PEOPLE v. THOMPSON

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Clifford Bradley THOMPSON, Defendant and Appellant.

No. C024734.

Decided: February 10, 1998

Linda A. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Roger E. Venturi and Maureen A. Daly, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Clifford Bradley Thompson, using various aliases, applied for and obtained employment at several group homes for children.   As part of the application process, defendant stated under penalty of perjury he had no prior criminal convictions.   In fact, defendant had five felony convictions and three misdemeanor convictions.   A jury found defendant guilty of six counts of perjury.  (Pen.Code, § 118, subd. (a).)  After finding two prior prison term allegations true (Pen.Code, § 667.5, subd. (d)) the court sentenced defendant to eleven years and imposed a restitution fine of $4,400 (Pen.Code, §§ 1202.4 and 1202.45).   On appeal defendant contends:  (1) the court erred in denying defendant's motion to suppress, since evidence admitted at trial was the fruit of an illegal search;  (2) the increase in defendant's sentence after retrial violates due process and the prohibition against double jeopardy;  (3) the court improperly allowed amendment of the information after defendant waived his right to a jury trial;  (4) the fine imposed must be stricken under the ex post facto doctrine;  (5) the court erred in permitting the conditional examination of a witness;  and (6) several exhibits were inadmissible hearsay.   In the published portion of this opinion we conclude the increase in defendant's term of confinement following retrial violates the double jeopardy clause of the California Constitution.   We modify defendant's sentence to reduce the unstayed prison term and direct the trial court to reduce the restitution fine.   We reject his remaining contentions in the unpublished portions of this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Between 1991 and 1993 defendant, using a variety of aliases, applied for employment at five group homes for children.   On each employment application, defendant stated, under penalty of perjury, that he had no criminal convictions.   In reality, defendant had five felony convictions and three misdemeanor convictions.   In each case, the group home employer considered the criminal history information to be crucial and material to employment.   Defendant submitted his fingerprints with each application.

Each of the five group homes hired, and eventually fired, defendant.   The group homes, with one exception, would not have hired defendant with the knowledge of his use of aliases and prior convictions.

Defendant also filled out an application for a taxi cab permit under an alias.   On the application, under penalty of perjury, defendant stated he had never been convicted of a crime.   In addition, defendant submitted fingerprints.   Ultimately, a taxicab permit was issued to defendant.   The permit would not have been issued had authorities known defendant used a false name and had five felony and three misdemeanor convictions.

Information regarding defendant's misrepresentations came to the attention of authorities after defendant's landlord contacted police.   The landlord claimed defendant had burglarized his residence.   When the police responded, the landlord reported defendant assaulted him after he complained to defendant about nocturnal visits from teenage boys who climbed through defendant's window.

The police arrested defendant and, without a warrant, searched his apartment.   The search yielded pictures of children engaged in sexual activity, false birth certificates, and other information.   Following the search, police contacted the Department of Social Services who conducted an investigation and obtained falsified employment applications at various group homes.

An information charged defendant with two counts of lewd conduct with a minor under 14 years of age (Pen.Code, § 288, subd. (a)) and six counts of perjury (Pen.Code, § 118, subd. (a)).  Two prior prison terms were alleged under Penal code section 667.5, subdivision (d).   The trial court bifurcated the child molestation counts from the perjury counts.

A jury trial followed.   The jury convicted defendant of six perjury counts.   The prosecution dismissed the second prior conviction in the interests of justice.   The court found the other prior prison term allegation true.

The court sentenced defendant to ten years for the six perjury convictions and the prior prison term.   We reversed defendant's conviction following his first trial in People v. Thompson (1996) 43 Cal.App.4th 1265, 51 Cal.Rptr.2d 334.   In the unpublished portion of the opinion we reversed the six counts of perjury due to instructional error.   In the published portion of the decision we determined an issue of standing.

On remand, following an evidentiary hearing, the court denied defendant's motion to suppress under Penal Code section 1538 to suppress evidence.   A second jury trial followed.

At trial, a Sacramento sheriff compared defendant's fingerprints to the fingerprints submitted by defendant with each application.   The officer found the fingerprints matched.

A senior special investigator for the California Department of Developmental Services testified regarding the investigation of licensing violations by defendant.   According to the investigator, defendant made no requests for exceptions to licensing requirements.

The second jury found defendant guilty of six counts of perjury.   Defendant waived his right to a jury trial as to the two prior prison terms.

The court allowed amendment of the information as to one of the charged priors.   The court found the two prior prison term allegations to be true.

The court sentenced defendant to 11 years and imposed restitution fines under Penal Code sections 1202.4 and 1202.45.   Defendant filed a timely notice of appeal.

DISCUSSION

I. Motion to Suppress**

II. Double Jeopardy

Defendant argues the increase in his sentence after retrial violates the constitutional guarantee against double jeopardy.

A. Factual Background

The original information charged defendant with two prior prison terms, a 1985 perjury conviction and a 1984 non-sufficient funds conviction.   After the jury convicted defendant of the six perjury counts during the first trial, defendant waived jury trial on the prior prison term allegations.   The court granted the prosecution's motion to dismiss one of the prior prison terms.   The court sentenced defendant to ten years:  nine years on the perjury counts, plus one year for the prior prison term enhancement.   The court also imposed a $2,000 restitution fine pursuant to former Government Code section 13967.5

We reversed the judgment based on instructional error.  (People v. Thompson (1996) 43 Cal.App.4th 1265, 1267, 51 Cal.Rptr.2d 334.)   The matter was remanded for retrial.   Defendant entered a plea of not guilty to the original information which contained the two prior prison term allegations.   Following his conviction by the jury in the second trial, defendant again waived jury trial on the prior prison term allegations.

During the court trial on the prior prison terms, the prosecution notified the court that the two charged priors involved concurrent prison time.   The prosecution moved to amend the perjury prior to a second degree burglary.   The court granted the motion.

Defense counsel objected, arguing defendant had not waived his right to a jury trial on the burglary prior.   The court denied defendant's motion to strike the burglary prior.

At sentencing, defendant again moved to strike the burglary prior.   Defense counsel specifically did not request a new trial, stating a new trial would not be in his client's best interests.   The prosecution informed the court the information incorrectly alleged two prior convictions which did not result in separate prison terms.   In addition, the prosecution stated the error had been discovered following trial.   The court denied the motion finding defendant suffered no prejudice as a result of the amendment and defendant's waiver of a jury trial was valid.

The court sentenced defendant to 11 years including two separate one-year terms for the prior prison term enhancements.   The court also imposed two restitution fines of $2,200 each, one under Penal Code section 1202.4 and one under Penal Code section 1202.45.   Payment of the fine imposed under Penal Code section 1202.45 was suspended unless and until defendant's parole, if granted, is revoked.   The court also imposed $168 in fines pursuant to Government Code section 29550.2.

B. Discussion

Following defendant's first trial, the trial court sentenced him to ten years:  nine years on the perjury counts and one year for the prior prison term enhancement.   Following the second trial, the court sentenced defendant to eleven years:  nine years on the perjury counts and two one-year terms for the prior prison term enhancements.   Unquestionably, the court imposed a more severe penalty following the second trial.

Citing People v. Henderson (1963) 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677, defendant contends the increase in both the sentence and fines imposed violates the double jeopardy clause of the California Constitution.   The Supreme Court in Henderson held that under the double jeopardy clause of the California Constitution, a defendant sentenced to life imprisonment at his or her first trial cannot receive the death penalty upon retrial after a successful appeal.  (Id. at p. 497, 35 Cal.Rptr. 77, 386 P.2d 677.)  “The Henderson holding was not confined to invalidation of a death sentence after reversal of a judgment imposing a life sentence;  it was applied to any case in which a more severe sentence is sought to be imposed on a retrial.”  (1 Witkin, Cal.Criminal Law (2d ed.1988) § 316, p. 365;  People v. Harris (1990) 217 Cal.App.3d 1332, 1336, 266 Cal.Rptr. 563.) 6

 Recently, in People v. Monge (1997) 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121, the Supreme Court reaffirmed its stance in Henderson, supra, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677, noting “when a defendant successfully challenges his conviction, the state double jeopardy clause prohibits imposition of a greater sentence following retrial, thus preventing an ‘unreasonabl[e] impair[ment]’ of [a] ‘defendant's right of appeal from an erroneous judgment.’  [Citations.]”  (Id. at p. 843, 66 Cal.Rptr.2d 853, 941 P.2d 1121.)   Other cases have applied this rule, protecting defendants from receiving a greater sentence if reconvicted after a successful appeal.  (See People v. Collins (1978) 21 Cal.3d 208, 145 Cal.Rptr. 686, 577 P.2d 1026;  People v. Hood (1969) 1 Cal.3d 444, 459, 82 Cal.Rptr. 618, 462 P.2d 370;  People v. Ali (1967) 66 Cal.2d 277, 281, 57 Cal.Rptr. 348, 424 P.2d 932.)   Consistent with Henderson and its progeny, we conclude the increase in defendant's term of confinement following retrial violates the double jeopardy clause of the California Constitution.   Therefore, we shall modify defendant's sentence to stay one of the one-year enhancements, reducing the unstayed prison term to ten years.

 The fines imposed following the second trial present a different question.   Following the first trial the court imposed a $2,000 fine.   Following the second trial the court imposed $4,400 in fines, a $135 booking fee and a $33 main jail classification fee.  (Govt.Code, § 29550.2.)

 In People v. Jones, supra, 24 Cal.App.4th 1780, 30 Cal.Rptr.2d 238, after defendant's conviction was reversed and remanded, he was found guilty in a second trial.   The trial court sentenced defendant and imposed a restitution fine of $5,000 although it had imposed a fine of $1,000 in the original proceeding.  (Id. at pp. 1781-1783, 30 Cal.Rptr.2d 238.)   The appellate court modified the judgment to reduce the fine from $5,000 to $1,000.   The court held under the double jeopardy provisions of the California Constitution a more severe sentence may not be imposed following retrial.   Therefore, the monetary portion of a sentence on remand from a successful appeal may not exceed the monetary portion of the sentence originally imposed, absent some express agreement by the defendant to the contrary.  (Id. at p. 1785, 30 Cal.Rptr.2d 238.)

The People acknowledge Jones, but urge us to reject its holding.   The People argue restitution fines pursuant to Penal Code sections 1202.4 and 1202.45 are not punishment but merely serve the societal interest of compensating crime victims.   We are not persuaded.   Such societal interest may be among the reasons for imposing such fines, but fines have historically been considered part of the punishment for double jeopardy purposes.   (Jeffers v. United States (1977) 432 U.S. 137, 154-155, 97 S.Ct. 2207, 2218, 53 L.Ed.2d 168.)   In addition, Penal Code section 15 defines a fine as one of the punishments which may be imposed for conviction of a crime.   The People also argue the Government Code section 29550.2 fines totaling $168 are nonpunitive, “remedial” assessments to reimburse for jail related costs.   Again, reimbursement may be part of the rationale underlying the fine, but its effect is punitive.   We see no reason to depart from the holding in Jones, supra, 24 Cal.App.4th 1780, 30 Cal.Rptr.2d 238.   Accordingly, we shall direct the trial court to reduce the restitution fine to $2,000 under Penal Code section 1202.4, the amount originally assessed.7

III.- V.***

DISPOSITION

The judgment is modified to stay one of the one year enhancements, to reduce the Penal Code section 1202.4 restitution fine from $2,200 to $2,000 and to strike the Penal Code section 1202.45 fine and Government Code section 29550.2 fine.   The superior court is directed to prepare a new abstract of judgment in accordance with our opinion and forward it to the Department of Corrections.   In all other respects the judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

5.   Government Code section 13967, subdivision (c) was repealed following defendant's first trial.  (Stats.1994, ch. 1106, eff.   September 29, 1994.)   Its provisions were largely incorporated into Penal Code section 1202.4.

6.   The United States Supreme Court has determined the guarantee against double jeopardy places no restriction upon the length of sentence imposed upon reconviction.  (North Carolina v. Pearce (1969) 395 U.S. 711, 719, 89 S.Ct. 2072, 2077, 23 L.Ed.2d 656.)   However, the California Supreme Court has not retreated from the rationale of Henderson.   (People v. Jones (1994) 24 Cal.App.4th 1780, 1783-1784, fn. 5, 30 Cal.Rptr.2d 238.)

7.   Since we find the court erred in imposing the additional fine pursuant to Penal Code section 1202.45, we need not address defendant's argument that the statute violates the ex post facto clause of the United States Constitution.

FOOTNOTE.   See footnote *, ante.

RAYE, Associate Justice.

SIMS, Acting P.J., and NICHOLSON, J., concur.

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