Reply Brief — Monge v. California

Supreme Court, U S.

kFilbkeE b |

APR 10 1996

No. 97-6146

In The

Supreme Court of the United States

October Term, 1997

SJ

ANGEL J. MONGE,

Petitioner,

Vs.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

¢

On Writ Of Certiorari

To The Supreme Court Of The

State Of California

°

REPLY BRIEF FOR PETITIONER

¢

Curr GARDNER*

GARDNER & DeRHAM

900 North Point

Suite 220

San Francisco, CA 94109

(415) 922-9404

Counsel for Petitioner

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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I.

Il.

NEITHER PRECEDENT NOR POLICY WARRANT

REFUSING TO APPLY DOUBLE JEOPARDY TO

FULLY ADVERSARIAL NON-CAPITAL SEN-

TENCE ENHANCEMENT TRIALS...............

A.

i.

The Vast Majority Of Non-Capital Sentence

Enhancement Trials Involve Neither Prior Con-

viction Allegations Nor An Inquiry Into The

Defendant's Status As A Prior Offender......

Where. A State Chooses To Provide Certain Pro-

cedures Which Are Not Themselves Required

By The Constitution, Those Procedures Must

Comply With The Constitution ..............

Bullington Did Not Depend On The Capital

Nature Of The Proceeding At Issue........

THE CALIFORNIA SENTENCE ENHANCE-

MENT SCHEME CONTAINS ALL THE HALL-

MARKS OF A TRIAL ON GUILT OR

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12

TABLE OF AUTHORITIES

Page

Cases

Bullington v. Missouri, 451 U.S. 446 (1981)....... passim

Coleman v. Alabama, 399 U.S. 1 (1970) ............... 10

Duncan v. Louisiana, 391 U.S. 145 (1968)............. 10

Evitts v. Lucey, 469 U.S. 387 (1985) ............005. 9, 10

Gerstein v. Pugh, 420 U.S. 103 (1975) ..........00005- 10

Griffin v. Illinois, 351 U.S. 12 (1956) ............0045- 10

Irvin v. Dodd, 366 U.S. 717 (1961) ............500e. 9, 11

McKane v. Durston, 153 U.S. 684 (1894).............. 10

Moragne v. United States, 369 U.S. 952 (1969) ........ 19

Morgan v. Illinois, 504 U.S. 719 (1992) ..........45. 9, 10

Mullaney v. Wilbur, 421 U.S. 684 (1975).............. 10

Patterson v. New York, 432 U.S. 197 (1977) ........... 10

Payne v. Tennessee, 498 U.S. 1076 (1991)....4......... 19

People v. Best, 56 Cal.App.4th 41 (1997)........0.00e0. 6

People v. Brookins, 215 Cal.App.3d 1297 (1989) ........ 6

People v. Calderon, 9 Cal.4th 69 (1994) .............4.. 8

People v. Cina, 41 Cal.App.3d 136 (1974)............. 16

People v. Equarte, 42 Cal.3d 456 (1986)................ 7

People v. Jackson, 7 Cal.App.4th 1367 (1992)........... 6

People v. Maldanado, 186 Cal.App.3d 863 (1986)....... 6

People v. Marquez, 16 Cal.App.4th 115 (1993).......... 6

People v. Monge, 16 Cal.4th 826 (1997).......... 7, 8, 15

iii

TABLE OF AUTHORITIES - Continued

Page

People v. Rodriguez, 17 Cal.4th 253 (1998)............. 6

People v. Superior Court (Howard), 69 Cal.2d 491

EEE ES PPT TTETE TELTTTTTTEe 16

People v. Superior Court (Romero), 13 Cal.4th 497

TEER EGER a Chad ncavccsecss de ceschooccedes 16

People v. Thomas, 4 Cal.4th 206 (1993) ............... 16

People v. Williams, 50 Cal.App.4th 1405 (1996) ........ 6

People v. Williams, 222 Cal.App.3d 911 (1990)......... 6

Smith v. Bennett, 365 U.S. 708 (1961) ................ 10

Spaziano v. Florida, 468 U.S. 447 (1984) ........... 10, 14

Specht v. Patterson, 386 U.S. 605 (1967) .............. 14

Stringer v. Black, 503 U.S. 222 (1992) ................ 15

Stroud v. United States, 251 U.S. 15 (1919)........ 12, 13

United States v. DiFrancesco, 449 U.S. 117 (1980) ..... 13

Walton v. Arizona, 497 U.S. 639 (1990)............... 14

Unirep States Cove

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iv

TABLE OF AUTHORITIES — Continued

Page

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CaumorNniA Heactn & Sarety Cope

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Unirep States CONSTITUTION

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Fourteenth Amendment....................00005. 10, 14

OrHer AUTHORITIES

Stern & Gressman, Supreme Court Practice (7th

Ge BOUe ocucansccencecucdsceenennsunsussennenans 19

INTRODUCTION

Had the jury and appellate courts in this case found

sufficient evidence to prove the charged allegation, that

finding would certainly bind defendant and preclude him

from requesting a second chance to litigate the charge.

The question here is whether a finding of insufficient

evidence will similarly bind the state.

In this context, the Court has never before permitted

the state repeated chances to prove a criminal allegation

beyond a reasonable doubt when it has once failed to do

so. The Court has never before permitted the state to

ignore a jury's finding that the state has not proved its

case. The Court has never before permitted the state to

ignore a similar finding made by an appellate court.

Here, respondent and its amici ask the Court to do all

three. Although they take slightly different approaches,

their joint request for repeated chances to empanel a

factfinder and prove sentence enhancement allegations is

premised on two general points.

First, they argue that the “hallmarks of trial” test of

Bullington v. Missouri, 451 U.S. 430 (1981) must be con-

fined to capital cases. Respondent's Brief (“RB”) at 4-13;

Amicus Brief of Solicitor General (“SG”) at 12-20; Amicus

Brief of National Association of Attorneys General

(“AG”) at 15-27. Second, even if the hallmarks test did

apply, California sentence enhancement trials do not have

sufficient hallmarks to merit application of Double Jeop-

ardy. RB at 13-19; SG at 21-22.

To its credit, respondent bluntly frames the rule it

seeks. Respondent argues that Double Jeopardy permits

the state multiple opportunities to prove a sentence

enhancement allegation even where a “jury has rejected

the allegation.” RB at 10. In other words, a jury's finding

in favor of a defendant is constitutionally irrelevant, only

jury findings in favor of the state count. As discussed

below, neither of respondent’s arguments supports adop-

tion of this one-sided rule.

ARGUMENT

I. NEITHER PRECEDENT NOR POLICY WARRANT

REFUSING TO APPLY DOUBLE JEOPARDY TO

FULLY ADVERSARIAL NON-CAPITAL SENTENCE

ENHANCEMENT TRIALS.

Respondent and two of its amici argue that the “hall-

marks of trial” test of Bullington v. Missouri, 451 U.S. 430

applies only to capital cases. RB at 4-13; SG at 12-20; AG

at 15-27. Three general reasons are put forth for this

limitation.

First, they describe the inquiry made at such trials as

one involving “status” only - whether defendant has a

criminal record — and argue that determinations of status

do not implicate Double Jeopardy concerns. RB at 9-10;

SG at 18-19; AG at 10, 13-14. Second, they argue it would

be unsound policy to hinge application of Double Jeop-

ardy on the nature and type of inquiries mandated by

state law. RB at 22; SG at 23; AG 24, 27. Third, their

analysis of precedent shows that Bullington rested not

solely on the presence of trial-like hallmarks, but on the

presence of such hallmarks in conjunction with the ordeal

of a capital case. SG at 9, 23-24; AG at 9, 18.

Each of these arguments will be discussed in turn.

None support the conclusion that non-capital sentence

enhancement trials are dress rehearsals at which a jury’s

verdict is respected only when it favors the state.!

A. The Vast Majority Of Non-Capital Sentence

Enhancement Trials Involve Neither Prior Con-

viction Allegations Nor An Inquiry Into The

Defendant's Status As A Prior Offender.

Respondent and its amici argue that the factual ques-

tion to be decided at a sentence enhancement trial is

merely one of “status.” The jury is simply being asked to

decide whether the defendant has suffered prior convic-

tions. According to respondent, this inquiry is “divorced

from the defendant's current crime.” RB at 12; AG at 9.

The simple and straightforward nature of this inquiry

implicates none of the policies on which the Double Jeop-

ardy Clause is premised. RB at 9-10; SG at 18-19; AG at

10, 13-14.

There are two fundamental problems with this argu-

ment. First, it is arbitrarily limited to sentence enhance-

ment trials involving prior convictions. Significantly,

however, the “question presented” by this Court for

' One of respondent's amici breaks ranks and takes exactly

the opposite position. “Bullington did not turn on any ‘death is

different’ argument, instead relying primarily upon a

‘hallmarks of the trial on guilt or innocence’ standard.” Amicus

Brief of Criminal Justice Legal Foundation (“CJLF”) at 4. With

characteristic vigor, CJLF argues that any attempt to limit

Bullington to the capital context “is a feeble, post hoc

rationalization.” Ibid.

review is not similarly limited, properly recognizing that

many sentence enhancement trials have nothing what-

ever to do with prior convictions. Indeed, the Amicus

Brief of the California Public Defender’s Association

(“CPDA”) makes clear that the majority of sentence

enhancement trials in California do not involve even the

remotest inquiry into a defendant's “status.” CPDA at 13,

20-21. Nor do they depend on facts which are “divorced

from the defendant's current crime.” Instead, they

depend directly upon proof of the defendant's actions or

mental state in the underlying, current crime. Thus, the

suggestion that Double Jeopardy cannot apply to non-

capital sentence enhancement trials because such trials

involve a mere status inquiry is simply unfounded.?

2 See, e.g., Cal. Pen. Code § 667.8 (if state proves that

defendant's intent in the current crime was to facilitate a sexual

offense, 9 year enhancement is proper); Cal. Pen. Code

§ 12022.53(b) (if state proves that defendant used a firearm in

the current crime, 10 year enhancement is proper); Cal. Pen.

Code § 12022.53(c) (if state proves that defendant discharged a

firearm in the current crime, 20 year enhancement is proper);

Cal. Pen. Code § 12022.7 (if state proves that defendant inflicted

great bodily injury in the current crime, three year enhancement

is proper); People v. Bright, 12 Cal.4th 652 (1996) (if state proves

that defendant premeditated in current charge of attempted

murder, sentence may be enhanced to a life term).

The existence of enhancements which depend entirely on

the way in which the current crime is committed is not lh. ited

to California. See, e.g., 21 U.S.C. § 924(c) (if government proves

that defendant carried or used a firearm in the current crime, a

5-30 year enhancement is proper depending on the type of

weapon involved.) In no way can it be said that the proof of

these sentence enhancements is “divorced from the defendant's

current crime.”

Even if the question presented for review is limited

to trials on prior conviction allegations, however, the

argument of respondent and its amici would still have to

be rejected. Put simply, the Solicitor General and the state

Attorneys General are understandably misinformed

about the California scheme at issue in this case.

This may be because California’s prior conviction

statutes are unlike that of many other states. The Califor-

nia statute at issue here does not merely require the state

to prove a requisite number of prior felony convictions.

Instead, it requires the state to prove that the prior con-

viction was committed in such a way that it constitutes a

“serious felony” as defined under California law. See, e.g.,

Cal. Pen. Code § 667(a)(4), 667(d)(1).

Thus, under the California scheme, the defendant's

status as a prior offender is simply a preliminary fact in

the enhancement trial, and one that is usually undis-

puted. The jury’s principal task at this trial is to make

findings of historical fact concerning the conduct under-

lying the prior conviction. This very different inquiry

requires the state to affirmatively introduce evidence

showing how the prior conviction was committed. In

other words, the California scheme does not require proof

of a mere “status;” it requires proof of conduct underly-

ing the prior conviction.

Indeed, the critical factual question resolved adversely

to the state by the factfinder in a prior crimes sentence

enhancement trial is rarely, if ever, the simple “status” ques-

tion of whether defendant is a prior offender. Instead, it is

whether the crime the defendant indisputably committed

was committed in a way that makes it a serious felony. The

large number of published California cases on this question

show that this inquiry has nothing to do with a defendant's

“status” and is anything but simple and straightforward. See,

e.g., People v. Rodriguez, 17 Cal.4th 253, 261-262 (1998); People

v. Best, 56 Cal.App.4th 41 (1997); People v. Williams, 50

Cal.App.4th 1405 (1996); People v. Marquez, 16 Cal.App.4th

115 (1993); People v. Jackson, 7 Cal.App.4th 1367 (1992); People

v. Williams, 222 Cal.App.3d 911 (1990); People v. Brookins, 215

Cal.App.3d 1297 (1989).

Where the prior conviction is a theft, for example, the

state will often be required to prove defendant's specific

intent at the time of the theft. See, e.g., People v. Marquez,

16 Cal.App.4th at 122-123; CPDA at 28. Where the prior

conviction is a murder, the state may be required to prove

defendant's mental state at the time of the homicide. See,

e.g., People v. Maldanado, 186 Cal.App.3d 863, 866 (1986).

Where the prior conviction is an assault, the state must

prove that defendant personally used a weapon in the

prior offense. See, e.g., People v. Williams, 222 Cal.App.3d

911. None of these inquiries have anything to do with

defendant's “status” as a prior offender; to the contrary,

each assumes that status to have been already proven.*

* Respondent's subsidiary proposition - that proof of

sentence enhancements is “divorced from the defendant's

current crime” — is no more true in the limited confines of the

prior conviction context. See, e.g., Cal. Pen. Code §§ 667(a) (in

order to enhance punishment for a prior conviction, the state

must prove that the current crime was committed in a way that

made it a “serious felony”); 667.7 (in order to enhance

punishment for a prior conviction, the state must prove that the

current crime involved infliction of great bodily injury or

personal use of force); Cal. Health & Safety Code § 11370.2 (in

order to enhance punishment for a prior conviction, the state

Respondent and its amici correctly note that the

ordeal and anxiety suffered by a defendant at a non-

capital sentence enhancement retrial is less than that of a

defendant at a second capital sentencing hearing. RB at

12; SG at 18. Respondent explains that in the non-capital

context, the defendant begins the sentence enhancement

trial “having already suffered the embarrassment of the

present conviction.” RB at 11. Thus, there is only a “mar-

ginal increase in embarrassment” attributable to the sen-

tence enhancement trial. RB at 11. The Solicitor General

presents a similar rationale, noting that in non-capital

cases, the defendant’s primary “concern and anxiety

obviously relate to te determination of innocence or

guilt, and that already is behind him.” SG at 18. These

rationales are posited as a reason that Double Jeopardy

should not apply to non-capital sentence enhancement

trials. #8

Once again, however, this reasoning is entirely incon-

sistent with state law. The vast majority of sentence

enhancement allegations in California (1) have nothing to

do with prior conviction allegations (2) depend entirely

on how the defendant commits the current crime and (3)

are tried at the same time and to the same jury that

determines guilt of the underlying offense. For example,

when a defendant is charged with a sentence enhance-

ment for the use of a firearm, his fate on that allegation

must prove the nature of defendant’s involvement in the current

crime); People v. Equarte, 42 Cal.3d 456 (1986); CPDA at 23-24;

People v. Monge, 16 Cal.4th 826, 862-863 (1997) (Werdegar, J.

dissenting).

depends entirely on the evidence introduced in connec-

tion with the underlying crime and is decided by the

same jury at the same time. Thus, the suggestion that

Double Jeopardy should not apply to non-capital enhan-

cement trials because the defendant has “already suffered

the embarrassment of the present conviction” is — as a

matter of state law — wrong.

Indeed, even in the prior conviction context, respon-

dent’s rationale is frequently inapplicable. As petitioner

noted in his opening brief, unless a party moves to bifur-

cate trial on a prior conviction allegation, the jury trial on

this allegation will occur at the same time as trial on the

charged offenses. See People v. Calderon, 9 Cal.4th 69

(1994); Pet. Br. at 37.

Ultimately, respondent and its amici cannot genu-

inely be arguing that the protections of Double Jeopardy

depend on whether the trial court happens to bifurcate

the proceedings. The inquiry into when the sentence

enhancement trial is held is a red herring; the appli-

cability of the Double Jeopardy Clause depends on the

nature of the trial being held, not on when the trial

occurs. As Justice Werdegar noted in her dissenting opin-

ion below, “[i]n this era of ‘Three-Strikes-and-You’re-

Out,’ the mental torment faced by defendants in a bifur-

cated 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.” People v.

Monge, 16 Cal.4th at 862. Given the extraordinary penal

consequences entailed in many of the enhancement stat-

utes — such as a 20 year term for firearm use or a 25 year-

to-life term for two qualifying prior convictions — Justice

Werdegar was entirely correct.*

B. Where A State Chooses To Provide Certain Pro-

cedures Which Are Not Themselves Required

By The Constitution, Those Procedures Must

Comply With The Constitution.

Respondent and its amici argue that it would be

unsound policy to hinge application of Double Jeopardy

on the nature and type of inquiries mandated by state

law. RB at 22; SG at 23; AG 24, 27. They argue that this

would serve as a strong incentive for individual states to

remove hallmarks as a way of avoiding the Double Jeop-

ardy Clause. RB at 22; SG at 23; AG at 24, 27. In addition,

amici warns against a parade of horribles; a hallmarks

test would require individual application in 50 states and

lead to unpredictable and unfair results. AG at 25-27.

The Court has explicitly rejected the “incentive”

argument time and time and time again. See, e.g., Morgan

v. Illinois, 504 U.S. 719, 726-727 (1992); Evitts v. Lucey, 469

U.S. 387, 400-401 (1985); Irvin v. Dodd, 366 U.S. 717,

* Of course, the entire premise of respondent's argument is

that the policies underlying Double Jeopardy do not apply to

determinations of mere “status” such as age or the presence of

prior convictions. Because the trial at issue here has little to do

with status, there is no need to explore this premise in any

depth. It is worth noting, however, that for many criminal

offenses, proof of status — such as age or criminal history — is an

element of the crime itself. See, e.g., Cal. Pen. Code §§ 261.5(a),

271, 288a(b)(2), 290. This Court has never suggested that the

state is entitled to multiple chances to prove these “status”

elements once a defendant has been acquitted.

10

721-722 (1961); Smith v. Bennett, 365 U.S. 708, 714 (1961).

The scope of constitutional protection applicable under a

wide variety of constitutional protections depends

entirely on what respondent refers to as the “particulars

established by each state.” RB at 22.

For example, the Constitution does not require states

to provide an adversarial preliminary hearing. Gerstein v.

Pugh, 420 U.S. 103 (1975). If the state chooses to do so,

however, that hearing is subject to the Sixth Amendment

right to counsel. Coleman v. Alabama, 399 U.S. 1 (1970).

The Constitution does not require a state to make

malice an element of murder. Patterson v. New York, 432

U.S. 197, 198 (1977). If the state chooses to do so, how-

ever, that element is subject to the Fifth Amendment

requirement of proof beyond a reasonable doubt. Mul-

laney v. Wilbur, 421 U.S. 684 (1975).

The Constitution does not require states to provide

the right to appeal. McKane v. Durston, 153 U.S. 684,

687-688 (1894). If the state chooses to do so, however, that

right is subject to the Fourteenth Amendment guarantees

of Equal Protection and Due Process. Evitts v. Lucey, 469

U.S. at 400-401; Griffin v. Illinois, 351 U.S. 12 (1956).

The Constitution does not require states to provide a

jury trial at the sentencing phase of a capital trial. Spazi-

ano v. Florida, 468 U.S. 447, 464 (1984). If the state chooses

to do so, however, that jury is subject to the Sixth Amend-

ment requirement of impartiality. Morgan v. Illinois, 504

U.S. at 727.5

5 Similarly, prior to 1968 the Constitution did not require

the use of jury trials in a State’s criminal proceedings. Duncan v.

11

These examples should suffice. The argument that

constitutional protections cannot hinge on the provisions

of state law not only finds no support in the Court’s

precedents, but has been rejected again and again and

again.

Nor does experience in these varied areas support

the dire prediction that state legislatures will revise their

statutes in order to avoid the Double Jeopardy Clause. In

each of the cases cited above, it was the state’s voluntary

decision to provide certain procedures which subjected

those procedures to limits imposed by the federal consti-

tution. Yet there has been no rush by state legislatures to

abolish adversarial preliminary hearings, redefine mur-

der statutes to eliminate malice, abolish the right to

appeal or do away with juries at capital sentencing. The

suggestion that legislatures will revise their laws in order

to avoid the commands of the constitution finds no sup-

port in any of these areas.

Nothing suggests state legislatures would take a dif-

ferent approach in the Double Jeopardy area. Indeed, the

empirical data which does exist supports precisely the

opposite conclusion.

As petitioner noted in his opening brief, the vast

majority of jurisdictions already apply the hallmarks of

trial test to determine the applicability of the Double

Jeopardy Clause. Pet. Br. at 29-35. Despite this, to peti-

tioner’s knowledge none of the legislatures in any of

Louisiana, 391 U.S. 145, 154 (1968). If the state elected to do so,

however, that jury was subject to the Sixth Amendment

requirement of impartiality. Irvin v. Dodd, 366 U.S. at 721-722.

12

these states has ever “reconsider[ed] the discretionary

procedural benefits they . . . grant to defendants in non-

capital sentencing trial[s].” RB at 22.

This empirical evidence also compels rejection of the

alternative suggestion that a hallmarks test would be

difficult to apply and result in unpredictable outcomes.

AG at 25-27. Virtually every jurisdiction to face the Dou-

ble Jeopardy question already applies the hallmarks test.

Pet. Br. at 29-35. The results are both consistent and

predictable. Only where an enhancement trial provides

procedures and requires proof like the trial on the ques-

tion of guilt or innocence have courts held Double Jeop-

ardy applicable. Pet. Br. at 30-34. Thus, there is no need to

speculate on whether the parade of horribles envisioned

by amici will occur; experience throughout the country

has made clear it will not.®

C. Bullington Did Not Depend On The Capital

Nature Of The Proceeding At Issue.

To its credit, the Solicitor General recognizes that had

Bullington rested purely on the capital nature of the pro-

ceeding, it would have had to overrule Stroud v. United

States, 251 U.S. 15 (1919). See Pet. Br. at 24-25. In neverthe-

less arguing that Bullington is limited to the capital con-

text, the Solicitor General proposes that Bullington

actually rested on two factors: the capital nature of the

6 The hallmarks test has been present in capital litigation

since Bullington. Significantly, neither respondent nor its amici

present any evidence that it has resulted in unpredictable or

confusing results in the capital context.

13

proceeding and the presence of trial-like hallmarks. SG at

9, 23-24. The Solicitor General explains that Double Jeop-

ardy did not apply in Stroud because it did not contain

the second of these factors - the hallmarks of trial.

This explanation is entirely logical, as far as it goes. It

fits Bullington’s treatment of Stroud into an analytic box

that both reconciles Stroud and permits respondent's

argument that Bullington was based - at least in part - on

the capital nature of the proceeding at issue.

The analysis falls short, however, because it ignores

three basic aspects of Bullington. First, it ignores Bull-

ington’s treatment of United States v. DiFrancesco, 449 U.S.

117 (1980). If Bullington had genuinely rested on the

combination of the capital nature of the inquiry and the

trial-like hallmarks, the Court could have simply and

easily distinguished DiFrancesco by relying on the non-

capital nature of the sentencing decision at issue there.

Significantly, however, it did not. To the contrary, and

in some detail, Bullington focused on the “hallmarks of

trial” which were absent in DiFrancesco, primarily proof

beyond a reasonable doubt. It then examined the role

played by the factfinder in DiFrancesco. Bullington v. Mis-

souri, 451 U.S. at 440-441. Of course, not a word of this

discussion would have been necessary if Bullington had

rested, even in part, on the capital nature of the punish-

ment.

Second, the Solicitor General's interpretation of Bull-

ington ignores statements made by both the Bullington

majority and the dissent. The majority stated in no uncer-

tain terms that “[b]ecause of our conclusion on the Dou-

ble Jeopardy Clause issue, we have no occasion to

i4

address petifioner’s claims under the Sixth, Eighth and

Fourteenth Amendment.” Bullington v. Missouri, 451 U.S.

at 446, n.17. Dissenting Justice Powell was just as clear,

writing that “the Court does not purport to justify its

conclusion with the argument that facing the death sen-

tence a second time is more of am o deal in the legal sense

than facing any other sentence a second time.” 451 U.S. at

451.

Finally, it is significant that not a single case cited in

Bullington rested on the Court's “death-is-different” juris-

prudence. Bullington v. Missouri, 451 U.S. at 437-447.

Instead, the Court relied on Specht v. Patterson, 386 U.S.

605 (1967), a case having nothing to do with capital

jurisprudence. Bullington v. Missouri, 451 U.S. at 446.

The Bullington majority said it was not relying on the

Eighth Amendment. The Bullington dissent said that the

case did not depend on the capital nature of the penalty.

Neither the majority nor the dissent cited a single Eighth

Amendment case. Moreover, the vast majority of jurisdic-

_ tions around the country have not confined Bullington to

the capital context. Pet. Br. at 29-35. Bullington should not

be confined to the capital context now.”

? Also arguing that Bullington should be limited to the

capital context, the National Association of Attorneys General

suggests that the Double Jeopardy ruling in Bullington rests on

the notion that “imposition of the death penalty is arguably part

of the substantive offense of capital murder.” AG at 9. Of course,

this was exactly the argument made by capital defendants for

years in arguing that the Sixth Amendment right to a jury trial

required a jury to impose sentence. The Court has long rejected

this argument. See, e.g., Walton v. Arizona, 497 U.S. 639, 647-649

(1990); Spaziano v. Florida, 468 U.S. at 464. Bullington plainly did

not rest on this discredited theory.

15

Il. THE CALIFORNIA SENTENCE ENHANCEMENT

SCHEME CONTAINS ALL THE HALLMARKS OF

A TRIAL ON GUILT OR INNOCENCE.

Assuming arguendo that Bullington is not limited to

capital cases, respondent nevertheless argues that Double

Jeopardy would not apply to California sentence enhan-

cement trials because they do not have the hallmarks of

trial. RB at 13-19. In advancing this thesis, respondent

does not discuss the hallmarks provided at the actual

sentence enhancement trial. RB at 13-19. As both the

plurality and dissenting decisions below concluded after

analyzing these hallmarks, sentence enhancement trials

in California have all “the hallmarks of a trial on guilt or

innocence.” People v. Monge, 16 Cal.4th at 836, 870; JA 60,

116-117.

Of course, a state’s highest court is the final arbiter of

its own law. Stringer v. Black, 503 U.S. 222, 234 (1992). This

plain statement by the California Supreme Court explains

why, as the Solicitor General noted, “the question pre-

sented does assume that petitioner’s sentencing proceed-

ing had those hallmarks .... ” SG at 21, n8.

Instead of focusing on the hallmarks actually pro-

vided at the enhancement trial itself, respondent urges

the Court to focus on the trial court’s subsequent power

to dismiss a sentence enhancement allegation in the inter-

ests of justice pursuant to California Penal Code section

1385. Respondent argues that this power renders Double

Jeopardy inapplicable. RB at 13-18.

As an initial matter, respondent's premise is curious.

Respondent purports to argue that California enhance-

ment trials do not possess the hallmarks of a guilt/

16

innocence trial. To support this argument, respondent

relies on a hallmark of trial - the power to dismiss under

section 1385 —- which state courts have long held applies

equally to guilt/innocence and sentence enhancement tri-

als. See, e.g., People v. Superior Court (Romero), 13 Cal.4th

497, 508 (1996); People v. Superior Court (Howard), 69

Cal.2d 491, 501-505 (1968) (court dismisses charged

offense pursuant to section 1385); People v. Cina, 41

Cal.App.3d 136, 140 (1974).

Putting this aside, the factual predicate for respon-

dent's argument is generally correct. With some excep-

tions, section 1385 authorizes trial courts to dismiss

sentence enhancement allegations after the jury has

found them true.®

Respondent's thesis is that dismissing such enhance-

ments can lead to an increased flexibility at the actual

sentencing hearing. RB at 13-18. Respondent and the

Solicitor General both argue that petitioner has mis-

takenly focused upon the binary nature of the jury’s

actual verdict. Instead, they argue that the focus should

be on the sentencing options which remain if a trial court

8 There are a number of statutory exceptions to this rule.

See, e.g., Cal. Pen. Code § 1385(b) and 667(a) (five year

enhancement for a prior serious felony not subject to section

1385); Cal. Pen. Code § 12022.53(h) (10 and 20 year firearm use

enhancements not subject to section 1385); People v. Thomas, 4

Cal.4th 206 (1993) (section 12022.5 firearm use enhancement not

subject to section 1385). Under respondent's theory, because

these enhancements could not be stricken under section 1385,

Double Jeopardy would presumably apply.

17

subsequently exercises discretion to strike a prior convic-

tion allegation after it has been found true. RB at 14, n.7;

SG at 21-22.

Of course, the reason petitioner focused on the

binary nature of the factfinder’s actual sentence enhance-

ment verdict is because it is that verdict to which Double

Jeopardy should apply. A focus on the actual determina-

tion made by the factfinder —- and the limited “yes/no”

choice available to the factfinder - is appropriate pre-

cisely because it is this decision which should be subject

to Double Jeopardy. Double Jeopardy applies to binary

determinations of historical fact, not to a trial court's

subsequent, discretionary sentence choices.

In support of its position, respondent reasons that if

the trial court had exercised its discretion to strike the

prior conviction allegation, a range of sentences would

have been available to it. Since one of the main reasons

Double Jeopardy does not apply to sentencing hearings is

because the sentencer is exercising a broad ranging dis-

cretion, the discretion to strike the enhancement allega-

tion brings non-capital sentencing enhancement trials

within the safe harbor of traditional sentencing.

In a sense, of course, respondent is entirely correct. A

trial court’s discretionary decision at sentencing to strike

a sentence enhancement allegation is not subject to Dou-

ble Jeopardy protection. Nor is a trial court’s discretion-

ary sentencing decision subject to Double Jeopardy

18

protection. Both decisions may be appealed by the state

under Penal Code § 1238(a)(10).?

Yet the existence of these normative sentencing pro-

cedures after a formal trial at which a jury renders a yes/

no verdict on whether the state has proven its case is

irrelevant to the Double Jeopardy question presented.

The question is whether Double Jeopardy applies to the

jury’s verdict on the actual sentence enhancement, not

whether it applies to the trial court’s subsequent subjec-

tive sentencing decisions. The existence of such discre-

tionary powers down the road at sentencing is irrelevant

to the question of whether the factfinder’s initial acquittal

should or will be respected.

¢

—_

® Respondent suggests in passing that a jury’s finding of

insufficient evidence to support a sentence enhancement may be

appealed. RB at 18-19. The suggestion is wrong. The People may

appeal a trial court’s decision to dismiss a sentence

enhancement allegation under section 1385. See Penal Code

§ 1238(a)(10). The People have no authority under that section,

or any other provision of California law, to appeal a jury’s

finding that the state presented insufficient evidence to support

a sentence enhancement.

19

CONCLUSION

The state was entitled to one bite at the apple. They

are now asking for the entire bushel. The decision of the

California Supreme Court should be reversed.'°

Respectfully submitted,

Curr GARDNER*

GARDNER & DerHAM

900 North Point

Suite 220

San Francisco, CA 94109

(415) 922-9404

Counsel for Petitioner

* Counsel of Record

'© Petitioner has addressed those portions of respondent's

briefing which are responsive to the actual question presented

by the Court in its January 16, 1998 order. He recognizes that, as

a fallback position, respondent and one of its amici have asked

the Court to overrule Bullington. RB at 20-22; CJLF at 1-30. This

issue is not within the question presented by the Court. Nor was

the issue raised in respondent's Brief in Opposition to Petition

for Writ of Certiorari. As a general matter, when the Court

wants briefing on whether a precedent should be overruled, and

that issue has not been presented in either the certiorari petition

or brief in opposition, the Court's practice is to issue an order

directing the parties to address the issue. See, e.g., Payne v.

Tennessee, 498 U.S. 1076 (1991); Moragne v. United States, 369 U.S.

952 (1969). See generally Stern & Gressman, Supreme Court

Practice at § 6.25 at p. 341 (7th Ed. 1993).