Amicus Curiae Brief — Monge v. California

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-_—-

vr Supreme Court. U 3

No. 97-6146 FILED

27 1998

IN THE CLERK

—

SUPREME COURT OF THE UNITE

October Term, 1997 ~+-

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

CALIFORNIA PUBLIC DEFENDERS

ASSOCIATION’SMOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE AND BRIEF AMICUS

CURIAE ON THE MERITS

J. BRADLEY O’CONNELL

Attorney, First District Appellate Project

JEFFREY E. THOMA

Mendocino County Public Defender

Member, California Public Defenders Association

Board of Directors and Amicus Committee

3273 Ramos Circle

Sacramento, CA 95827

(916) 362-1686

Amicus Attorneys on behalf of Petitioner

Angel J. Monge

\ \ 4

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS

SUMMARY OF STATEMENT

ARGUMENT

A. Traditional Sentencing

Distinguished--California’s

Procedures for Discretionary

Sentencing Within the Range

Provided for the Underlying

Crime

B. Unlike Traditional Selection

Of a Term Within the Sentencing

Range for the Current Crime,

California’s “Three Strikes”

Law and other Enhancements

Authorize Sentences Substantially

in Excess of the Statutorily

Prescribed maximum Term for

the Current Offense.

C. California Enhancement,

“Strikes,” and Other Penalty

Jury Determinations of

Indistinguishable F

Traditional Findings on Elements

of Substantive Counts 18-29

CONCLUSION 29-30

TABLE OF AUTHORITIES

Cases Page

People v. Abarca (1991) 25

233 Cal.App.3d 1347

People v. Arbuckle (1978) 8

22 Cal.3d 749

People v. Banks (1997) 27

Ist Dist No. A072865 (unpublished opn)

People v. Barre (1992) 19

11 Cal.App.4th 961

People v. Bartow (1996) 19, 26

46 Cal.App.4th 1573

People v. Best (1997) 19, 25

56 Cal.App.4th 41

People v. Bouzas (1991) 14, 22

53 Cal.3d 465

People v. Bright (1996) 20

12 Cal.4th 652

People v. Brookins (1989) 18

215 Cal.App.3d 1297

People v. Bury (1996) 15

50 Cal.App.4th 1873

People v. Combs (1986) 8

184 Cal.App.3d 508

People v. Davis (1996) 19

42 Cal.App.4th 806

People v. Dorsch_(1992) 8

3 Cal.App.4th 1346

People v. Dotson (1997) 15

16 Cal.4th 547

People v. Equarte (1996) 22

42 Cal.3d 456

ili

People v. Gamble (1996) 19

48 Cal.App.4th 576

People v. Guerrero 25

44 Cal.3d at 355

People v. Hernandez (1988) 20

46 Cal.3d 194

People v. Howard (1992) 27

1 Cal.4th 1132

People v. Jackson (1985) 23

37 Cal.3d 826

People v. Jackson (1992) 19

7 Cal.App.4th 1357

People v. Jackson 24

7 Cal.App.4th at 1370

People v. Johnson (1989) 26

208 Cal.App.3d 19

People v. Kellett (1982) 8

134 Cal.App.3d 949

People v. Lewis (1996) 19

44 Cal.App.4th 845

People v. Maldanado (1986) 27

186 Cal.App.3d 863

People v. Marquez 19, 26

16 Cal.App.4th 115

People v. Matthew (1991) 19

229 Cal. App.3d 930

People v. Myers (1993) 24, 25

5 Cal.4th 1193, 1200

People v. Nobleton (1995) 19

38 Cal.App.4th 76

People v. Nguyen (1997) 15

54 Cal.App. 4" 1873

People v. Superior Court (Romero) (1996) 13

13 Cal.4th 497

People v. Rayford (1994)

9 Cal.4th 1

People v. Reed (1996)

13 Cal.4th 217

People v. Reynolds (1991)

232 Cal.App.3d 1528

People v. Rhoden (1989)

Cal.App.3d 1242

People v. Rodriguez

17 Cal.4th at 261

People v. Superior Court (Marks) 1991

1 Cal.4th 56

People v. Taylor (1979

92 Cal.App.3d 831

People v. Terry (1996)

47 Cal.App.4th 329

People v. Valentine (1986)

42 Cal.4th 170

People v. Weathington (1991)

231 Cal.App.3d 69

People v. Williams (1996)

50 Cal.App.3d 1405

People v. Winslow (1995)

49 Cal.App.4th 680

People v. Woodell (1998)

17 Cal.4th

In re Yurko (1974)

10 Cal.3d 857

19, 26

19, 25

Arizona v. Rumsey

467 U.S. at 290-212, 104 S.Ct. 2305, 81

L.Ed.2d 164

Breed v. Jones (1975)

421 U.S. 519, 528-531, 95 S.Ct. 1799, 44

L.Ed.2d 346

Bullington v. Missouri

451 U.S. at 438-446

Burks v. United States (1978)

437 US. 1

Boykin v. Alabama (1969)

395 U.S. 238, 89 S.Ct 1709 L.Ed.2d 274

McMillan v.a Pennsylvania (1986)

477 U.S. 79, 88 106 S.Ct 2411, 91 L.Ed.2d 67

Witte v. United States (1995)

515 U.S. 389 115 S.Ct 2199, 132 L.Ed.2d 351

11,17

10, 16

STATUES

Penal Code Section

189

190(a)

209(b)

213(a)(2)

213(b)

243(d)

245(a)(1)

245(a)(2)

290(g)

298(d)

664(a)

666

667(a)

667 (a)-(i)

667(a)(4)

667(d)

667(d)(1)

667(e)(1)

667(e)(2)

667(e)(2)(A)

667.5

667.5(b)

667.5(c)

667.61

667.61(d)(1)-(4)

667.8

667.9

667.10

1170.12

Vii

21, 22

16,17

16, 23, 24

15, 22, 23

6, 13

15, 16

21, 22

7, 12

1170.12(c)(1) 14, 15

1170(c)(2)A) 14

1170.12(b) 24

1170.12(¢(2(A)(1) 15

1192.7(c) 16, 23, 24

1192.7(c)\(18) 23

1320 19

1320.5 19

12021 22, 23

12022.1 13

12022.5 13, 17

12022.5(a)(1) 17

12022.53 15,17

12022.53(b)-(d) 13

12022.55 13

12022.6 13

12022.7 13

12022.8 13

Health & Safety Code

11361(a) 15

11370.4 13

Vehicle Code

23175 13

Revenue & Tax Code

19701 19

Vili

INTEREST OF AMICUS

The California Public Defenders Association respectfully

files this amicus curiae brief in support of petitioner’s brief on the

merits, regarding this Court’s review of the judgement and

decision of the Supreme Court of the State of California entered on

August 26, 1997.

Pursuant to Rule 37, the California Public Defenders

Association, hereby respectfully submits, this amicus curiae brief,

in support of petitioner’s brief on the merits to review the

judgement and decision of the Supreme Court of the State of

California entered on August 26, 1997, and in favor of this

Honorable Court reversing that decision. Petitioner and

respondent have both consented to the filing of this amicus curiae

brief, pursuant to Rule 37.3 (copies of consent letters attached).

The California Public Defenders Association (hereafter

CPDA) is the statewide association of public defenders. As such,

members of this association are the primary trial and appellate

counsel in the State of California for criminal defendants who are

unable to afford counsel. The Association is concerned with issues

affecting criminal defendants and the administration of justice

throughout California, and based upon these concerns, previously

filed an amicus brief with this Court on October 22, 1997, in

support of the petition for writ of certiorari, prior to this Court’s

granting of petitioner’s writ on January 16, 1998.

The instant case raises a crucial question regarding whether

the Double Jeopardy Clause applies to successive non-capital

sentence enhancement trials that contain all the hallmarks of a trial

on guilt or innocence. The members of CPDA represent the

overwhelming majority of defendants accused of crimes pending

trial in this state, as well as the majority of individuals in

California situated similarly to petitioner herein on appeal. Thus,

CPDA has a vital and continuing interest in this issue being

resolved, beyond the interest of petitioner herein.

CPDA is acutely aware of the special role which “strikes,”

“enhancements,” and other formal penalty allegations play in

California’s regimen for adjudication of defendants’ criminal

culpability. As California’s system has evolved over recent

decades, the various enhancement statutes--rather than the statutes

defining the underlying substantive offenses--have become the

principal determinants of the degree of defendants’ culpability and

of the maximum penal consequences of their crimes. Indeed, in the

1990's, it has become quite common for enhancements or strikes

to account for the majority of a defendant’s total sentence, such

that the portion attributable to the enhancement often dwarfs the

underlying offense. Commensurate with their importance in

California’s criminal justice regimen, enhancement allegations are

adjudicated under the same rules as the charged substantive

offenses: They are specifically alleged in the accusatory pleading,

they are admitted or denied at arraignment, they are tried to a jury

(or to the court, if a jury is waived), and the jury’s verdict must be

unanimous. During trial, the prosecution must prove each element

of the enhancing allegation beyond ateasonable doubt, and all the

traditional rules of evidence apply.

Prior to its decision in People v. Monge, 16 Cal.4th 853,

66 Cal.Rptr. 2d 853, 941 P.2d 1121 (1997), the California

Supreme Court had assumed the double jeopardy clause was fully

applicable to enhancing allegations, and California appellate courts

had explicitly so held.' But the California Supreme Court’s

Monge opinion robs defense verdicts on enhancing allegations of

the finality which attends all other forms of acquittals.

This case represents this Court’s first occasion to consider

any of the constitutional implications of California’s regimen of

"See, ¢.g., People v. Brookins, 215 Cal.App.3d 1297, 264

Cal.Rptr. 240 (1989)

“three strikes” and other non-capital enhancing allegations. CPDA

believes that it is essential that this Court understand both the

role which these statutes have acquired in authorizing sentences far

in excess of the maximum statutory term for the underlying

criminal counts. CPDA believes that, as amicus curiae, it can

assist this Court by addressing how the “three strikes” statute at

issue in Monge fits into California’s larger framework of formal

enhancing allegations.

Because so many clients of this organization’s members

are affected by any decision on this issue, CPDA believes it has

a sufficient interest and good reason to present this amicus brief.

The issues raised on the application of the Double Jeopardy Clause

to these proceedings are more encompassing than just those

presented under the facts and factors as applied to Mr. Monge, so

it is believed that the brief which amicus curiae is requesting

permission to file will contain a more complete argument on the

constitutional issue as it applies to all defendants and appellants.

Pursuant to Rule 37.6 of the rules of this Court, amici State

that no counsel for a party authored this brief in whole or in part,

and that no person, other than amici and their members, made a

monetary contribution to the preparation or submission of this

brief.

The purpose of this brief is not to duplicate the parties’

discussions of this Court’s double jeopardy jurisprudence but

instead to provide this Court with a comprehensive picture of how

California’s “strike” and enhancement procedures actually operate

“on the ground.” As discussed here, these allegations serve the

same essential functions as traditional substantive counts, and

California juries’ and trial judges’ adjudications of those charges

are “trials” in every sense of the word.

Respectfully submitted,

Y E. THOMA

Counsel for California Public Defenders Association

3273 Ramos Circle

Sacramento, CA 95827

(916) 362-1686

BRIEF AMICUS CURITAE

DOES THE DOUBLE JEOPARDY CLAUSE APPLY TO

NONCAPITAL SENTENCING PROCEEDINGS THAT

HAVE ALL THE HALLMARKS OF A TRIAL ON GUILT

OR INNOCENSE?

ARGUMENT

CALIFORNIA “STRIKES” AND OTHER ENHANCING

ALLEGATIONS ARE THE FUNCTIONAL EQUIVALENTS

OF SUBSTANTIVE CRIMINAL COUNTS AND DESERVE

THE SAME PROTECTION UNDER THE DOUBLE

JEOPARDY

Monge v. California arises under California’s “three

strikes” regimen. §§ 667(b)-(i), 1170.12. ° Although the “three

strikes” law is relatively new, it is only one of numerous examples

of California’s pervasive practice of utilizing formal enhancing

allegations as the principal vehicles for jury adjudication of the

specific degree of a defendant’s criminal conduct. CPDA is aware

that several other states, as well as certain federal statutes, employ

a similar nomenclature of sentence “enhancements”. But this

semantic similarity is misleading. Unlike many of those other

states, California has imbused its non-capital penalty allegations

with ail the characteristics of traditional substantive offense

counts. These allegativ«s are tried to juries under the same

The “three strikes” law consists of two substantively identical statues--one

enacted by the Legislature in March 1994, § 667(b)=(i), and duplicative

statute enacted by a voter initiative in November 1994, § 1170.12. This

brief will refer to “three strikes” as a single law and will not distinguish

between the two statutes.

pleading and evidentiary rules as the substantive counts, require

comparable findings of historical fact on defined “elements,” and

are subject to the same requirements of proof beyond a reasonable

doubt and jury unanimity. Moreover, it is the enhancement

findings, rather than the statutory sentence range for the

underlying offense, which determine the defendant’s maximum

sentence, and the enhancement statutes commonly authorize or

even compel a sentence substantially in excess of the nominal

maximum term for the underlying current crime.

A. Traditional Sentencing Distinguished—

California’s Procedures for Discretionary

Sentencing Within the Range Provided for the

Underlying Crime

In California, a defendant’s ultimate aggregate sentence is

the result of three determinations: (1) the trial jury’s (or) verdict

of conviction of one of more current substantive crimes, (2) the

trial (or) verdicts on any enhancing allegations, and (3) the

sentencing court’s discretionary weighing of aggravating and

mitigating factors in making various “sentence choices”(e.g.,

selection of upper, middle or base term; choice between

consecutive and concurrent sentencing, etc.). “Three strikes’ and

the other enhancing allegations discussed herein fall squarely

within the second of these categories. However, as a preliminary

matter, it is crucial to distinguish these formally adjudicated

enhancement allegations from the third category--the more

traditional sentencing factors considered int he course of the

court’s discretionary choices during the sentencing hearing at the

time of pronouncement of judgment.

California sentencing hearings are traditional informal

proceedings similar to those in most jurisdictions and have none

of the formal adjudicative characteristics of California

enhancement proceedings. At sentencing, the judge makes a

number of discretionary choices which fix the ultimate sentence

within the range established by the trial jury’s verdicts of

conviction and enhancement findings. The principal such sentence

choices include the grant or denial of probation (except where

probation is statutorily barred), selection of the base term of

imprisonment for the principal current conviction from among the

“upper,” “middle,” and “lower” terms for that offense, and the

choice between consecutive or concurrent sentencing where there

are multiple current convictions.

The California Rules of Court * set out a number of

“aggravating” and “mitigating” circumstances to guide trial judges

in the exercise of these discretionary choice. See Rules of Court,

rules 421, 423, 425, 428(b); see also rules 414, 413. In contract to

California enhancement and “strike” statutes, which define the

“elements” of enhancing allegations with the same precision as the

statutes defining criminal offenses, the “mitigating” and

“aggravating” factors are more loosely defined and (as discussed

in petitioner Monge’s brief) call upon the sentencing judge to

make discretionary “normative” judgments rahter than discrete

findings of historical fact. Se e.g. rule 421(a)(1) (“cruelty,

viciousness, or callousness’’); rule 421(b)(1) (“serious danger to

society”); Rules 423(b)(6) & 421(b)(5) (“satisfactory” or

“Unsatisfactory” performance on probation or parole); rule

421(b)(2) (“increasing seriousness” of convictions or juvenile

adjudications); rule 423(b)(1) (“insignificant” prior criminal

record). Moreover, while all California crimes and punishment

allegations are statutorily defined and limited, §§ 6, 13, the

sentencing rules’ lists of aggravating and mitigating factors are

illustrative rather than exclusive. Rule 408(a); see, e.g., People v.

Taylor,92 Cal.App.3d 831, 155 Cal.Rptr. 62 (1979)(unadjudicated

All further reference to “Rules” are to the California Rules of Court, unless

otherwise indicated.

arrests), People v. Kellett, 134 Cal.App.3d 949, 692, 185 Cal.Rptr.

| (1982)(same); People v. Combs, 184 Cal.App.3d 508, 511,299

Cal.Rptr. 133 (1986)(bail status).

The aggravating factors employed to deny probation,

impose an upper term, or choose consecutive rather than

concurrent sentencing are not subject to formal pleading and proof

requirements.’ They need only be established by a preponderance,

Rule 420(b), and, most importantly, formal rules of evidence do

not apply. The sentencing judge typically relies on extrajudicial

hearsay contained in the probation or other pre-sentence report,

and the defendant has no right to call and cross-examine the author

of that report. See People v. Arbuckle, 22 Cal.3d 749, 753-756,

150 Cal.Rptr. 778, 587 P.2d 220 (1978).

In all these respects, the hearing which attends the

pronouncement of judgment in California conforms to the

traditional American model of sentencing, bearing none of the

customary “hallmarks” of a criminal trial (pleading, rules of

evidence, reasonable doubt burden, right to jury determination,

etc.,). Though the sentencing judge may incidentally determine

some factual matters in the course of considering aggravating and

mitigating factors, the judge’s principal role is the quintessentially

judicial one of exercising discretion in the choosing between more

punitive and more lenient options as to each of the “sentence

choices” (choice of base term, consecutive/concurrent sentencing,

etc.) contributing to the aggregate term. But all discretionary

choices at sentencing simply adjust the defendant’s sentence

within the range established by the jury’s or judge’s trial verdicts

on the conviction counts and enhancing allegations.

As described below, California’s regimen of “strikes” and

See, ¢.g., People v. Dorsch (1992) 3 Cal.App.4th 1346,5 Cal. Rptr.2d 327

(prior convictions triggering presumption of probation ineligibility under §

1203(e)(4)).

other enhancing allegations bears no resemblance to the more

traditional discretionary sentencing choices made at the time of the

judgement. These enhancing allegations are part and parcel of the

trial, involve findings of historical fact on specific statutorily-

defined elements similar to those on the substantive offense

counts, and authorize punishment in excess of the statutory

maximum terms provided for the defendant’s current offense.

B. Unlike Traditional Selection of a Term Within

the Sentencing Range for the Current Crime,

California’s “Three Strikes” Law and other

Enhancements Authorize Sentences

Substantially in Excess of the Statutorily

Prescribed maximum Term for the Current

Offense.

Unlike non-capital sentencing schemes which this Court

has considered in the past, California’s “strikes,” “enhancements”

and other “penalty allegations” authorize punishment over and

above the statutory maximum term specified for a defendant’s

current offense or offenses. In finding that the Sixth Amendment

right to jury trial and the Fourteenth Amendment requirement of

proof beyond a reasonable doubt did not apply to Pennsylvania’s

“mandatory minimum” provisions for arming during a felony, this

Court emphasized repeatedly that the firearm factor did not expose

a defendant “to greater or additional punishment” than statutorily

prescribed for the current conviction offense. McMillan v.

Pennsylvania, 477 U.S. 79, 88 106S.Ct 2411, 91 L.Ed.2d

67(1986):*

In distinguishine California “strikes” from the “ ha 7

considered in McMillan, CPDA does not suggest that the same standards

govern the constitutional rights asserted in the two cases. On the contrary,

Section 9712 neither alters the maximum penalty

for the crime committed nor creates a separate

offense calling for a separate penalty; it operates

solely to limit the sentencing court’s discretion in

selecting a penalty within the range available to it

without the special finding of visible possession of

a firearm, /d, at 88-89, emphasis added.

The same is true of the federal sentencing guidelines.

Although various aggravating factors (weapon use, prior

convictions, etc.) may move the sentence selection up or down the

ladder of potentially available terms for the current conviction

offense, in no event can a guidelines factor result in a term in

excess of the “statutorily authorized maximum sentence” for the

current crime. U.S. Sentencing Guidelines §§ 5G1.1(a),

5G1.1(c)(1).

On that ground, this Court found no double jeopardy bar to

a conviction based on criminal conduct which had previously been

considered as “relevant conduct” in calculating the defendant’s

guidelines sentence on an earlier separate conviction. Witte v.

United States (1995) 515 U.S.389 115 S.Ct 2199, 132 L.Ed.2d

351. Echoing its comments in McMillan, the Court emphasized

that, in the earlier case, the separate criminal conduct had merely

been “used to enhance petitioner’s sentence within the range

authorized by statute” for the underlying conviction offense” Jd.

it is well established that double jeopardy protections apply mm a number of

proceedings in which there is no Sixth Amendment nght to a jury--such as

juvenile delinquency trials, Breed v. Jones (1975) 421 U.S. 519, 528-

531,95 S.Ct. 1779, 44 L.Ed.2d 346 and, of course, capital penalty trials,

Arizona v. Rumsey, 467 U.S. at 203,210, 104 S.Ct. 2305, 81 L.Bd.2.d 164.

at 399, emphasis added.’ “The higher guidelines range [resulting

from consideration of the separate conduct], however, still falls

within the scope of the legislatively authorized penalty (5-40

years)” for the conviction offense. /bid., emphasis added. Indeed,

the Witte majority viewed this characteristic as so significant that

it repeated it in the opinion’s concluding synopsis of the holding:

“Because consideration of relevant conduct in determining a

defendant’s sentence within the legislatively authorized

punishment range does not constitute punishment for that conduct,

the instant prosecution does not violate the Double Jeopardy

Clause’s prohibition against the imposition of multiple punishment

for the same offense.” Jd. At 406, emphasis added.

Sentencing provisions such as Pennsylvania’s ““mandatory-

minimum” statute or the federal sentencing guidelines simply

represent more elaborate mechanisms for weighing traditional

sentencing factors, such as the aggravating and mitigating

circumstances considered by California courts in choosing among

lover, middle and upper terms. Cf..Rules Rules 421, 423. That

is, such provision may “dictate[] the precise weight” accorded

particular sentencing considerations and may even limit sentencing

discretion by raising the minimum permissible term for the current

offense. McMillan, 477 U.S. at 89-90; Witte, 515 U.S .at 401.

But they do not and cannot increase the sentence above the

maximum statutorily authorized term for the current offense.

California pena!ty allegations are completely different.

Though these statutes employ a variety of mechanisms for

increasing defendants’ sentences, their common characteristic is

the authorization of a sentence in excess of the statutorily

See also Witte, 115 U.S. at 401, quoting McMillan’s description of the

Pennsylvania statute as “neither alter[ing] the maximum penalty” for the

current crime nor “calling for a separate penalty.” McMillan, 477 U.S. at

87-88.

prescribed upper term for the defendant’s current offense. Most

California sentencing allegations take the form of

“enhancements” within the state’s technical definition of that

term— “an additional term of imprisonment added to the base

term.” Rule 405(c). In other words, the enhancement consists of

a fixed term of years added on top of the sentence for the current

offense. Among the most commonly charged of these are 5-year

enhancements for prior “serious felonies”, § 667(a), enhancements

of 9 or 15 years for kidnaping for purposes of sexual assault, §

667.8, various enhancements ranging from 3 to 10 years for

firearm use, §§12022.5, 12022.55, “quantity enhancements”

ranging from 3 to 25 years for drug offenses, Cal. Health & Saf.

Code § 11370.4, and numerous lesser enhancements on such

diverse factual elements as prior prison terms, age of the victim,

bail or O.R. status, infliction of great bodily injury, and value of

stolen property. E.G. §§ 667.5, 667.9, 667.10, 12022.1, 12022.7,

12022.8, 12022.6.*In the language of McMillan and Witte, each of

these enhancements “‘call[s] for a separate penalty” in addition to

the term for the current crime. McMillan, 477 U.S. at 88; Witte,

515 U.S. at 401.

Another set of California penalty allegations function

through the other means considered and distinguished in

McMillan and Witte--by “alter[ing] the maximum penalty for the

crime committed.” McMillan at 87-88; Witte at 515 U.S. at 401.

The “three strikes” law under which Monge was tried and

sentenced is a prime example. §§ 667(b)-(i); 1170.12. It applies

broadly to any current felony trial, where the prosecution alleges

Effective January 1998, the California Legislature has increased the firearm

enhancements by enacting a new “10-20-life” statute, § 12022.53. Like

other enhancements, these additional penalties for firearm use are imposed

“in addition to and consecutive to the punishment prescribed” for the

current conviction offense. § 12022.53(b)-(d).

and proves that the defendant has one or more prior “serious” or

“violent” felony convictions. People v. Superior Court (Romero),

13 Cal.4th 497, 505, 529, 53 Cal.Rptr.2d 789, 917 P.2d 628

(1996). The “three strikes” law establishes “alternative sentencing

scheme for the current offense” which “when applicable, takes the

place of whatever law would otherwise determine the defendant's

sentence for the current offense.” Id., 13 Cal.4th at 527, 524,

emphasis added. Monge was tried and sentenced under the law’s

“second strike” provisions which authorized the sentencing court

to double the term otherwise available for his current current

marijuana offense. §§ 667.(e)(1), 1170.12(c)(1). The law’s “third

strike” provisions go still further and require an indeterminate term

of at least 25 years to life. § 667(e)(2)(A), 1170.12(c)(2)(A). °

Other penalty allegations which (like “three strikes”)

replace the current offenses’s statutorily authorized sentencing

range with “alternative sentencing schemes” includes California’s

recent “one strike” law for sex offenses, § 667.61, its various

“habitual offender” statutes, e.g. § 667.7, '° and its special

sentencing statutes for petit theft with a prior, § 666, and

attempted premeditated murder, § 664(a). In addition to increasing

the length of the defendant’s sentence beyond the maximum

statutory term for the current offense, many of these penalty

provisions fundamentally alter the nature of the sentence imposed.

Under the law’s somewhat arcane “third strike” formula, the minimum term

for the indeterminate life sentence is set as the greater of 24 years, triple the

term otherwise provided for the current conviction, or the term resulting

from other enhancements. §§ 667(e)(2)(A)(i)-(iii), 1170.12(c2)A)i)-(iil).

Thus, for example, while the statutorily prescribed term for second-degree

murder is 15 years to life, § 190(a), a “third strike” adjudication will

escalate that sentence to 45 to life.

See also §§ 667.71, 667.72, 667.75.

For most felonies, California statutes authorize a triad of fixed or

“determinate” terms--such as the 3-, 5- or 7-year terms prescribed

for Monge’s current marijuana offense. Cal. Health & Saf. Code

§ 11361(a). But California’s “third strike” provisions (as well as

various other “alternative sentencing schemes”) replace these fixed

sentences with various indeterminate life terms, such as 25 years

to life. E.G. §§ 667(e)(2)(A), 1170.12(c)(2)(A). Under

California’s “habitual offender” law, a defendant may even receive

a sentence of life without possibility of parole, § 667.7(a)(2) for a

current crime (e.g., battery with serious bodily injury, § 243(d)

with a statutorily authorized maximum term of only four years.

Under some California statutes, the penalty allegations are

the only thing which exposes the defendant to a state prison term.

For example, petit theft is a misdemeanor punishable with a county

jail sentence “not exceeding six months,” § 490, but pleading and

proof of a prior theft conviction triggers felony punishment: a state

prison sentence of up to three years. § 666; cf. § 18. Yet, the

California Supreme Court has declared that “petit theft with a

prior,” § 666, represents a form of sentence enhancement, not a

distinct offence. People v. Bouzas, 53 Cal.3d 467, 470-480, 279

Cal.Rptr. 847, 807 P.2d 706 (1991)."' *

Finally, it bears emphasis that California’s various

“enhancements” and other “penalty provisions” often operate

cumulatively with one another. Thus, the finding that Monge had

a prior “serious felony conviction” (or “strike’’”) doubled the term

for his current marijuana crime from five years to ten years, §§

667(e)(1), 1170.12(c)(1), and the finding that he had served a

prison term for that same prior conviction resulted in imposition

The same is true of California’s provision for felony punishment (up to 3

years in state prison, § 18) for repeat drunk drivers. Cal. Veh. Code §

23175; see People v. Weathington, 231 Cal.App.3d 69, 86-90, 282

Cal.Rptr. 170 (1991).

of an additional |-year enhancement, § 667.5(b), bringing

Monge’s total term to 11 years.

Frequently, the cumulative effect is even greater. For

instance, both the five-year enhancement provisions, § 667 and the

second- and third-strike punishments of that same statute are tied

to § 1192.7(c)’s enumeration of “serious felonies. See §§

667.(a)(4), 667(d)(1). Thus, a “third strike” defendant whose

current crime (like his prior “strikes’’) is also a “serious felony”

will ordinarily receive a sentence of at least 35 years to life: a

“third strike” indeterminate term of 25 years to life, §§

667(e2KA)1), 1170.12(ch2A\1), plus five-year

enhancements,§ 667(a), based on the same two prior “strikes.”

See People v. Dotson (1997) 16 Cal.4th 547, 66 Cal.Rptr.2d 423,

941 P.2d 56 (and prior cases discussed). (And, the defendant may

also receive additional enhancements (e.g., weapon use) on top of

that 35 years to life to term--even where his current felony

conviction (e.g., assault with a deadly weapon or robbery) has a

statutorily authorized maximum term of only 4 or 5 years. See

e.g., §§ 245(a)(1), 213(a)(2).)

These several examples illustrate another common feature

of California sentencing. Not only do the enhancements and other

penalty allegations authorize punishment in excess of the

statutorily prescribed upper term for the current crime., the

enhancing allegations frequently account for the bulk of the

The California courts have also approved “three strikes” terms for o‘fenses

which are ordinarily misdemeanors and only qualify for state felony

treatment by virtue of “felony booster” penalty allegations such as “petty

theft with a prior,” § 666. See e.g., People v. Bury, 50 Cal.App.4th 1873,

58 Cal.Rptr.2d 682 (1996); People v. Nguyen, 54 Cal.App.4th 705, 63

Cal.Rptr.2d 173 (1997); People v. Terry, 47 Cal.App.4th 329, 54

Cal. Rptr.2d 769 (1996) (each allowing “third strike” term of 25 to life

where defendant's current crime was petty theft, ordinarily a misdemeanor

punishable with up to 6 months in jail).

aggregate sentence and dwarf the base terms available for the

current offense. '’

In evaluating the role of Pennsylvania’s “mandatory

minimum” statute in McMillian and later of the federal sentencing

guidelines’ “relevant conduct” provisions in Witte, this Court saw

no indication that either sentencing factor had become “a tail

which wags the dog of the substantive offense.” McMillan, 477

U.S. at 88; Witte, 515 U.S. at 403. But that is exactly what has

occurred with California’s various enhancements and other penalty

allegations, including the “three strikes” law at issue here. The

penalty allegations typically expose a defendant to much greater

“jeopardy” in the lay sense of the term--a much longer potential

prison term--than substantive counts themselves. '*

Having assigned to its penalty allegations much of the

work performed by substantive offense counts in other

jurisdiction--including formal charging and jury adjudication of

the factual elements which determine the maximum potential

While the examples above have principally involved “strikes” and other

penalty allegations concerning prior convictions, the same is true of

enhancing allegations concerning facts of the current offense. For example,

the various firearm enhancements, e.g., § 12022.5, 12022.53, provide

commonly committed with firearms. E.g., compare § 245(a)(2) (base terms

of 2, 3, 4 years for assault with a firearm) with § 12022.5(a)(1) (consecutive

. enhancements of 3,4, or /0 years for personal firearm use during

commission of any felony); compare § 213(a)(2) (base terms of 2, 3, or 5

years for robbery) and §§ 213(b), 17 (and of 16 months, 2 years or 3 years

for attempted robbery), with § 12022.53 (consecutive enhancements of 10

years, 20 years or 25 years to life for firearm use during designated felonies,

including robbery and attempted robbery). The quantity enhancements for

drug offenses reveal a similar pattern. Compare Cal

Cf. Breed v. Jones, 421 U.S. 519, -531 95 S.Ct. 1779, 44 L.Ed.2.d,. 346

(discussing “jeopardy” concept).

sentence--California cannot withhold the double jeopardy

protections which necessarily attend such an adjudication.

Regardless of whether such a factual allegation is denominated a

“count,” an “enhancement,” or a “strike,” a jury’s, trial judge's, or

appellate court's finding of legally insufficient proof must be the

final word, and the Constitution does not allow the unsuccessful

prosecutor a second or third try to prove that charge.

S California Enhancement, “Strikes,” and Other

Penalty Allegations Require Specific Jury

Determinations of Historical Fact Which Are

Indistinguishable From Traditional Findings on

Elements of Substantive Counts.

In Bullington and Rumsey, this Court applied double

jeopardy protections to capital penalty phase proceedings which

had “all the hallmarks of a trial on guilt or innocence.” Bullington

v. Missouri, 451 U.S. at 438-446; Arizona v. Rumsey, 467 U.S.

at 290-212. As the majority opinion here acknowledged, in

California the trial of “strikes” or other non-capital enhancing

allegations has all these same trial “hallmarks,”: The prosecution

must formally allege them in the accusatory pleading, they are

tried to a jury and require a unanimous verdict, the prosecution’s

proof must be admissible under the rules of evidence just as in any

other trial, the defnese may offer evidence in rebuttal, and the

prosectuion’s burden is proof beyond a reasonable doubt. See

Monge, 16 Cal.4th at 833-834, 836 (and authorities discussed

there). '°

But the similarity is much deeper than the Monge majority

acknowledges. The Monge majority opinion speaks of the

supposed ease with which prosecutors can prove prior conviction

'SSee also Monge at 859, 879 (dis.opn. Of Werdegar, J.)

allegations and suggests that such trials are “simple and

straightforward” affairs in which “the outcome is relatively

predictable.” Monge. 16 Cal.4th 838. Both the premise and the

characterization are wrong. Preliminarily, CPDA disputes the

premise that a “simple” criminal trial is any less deserving of full

constitutional protections than a complex or lengthy one. Many

trials of substantive offense are “straightforward” or even

perfunctory, commonly involve minimal prosecution evidence and

no defense evidence, and rely principally on documentary

evidence (including evidence of the defendant’s “status”’)--e.g.,

such crimes as failure to register as a sex offender, § 290(g),

failure to appear following bail or O.R. release, § 1320, 1320.5, or

failure to file a tax return, Cal. Rev. & Tax. Code §19701. Even

many drug possession cases can be tried solely on the basis of the

arresting officer’s testimony. Although many such criminal trials

are “short and relatively predictable” in the manner ascribed to

enhancement trials, Monge, 16 Cal.4th at 839, surely no one

would question the fact that a// such trials, irrespective of length

or complexity, place the defendant in “jeopardy.” Contrary to the

majority’s implication, a “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,” ibid., in

order to enjoy the protections of the double jeopardy clause.

Even leaving aside the Monge majority’s dubious premise,

the opinion’s dismissive description of California “strike and

enhancement trials is demonstrably wrong. The great frequency

with which prior conviction findings are reversed for insufficiency

of evidence, evidentiary errors, and other trial errors, belies the

Monge majority’s assurances that these are easily proven

allegations with readily predictable outcomes.'® Perhaps that is

See, ¢.g., People v. Rodriguez, |7 Cal.4th at 261-262; People v. Brookins,

215 Cal. App.3d 1297, 264 Cal. Rtpr. 240 (1989); People v. Rhoden, 216

true of prior conviction allegations in some other jurisdictions, but

not in California. On the contrary, CPDA’S experience is that

prior conviction findings are reversed the insufficiency of evidence

much more frequently than convictions for current substantive

offenses. '’

The Monge opinion’s portrayal of California enhancement

trials as qualitatively different than other trials is equally

indefensible. Not only are they tried under the same rules,

California enhancing allegations involve findings of historical fact

almost identical to those which jurors customarily make on offense

counts. Sometimes the identical factual element which

distinguishes a greater offense from a lesser included offense in

one context is deemed a separate enhancing allegation in a closely

related context.

California’s homicide-related statutes present a stark

Ca. App.3d 1242, 1255-1257, 265 Cal.Rtpr. 355 (1989); People v. Jackson,

7 Cal.App.4th 1357, 1370-1373, 10 Cal.Rptr.2d 5 (1992); People v.

Matthews, 229 Cal.App.3d 930, 280 Cal.Rptr. 134 (1991); People v.

Williams, 50 Cal.App.4th 1405, 58 Cal.Rptr.2d 517 (1996); People v.

Lewis, 44 Cal.App.4th 845, 52 Cal.Rptr2d 338 (1996); People v. Bartow,

46 Cal.App.4th 1573, 54 Cal.Rptr.2d 482 (1996); People v. Gamble, 48

Cal.App.4th 576, 55 Cal.Rptr.2d 721 (1996); People v. Williams

222Cal.App.3d 911, 272 Cal.Rptr. 212 (1990); People v. Best, 56

Cal.App.4th 41, 64 Cal. Rptr.2d 809 91997); People v. Marquez, 16

Cal.App.4th 115, 123-124, 20 Cal.Rptr.2d 365 (1992); People v. Reynolds,

232 Cal.App.3d 1528, 284 Cal.rptr. 356 (1991); People v. Davis, 42

Cal.App.4th 806, 813-820, 49 Cal.Rptr.2d 890 (1996); see also People v.

Barre, 11 Cal.App.4th 961, 14 Cal.Rptr.2d 307 (1992); People v. Nobleton,

38 Cal.App.4th 76, 84-85, 44 Cal. Rptr.2d 611 (1995).

The published reversals represent only the tip of the iceberg. California's appellate courts

decide over 95% of criminal appeals--including both affirmances and reversals--in unpub:

opinions. See Judicial Council of California, /997 Judicial Council Report on Court Stati

p. 29.

example. Murder is divided into two degrees: second-degree

murder is considered a lesser included offense within the greater

offense of first-degree murder. One of the factual elements which

distinguishes the offenses is premeditation. § 189. Premeditation

has an equally significant role in the adjudication of attempted

murder charges. Attempted murder with premeditation is

punishable with an indeterminate life term; otherwise, attempted

murder is punishable with a determinate term of 5, 7, or 9 years.

§ 664(a). Yet the California Supreme Court recently held that,

unlike murder, attempted murder is not divided into degrees, and

there is no distinct offense of attempted premeditated murder of

“attempted first-degree murder.” Instead, there is a unitary offense

of attempted murder, and premeditation represents a separate

“penalty allegation,” which (like other such allegations) is tried to

the jury. If the allegation is found true, it subjects the defendant

to an alternative sentencing scheme which displaces the triad of

fixed “determinate” terms for the underlying offense of attempted

murder. See People v. Bright (1996) 12 Cal.4th 652, 49

Cal.Rptr.2d 732, 909 P.2d 1354. Indeed, the California Supreme

Court has expressly analogized the “three strikes” law to the

premeditation allegation for attempted murder. See People v.

Superior Court (Romero), 13 Cal.4th at 527. "*

California's “kidnaping for rape” statutes tell a similar story. § 209(b)

[formerly § 298(d)] establishes a distinct offense of kidnaping for purposes

of rape or other offenses. People v. Rayford, 9 Cal.4th 1,8-11, 36

Cal.Rptr.2d 317, 884 P.2d 1369 (1994); simple kidnaping, § 207 is a lesser

included offense within the greater crime defined by § 209(b). Another

statute, § 667.8, covers the identical subject and establishes penalties of 9 or

15 years (depending upon age of victim) for kidnaping for purposes of rape

or other sexual offenses. But, unlike § 209(b), § 667.8 is deemed an

“enhancement” which, if found true by the jury, is added to a sentence for

an underlying offense of simple kidnaping (or for an underlying sexual

offense). People v. Hernandez, 46 Cal.3d 194, 249 Cal.Rtpr. 850, 757 P.2d

1013 (1988). The reasoning of the Monge opinion would produce the

Plainly, in a first-degree murder case tried on a

premeditation theory, an appellate court’s finding of legally

insufficient evidence of premeditation would bar retrial of the first-

degree charge, Burks v. United States, (1978) 437 U.S. 1, 16-19,

98 S.Ct. 2141, 57 L.Ed.2d 1 (though the appellate court would

remain free to reduce the conviction to the lesser included offense

of second-degree murder). But, under the reasoning of the Monge

majority, a similar appellate finding of insufficient evidence of

premeditation in an attempted murder case evidently would raise

no federal jeopardy bar to retrying the premeditation allegation. '

The Monge majority’s denial of jeopardy protection to

prior conviction allegations presents an equally intolerable

anomaly. Like the facts which underlie other common

enhancements, prior convictions are considered “elements” of an

offense in one context and penalty allegations in another. For

example, until fairly recently, most California courts and

practitioners assumed that both “felon with a firearm,” §12021,

People v. Valentine (1986) 42 Cal.4th 170, 177-181, 228 Cal.Rptr.

25, 720 P.2d 913, “petit theft with a prior,’ § 666, represented

distinct felony offenses which included prior convictions as

“element.” But, in 1991, the California Supreme Court held that

the latter statute, §666, represented a form of enhancement

absurd--and manifestly unjust--result that a prosecutor's failure to prove

the “purpose of rape” element would trigger the double jeopardy clause

only if that conduct had gone to the jury as an element of the “offense” of

current § 209(b), rather than as the mere “enhancement,” § 667.8.

The Monge majority suggested that the state constitution might still prevent

retrial of a current conduct enhancement which jurors had found not true,

but it disavowed the implication of a prior California opinion that the

federal jeopardy clause applied to such enhancements. Monge, 16 Cal.4th

at 843, discussing People v. Superior Court (Marks) (1991) | Cal.4th 56,

78 fn. 22, 2 Cal.Rtpr.2d 389, 820 P.2d 613.

allegation which established an alternative sentencing scheme for

the underly‘ng offense of petty theft. People v. Bouzas, 53 Cal.3d

465-480. Again, while a failure of proof of the prior conviction

“element” of a § 12021 charge would unquestionably invoke a

jeopardy bar, according to the to the Monge majority no such

protections would attend an identical failure to prove a prior

conviction enhancing allegation under § 666.

Neither is there any colorable basis for distinguishing

penalty allegations concerning facts of the current offense (3.g.,

premeditation, weapon use) from those for prior convictions.

Preliminarily, CPDA notes that California enhancement

allegations cannot be neatly divided into any such discrete

categories. A number of the more important penalty allegations

are hybrids which require the jury or other trier of fact to make

findings concerning both the factual details of the current crime

and the factual details of the conduct underlying prior conviction.

Most notably, the five-year enhancement under § 667(a) requires

findings that both the current offense and the prior conviction

involved criminal conduct including all the elements of a “serious

felony,” as defined in § 1192.7(c). See, e.g. People v. Equarte, 42

Cal.3d 456, 229 Cal.Rptr. 116, 722 P.2d 890 (1996) California’s

“one strike” statute, § 667.61, represents another form of hybrid

penalty allegation. The enhancing allegations which expose the

offender to an indeterminate life sentence may consist of either a

prior conviction, factual circumstances of the current crime, or

some combination of the two. §§ 667.61(d)(1)-(4); see also §

Thus for instance, it would be unusual for a § 667(a) allegation to require

the current jury or other trier of fact to make findings over and above the

minimum statutory elements of both the current and prior conviction

offenses--e.g., whether the current felony assault conviction involved actual!

infliction of great bodily injury rather than just force likely to cause such

injury (compare §1192.7(c\(8) with § 245(a)(1)), or that the prior second-

degree burglary was of an inhabited dwelling house (see § 1192.7(c\18)).

667.61(c).

Most importantly, regardless of whether the enhancement

also includes current conduct elements, “three strikes” and other

prior conviction allegations often require the current jury or judge

to make findings of historical fact concerning narrowly-defined

elements of the criminal conduct underlying the prior conviction.

To qualify as a “strike,” a prior conviction must have involved

conduct including all the elements of one of the “serious felonies”

listed in § 1192.7(c). See § 667(d), 1170.12(b). 7! But, as Monge

itself illustrates, several of the “serious felony” definitions diverge

significantly from the statutes defining some of the prior offenses

which are most frequently alleged as the bases for “strikes.” See

People v. Jackson, 37 Cal.3d 826, 831-832, 210 Ca.Rptr. 623, 694

P.2d 736 (1985). Thus, the prosecution’s proof here of a prior

felony assault conviction under § 245(a)(l1) was deemed

insufficient because it did not establish that the assault involved

any of the types of conduct (e.g., personal weapon use or personal

infliction of great bodily injury) which would qualify it as a

“serious felony” and thus a “strike.” Monge, 16 Cal.4th at 831;

see also e.g. People v. Rodriguez, 17 Cal.4th at 261-262. ”

The “three strikes” law also references § 667.5(c)'s definitions of “violent

felonies,” but that list is essentially a subset of §1192.7(c)’s catalogue of

“serious felonies.”

22 )

are also a frequent source of litigation under the “serious felony” and “three

strikes” statues. Only a burglary of an “inhabited dwelling house” or other

residence will satisfy the “serious felony” statute, § 1192.7(c)18), but for

many years California's burglary statues did not cleanly distinguish

residential from other burglaries. Consequently, whenever an older

burglary is charged as a “serious felony” or “strike,” the prosecution must

go “behind the judgment” and introduce additional evidence showing the

residential nature of the burglarized structure. See People v. Guerrero, 44

Moreover, allegations based on out-of-state priors almost

inevitably require additional proof because the “least adjudicated

elements” of other states’ statutory definitions frequently fall short

of the minimum elements of their California counterparts. See

People v. Myers, 5 Cal.4th.1193, 22 Cal.Rtpr.2d 911, 858 P.2d

301 (1993).

In all such circumstances of disparity between the elements

of the prior conviction offense and those of the penalty

enhancement statue, the court must instruct the jurors on the

specific elements necessary to sustain the enhancing allegation--

just as it instructs jurors on the elements of current offense counts.

People v. Winslow, 40 Cal.App.4th 680, 687-688, 46 Cal.Rtpr.2d

901 (1995) Indeed, the trial court may frequently discharge this

duty by tailoring to the prior conviction allegation the same

standard instructions describing the elements of currently charged

crimes (e.g., residential burglary) or current conduct enhancements

(e.g., deadly weapon use). See id.. *

To discharge its burden, the prosecution remains free to

“go behind the judgment” and offer additional evidence from the

Cal.3d 343, 243 Cal. Rtpr. 688,748 P.2d 1150 (1988); see, e.g., People v.

Jackson, 7 Cal.App.Ath at 1370-1372.

Comparable issues arise under California’s “habitual offender”

statute, § 667.7. California's robbery statute defines the offense as a taking

by “force or fear, “ § 211 (emphasis added), but only a prior “robbery

involving the use of force or a deadly weapon” will support a habitual

offender finding, § 667.7(a). See People v. Brookins, supra 215

Cal.App.3d 1297.

Moreover, the defense may also request special instructions limiting the

purposes for which jurors may consider particular items of evidence from

the prior case. See People v. Woodell,17 Cal4th , CalRptr_ , 98

Daily Journal Daily Appellate Report 1455, 1458-9; Daily Journal.

February 12, 1998

“record of conviction” showing that, notwithstanding the disparity

between the statutory elements of the prior offense and the

requirements of the “serious felony” statute, the actual criminal

conduct underlying the prior satisfied all the factual elements of

the “serious felony” definition. People v. Guerrero. 44 Cal.3d at

355-356; People v. Myers, 5 Cal.4th 1200. But such additional

evidence must be admissible under the ordinary rules of trial

evidence--including the hearsay rule and the various statutory

hearsay exceptions. People v. Reed, 13 Cal.4th 217, 52

Cal.Rptr.2d 106, 914 P.2d 184 (1996). * Thus, for example,

transcripts from the prior case are ordinarily admissible (under the

former testimony exception), Reed, 13 Cal.4th at 223-230, as are

the defendant's own statements (under the party admission

exception). * But probation reports and other materials containing

third-party hearsay are not. /d. At 230-231. *

Even the prior transcripts are scrutinized under the same

rules as ordinary trial evidence. Thus, although California’s

prelimmmmary hearing procedures permit police officers to testify to

hearsay accounts provided by other witnesses, a preliminary

hearing transcript containing such hearsay is not admissible during

the trial of an enhancing prior. People v or, apr, 56

Cal.App.4th 41.

As in any other trial, the defense may rebut the

prosecution’s evidence. Hence, where the prosecution proceeds on

a preliminary hearing or other partial transcript from the prior case,

Accord People v. Woodell, 17 Cal.4th _,98 DJ DAR 1455, AT pp. 1457-

E.g., People v. Abarca. 233 Cal.App.3d 1347, 1350-1351, 285 Cal. Rptr.

213 (1991)

See also, e.g., People v. Williams, 222 Cal.App.3d at 915-918.

the defense may seek to introduce an entire trial transcript to bring

out conflicts in the evidence concerning the factual elements

necessary to sustain the enhancing allegations. People v. Bartow,

supra, 46 Cal.App.4th 1579-1582. *

In reviewing this evidence, the jury’s or trial judge’s task

is much the same as in any other trial which is submitted, in whole

or in part, on transcripts from a prior proceeding. As in other trials

where a key witness is unavailable or the parties stipulate to

submission on a prior transcript, the jury or judge must still resolve

conflicts in the evidence, draw inferences from circumstantial

evidence, and weigh the credibility of the witnesses who testified

in the prior proceeding.

The specific subjects on which jurors must make findings

are also the same as the elements of many substantive counts--e.g.,

use of firearm or deadly weapon, infliction of great bodily injury,

the residential character of the burglarized structure. Indeed, such

enhancement trials sometimes even require the jurors to make

mens rea determinations concerning the prior criminal conduct.

For example, a number of states’ theft, burglary, and robbery

statutes require only an intent to deprive the victim temporarily of

his property, while California’s statutes demand an intent to

permanently deprive. See, e.g., People v. Marquez, 16

Cal.App.4th at 122-123; see People v. Reynolds, 232 Cal.App.3d

1533. To sustain an enhancing allegation under those

circumstances, the prosecution must introduce sufficient

Although the prosecution is limited to transcripts and other competent

evidence form the prior “record of conviction,” the California Supreme

Court has expressly left open whether “a defendant would be entitled to call

live witnesses to dispute the circumstances of the prior offense.” Reed,

supra, 16 Cal.4th at 229, emphasis added. In fact, though the issue has not

been definitively resolved, CPDA is aware of instances in which a

defendant has put on live testimony in a “strike” or enhancement trial. Cf.,

e.g., People v. Johnson, 208 Cal.App.3d 19,23,256 Cal.Rptr. 16 (1989).

transcripts or other competent evidence from the prior case to

permit the jurors to determine the defendant's specific intent at the

time of the prior taking. ”

Similarly, occasionally is it even necessary to relitigate

mens rea issues from a prior murder case, because some states’

definitions of “malice aforethought” fall short of California’s

definition of that concept. See People v. Maldanado, 186

Cal.App.3d 863, 866, 230 Cal.Rptr. 925 (1986).

The California court have long recognized that prior

conviction allegations have some many characteristics of

traditional offense counts that a defendant’s admission of a prior

represents the functional equivalent of a guilty plea for purposes

of Boykin v. Alabama 395 U.S. 238, 89 S.Ct 1709, 23 L.#d.2d

274 (1969) and requires the same advisements and waivers. See

in re Yurko (1974) 10 Cal.3d 857, 863, 112 Cal.Rptr. 513, 519

P.2d 561; accord People v. Howard, | Cal.4th 1132, 1174-1180,

5 Cal.Rptr.2d 268, 824 P.2d 1315, cer, den., 506 U.S. 942 (1992).

Just as an admission of a prior conviction allegation is a form of

_ plea, the adjudication of a contested allegation in an evidentiary

hearing before a jury or trial judge is a trial, in both name and

substance. The stakes are the same, the trier of fact is the same,

the nature of the required findings (weapon use, specific intent,

etc.) Is the same, the rules of evidence are the same, and the

burden of proof is the same. California’s procedures for

adjudication of “strikes” and other penalty allegations are trails--

“

For instance, in one recent unreported case, the prosecution introduced

robbery” convictions from Oregon. The California appellate court later

found sufficient evidence that the conduct underlying two of the Oregon

priors satisfied all the elements of a California robbery. But the reviewing

court reversed the third “serious felony” finding for insufficient evidence

that the defendant had the requisite specific intent. People v. Banks, \st

Dist. No. A072865, unpublished opn. (Apr. 30, 1997).

just as California’s statutes and cases have always described them-

-and the outcomes of those trials deserve the same finality under

the federal double jeopardy clause.

CONCLUSION

CPDA does not dispute the right of California or any other

state to classify as “penalty allegations” or “enhancements” the

factual elements which determine the maximum potential prison

sentence. California’s provision of all the traditional “hallmarks”

of trail in the adjudication of those allegations subjects these

proceedings to the same rigorous standards of fairness and

reliability as the determination of the traditional substantive

offense counts CPDA simply submits that where a state has

utilized enhancements allegations to authorize punishment in

excess of the statutorily prescribed maximum for the current

offense, where the determination of those allegations has all the

traditional “hallmarks” of trial, and where the jury or other trier of

fact is called upon to make findings of historical fact comparable

to those on ordinary criminal counts, the verdict in those trials

must have the same constitutional finality as with the counts

themselves.

The consequences of proof of a prior conviction

enhancement are as great of the accused as proof of an offense

count. The consequences for the prosecution of failure of proof

must be the same as well: The double jeopardy clause must bar the

state from successive attempts to retry the unproven allegation.

For all these reasons, CPDA respectfully urges this Court

to reverse the judgment of the California Supreme Court and to bar

the State of California from retrying the failed “strike” allegation.

February 19,1998 Respectfully submitted,

[iiss Tim fa

Attorney, First District Appellate Project

730 Harrison Street, Suite 201

San Francisco,CA 94107

(415) 495-3119

Vent:

E. THOMA

Mendocino County Public Defender

Member, CPDA Board of Directors

Member, CPDA Amicus Comm.

199 So. School Street

Ukiah, CA 95482

(707) 463-5433

CPDA =="

A Statewnde Orgencateom af Pubic Defenders and Defense —munset Pax: (916) 362-3346

February 19, 1998

petal David S. Glassman

Deputy Attorney Generali

Yak Ticcmeey 300 South Spring Street, #500-N

1 aa

Vie I am writing to you on behalf of the California Public Defenders Association,

as amicus counsel in support of Angel Monge’s petition for writ of certiorari in the

. United States Supreme Court. Pursuant to Rules 37.2, 37.3, and 37.4, | am formally

“Breage Coumty requesting your permission to file an amicus brief on Mr. Monge’s behalf.

“Son loagete County

gus Matinee It is my understanding that, based upon our previous conversation, as well as

a subsequent conversation you had with Mr. Cliff Gardner, Mr. Monge’s attorney,

bp Bh yd in this regard, that you will grant us your consent to file the amicus brief in this

Menteny County granting us your consent in writing, and send it by fax as well as by mail. Our fax

af ny ny number at my office is (707) 463-5435. Although I am acting on behalf of C.P.D.A.,

it would be much more efficient if you could direct this letter to me at my office

a Jeffrey E. Thoma

harlaymand Mendocino County Public Defender

Wetremanto Coamty 199 South School Street

een 2, Ukiah, CA 95482

‘Sam bitge County Thank you in advance to your prompt attention and response in this matter.

EN Ee aaty If you have any questions in this regard, please do not hesitate to call me at my direct

e phone number, (707) 463-5436.

“San a Bac ommty [ have enclosed my business card as weil

Past Sincerely,

SS / Vij, &.Woreg.

” Thoma

Member. CPDA Board of Directors

Member, CPDA Amicus Committee

titi

[

BEST AVAILABLE COPY

LOS ANGELES, CA 90013

(213) 897-2000

FACSIMILE: (213) 897-2263

(213) 897-2273

February 19, 1998

Jeffrey E. Thoma

Mendocino County Public Defender

199 South School Street

Ukiah, CA 95482

Attn: California Public Defenders Ass’n

RE: Angel-Jaime Monge v. California

USSC No. 27-6146; Our No. LAITUSOO06

Dear Mr. Thoma:

Respondent consents to a filing of an amicus brief in

support of Petitioner by the California Public Defenders

Association.

Respectfully submitted,

DANIEL BE. LUNGREN, Attorney General

of the State of California

GEORGE WILLIAMSON,

Chief Deputy Attorney General

CAROL WENDELIN POLLACK,

Senior Assistant Attorney General

SUSAN D. MARTYNEC,

Supervising Deputy Attorney General

DAVID F. GLASSMAN,

Deputy Attorney neral

Counsel of Record

cc: Cliff Gardner, Esq.

Gardner & Derham

900 North Point

San Francisco, CA 94109

Counsel for Petitioner

Angel Jaime Monge

3273 Rames Circle

CP DA Cy

362-1686

4 atewnte pen aation of Prablc Defenders and Oefense mu nse’ Fax

February 19, 1998

Cliff Gardner

Gardner & Derham

900 North Point, Ste # 450

San Francisco, CA

Mr Gardner:

I am writing to you on behalf of the California Public Defenders Association,

as amicus counsel in support of Angel Monge’s petition for writ of certiorari in the

United States Supreme Court. Pursuant to Rules 37.2, 37.3, and 37.4, I am formally

requesting your permission to file an amicus brief on Mr. Monge’s behalf.

It is my understanding that, based upon our previous conversation, as well as

your previous consent when | requested consent to file our motion for leave to file

the amicus brief in support of your petition for writ of certiorari, that you will consent

to our filing an amicus brief herein.

I am now writing this letter to request that you write a letter in response

granting us your consent in writing, and send it by fax as well as by mail. Our fax

number at my office is (707) 463-5435. Although I am acting on behalf of C.P.D.A.,

it would be much more efficient if you could direct this letter to me at my office

address:

Jeffrey E. Thoma

Mendocino County Public Defender

199 South School Street

Ukiah, CA 95482

Thank you in advance to your prompt attention and response in this matter.

If you have any questions in this regard, please do not hesitate to call me at my direct

phone number, (707) 463-5436.

Sincerely,

|Yuup,S. Thome

Member, CPDA Board of Directors

Member, CPDA Amicus Committee

GARDNER & DERHAM

ATTORNEYS AT LAW

GHIRARDELLI SQUARE

900 NORTH POINT, SUITE 220

SAN FRANCISCO, CA 94109

TEL: (415) 922-9406

FAX: (415) 922-4310

February 19, 1998 BY FACSIMILE

Jeffrey E. Thoma

Mendocino County Public Defender

199 South School Street

Ukiah, CA 95482

Re: Monge vy. California, No. 97-6146

Dear Mr. Thoma:

Pursuant to Rule 37.3 of the Rule of the Supreme Court of the

United States, I hereby consent to have the California Public

Defender’s Association file an amicus brief on petitioner’s

behalf in the above captioned case.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.