PEOPLE v. HANSON

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Melvin Eugene HANSON, Defendant and Appellant.

No. B120251.

Decided: March 30, 1999

Mark D. Greenberg, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and William V. Ballough, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant, Melvin Eugene Hanson, appeals from a fine which was part of the sentence imposed on remand following his previous partially successful appeal from his convictions for:  conspiracy to commit the crimes of insurance fraud, murder, and grand theft (Pen.Code,1 §§ 182, 187, former § 487, subd. 1;  former Ins.Code, § 556, now renumbered as § 1871.1);  first degree murder with special circumstances (§§ 187, subd. (a), 190.2, subd. (a)(1));  three counts of insurance fraud (former Ins.Code, § 556, now renumbered as § 1871.1);  and two counts of grand theft. (former § 487, subd. 1.)   The jury found two excessive taking allegations to be true as to single counts of grand theft and insurance fraud. (§ 12022.6, subd. (b).)  Prior to the partially successful prior appeal which will be discussed shortly, defendant had been sentenced to life without the possibility of parole by the Honorable Paul G. Flynn as a result of the first degree murder with special circumstances conviction in addition to other sentences on other counts.   A restitution fine in the sum of $1,000 was imposed pursuant to former Government Code section 13967, subdivision (a).  (Stats.1988, ch. 975, § 1, p. 3151.)   In an unpublished opinion filed June 16, 1997, we did the following:  affirmed defendant's conviction in part;  modified his conviction for special circumstances murder to the second degree;  reversed and dismissed with prejudice the special circumstance finding;  and reversed his sentences as to all counts.   We remanded the matter to the trial court solely for resentencing.  (People v. Hanson (June 16, 1997) B096073 [nonpub. opn.] [typed opn. pp. 23-24].)   On December 19, 1997, the Honorable Patricia L. Collins resentenced defendant on count 1, the murder conspiracy charge, to 25 years to life.   On count 2, second degree murder, Judge Collins sentenced defendant to 15 years to life and stayed the sentence pursuant to section 654.   The remaining sentences imposed as to counts 3 through 7 were also stayed pursuant to section 654.   Judge Collins also increased the fine imposed pursuant to former Government Code section 13967, subdivision (a), from $1,000 to $10,000.

 Defendant argues that the increased fine violates the state constitutional prohibition against double jeopardy.  (Cal. Const., art.   I, § 15.)   We disagree.   We reach this decision for the following combination of reasons:  the California Supreme Court has never held that the double jeopardy protections of the state Constitution which prohibit increasing a sentence after a reversal on appeal apply to fines;  the California Supreme Court does not rigidly apply the state constitutional double jeopardy provisions differently from the same clause in the United States Constitution;  for example, the state constitutional rule against increasing punishment does not apply across the board as evidenced by the fact a jurisdictionally unlawful grant of leniency by a trial judge may be set aside to the detriment of the accused after an appeal;  further, a full four justice majority of the California Supreme Court in People v. Hernandez (1998) 19 Cal.4th 835, 842, 80 Cal.Rptr.2d 754, 968 P.2d 465, held that a noncapital sentencing decision involving an enhancement was not one to which the state double jeopardy prohibition applies;  and there are no “cogent reasons” to apply the state and federal double jeopardy provisions differently in the case of the imposition of an increased fine after a reversal on appeal.

II. DEVELOPMENT OF CALIFORNIA DOUBLE JEOPARDY JURISPRUDENCE

The California Constitution provides, “Persons may not twice be put in jeopardy for the same offense․”  (Cal. Const., art.   I, § 15.)   The California Supreme Court has previously strictly interpreted the double jeopardy principles of the California Constitution to prohibit the imposition of a more severe prison sentence on retrial or resentencing after an appeal.   (People v. Collins (1978) 21 Cal.3d 208, 216, 145 Cal.Rptr. 686, 577 P.2d 1026 [noncapital prison sentences];  People v. Hood (1969) 1 Cal.3d 444, 459, 82 Cal.Rptr. 618, 462 P.2d 370 [noncapital assault sentence to the state penitentiary];  People v. Ali (1967) 66 Cal.2d 277, 281, 57 Cal.Rptr. 348, 424 P.2d 932 [“Where a defendant has been sentenced to concurrent terms and then upon a retrial is sentenced to consecutive terms for the same offenses, his punishment has been increased by indirect means.   The reasoning which prevents an increase by direct means would seem to be applicable in such a situation, as a defendant should not be required to risk being given greater punishment on a retrial for the privilege of exercising his right to appeal.”].) The same rule applies to a retrial in a capital case where the jury in the first trial returns a non-death verdict.  (People v. Henderson (1963) 60 Cal.2d 482, 497, 35 Cal.Rptr. 77, 386 P.2d 677 [defendant sentenced to life imprisonment following first trial may not receive the death penalty upon retrial after a successful appeal].)   Although the subject has been discussed in the capital and noncapital prison sentence context, the California Supreme Court has never addressed the issue of the application of the double jeopardy provisions of the state Constitution to an increase of a fine after an appeal.

 After Henderson was decided in 1973, the California Supreme Court identified an exception to the state double jeopardy prohibition against increasing a prison term after an appeal.   In People v. Serrato (1973) 9 Cal.3d 753, 763-764, 109 Cal.Rptr. 65, 512 P.2d 289, the California Supreme Court carved out an exception to the state double jeopardy rule precluding the imposition of a harsher prison term after an reversal on appeal.   The exception applies in cases involving unlawful or jurisdictionally void sentences which resulted in legally unauthorized leniency being granted to criminal defendants.   In Serrato, the California Supreme Court held:  “Defendants' alternate contention is that if they have not been acquitted, they are at least protected against more severe punishment under the rule established in People v. Henderson (1963) 60 Cal.2d 482 [35 Cal.Rptr. 77, 386 P.2d 677], and followed in People v. Ali (1967) 66 Cal.2d 277 [57 Cal.Rptr. 348, 424 P.2d 932];  People v. Hood (1969) 1 Cal.3d 444 [82 Cal.Rptr. 618, 462 P.2d 370];  and In re Ferguson (1965) 233 Cal.App.2d 79 [43 Cal.Rptr. 325].  [¶] In Henderson, defendant was convicted of first degree murder and sentenced to life imprisonment.   Following reversal of that conviction, he was again tried and convicted, and the jury fixed the penalty at death.   This court held that the California Constitution's guarantee against double jeopardy (art.   I, § 13) precluded the imposition of a more severe sentence upon retrial.  [¶] In the Henderson case, as in each of the cited cases which followed it, the sentence imposed after the first trial was a lawful one, within the limits of the discretion conferred by statute for the offense of which the defendant had been convicted.   The judgments pronounced at the first trials were reversed because of errors having nothing to do with the sentences.  [¶] The rule is otherwise when a trial court pronounces an unauthorized sentence.   Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.”   (People v. Serrato, supra, 9 Cal.3d at pp. 763-764, 109 Cal.Rptr. 65, 512 P.2d 289.)   The Serrato exception to Henderson is fully consistent with the federal rule pertaining to unlawful jurisdictionally void sentences and the imposition of a greater penalty after an appeal.  (Bozza v. United States (1947) 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818;  see United States v. DiFrancesco (1980) 449 U.S. 117, 134-135, 101 S.Ct. 426, 66 L.Ed.2d 328.)

 In 1997, the California Supreme Court began to revisit double jeopardy issues in the context of noncapital sentencing.   In People v. Monge (1997) 16 Cal.4th 826, 843-845, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (lead opn. of Chin, J.), a California Supreme Court plurality indicated it would in the future interpret the state constitutional double jeopardy provisions in the same fashion as its federal counterpart except in the face of cogent reasons to do otherwise.   The California Supreme Court plurality held:  “The ‘California Constitution is a document of independent force and effect that may be interpreted in a manner more protective of defendants' rights than that extended by the federal Constitution․’  (People v. Fields (1996) 13 Cal.4th 289, 298 [52 Cal.Rptr.2d 282, 914 P.2d 832].)   Nevertheless, when we interpret a provision of the California Constitution that is similar to a provision of the federal Constitution, ‘ “cogent reasons must exist” ’ before we will construe the Constitutions differently and ‘ “depart from the construction placed by the Supreme Court of the United States.” ’  (Raven v. Deukmejian (1990) 52 Cal.3d 336, 353 [276 Cal.Rptr. 326, 801 P.2d 1077], quoting Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 89 [82 P.2d 391].)”  (People v. Monge, supra, 16 Cal.4th at p. 844, 66 Cal.Rptr.2d 853, 941 P.2d 1121.)   Associate Justice Chin's lead opinion noted as follows that the federal and state constitutional double jeopardy provisions both have the same purpose:  “The purpose behind the state and federal double jeopardy provisions is the same.   Like decisions interpreting the federal double jeopardy clause, ‘[d]ecisions under the double jeopardy clause of the California Constitution ․ recognize the defendant's interest in avoiding both the stress of repeated prosecutions and the enhanced risk of erroneous conviction.’  (People v. Fields, supra, 13 Cal.4th at p. 298 [52 Cal.Rptr.2d 282, 914 P.2d 832].)”  (Id. at p. 844, 66 Cal.Rptr.2d 853, 941 P.2d 1121.)   In Monge, the plurality held that:  since the purposes of the state double jeopardy clause were the same as the federal constitutional provision;  none of the purposes of the double jeopardy provisions were contravened by allowing punishment resulting from a prior conviction enhancement being imposed which was not proven prior to appeal;  and, as a result, the state double jeopardy constitutional provisions should not be applied more favorably to a criminal defendant than would be the case under the federal Constitution.   (Id. at pp. 844-845, 66 Cal.Rptr.2d 853, 941 P.2d 1121.)   The concurring opinion of Associate Justice Brown in Monge recognized that the United States Supreme Court had never specifically addressed the issue of whether the prosecution was barred from retrying the prior conviction sentence enhancement allegation when during the initial trial there was insufficient evidence presented by the prosecution.   Associate Justice Brown determined that during a prior conviction retrial, there was no need for the fact finder to re-evaluate the evidence underlying the charged offense.   She therefore concluded, “Under these circumstances the retrial does not subject a defendant to the risk of repeated prosecution within the meaning of the double jeopardy clause.”  (Id. at 847, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (conc. opn. of Brown, J.).)

After the California Supreme Court issued its series of lead, concurring, and dissenting opinions in Monge, the United States Supreme Court granted the defendant's certiorari petition.  (Monge v. California (1998) 524 U.S. ----, 118 S.Ct. 751, 139 L.Ed.2d 750.)   The order granting certiorari stated in relevant part, “Petition for writ of certiorari to the Supreme Court of California granted limited to the following question:  ‘Does the Double Jeopardy Clause apply to noncapital sentencing proceedings that have the hallmarks of a trial on guilt or innocence?’ ”  (Ibid.) After reviewing the various opinions in Monge filed by this state's Supreme Court, the United States Supreme Court noted that there was a substantial conflict in the decisions of different jurisdictions concerning the application of Bullington v. Missouri (1981) 451 U.S. 430, 443-445, 101 S.Ct. 1852, 68 L.Ed.2d 270, a capital case, in the context of non-capital sentencing.   The United States Supreme Court noted that because of the conflicting views on the issue, certiorari was granted.  (Monge v. California (1998) 524 U.S. 721, ----, 118 S.Ct. 2246, 2250, 141 L.Ed.2d 615.)

The United States Supreme Court began its analysis by noting:  “We have previously held that it protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense.   See North Carolina v. Pearce [ (1969) ] 395 U.S. 711, 717 [89 S.Ct. 2072, 23 L.Ed.2d 656].   Historically, we have found double jeopardy protections inapplicable to sentencing proceedings, see Bullington, supra, at 438 [101 S.Ct. 1852] because the determinations at issue do not place a defendant in jeopardy for an ‘offense,’ see, e.g., Nichols v. United States, 511 U.S. 738, 747 [114 S.Ct. 1921, 128 L.Ed.2d 745] (1994) (noting that repeat-offender laws ‘ “penaliz[e] only the last offense committed by the defendant” ’).”  Monge v. California, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2250 Later, the United States Supreme Court held:  “Consequently, it is a ‘well-established part of our constitutional jurisprudence’ that the guarantee against double jeopardy neither prevents the prosecution from seeking review of a sentence nor restricts the length of a sentence imposed upon retrial after a defendant's successful appeal.   See [United States v. DiFrancesco (1980) 449 U.S. 117,] 135 [101 S.Ct. 426, 66 L.Ed.2d 328];  [North Carolina v.] Pearce [ (1969) 395 U.S. 711,] 720 [89 S.Ct. 2072, 23 L.Ed.2d 656];  see also Stroud v. United States, 251 U.S. 15, 18 [40 S.Ct. 50, 64 L.Ed. 103] (1919) (despite a harsher sentence on retrial, the defendant was not ‘placed in second jeopardy within the meaning of the Constitution’).”  (Monge v. California, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2251.)   The United States Supreme Court concluded:  “We conclude that Bullington 's rationale is confined to the unique circumstances of capital sentencing and that the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context.”   The United States Supreme Court agreed with Justice Chin's lead opinion as to inapplicability of the federal double jeopardy clause to the defendant's noncapital sentencing contentions.  (Monge v. California, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2253.)

After the United State Supreme Court issued its decision in Monge, the California Supreme Court confronted the issue of the application of the state's double jeopardy provisions when a trial judge found a prior serious felony conviction enhancement to be not true.   After later reconsidering the issue, the trial judge then found the enhancement allegation true.  (People v. Hernandez, supra, 19 Cal.4th at pp. 836-837, 80 Cal.Rptr.2d 754, 968 P.2d 465.)   On appeal, the defendant in Hernandez argued the trial judge's true finding made after she originally found the enhancement allegation to be otherwise violated California's constitutional double jeopardy provision.   In Hernandez, our state's Supreme Court summarized the United States Supreme Court's analysis concerning the federal double jeopardy clause in Monge as follows:  “The high court stated that the federal Constitution's double jeopardy prohibition does not apply to noncapital sentencing determinations even if the sentencing proceeding had the ‘ “hallmarks of the trial on guilt or innocence.” ’  (Monge, supra, 524 U.S. at p. ---- [118 S.Ct. at p. 2251];  see also id. at pp. 2246 - ---- [118 S.Ct. at pp. 2252-2253].)   The court stated, ‘Where noncapital sentencing proceedings contain trial-like protections, that is a matter of legislative grace, not constitutional command.   Many States have chosen to implement procedural safeguards to protect defendants who may face dramatic increases in their sentences as a result of recidivism enhancements.   We do not believe that because the States have done so, we are compelled to extend the double jeopardy bar.   Indeed, were we to apply double jeopardy here, we might create disincentives that would diminish these important procedural protections.’  (Id. at p. 2246 [118 S.Ct. at p. 2253].)”  (People v. Hernandez, supra, 19 Cal.4th at p. 839, 80 Cal.Rptr.2d 754, 968 P.2d 465.)   In Hernandez, Associate Justice Chin continued with his synthesis of the United States Supreme Court's holding in Monge as follows:  “The high court spoke categorically in Monge, concluding that the federal double jeopardy clause does not apply to noncapital sentencing determinations and making no distinction between sentencing retrials that turn on the facts of the present offense and sentencing retrials that turn on the truth of the prior conviction allegation.  (Monge, supra, 524 U.S. at p. ---- [118 S.Ct. at p. 2248].)   The court noted that it had ‘[h]istorically ․ found double jeopardy protections inapplicable to sentencing proceedings [citation] because the determinations at issue do not place a defendant in jeopardy for an “offense” [citation].’  (Id. at p. 2246 [118 S.Ct. at p. 2250].)   The court continued, ‘The pronouncement of sentence simply does not “have the qualities of constitutional finality that attend an acquittal.”  [Citations.]’  (Id. at p. 2246 [118 S.Ct. at p. 2251].)   The court noted only one exception-capital sentencing-and explained in detail why capital sentencing was qualitatively different from noncapital sentencing, even when the noncapital sentencing procedure resembled a trial.   (Id. at pp. 2246 - ---- [118 S.Ct. at pp. 2251-2253].)”  (People v. Hernandez, supra, 19 Cal.4th at p. 840, 80 Cal.Rptr.2d 754, 968 P.2d 465.)

In Hernandez, Associate Justice Chin, writing now for a full four justice majority resolved the double jeopardy issue as follows:  “In sum, we find no relevant distinction between this case and Monge, and therefore we conclude that Monge is controlling.   The court did not put defendant in jeopardy twice when it reconsidered whether the sentence enhancement applied, because the enhancement was a sentencing determination to which double jeopardy protections do not apply.  [¶] The foregoing analysis has, of course, focused on the federal Constitution, but we see no reason to interpret the state Constitution differently from the federal Constitution in this context.   Using words very similar to those in the federal Constitution, the state Constitution provides that ‘[p]ersons may not twice be put in jeopardy for the same offense․’  (Cal. Const., art.   I, § 15.)   The state Constitution nowhere suggests that this double jeopardy protection applies to sentencing determinations, and, in People v. Monge, supra, 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121, we held that it did not apply to the sentencing determination at issue in that case.  (Id. at p. 845, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (plur. opn. of Chin, J.);   see also id. at pp. 845-847, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (conc. opn. of Brown, J.) [not disagreeing with, or even discussing, the plurality's state constitutional holding].)   Defendant tries to distinguish People v. Monge from this case, arguing again that the sentencing issue here was unavoidably entangled with the facts of the present offense, making reconsideration of the issue inappropriate.   We find this point insignificant for purposes of applying the state double jeopardy protection.   The essence of our holding in People v. Monge was that, with respect to retrials of sentence enhancements, the state double jeopardy protection conforms in scope to its federal counterpart.  (Id. at pp. 844-845, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (plur. opn. of Chin, J.);   see also id. at pp. 845-847, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (conc. opn. of Brown, J.) [not disagreeing with plurality on this point].)   We see no reason to change this view now.”  (People v. Hernandez, supra, 19 Cal.4th at p. 842, 80 Cal.Rptr.2d 754, 968 P.2d 465.)

III. FEDERAL DOUBLE JEOPARDY CLAUSE JURISPRUDENCE

 We proceed now to determine whether an increase in the fine after a reversal is barred by the double jeopardy clause of the United States Constitution.   The United States Supreme Court has identified the “three separate constitutional protections” afforded by the guarantee against double jeopardy as follows:  “It protects against a second prosecution for the same offense after acquittal.   It protects against a second prosecution for the same offense after conviction.   And it protects against multiple punishments for the same offense.”  (North Carolina v. Pearce (1969) 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656, fns. omitted;  accord, Monge v. California, supra, 524 U.S. at p. ---- [118 S.Ct. at p. 2251] [“The pronouncement of sentence simply does not ‘have the qualities of constitutional finality that attend an acquittal.’ ”];  Hudson v. United States (1997) 522 U.S. 93, ---- [118 S.Ct. 488, 493] [“ ‘The Clause protects only against the imposition of multiple criminal punishments for the same offense․’ ”];  United States v. DiFrancesco, supra, 449 U.S. at pp. 137-138, 101 S.Ct. 426 [“North Carolina v. Pearce , supra, 395 U.S. at p. 717, 89 S.Ct. 2072] and Bozza v. United States [, supra 330 U.S. at pp. 165-167] demonstrate that the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase.”.) Except in the capital (Poland v. Arizona (1986) 476 U.S. 147, 152-153, 106 S.Ct. 1749, 90 L.Ed.2d 123;  Bullington v. Missouri, supra, 451 U.S. at p. 446, 101 S.Ct. 1852) and multiple sentencing (Jones v. Thomas (1989) 491 U.S. 376, 381, 109 S.Ct. 2522, 105 L.Ed.2d 322;  United States v. Halper (1989) 490 U.S. 435, 450, 109 S.Ct. 1892, 104 L.Ed.2d 487) contexts, the United States Supreme Court has consistently held that the Double Jeopardy Clause has no application to a sentence in general.  (Monge v. California, supra, 524 U.S. at p. ---- [118 S.Ct. at p. 2250];  Bullington v. Missouri, supra, 451 U.S. at p. 438, 101 S.Ct. 1852) Fines and prison sentences are evaluated in the same fashion under the federal Double Jeopardy Clause.  (Jeffers v. United States (1977) 432 U.S. 137, 154-155, 97 S.Ct. 2207, 53 L.Ed.2d 168 [plur. opn. of Blackmun, J.].) Further, the federal Double Jeopardy Clause does not prohibit in the noncapital context the imposition of a greater sentence after a successful appeal by the defendant and the United States Supreme Court has repeatedly so held in dicta or square holdings.  (Monge v. California, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2251;  Bullington v. Missouri, supra, 451 U.S. at p. 438, 101 S.Ct. 1852;  United States v. DiFrancesco, supra, 449 U.S. at p. 135, 101 S.Ct. 426;   Ludwig v. Massachusetts (1976) 427 U.S. 618, 627, 96 S.Ct. 2781, 49 L.Ed.2d 732;  Chaffin v. Stynchcombe (1973) 412 U.S. 17, 23, 93 S.Ct. 1977, 36 L.Ed.2d 714;  Colten v. Kentucky (1972) 407 U.S. 104, 119, 92 S.Ct. 1953, 32 L.Ed.2d 584;  North Carolina v. Pearce, supra, 395 U.S. at p. 720, 89 S.Ct. 2072.)   Under the federal Constitution, an increase in the fine, in this case, did not violate the Double Jeopardy Clause after a reversal on appeal and remand for resentencing.  (Cf. Monge v. California, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2253;  People v. Hernandez, supra, 19 Cal.4th at pp. 838-843, 80 Cal.Rptr.2d 754, 968 P.2d 465;  People v. Monge, supra, 16 Cal.4th at p. 877, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (dis. opn. of Werdegar, J.);   see also United States v. Kane (9th Cir.1989) 876 F.2d 734, 736[“[S]entencing may be altered as a result of appeal even if the sentence is enhanced and even though service of the sentence has already commenced.”])

IV. EFFECT OF THE FEDERAL CONSTITUTIONAL RULE CONCERNING INCREASED NON-CAPITAL SENTENCES INCLUDING FINES ON THIS CASE.

It is clear that the federal Double Jeopardy Clause does not prohibit an increase in a fine after a successful defendant's appeal.   The question then is whether the state double jeopardy provisions should be construed to prohibit an increase in a fine after defendant's partially successful appeal, an issue which has never been directly addressed by the California Supreme Court.   The California Supreme Court in varying contexts has held:  “[T]he idea of deferring to the United States Supreme Court in interpreting identical or similar constitutional language found in the state and federal Constitutions is not new.   As early as 1938, we stated that ‘cogent reasons must exist before a state court in construing a provision of the state Constitution will depart from the construction placed by the Supreme Court of the United States on a similar provision in the federal Constitution.’  (Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85 [82 P.2d 391];  see also People v. Teresinski (1982) 30 Cal.3d 822, 835-839 [180 Cal.Rptr. 617, 640 P.2d 753];  People v. Chavez (1980) 26 Cal.3d 334, 349-361 [161 Cal.Rptr. 762, 605 P.2d 401];  cf.  People v. Houston (1986) 42 Cal.3d 595, 624 [230 Cal.Rptr. 141, 724 P.2d 1166] [dis. opn. by Lucas, J., discerning no ‘independent state interest needing additional protection’ than afforded by federal law];  People v. Disbrow (1976) 16 Cal.3d 101, 119 [127 Cal.Rptr. 360, 545 P.2d 272] [dis. opn. by Richardson, J., calling for deference to the high court's constitutional interpretations ‘in the absence of very strong countervailing circumstances'];  People v. Norman (1975) 14 Cal.3d 929, 941 [123 Cal.Rptr. 109, 538 P.2d 237] [dis. opn. by Clark, J.].)” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 353, 276 Cal.Rptr. 326, 801 P.2d 1077;  accord, People v. Breverman (1998) 19 Cal.4th 142, 168, 77 Cal.Rptr.2d 870, 960 P.2d 1094 [state constitutional requirements for jury instructions];  People v. Monge, supra, 16 Cal.4th at p. 843, 66 Cal.Rptr.2d 853, 941 P.2d 1121 [plurality opinion addressing state constitutional double jeopardy issue relating to enhancements];  Garcia v. Superior Court (1997) 14 Cal.4th 953, 963-964, 59 Cal.Rptr.2d 858, 928 P.2d 572 [right under the state Constitution to strike a prior conviction on other than Gideon v. Wainwright (1963) 372 U.S. 335, 342-345, 83 S.Ct. 792, 9 L.Ed.2d 799 grounds].)

In the present case, defendant has presented no “cogent reasons” why the federal constitutional rule which allows for fines, which are non-capital sentences, to be increased on appeal ought not apply in California criminal litigation.   In terms of the state constitutional analysis, that is dispositive.   Further, we reach this decision recognizing that the California Supreme Court has never held the state constitutional double jeopardy rule which prohibits increasing sentences after a successful appeal applies to fines.   Moreover, California has explicitly held the state double jeopardy rule against an increased punishment after an appeal articulated in People v. Henderson, supra, 60 Cal.2d at pages 495-497, 35 Cal.Rptr. 77, 386 P.2d 677, has no application when an illegal sentence has been imposed.  (People v. Serrato, supra, 9 Cal.3d at pp. 763-764, 109 Cal.Rptr. 65, 512 P.2d 289.)   Further, in People v. Hernandez, supra, 19 Cal.4th at page 842, 80 Cal.Rptr.2d 754, 968 P.2d 465, the California Supreme Court refused to apply the state double jeopardy protections to an enhancement because it was a “sentencing determination to which double jeopardy protections do not apply.”   The resentencing in the present case with the process which led to the judicial decision to impose a greater fine did not involve any significant embarrassment, expense, and anxiety to the defendant.   There was no identifiable risk of an erroneous result.   The imposition of the increased fine was perfunctory.   Further, it was not unreasonable to increase the fine because defendant received an extraordinary benefit because he is now eligible for parole;  particularly given the pronounced level of premeditated criminal activity engaged in by defendant, an interstate conspiracy to kill a completely innocent man and a multi-million dollar fraud upon insurance companies.   There is no evidence of a vindictive prosecution.  (People v. Collins, supra, 21 Cal.3d at p. 216, 145 Cal.Rptr. 686, 577 P.2d 1026;  People v. Craig (1998) 66 Cal.App.4th 1444, 1447, 78 Cal.Rptr.2d 659.)   Most to the point though, no cogent reason has been advanced to depart from the federal constitutional rule under the facts of this case.   Collectively for these reasons, we decline to apply the state double jeopardy provisions to prohibit the imposition of a fine which is increased after an appeal.2

V. DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   For the reasons articulated in the body of this opinion, we disagree with the decision of our colleagues in the Third Appellate District in People v. Thompson (1998) 61 Cal.App.4th 1269, 1276, 71 Cal.Rptr.2d 586, concerning the effect of the state double jeopardy provisions on fines which are increased after a sentence is reversed on appeal.   Defendant has not expressed any cogent reasons for departing from the federal rule concerning increased punishment after appeal in the case of fines.   The decisional authority digested in and relying upon Raven v. Deukmejian, supra, 52 Cal.3d at page 353, 276 Cal.Rptr. 326, 801 P.2d 1077 requires the existence of cogent reasons;  none are present.   Also, Thompson was decided prior to the California Supreme Court's decision in People v. Hernandez, supra, 19 Cal.4th at pages 838-843, 80 Cal.Rptr.2d 754, 968 P.2d 465 where for the first time a full four justice majority held that the state double jeopardy provisions do not apply to a noncapital sentencing determination, other than in the context of a jurisdictionally void sentence.

TURNER, P.J.

GRIGNON, J., and ARMSTRONG, J., concur.