’ ” (Teague, supra, 489 U.S. at
p. 306 (plur. opn. of O’Connor, J.).) Furthermore, Caspari highlights the basic flaw
of the dissent’s reasoning. The premise of the dissent is that Bullington requires
application of the federal double jeopardy clause whenever a sentencing proceeding,
whether capital or noncapital, has “the hallmarks of the trial on guilt or innocence.”

17

(Bullington, supra, 451 U.S. at p. 439.) The Missouri persistent offender statutes at
issue in Caspari, like section 1025, created a proceeding with all these “hallmarks,”
including proof beyond a reasonable doubt. (Bohlen v. Caspari, supra, 979 F.2d at
pp. 112-113.) If the dissent’s articulation of Bullington’s holding were correct, then
the Court of Appeals’ decision in Caspari, barring retrial of the persistent offender
issue, would have constituted a straight application of established precedent. The
high court would not have found that retrial was “ ‘consistent with established
constitutional standards’ ” (Teague, supra, 489 U.S. at p. 306 (plur. opn. of
O'Connor, J.)), and the high court would not have concluded “that the Court of
Appeals announced a new rule in this case.” (Caspari, supra, 510 U.S. at p. 395.) In
light of Caspari, Bullington simply does not dictate the result in this case.

Finally, the Caspari court suggested that, if faced with the issue, it would find
the double jeopardy clause inapplicable to the sentencing determination involved
here. “Persistent-offender status is a fact objectively ascertainable on the basis of
readily available evidence. Either a defendant has the requisite number of prior
convictions, or he does not. Subjecting him to a second proceeding at which the State
has the opportunity to show those convictions is not unfair and will enhance the
accuracy of the proceeding by ensuring that the determination is made on the basis of
competent evidence.” (Caspari, supra, 510 U.S. at p. 396.)

In conclusion, we hold that the federal double jeopardy clause does not apply
to the trial of the prior conviction allegation in this case.

Of course, in People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 78,
footnote 22, we applied double jeopardy protections to bar retrial of a sentence-
enhancing allegation in a noncapital case, saying: “The jury’s rejection [of the
allegation] constituted an express acquittal on the enhancement and forecloses any
retrial.” In Marks, we relied primarily on the Court of Appeal decision in People
v. Pettaway (1988) 206 Cal.App.3d 1312, 1331-1332, waich in turn relied on People
v. Henderson (1963) 60 Cal.2d 482 and People v. Collins (1978) 21 Cal.3d 208.

18

Henderson, which we reaffirmed in Collins, held that, when a defendant successfully
challenges his conviction, the state double jeopardy clause prohibits imposition of a
greater sentence following retrial, thus preventing an “unreasonabl[e] impair[ment}”
of “{a] defendant's right of appeal from an erroneous judgment.” (People v.
Henderson, supra, 60 Cal.2d at p. 497; see also People v. Collins, supra, 21 Cal.3d at
p. 216; People v. Hood (1969) 1 Cal.3d 444, 459; People v. Ali (1967) 66 Cal.2d 277,
281.) Our reference in Marks to “an express acquittal on the enhancement” might
suggest a broader holding than mere application of Henderson and its progeny, but
because Marks included no analysis of the complex issues we address in this case, we
think a narrow reading of Marks is appropriate. (See People v. Santamaria (1994) 8
Cal.4th 903, 914, fn. 4 [stating the policy underlying Henderson as a reason for
barring retrial of enhancements].)? Because we based our decision in Marks on an
interpretation of the California Constitution that is not relevant here, Marks has no
bearing upon our interpretation of the federal Constitution.
Jalifornia Constitution

We must also determine whether the double jeopardy protection of the
California Constitution bars retrial of the prior conviction allegation in this case. The
state Constitution provides that “[p]ersons may not twice be put in jeopardy for the
same offense.” (Cal. Const., art. I, § 15.) By comparison, the federal Constitution
provides that “[n]o person shall . . . be subject for the same offense to be twice put in
jeopardy of life or limb.” (U.S. Const., Sth Amend.) The “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 . . . .”
(People v. Fields (1996) 13 Cal.4th 289, 298.) Nevertheless, when we interpret a
provision of the California Constitution that is similar to a provision of the federal
Constitution, “ ‘cogent reasons must exist’ ” before we will construe the

2 Whether Marks correctly applied the Henderson rule is not before us.
19

Constitutions differently and “ ‘depart from the construction placed by the Supreme
Court of the United States.” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 353,
quoting Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 89.)

The purpose behind the state and federal double jeopardy provisions is the
same. Like decisions interpreting the federal double jeopardy clause, “[d]ecisions
under the double jeopardy clause of the California Constitution . . . recognize the
defendant's interest in avoiding both the stress of repeated prosecutions and the
enhanced risk of erroneous conviction.” (People v. Fields, supra, 13 Cal.4th at p.
298.) In certain contexts, this court has decided that, in furthering this purpose, the
state double jeopardy clause provides greater protection than its federal counterpart.
The rule, which we already discussed, protecting defendants from receiving a greater
sentence if reconvicted after a successful appeal (see People v. Collins, supra, 21
Cal.3d at p. 216; People v. Hood, supra, | Cal.3d at p. 459; People v. Ali, supra, 66
Cal.2d at p. 281; People v. Henderson, supra, 60 Cal.2d at pp. 495-497) is one
instance where we have interpreted the state double jeopardy clause more broadly
than the federal clause. (Cf. Pearce, supra, 395 U.S. at pp. 719-721 [finding no
violation of the federal double jeopardy clause under similar circumstances].) A
second instance is the rule prohibiting retrial after the trial court has declared a
mistrial without the defendant's consent. (Curry v. Superior Court (1970) 2 Cal.3d
707, 715-718; Cardenas v. Superior Court (1961) 56 Cal.2d 273, 275-276; cf. Gori v.
United States (1961) 367 U.S. 364, 365 [finding no violation of the federal double
jeopardy clause under similar circumstances].)

Under the circumstances of the present case, we find no reason to construe the
California Constitution to afford greater protection than the federal Constitution. As
we described above, though the effect on a defendant’s sentence may be significant,
the embarrassment, expense, and anxiety of trying a prior conviction allegation are
relatively minor, and the risk of an erroneous result is slight. The primary source of
embarrassment is the defendant’s present offense, not an allegation of a prior

—_—

20

conviction. The trial of a prior conviction allegation is relatively perfunctory, and the ' Because the state and federal double jeopardy protections do not apply to the
outcome is usually predictable. We see no reason, in the present context, to interpret | trial of the prior conviction allegation in this case, we reverse the judgment of the
the state Constitution differently from the federal. (Cf. People v. Saunders, supra, 5 Court of Appeal to the extent it barred retrial of that allegation on double jeopardy
Cal.4th at p. 596.) Accordingly, we conclude that the double jeopardy provision of grounds.

the state Constitution does not apply to the trial of the prior conviction allegation in CHIN. J.

this case. (Cf. People v. Morton (1953) 41 Cal.2d 536 [permitting retrial of a prior WE CONCUR:

conviction allegation under facts similar to those here, but without discussing double

, | GEORGE, C.J.

Jjeopardy}}) | BAXTER, J.

CONCLUSION

We conclude that the state and federal double jeopardy protections do not
apply to the trial of the prior conviction allegation in this case. Of course, this
conclusion raises numerous secondary issues. For example, the Court of Appeal’s
determination that the evidence was insufficient to prove defendant’s prior conviction
was of 4 serious felony is, at the very least, the law of this case. Thus, the
prosecution would have to present additional evidence at a retrial of the prior
conviction allegation in order to obtain a different result. What limitations might
apply to this additional evidence (other than the limitations we identified in People v.
Reed, supra, 13 Cal.4th 217, and Guerrero, supra, 44 Cal.3d 343), we do not decide,
because the Court of Appeal did not address that issue. For the same reason, we
express no opinion about whether section 1025 (or some other applicable provision)
might in some cases bar retrial of the prior conviction allegation as a statutory matter
irrespective of constitutional constraints. Finally, we express no opinion about
whether due process protections preclude the prosecution from retrying the prior
conviction allegation. (Cf. Pearce, supra, 395 U.S. at pp. 723-724; Blackledge v.
Perry (1974) 417 U.S. 21, 28-29.) |

21 2

COPY

THE PEOPLE v. ANGEL JAIME MONGE

S05588]

CONCURRING OPINION BY BROWN, J.

I concur in the result, although I would favor a more cautious approach.
The double jeopardy clause has proven singularly difficult to apply and remains
one of the most “ ‘misunderstood maxims in the law, the passage of time having
served in the main to burden it with confusion upon confusion.’” (Westen &
Drubel, Toward a General Theory of Double Jeopardy (1978) Sup.Ct. Rev. 81, 82,
fh. 6.)

While acknowledging that its precedents could hardly be characterized as
“models of consistency and clarity” (Burks v. United States (1978) 437 U.S. 1, 9),
the United State Supreme Court has held the prosecution is not entitled to retrial
when a conviction is reversed for insufficient evidence, (Jd. at pp. 9-11.) The
question in this case is whether the prosecution is similarly barred from retrying a
prior-conviction-sentence enhancement allegation when the true finding is
reversed for insufficient evidence.

This is a question the high court has never specifically addressed.
(Bullington v. Missouri (1981) 451 U.S. 430, 445; Caspari v. Bohlen (1994) 510
U.S. 383, 397.) In Bullington, the court considered whether the double jeopardy
clause barred the prosecution from seeking the death penalty on retrial following
reversal of an earlier conviction imposing a lesser penalty. Bullington marked the
first time the court had applied the double jeopardy clause to a sentencing
determination. (Bullington v. Missouri, supra, at p. 438.) :

Bullington’s characterization of the first jury’s decision to impose life
imprisonment as an acquittal of “ ‘whatever was necessary to impose the death
sentence’ ” (Bullington v. Missouri, supra, 451 U.S. at p. 445, quoting State ex
rel. Westfall v. Mason (Mo.Sup.Ct. 1980) 594 S.W.2d 908, 922 (dis. opn. of
Bardgett, C.J.)), is strongly reminiscent of the court’s decision in Green v. United
States (1957) 355 U.S. 184. In Green, the court held the double jeopardy clause
barred retrial of a greater offense after the jury at the defendant’s first trial
convicted him of the lesser included offense. (Jd. at p. 191.) In both settings, the
failure of the prosecution to prove its greatest charge implicated a failure to prove
the case-in-chief. Characterizing the failure of proof as an acquittal under these
circumstances is fully consistent with the objectives of the double jeopardy clause
in that it protects a defendant charged with a crime from being forced to “run the
gantlet . . . on that charge” (id. at p. 190) more than once.

While the United States Supreme Court’s cases have not “foreclosed the
application of the Double Jeopardy Clause to noncapital sentencing” (Caspari v.
Bohlen, supra, 510 U.S. at p. 393), none has applied the clause in that particular
context, and the question remains unresolved. In the wake of Bullington and
Caspari considerable confusion exists, but a few propositions seem clear. First,
the double jeopardy clause does apply to some sentencing proceedings; second,
where the clause applies, its sweep is absolute and there can be no balancing of the
equities; and finally, application of double jeopardy does not depend on the
mechanical application of a formula. It depends instead on the nature of the
determination to be made and its relationship to the underlying offense.

As the court stated in Caspari: “Persistent-offender status is a fact
objectively ascertainable on the basis of readily available evidence. Either a
defendant has the requisite number of prior convictions, or he does not. Subjecting
him to a second proceeding at which the State has the opportunity to show those
convictions is not unfair, and will enhance the accuracy of the proceeding by

2

ensuring that the determination is made on the basis of competent evidence.”
(Caspari v. Bohlen, supra, 510 U.S. at pp. 396-397.)

Other jurisdictions have found the reasoning of Bullington inapplicable
where the facts at issue in the sentencing determination have no bearing on facts
relating to the present crime. (Denton v. Duckworth (7th Cir. 1989) 144, 148

_[unlike death penalty determination in Bullington, habitual offender statute does
not require consideration of facts underlying substantive offense]; Linam v. Griffin
(10th Cir. 1982) 685 F.2d 369, 375 [same]; People v. Sailor (N.Y.App. 1985) 480
N.E.2d 701, 707 [Bullington implicitly recognizes death penalty was part of
substantive offense of murder].) |

When the prosecutor fails to prove a prior conviction allegation, a retrial
does not require a factfinder to reevaluate the evidence underlying the substantive
offense. Under these circumstances a retrial does not subject a defendant to the
risk of repeated prosecution within the meaning of the double jeopardy clause.

BROWN, J.

COPY

PEOPLE v. MONGE

S055881

DISSENTING OPINION BY WERDEGAR, J.

~ | dissent. With due respect, I believe the majority fails to appreciate the
import of the United States Supreme Court decisions touching on this difficult
issue, especially the meaning of Bullington v. Missouri (1981) 451 U.S. 430
(hereafter sometimes Bullington). As I explain, Bullington and its progeny compel
a conclusion that the federal double jeopardy clause precludes the People from
retrying the prior felony conviction allegation in this case. Moreover, even
assuming the federal double jeopardy clause does not apply here, I conclude the
double jeopardy clause of the state Constitution (Cal. Const., art. I, § 15) protects
Californians from multiple retrials of sentence enhancement allegations, at least as

the statutory law concerning such enhancement allegations is now written.
I. DOUBLE JEOPARDY UNDER THE FEDERAL CONSTITUTION

As the majority correctly recognizes, “the Supreme Court has never held
that the double jeopardy clause applies generally to proceedings, like the one in
this case, to determine whether a defendant should receive a longer sentence
because of prior convictions.” (Lead opn., ante, p. 5; conc. opn. of Brown, J.,
ante, p. 1 [“This is a question the high court has never specifically addressed.”].)
The persuasive force of this observation, however, is diminished by the fact the
high court also has never held the reverse, i.e., it has never held the double

jeopardy clause is inapplicable to all noncapital sentencing proceedings. Just as
we have avoided resolving this issue (People v. Valladoli (1996) 13 Cal.4th 590,
608 [assuming without deciding double jeopardy protections apply to prior
conviction enhancement allegations]; People v. Wiley (1995) 9 Cal.4th 580, 593,
fn. 8 [need not decide the issue]), the United States Supreme Court has similarly
managed to avoid a definitive decision on the issue. The most recent example of
this avoidant behavior is Caspari v. Bohlen (1994) 510 U.S. 383 (hereafter
Caspari), in which the high court explained that “[bJecause of our resolution of
this case on Teaguel!] grounds, we have no occasion to decide whether the Double
Jeopardy Clause applies to noncapital sentencing ....” (Caspari, supra at p. 397
[127 L.Ed.2d at p. 250]; see also Lockhart v. Nelson (1988) 488 U.S. 33, 37, fn. 6
[because state conceded the issue, court “assume[d], without deciding” double
jeopardy applied to noncapital sentencing proceedings]; Hunt v. New York (1991)
502 U.S. 964 (opn. by White, J. dis. from den. of cert.) [arguing high court should
grant certiorari to resolve split in authority concerning the “key question . . .
whether the Double Jeopardy Clause applies to trial-like sentence enhancement
proceedings in noncapital cases”].) As I explain, although the slate is not entirely
a clean one, the majority misapprehends the importance of Bullington, supra, 451
U.S. 430, and its progeny.

I begin with first principles. The Fifth Amendment provides: “No person
shall . . . be subject for the same offense to be twice put in jeopardy of life or
limb. ...” This provision was made applicable to the states through the Fourteenth
Amendment by the Supreme Court’s decision in Benton v. Maryland (1969) 395
U.S. 784. The federal double jeopardy clause “protects against a second

i See Teague v. Lane (1989) 489 U.S. 288, governing the retroactivity of
newly-announced rules to cases proceeding via habeas corpus in the federal courts.

prosecution for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects against multiple
punishments for the same offense.” (North Carolina v. Pearce (1969) 395 U.S.
711, 717, fn. omitted.) “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.)

The general rule is that the federal double jeopardy prohibition does not
operate to prevent a retrial following reversal of the judgment on appeal. (North
Carolina v. Pearce, supra, 395 U.S. at pp. 719-720; United States v. Tateo (1964)
377 U.S. 463, 465.) An important exception to this general rule, however, applies
when the judgment is reversed for insufficient evidence. (Burks v. United States
(1978) 437 U.S. 1 [hereafter Burks].) In such cases, retrial is barred by the federal
double jeopardy clause because “the prosecution . . . has been given one fair
opportunity to offer whatever proof it could assemble. Moreover, such an
appellate reversal means that the government’s case was so lacking that it should

. not have even been submitted to the jury. Since we necessarily afford absolute

finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it
is difficult to conceive how society has any greater interest in retrying a defendant
when, on review, it is decided as a matter of law that the jury could not properly
have returned a verdict of guilty.” (Jd., at p. 16.) Inasmuch as Burks delineates the
scope of federal constitutional law, we have consistently followed the rule set forth
in that case. (See People v. Trevino (1985) 39 Cal.3d 667, 694-699, disapproved
on another ground, People v. Johnson (1989) 47 Cal.3d 1194, 1216-1221; People

3

v. Belton (1979) 23 Cal.3d 516, 526-527 & fn. 13; see generally 1 Witkin &
Epstein, Cal. Criminal Law (2d ed. 1988) Defenses, § 319(b), pp. 368-369 [“The
Burks rule has been adhered to by the California courts”].)

The Court of Appeal in this case reversed the jury’s finding on the alleged
prior serious felony conviction, explaining the People failed to produce sufficient
evidence defendant personally inflicted great bodily injury or personally used a
weapon in the prior crime. This was not a reversal for mere trial error such as the
erroneous admission or exclusion of evidence at trial. Instead, the appellate
court’s action was a reversal for insufficient evidence. If the federal double
jeopardy clause applies to sentence enhancements generally, or to the particular
enhancement at issue in this case (i.e., Pen. Code, §§ 667, subds. (b)-(i) [legislative
“Three Strikes” law], 1170.12, subds. (a)-(d) [initiative “Three Strikes” law]), the
Burks rule would prohibit retrial of the enhancement allegation. The lead opinion
reasons the Burks rule does not apply, finding the federal double jeopardy clause
inapplicable to sentencing hearings unless the death penalty is involved. As I
explain, the lead opinion’s reading of applicable Supreme Court precedent is
flawed.

The lead opinion is correct that double jeopardy protections do not apply to
traditional criminal sentencing proceedings. “Historically, the pronouncement of
sentence has never carried the finality that attaches to an acquittal.” (United States
v. DiFrancesco (1980) 449 U.S. 117, 133 [hereafter DiFrancesco].) Most
recently, the high court explained that “[t}raditionally, ‘[s]entencing courts have
not only taken into consideration a defendant’s prior convictions, but have also
considered a defendant’s past criminal behavior, even if no conviction resulted
from that behavior.’ Nichols v. United States, 511 U.S. 738, 747; 128 L.Ed.2d
745[, 754] (1994). We explained in Williams v. New York, 337 U.S. 241, 246
(1949), that ‘both before and since the American colonies became a nation, courts

4

in this country and in England practiced a policy under which a sentencing judge
could exercise wide discretion in the sources and types of evidence used to assist
him in determining the kind and extent of punishment to be imposed within limits
fixed by law.’” (Witte v. United States (1995) 515 U.S. 389, 397-398 [132
L.Ed.2d 351, 362-363].) “Against this background of sentencing history, we
specifically have rejected the claims that double jeopardy principles bar a later
prosecution or punishment for criminal activity where that activity has been
considered at sentencing for a separate crime.” (/d., at p. 398 [132 L.Ed.2d at

p. 363).)

We, of course, have such “traditional” sentencing proceedings in California.
Following the jury’s verdict, the trial court must set a hearing within 20 judicial
days of verdict for pronouncement of judgment. (Pen. Code, § 1191.) At this
hearing, the trial judge considers the probation report (see Cal. Rules of Court,
rules 411 [presentence investigations and reports], 411.5 [probation officer’s
presentence investigation report]) and exercises broad discretion in deciding
whether probation is justified as a sentencing option (id, rule 414 [criteria
affecting probation]), in selecting the base term (id., rule 420) and in choosing
whether to impose concurrent or consecutive terms (id., rule 425 [criteria affecting
concurrent or consecutive sentences]). In making these determinations, the trial
judge considers the circumstances in aggravation (id., rule 421) and in mitigation
(id., rule 423), which need not be either pleaded or proved by the People. (See
generally, People v. Hernandez (1988) 46 Cal.3d 194, 204-206 [noting difference
between “a trial court’s decision in fashioning appropriate punishment from the
need to establish before the trier of fact the wrongful criminal conduct for which
punishment is being imposed”); People v. Betterton (1979) 93 Cal.App.3d 406
(“full panoply of rights” not required in sentencing hearing]; People v. Thomas
(1979) 87 Cal.App.3d 1014 [Cal. Rules of Court intended to guide sentencing

5

courts, not give notice of prohibited acts}.) In most cases, the number of potential
sentencing dispositions and permutations is great, as is the discretion of the
sentencing judge. Such “traditional” sentencing proceedings are not at issue in this
case, and I agree double jeopardy principles do not apply to proceedings of this
type.

As is apparent, “traditional” sentencing proceedings are held without a jury,
permit consideration of probation reports and involve broad sentencing court
discretion to choose among a variety of outcomes. Such hearings must be
distinguished from the type of criminal sentencing hearing that follows the trial on
the substantive criminal offenses and is addressed typically (but not exclusively) to
the existence of enhancements. In this latter type of hearing, formal notice of the
sentence enhancement allegation must be given, a jury determines historical facts
that can lead to enhanced or longer sentences, the People bear the burden of proof
beyond a reasonable doubt by admissible evidence, and the sentencer must choose
one of two outcomes. This latter type of sentencing hearing constitutes a separate
trial or a “trial-like” proceeding on punishment. As I explain, the lesson of
Bullington v. Missouri, supra, 451 U.S. 430, and its progeny is that in such cases,

A. Bullington and its Progeny

Bullington involved a defendant convicted in Missouri of capital murder.
Under Missouri law, the defendant in Bullington was entitled to a separate
presentence hearing on the question of penalty. State law guaranteed him the
following procedural rights at that hearing: the same jury that found him guilty of
murder would hear additional evidence; notice of the aggravating evidence must
be given; the jury must consider 10 aggravating and 6 mitigating factors specified
by law; the jury must weigh the various factors and identify in writing which
factors it found proved beyond a reasonable doubt; the jury must find that the

aggravating evidence warrants imposition of the death penalty beyond a reasonable
doubt; and the jury’s decision must be unanimous. (Bullington, supra, 451 U.S. at
pp. 433-434.) After a presentence hearing, the jury eschewed the death penalty
and imposed on the defendant a sentence of life with no parole for 50 years.

The defendant in Bullington then moved for judgment of acquittal or for a
new trial. When the trial court granted the new trial motion, the prosecution
announced its decision that, during the retrial, it would again seek the death
penalty. The defendant objected, citing the federal double jeopardy clause, and the
high court agreed. The Supreme Court first noted that it “has resisted attempts to
extend [double jeopardy principles] to sentencing. The imposition of a particular
sentence usually is not regarded as an ‘acquittal’ of any more severe sentence that
could have been imposed. The Court generally has concluded, therefore, that the
Double Jeopardy Clause imposes no absolute prohibition against the impositio:. of
a harsher sentence at retrial after a defendant has succeeded in having his original
conviction set aside.” (Bullington, supra, 451 U.S. at p. 438.) For this
proposition, the high court cited the cases on which the ead opinion relies, i.e.,
North Carolina v. Pearce, supra, 395 U.S. 711, DiFrancesco, supra, 449 U.S.
117, Chaffin v. Stynchcombe (1973) 412 U.S. 17, Stroud v. United States (1919)
251 U.S. 15 (hereafter Stroud).

The Bullington court declined, however, to follow this line of reasoning.
Because its explanation for diverging from the previous rule is critical to this case,
I quote it extensively:

“The procedure that resulted in the imposition of the sentence of life
imprisonment upon petitioner Bullington at his first trial, however, differs
significantly from those employed in any of the Court’s cases where the Double
Jeopardy Clause has been held inapplicable to sentencing. The jury in this case
was not given unbounded discretion to select an appropriate punishment from a

7

wide range authorized by statute. Rather, a separate hearing was required and
was held, and the jury was presented both a choice between two alternatives and
standards to guide the making of that choice. Nor did the prosecution simply
recommend what it felt to be an appropriate punishment. It undertook the burden
of establishing certain facts beyond a reasonable doubt in its quest to obtain the
harsher of the two alternative verdicts. The presentence hearing resembled and,
indeed, in all relevant respects was like the immediately preceding trial on the
issue of guilt or innocence. It was itself a trial on the issue of punishment so
precisely defined by the Missouri statutes.

“In contrast, the sentencing procedures considered in the Court’s previous
cases did not have the hallmarks of the trial on guilt or innocence. In Pearce,
Chaffin and Stroud, there was no separate sentencing proceeding at which the
prosecution was required to prove — beyond a reasonable doubt or otherwise —
additional facts in order to justify the particular sentence. In each of those cases,
moreover, the sentencer’s discretion was essentially unfettered. In Stroud, no
standards had been enacted to guide the jury’s discretion. In Pearce, the judge had
a wide range of punishments from which to choose with no explicit standards
imposed to guide him. And in Chaffin, the discretion given to the jury was
extremely broad. That defendant, convicted in Georgia of robbery, could have

been sentenced to death, to life imprisonment, or to a prison term of between 4 and

20 years. [Citation.] The statute contained no standards to guide the jury’s
exercise of its discretion.” (Bullington, supra, 451 U.S. at pp. 438-440, italics
added, fns. omitted.) ; | ;

“In the usual sentencing proceeding, however, it is impossible to conclude
that a sentence less than the statutory maximum ‘constitute[s] a decision to the
effect that the government has failed to prove its case.’ In the normal process of
sentencing, ‘there are virtually no rules or tests or standards — and thus no issues

to resolve. ...’ M. Frankel, Criminal Sentences: Law Without Order 38 (1973).
Thus, ‘(t]he discretion of the judge . . . in [sentencing] matters is virtually free of
substantive control or guidance. Where the judge has power to select a term of
imprisonment within a range the exercise of that authority is left fairly at large.’
Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75
Harv.L.Rev. 994, 916 (1962).” (Bullington, supra, 451 U.S. at pp. 443-444, fn.
omitted.)

- “By enacting a capital sentencing procedure that resembles a trial on the
issue of guilt or innocence, however, Missouri explicitly requires the jury to
determine whether the prosecution has ‘proved its case.’ . . . [W]e therefore
refrain from extending the rationale of Pearce to the very different facts of the
present case. Chief Justice Bardgett, in his dissent from the ruling of the Missouri
Supreme Court majority, observed that the sentence of life imprisonment which
petitioner received at his first trial meant that ‘the jury has already acquitted the
defendant of whatever was necessary to impose the death sentence.’ 594 S.W.2d,
at 922. We agree.” (Bullington, supra, 451 U.S. at pp. 444-445, italics added.)
“Having received ‘one fair opportunity to offer whatever proof it could assemble,’
[citation], the State is not entitled to another.” (/d., at p. 446, quoting Burks,
supra, 437 U.S. at p. 16.)

As is clear, the high court found Bullington distinguishable from prior cases
because of the nature of the sentencing proceeding involved. Unlike past cases,
the separate sentencing proceeding in Bullington bore “the hallmarks of the trial on
guilt or innocence” (451 U.S. at p. 439), including the right to a jury, notice to the
defendant of the facts to be proved, the submission of evidence and presentation of
argument, a sentencing choice between two alternatives, circumscribed discretion
with standards to guide such discretion, and a requirement of jury unanimity and of
proof beyond a reasonable doubt.

The Supreme Court followed Bullington three years later in Arizona v.
Rumsey (1984) 467 U.S. 203 (hereafter Rumsey). In Rumsey, the defendant was
convicted of armed robbery and first degree murder. The trial judge, without a
jury, found no aggravating circumstances present and thus determined the
appropriate sentence under state law was life imprisonment without the possibility
of parole for 25 years. On appeal, the Arizona Supreme Court found the trial
judge had been mistaken in concluding no aggravating circumstance existed and
remanded for a new sentencing hearing. Following the new hearing, the trial judge
sentenced the defendant to the death penalty. On appeal once again, the defendant
in Rumsey claimed imposition of the death sentence on retrial violated the federal
double jeopardy clause as interpreted in Bullington, supra, 451 U.S. 430. The state
supreme court agreed and reduced the sentence to life imprisonment.

The United States Supreme Court granted Arizona’s petition for a writ of
certiorari and affirmed. The high court explained that “[tJhe capital sentencing
proceeding in Arizona shares the characteristics of the Missouri proceeding that
make it resemble a trial for purposes of the Double Jeopardy Clause. The
sentencer — the trial judge in Arizona — is required to choose between two
options: death, and life imprisonment without possibility of parole for 25 years.
The sentencer must make the decision guided by detailed statutory standards
defining aggravating and mitigating circumstances; in particular, death may not be
imposed unless at least one aggravating circumstance and no mitigating
circumstance is found, whereas death must be imposed if there is one aggravating
circumstance and no mitigating circumstance sufficiently substantial to call for
leniency. The sentencer must make findings with respect to each of the statutory
aggravating and mitigating circumstances, and the sentencing hearing involves the
submission of evidence and the presentation of argument. The usual rules of
evidence govern the admission of evidence of aggravating circumstances, and tne

10

State must prove the existence of aggravating circumstances beyond a reasonable
doubt. [Citations.] As the Supreme Court of Arizona held, these characteristics
make the Arizona capital sentencing proceeding indistinguishable from the capital
sentencing proceeding in Missouri. [Citation.]” (Rumsey, supra, 467 U.S. at

pp. 209-210, italics added.)

The court in Rumsey thus underscored Bullington’s core holding that the
federal double jeopardy clause will apply to sentencing proceedings when such
proceedings bear “the hallmarks of the trial on guilt or innocence” (Bullington,
supra, 451 U.S. at p. 439). Stated differently, we must ask whether the sentencing
proceeding involves characteristics “that make it resemble a trial for purposes of
the Double Jeopardy Clause.” (Rumsey, supra, 467 U.S. at pp. 209-210.) Despite
the high court’s analysis in both Bullington and Rumsey, the majority declines to
follow the teaching of those cases. As I explain, the majority’s approach is
analytically insupportable. ‘i

B. Attempts at Distinguishing Bullington are Unpersuasive

The lead opinion acknowledges the existence of-Bullington, supra, 451 U.S.
430, and its progeny, as well as that case’s “hallmarks of the trial on guilt or
innocence” analysis. (See lead opn., ante, p. 10.) The opinion declines to apply
that analysis because it finds this case is distinguishable from Bullington and,
accordingly, “Bullington’s . . . analysis does not apply here.” (Lead opn., ante,

p. 10.) First, the lead opinion contends the Supreme Court has suggested it would
not apply Bullington to noncapital sentencing hearings. (Lead opn., ante, p. 10.)
Second, aside from any perceived direction from the Supreme Court, the lead
opinion finds it significant that “many of the procedural protections that apply in a
[Penal Code] section 1025 trial rest on statutory, not federal constitutional,
grounds.” (Lead opn., ante, p. 11.) Additionally, the lead opinion finds the
procedures applicable to capital cases “find no parallel” in noncapital cases (ibid.);

1]

the degree of mental anguish faced by a criminal defendant subject to multiple
prosecutions of enhancement provisions is insufficient to warrant double jeopardy
protection (id., p. 12); and capital sentencing proceedings are distinguishable
because they rely on proof of facts linked to the facts of the substantive crimes (id.,
pp. 13-14; see also conc. opn. of Brown, J., ante, p. 3).
: As I explain, any suggestions from the high court in post-Bullington cases
are, at most, ambiguous. Nothing in Bullington itself suggests its analysis is
limited to capital cases; more importantly, no Supreme Court case has ever held
Bullington and its progeny are so limited. In addition, the distinction drawn by the
lead opinion between statutory and constitutional protections is wholly
unsupported; indeed, Bullington itself involved statutory procedural protections
not mandated by the federal Constitution. Finally, the lead opinion’s attempt to
distinguish Bullington and this case on their respective facts is wholly
unpersuasive. a

I. The Supreme Court has Never Held Bullington is Limited to

Capital Cases .

The lead opinion asserts “the high court in subsequent cases has suggested
that Bullington does not apply to noncapital cases.” (Lead opn., ante, p. 10, italics
added; but see conc. opn. of Brown, J., ante, p. 2 [noting “this question remains
unresolved”].) Any such “suggestion,” of course, would not bind this court, which
has an independent constitutional obligation to adjudicate the constitutional rights
of litigants before it. Moreover, the two cases the lead opinion cites as making this
“suggestion,” Caspari, supra, 510 U.S. 383, and Pennsylvania v. Goldhammer
(1985) 474 U.S. 28 (per curiam) (hereafter Goldhammer), are readily
distinguishable.

In Caspari, supra, 510 U.S. 383, the high court confronted an Eighth

Circuit Court of Appeals decision applying the Bullington analysis, in the context

12

ee

of a Missouri state prisoner’s habeas corpus petition, to conclude prior felony
convictions under Missouri’s persistent offender statutes were subject to federal
double jeopardy protections; thus, a state appellate court’s reversal of the finding
the petitioner was a persistent offender, due to insufficient evidence of the charged
priors, barred retrial of the enhancement. (Bohlen v. Caspari (8th Cir. 1992) 979

F.2d 109.) The high court did not directly address the merits of this holding;

instead, the court discussed whether the Eighth Circuit’s decision applying double
jeopardy protection to sentencing in a noncapital case was a new rule of law
requiring prospective application only. (Teague v. Lane, supra, 489 U.S. 288.) It
was in this context the Supreme Court noted that “Both Bullington and Rumsey
were capital cases, and our reasoning in those cases was based largely on the
unique circumstances of a capital sentencing proceeding.” (Caspari, supra, at

p. 392 [127 L.Ed.2d at p. 247].)

The Caspari court did not “hold” Bullington was limited to capital cases.
Rather, it made the observation noted above merely to support its conclusion that
“a reasonable jurist reviewing our precedents at the time respondent’s conviction
and sentence became final would not have considered the application of the
Double Jeopardy Clause to a noncapital sentencing proceeding to be dictated by
our precedents.” (Caspari, supra, 510 U.S. at p. 393 [127 L.Ed.2d at p. 248].)
Noting that federal and state courts had “reached conflicting holdings on the issue”
(id., at p. 395 [127 L.Ed.2d at p. 249]), the court concluded “that conflict
concerned a ‘developmen|t] in the law over which reasonable jurists [could]
disagree’ ” (ibid.); accordingly, under Teague v. Lane, the Eighth Circuit erred in
applying its ruling retroactively to defendant’s benefit. Significantly for our
purposes, the Supreme Court concluded its opinion in Caspari by stating: “we
have no occasion to decide whether the Double Jeopardy Clause applies to
noncapital sentencing, or whether Missouri's persistent offender scheme is

13

sufficiently trial-like to invoke double jeopardy protections.” (Caspari, supra, at
p. 397 [127 L.Ed.2d at p. 250], italics added.) As is clear, therefore, Caspari did
not “hold” Bullington was limited to capital cases; more to the point, neither did
the high court “suggest” it would so hold in the future. The court held only that it
had not previously found Bullington applicable to noncapital cases, and so the
Eighth Circuit’s decision to do so for the first time in the context of a final
conviction challenged by way of a petition for federal habeas corpus was
improper.

Goldhammer, supra, 474 U.S. 28, presents similarly unimpressive evidence
of a “suggestion” the high court would limit Bulli1gton to capital cases. In that
case, a per curiam opinion decided on summary disposition, the issue was whether,
following a successful appeal by a defendant as to 34 of 112 counts of theft and
forgery, the state was entitled to a remand for resentencing on other counts for
which sentencing had been suspended. In other words, the case did not concern
sentence enhancement proceedings, capital or otherwise. In a passage quoting
DiFrancesco, supra, 449 U.S. at page 134, Goldhammer noted: “the decisions of
this Court ‘clearly establish that a sentenc[ing in a noncapital case] does not have
the qualities of constitutional finality that attend an acquittal.” (Goldhammer,
supra, 474 U.S. at p. 30, italics added, brackets in original.)

It would be a mistake to draw any significant inferences from the bracketed
phrase. DiFrancesco was decided one year before Bullington and, at that time, the
general rule was indeed that the high court’s “decisions in the sentencing area
clearly establish that a sentence does not have the qualities of constitutional
finality that attend an acquittal.” (DiFrancesco, supra, at p. 134.) The Supreme
Court in Goldhammer no doubt simply added the bracketed phrase to adjust the
quotation to take into account the holding of Bullington. At the time Goldhammer
was decided (1985), as now, the only two cases in which the high court has found

14

a sentencing proceeding subject to the double jeopardy clause have been capital
cases. (Bullington, supra, 451 U.S. 430; Rumsey, supra, 467 U.S. 203.) As we
have explained, however, those cases did not turn on the fact the death penalty was
involved.

Caspari, supra, 510 U.S. 383, and Goldhammer, supra, 474 U.S. 28, thus

provide weak evidence at best for discerning whether the Supreme Court would

apply Bullington’s analysis to a noncapital case. Moreover, if we are attempting to
predict what the high court would hold (as opposed to what it has held), we must
also consider Lockhart v. Nelson, supra, 488 U.S. 33, a case involving a hearing to
determine noncapital sentence enhancements based on prior felony convictions.
The Lockhart court “assume[d], without deciding,” the double jeopardy clause
applied to such proceedings. (/d., at p. 37, fn. 6.) If the Supreme Court was of the
opinion that Bullington was limited to capital proceedings, here was an opportunity
to say so. If the court felt the double jeopardy clause was wholly inapplicable to
sentencing proceedings not involving the death penalty, no reason appears to have
decided Lockhart at all. .

In any event, even assuming for argument Caspari and Goldhammer
contain a “suggest[ion]” (lead opn., ante, p. 10) that the Supreme Court would not
now apply the federal double jeopardy clause to noncapital sentencing
proceedings, the simple fact is the high court has never actually “held” Bullington
and Rumsey are so limited. Until directed otherwise by a definitive ruling, we are
not bound by perceived “suggestions” in Supreme Court case law. We must
decide the case before us based on constitutional principles, not predictions of
what another court — even a higher court — may do if faced with a justiciable
controversy. The Supreme Court having never held Bullington and Rumsey to be
limited to capital cases, I would follow what several courts from around the
country have done (see, e.g., Bohlen v. Caspari, supra, 979 F.2d 109, 113, revd.

15

on other grounds in Caspari, supra, 510 U.S. 383; Durosko v. Lewis (9th Cir.
1989) 882 F.2d 357, 359; People v. Quintana (Colo. 1981) 634 P.2d 413, 419;
Cooper v. State (Tex.Crim.App. 1982) 631 S.W.2d 508, 513-514 (hereafter
Cooper); State v. Hennings (Wn.2d 1983) 670 P.2d 256, 259-262 (hereafter
Hennings) and apply Bullington’s “hallmarks of the trial on guilt or innocence”
test to this noncapital case to determine whether the federal double jeopardy clause
applies here.
- 2. It is Irrelevant that Defendant’s Procedural Protections are
Statutory Rather Than Constitutional

The lead opinion next asserts it is “relevant” that “many of the procedural
protections that apply in a section 1025 trial rest on statutory, not federal
constitutional, grounds.” (Lead opn., ante, p. 11.) It is true that many of a
criminal defendant’s procedural rights in a trial of sentence enhancement
allegations find their origins in either a statute or # decision of this court, and not
in the federal Constitution. For example, a trial court has discretion to order a
separate hearing to determine the truth of the prior convictions (People v.
Calderon (1994) 9 Cal.4th 69), and, whether or not the trial is bifurcated, the
defendant is entitled to a jury (Pen. Code, § 1025). The sentence enhancements
must be pleaded and proved (see, e.g., Pen. Code, §§ 667, subd. (c), 1170.12, subd.
(a), 667.5, subd. (d)), and the defendant must answer the charge in open court
(Pen. Code, § 1025; see also Pen. Code, § 969% [when prior conviction allegation
is added to complaint after defendant has pleaded guilty, he must be arraigned on
the allegations]). The People bear the burden of proving the sentence
enhancement beyond a reasonable doubt. (People v. Tenner (1993) 6 Cal.4th 559,
566; see also, Pen. Code, § 1096 [applying standard of beyond a reasonable-doubt
to “criminal actions”].)

16

Despite the nonconstitutional origins of these procedural protections,
however, it is the lesson of Bullington, supra, 451 U.S. 430, that when a state
erects a system in which sentence-enhancing facts are adjudicated in a hearing
bearing “the hallmarks of the trial on guilt or innocence” (id., at p. 439), the
federal double jeopardy clause applies. Nothing in Bullington or its progeny
suggests this analysis is dependent on whether the applicable procedural
protections are constitutionally mandated. /ndeed, in Bullington itself, the state of
Missouri required procedural protections for its capital defendants that were not
grounded in the federal Constitution. For example, Missouri law provided the jury
must both designate in writing which aggravating factors it found true
(Mo.Rev.Stat. § 565.012.4 (1978)) and apply a beyond a reasonable doubt standard
to proof of those factors (ibid.; see Bullington, supra, 451 U.S. at p. 434). Neither
procedural requirement is constitutionally mandated. (See People v. Rodriguez
(1986) 42 Cal.3d 730, 777-778.) The lead opinion fails to account for this aspect
of Bullington.

Accordingly, the lead opinion is simply wrong in claiming the
constitutional nature of the protections involved is “relevant” (lead opn., ante,

p. 11) to determining whether Bullington’s analysis should apply here. Whether or
not the procedural protections offered by a state for the adjudication of sentence-
enhancing facts are constitutionally mandated is simply not a relevant
consideration to the question before us.

3. Bullington is Not Distinguishable from the Present Case

The lead opinion next asserts that, any perceived “suggestion” in post-
Bullington decisions aside, Bullington is substantively different from the present
case, because it involved the death penalty, and “the trial-like procedures that
regulate imposition of the death penalty find no parallel in noncapital cases.”
(Lead opn., ante, p. 11.) The lead opinion also finds Bullington distinguishable

17

due to “the unique nature . . . of capital sentencing proceedings as compared to
prior conviction proceedings.” (Lead opn., ante, p. 15.) The lead opinion fails,
however, to identify any persuasive reasons, in law or logic, why Bullington can or
should be limited to capital cases.

Death is indeed different, for the state’s execution of a human being as a
penal sanction is both final and irreversible, modern society’s most serious
criminal penalty. (Lockett v. Ohio (1978) 438 U.S. 586, 604 (opn. of Burger, C.J.)
[the “qualitative difference between death and other penalties calls for a greater
degree of reliability when the death sentence is imposed”); Gardner v. Florida
(1977) 430 U.S. 349, 357 (plur. opn. by Stevens, J.) [because of finality and
severity of the death penalty, “it is of vital importance to the defendant and the
community that any decision to impose the death sentence be, and appear to be,
based on reason rather than caprice or emotion”].) For purposes of double
jeopardy and applying Bullington, however, simply labeling the death penalty as
“unique” or “different” obscures the pertinent inquiry, namely, in what relevant

way is the death penalty different for purposes of double jeopardy?”
Significantly, the Bullington court itself did not rely on the mere fact the
death penalty was involved. Indeed, it declined to overrule Stroud, supra, 251
U.S. 15, a capital case in which a defendant, initially sentenced to life
imprisonment, was sentenced to suffer the death penalty on retrial following a
reversal and a new trial. The Stroud court found no double jeopardy prohibition

against imposing the death penalty on retrial. Had Bullington held capital cases
2 _ As Justice Oliver Wendell Holmes observed, frequent repetition of an idea

does not necessarily add to its logical force. “It is one of the misfortunes of the
law that ideas become encysted in phrases and thereafter for a long time cease to
provoke further analysis.” (Hyde v. United States (1912) 225 U.S. 347, 391 (dis.
opn. of Holmes, J.).)

18

per se were different, it should have overruled Stroud. Instead, Bullington
distinguished Stroud as a case in which the penalty trial — unlike the one in
Bullington — was not one “like the trial on the question of guilt or innocence.”
(Bullington, supra, 451 U.S. at p. 446.) “In Stroud, no standards had been enacted
to guide the jury’s discretion.” (Bullington, supra, 451 U.S. at p. 439.) As the
Supreme Court of Washington recognized: “Although Bullington involved the
death penalty sentencing provision, neither the reasoning nor the holding in that
case depends upon the presence of the death penalty.” (Hennings, supra, 670 P.2d
256, 260.) Clearly the mere presence of the death penalty is not the key here.

Nor can we say the trial-like procedures that governed Missouri’s capital
sentencing proceedings are different in any meaningful way from the procedures
governing the bifurcated sentencing proceeding used to determine the truth of the
prior felony conviction allegation here. In both types of proceedings, the
defendant may obtain a separate hearing, must be notified of what the People plan
to prove, and is entitled to a jury and to counsel. In both types of proceedings, the
trier of fact is guided by established standards and must-choose one of two
alternative verdicts. In the Missouri proceeding, the choices are death or life
imprisonment without parole for 50 years. In the hearing in this case, the jury
must decide whether the alleged prior conviction is true or untrue. Like the
Missouri capital presentence hearing, the People in the present case are required to
prove the alleged sentence enhancement beyond a reasonable doubt. As
Bullington stated, “[t]he presentence hearing resembled and, indeed, in all relevant
respects was like the immediately preceding trial on the issue of guilt or innocence.
It was itself a trial on the issue of punishment... .” (Bullington, supra, 451 U.S.
at p. 438.) Stated differently, the hearing on the prior felony conviction allegations
bore “the hallmarks of the trial on guilt or innocence.” (/d., at p. 439.)

19

Accordingly, the trial-like procedures that govern Missouri's capital
sentencing hearing are nearly identical to those that apply to the bifurcated
proceeding held in this case to determine defendant's prior felony convictions. |
thus cannot agree with the lead opinion’s contrary conclusion that Missouri's
capital procedures “find no parallel in noncapital cases.” (Lead opn., ante, p. 11.)

The lead opinion also reasons that whereas Bullington held the relative level
of embarrassment and anxiety a capital defendant would feel in facing a penalty
phase trial was sufficiently comparable to the mental anguish suffered by a
criminal defendant in the substantive guilt phase of a criminal trial (Bullington,
supra, 451 U.S. at p. 445), the same cannot be said for a defendant facing a
noncapital sentencing hearing. (Lead opn., ante, p. 12.) From this assessment of
the emotional content of the trial experience, the lead opinion concludes Bullington
should not be extended to noncapital sentencing proceedings.

What is missing from this discussion is persuasive rationale supporting
the bald assertion that a criminal defendant’s “anxiety and insecurity” when facing
a possible life sentence as a result of past crimes is not equivalent to that
experienced by a defendant being tried for a substantive criminal offense. In this
era of “Three-Strikes-and- Y ou’re-Out,” the mental torment faced by defendants in
a bifurcated sentencing hearing to determine the truth of prior conviction
allegations seems at least comparable to that faced by defendants at the guilt phase
of trial. Such prior convictions, if two or more are sustained, can lead to a
minimum term in prison of twenty-five-years-to-life, with a maximum term
consisting of the balance of the defendant's natural life. (Pen. Code, §§ 667, subd.
(e(2A)i)-(iii), 1170.12, subd. (c(2)(A)(i)-(iii).) Even if, as in this case, only
one qualifying prior felony conviction is alleged, sustaining the prior conviction
allegation will require the sentence be doubled in length, essentially adding as
much time in prison as defendant received for committing the substantive offense.

(Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) The lead opinion’s
comparison of the mental anguish suffered by capital versus noncapital defendants
is thus unconvincing.

Finally, the majority finds capital penalty trials are different in kind because
the evidence presented in such hearings “usually overlaps or supplements the
evidence offered at the guilt phase of the trial,” whereas “in a trial of a prior
conviction allegation, the factual determinations are generally divorced from the
faets of the present offense, and the evidence does not overlap at all.” (Lead opn.,
ante, p. 14; see also conc. opn. of Brown, J., ante, p. 3.) Even if true, this
proposed distinction finds no support in Bullington whatsoever. | note the
majority fails to cite Bullington or, indeed, any authority, indicating this
evidentiary factor has any relevance to a double jeopardy analysis.

Nor am I convinced the majority is correct as an empirical matter.
Although “[t]he circumstances of the crime of which the defendant was convicted
in the present proceeding” is an aggravating circumstance in this state’s death
penalty scheme (see Pen. Code, § 190.3, factor (a)), anda defendant is entitled to
argue lingering doubt as a mitigating circumstance (People v. Sanchez (1995) 12
Cal.4th 1, 77), penalty phase evidence is often untethered to the facts of the crime.
Instead, such evidence frequently recounts the defendant’s past violent criminal
conduct and/or explains aspects of the defendant’s upbringing or mental health
history, evidence, in other words, that does not overlap with the evidence
presented at the guilt phase of the trial.

Moreover, even in a bifurcated hearing on prior felony conviction
allegations, the evidence must sometimes establish some aspect of the present
crime over and above the minimum necessary to obtain a guilty verdict on the
substantive offense. For example, to impose a five-year enhancement term for a
prior felony conviction pursuant to Penal Code section 667, subdivision (a), the

21

People must not only prove the existence of a qualifying prior conviction, but must
also prove the present conviction qualifies as a “serious felony” under section
1192.7, subdivision (c). (See People v. Equarte (1986) 42 Cal.3d 456 [for assault
with a deadly weapon to qualify as “serious felony” eligible for enhancement, state
must prove personal weapon use or personal infliction of bodily injury}; People v.
Thomas (1986) 41 Cal.3d 837 [observing that for burglary to qualify as a “serious
felony” eligible for enhancement, state must prove defendant personally used a
gun or deadly weapon, or inflicted great bodily injury, or entered a residence].) In
such a case, we cannot say “the factual determinations [at the separate hearing] are
generally divorced from the facts of the present offense . .. .” (Lead opn., ante,
p. 14; see also conc. opn. of Brown, J., ante, p. 3.)

In sum, the majority proffers no persuasive reason to support its assertion
that Bullington’s “hallmarks of the trial on guilt or innocence” test is limited to

4. The Lead Opinion’s Other Arguments are Unpersuasive

The lead opinion announces other reasons for declining to apply the federal
double jeopardy clause in this case, but none is persuasive. For example, the lead
opinion asserts that “a criminal defendant is not entitled as a federal constitutional
matter to a trial, formal or informal, of sentencing issues, even when the sentence
turns on factual determinations such as the existence of prior convictions.” (Lead
opn., ante, p. 5.) Because California thus could choose to provide very few
procedural protections for sentencing allegations, reasons the lead opinion, it could
certainly choose to provide less than full protection. From this, the lead opinion
concludes “a trial of sentencing allegations arguably need not provide double
jeopardy protection.” (Id., at p. 6, italics added.)

This argument is beside the point. While it may be true our Legislature
could choose to provide fewer procedural protections for sentence enhancements

22

~

(see People v. Vera (1997) 15 Cal.4th 269, 286 (dis. opn. of Werdegar, J.)), it has
not done so. If anything, legislative action has moved in the opposite direction,
ensuring a high degree of procedural protection for defendants charged with
sentence-enhancing allegations. (See, e.g., Pen. Code, §§ 667, subd. (c) [prior
convictions under legislative Three Strikes law must be “pled and proved”,
1170.12, subd. (a) [same under initiative Three Strikes law], 667.5, subd. (d) [prior
prison term enhancements “shall not be imposed unless they are charged and
admitted or found true”], 1025 [right to jury for prior felony conviction
enhancements], 1102 [rules of evidence apply to criminal “actions”]; see also Pen.
Code, § 190.3 [in penalty phase of capital case, evidence of prior criminal activity
shall not be admitted “for an offense for which the defendant was prosecuted and
acquitted” }.)

The lead opinion also suggests federal double jeopardy cannot apply here
because the Fifth Amendment specifically refers to “the offense,” and “[t]he
[double jeopardy] clause makes no express reference to sentencing
determinations.” (Lead opn., ante, p. 7.) This argument is belied by Bullington
itself, for the high court applied the federal double jeopardy clause to the Missouri
capital sentencing trial although no “offense” was involved therein. Clearly any
suggestion the federal double jeopardy clause is limited to criminal “offenses” is
incorrect.

5. Authority from the Federal Circuits and Other States

Citing several cases from the various federal circuits and other states, the
majority admits these courts “are divided as to whether the federal double jeopardy
clause applies to proceedings analogous to the one here.” (Lead opn., ante, p. 14;
see also conc. opn. of Brown, J., ante, p. 3.) As the lead opinion concedes, several
federal circuits and state courts have profitably applied the Bullington “hallmarks
of the trial on guilt or innocence” test to find the federal double jeopardy clause

23

applicable to noncapital sentencing proceedings. For example, in Briggs v.
Procunier (5th Cir. 1985) 764 F.2d 368 (hereafter Briggs), Texas indicted the
defendant for burglary and alleged two prior felony convictions which, if proved,
required he be sentenced to life in prison. After a jury found the defendant guilty
of the charged burglary, the state dismissed the charged prior convictions, citing
proof problems. The defendant sought a new trial and the state joined the motion.
When it was granted, the state again indicted the defendant for burglary. This
time, however, the state charged two different prior felony convictions to enhance
the sentence. (Jd., at p. 369.) The prior felonies were found true and the defendant
was sentenced to life imprisonment.

The Fifth Circuit Court of Appeals applied the Bullington “hallmarks of the
trial on guilt or innocence” test to reverse the district court’s denial of relief on
habeas corpus. “Like the death-sentencing rrocedure discussion in Bullington v.
Missouri, 451 U.S. 430 (1981), the Texas scheme requires the state to prove at
trial, beyond 2 reasonable doubt, the predicate facts, two prior convictions,
necessary for the imposition of the harsher sentence. ‘The two prior convictions
must te alleged in the indictment, and upon review the allegations are treated the
same as allegations of the elements of a substantive offense.’ [Citation.]
Therefore, if the state fails to introduce sufficient evidence of the defendant’s
status as an habitual offender at a first trial, the Double Jeopardy Clause prohibits
the sentencing of the defendant as an habitual offender at a second trial.” (Briggs,
supra, 764 F.2d at p. 371.)

The Supreme Court of Washington reached the same conclusion in
Hennings, supra, 670 P.2d 256. The defendant in Hennings was charged with
robbery and with being an habitual criminal under Washington’s habitual offender
law. He ultimately pleaded guilty to robbery, but the trial court dismissed the

habitual criminal charge, concluding the People failed to prove defendant’s guilty

24

plea in the prior conviction matter was knowingly and voluntarily obtained, a
statutory requirement under Washington law. (/d., p. 257.)

The Washington high court held double jeopardy precluded the People from
recharging and retrying the habitual criminal allegation. The court explained that,
like the capital proceeding at issue in Bullington, supra, 451 U.S. 430, an habitual

offender determination under Washington law takes place in a separate proceeding

in which the state bears the burden of proof beyond a reasonable doubt. In
addition, should the allegation be proved, the range of penalties is strictly
circumscribed: if the sentence is not suspended, the habitual offender must be
sentenced to life imprisonment; there is no other sentence. (Hennings, supra, 670
P.2d at p. 258.) The “similarities [between Bullington and the Washington
habitual offender law] indicate that under Bullington double jeopardy principles
should apply to Washington’s habitual criminal proceedings.” (Hennings, supra,
670 P.2d at p. 260.) 7

As illustrated by Briggs, supra, 764 F.2d 368, and Hennings, supra, 670
P.2d 256, the majority rule that has emerged from the federal circuit courts and
state high courts is this: Bullington’s “hallmarks of the trial on guilt or innocence”
test is the applicable standard to determine whether noncapital sentencing
proceedings are subject to the federal double jeopardy clause. As in Briggs and
Hennings, many courts have found double jeopardy applies to bar retrial of a
noncapital sentencing allegation because the state law at issue bore the hallmarks
of a trial on guilt. (In addition to Briggs, supra, 764 F.2d 368 [Sth Circuit], and
Hennings, supra, 670 P.2d 256 [Washington], see, e.g., Bohlen v. Caspari, supra,
979 F.2d at p. 113, revd. on other grounds in Caspari, supra, 510 U.S. 383 [8th
Circuit, interpreting Missouri habitual offender law}; Nelson v. Lockhart (8th Cir.
1987) 828 F.2d 446, 447-448, revd. on other grounds, Lockhart v. Nelson, supra,
488 U.S. 33 [interpreting Arkansas habitual offender law]; Durosko v. Lewis,

25

supra, 882 F.2d at p. 359 [9th Circuit interpreting Arizona law]; People v.
Quintana, supra, 634 P.2d at p. 419 [Colorado]; Cooper, supra, 631 S.W.2d at
pp. 513-514 [Texas]; Ex Parte Augusta (Tex.Crim.App. 1982) 639 S.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0194%3A02. Public record. Not legal advice.