PEOPLE v. In re Marcos Trevino, on Habeas Corpus.

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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Marcos TREVINO, Defendant and Appellant. IN RE: Marcos Trevino, on Habeas Corpus.

Nos. B118891.

Decided: December 21, 1999

Gail Harper, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Sanjay T. Kumar, Supervising Deputy Attorney General, and Alan D. Tate, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant, Marcos Trevino, appeals from the judgment entered following his conviction, by jury trial, for first degree murder with a prior-murder special circumstance finding, and with firearm use and prior serious felony conviction findings.  (Pen.Code, §§ 187, 190.2, subd. (a), 12022.5, 667, subd. (a)-(i)).1  Sentenced to a state prison term of life without the possibility of parole, plus eight years, Trevino claims trial and sentencing error.   In a related habeas corpus petition, he claims that he was denied the effective assistance of trial counsel.   The People claim sentencing error.

The judgment is affirmed in part, reversed in part, and remanded.   The habeas corpus petition is denied.

BACKGROUND **

DISCUSSION

1.-4.***

5. Prior-murder special circumstance improper.

Trevino contends the prior-murder special circumstance must be stricken because it was predicated on a 1978 Texas murder conviction, a murder committed when Trevino was only 15 years old and at a time when a 15-year-old could not have been convicted for murder in California.   We agree.

Section 190.2, subdivision (a)(2), prescribes death or imprisonment for life without the possibility of parole “for a defendant who is found guilty of murder in the first degree” if the defendant was “convicted previously of murder in the first or second degree.   For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.”  (Italics added.)

This language was construed by People v. Andrews (1989) 49 Cal.3d 200, 260 Cal.Rptr. 583, 776 P.2d 285, which held the defendant's 1967 Alabama conviction for a murder committed when he was 16 years old could serve as the predicate for a prior-murder special circumstance finding in his prosecution for a 1979 California murder.  “Defendant contends the statute's use of the word ‘would’ instead of ‘could’ manifests an intent to limit the special circumstance to those offenses which would, in his words, ‘without doubt have been punishable’ as murder in California.   Had he committed the offense here, defendant argues, it might or might not have been punishable as murder, depending on the determination at the [juvenile] fitness hearing.   Thus, he concludes, since it is not clear he would have been punished for murder had he committed the offense in California, the use of his Alabama murder conviction to support the special circumstance finding was improper.  [¶] The language of the statute does not support defendant's interpretation.   Defendant is attempting to characterize the words ‘would be punishable’ as if they were synonymous with the term ‘would be punished.’  ‘Punishable’ has been defined as ‘[d]eserving of or capable or liable to punishment;  capable of being punished by law or right.’  (Black's Law Dict. (5th ed.1979) p. 1110, col. 1.) The word does not denote certainty of punishment, but only the capacity therefor.   Any minor between the ages of 16 and 18 who commits murder in California, and has been found unfit to be treated as a juvenile, can be tried and convicted as an adult and thus be liable to punishment as a murderer.”   (Id., at p. 222, 260 Cal.Rptr. 583, 776 P.2d 285.)

The People concede that in 1978 Trevino could not under any circumstances have been convicted in California.6  This is because, at that time, 14- and 15-year-olds came within the exclusive jurisdiction of the juvenile court system.  (See Welf. & Inst.Code, § 203 (non-criminal status of wardship adjudications in juvenile court).) 7  Rather, the People argue the prior-murder special circumstance can be predicated on Trevino's Texas conviction by operation of Proposition 8-the Victims' Bill of Rights enacted by initiative in 1982 (hereafter, “Prop.8”)-which, in relevant part, provides:  “Any prior conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”  (Cal. Const., Art. I, § 28, subd. (f).)

The People rely primarily on People v. Blankenship (1985) 167 Cal.App.3d 840, 851-852, 213 Cal.Rptr. 666, which invoked Prop. 8 in order to impose a prior serious felony conviction enhancement (formerly, § 667;  now, § 667, subd. (a)) based on a Wyoming conviction suffered when the defendant was 15 years old.   But section 667, subdivision (a), is clearly a true enhancement, and thus the language of Prop. 8 regarding the unlimited use of prior convictions “for purposes of ․ enhancement” obviously applies.  “As defined in the Rules of Court, an enhancement ‘means an additional term of imprisonment added to the base term.’  (Rule 405(c), Cal.Rules of Court․”  (People v. Hernandez (1988) 46 Cal.3d 194, 207, 249 Cal.Rptr. 850, 757 P.2d 1013, disapproved on other grounds in People v. King (1993) 5 Cal.4th 59, 78, fn. 5, 19 Cal.Rptr.2d 233, 851 P.2d 27.) “Enhancements typically focus on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves.   That is one of the very purposes of an enhancement's existence.”  (People v. Hernandez, supra, 46 Cal.3d at pp. 207-208, 249 Cal.Rptr. 850, 757 P.2d 1013.)  “While no magic words need be used to identify an enhancement, we note that many enhancement statutes in fact use the word ‘enhancement’ [citations], while others refer to imposition of an ‘additional term.’  [Citations.]”  (Id., at p. 207, fn. 14, 249 Cal.Rptr. 850, 757 P.2d 1013.)   Section 667, subdivision (a), imposes “a five-year enhancement” “in addition to the sentence imposed by the court for the present offense” on qualifying recidivists.

The question Blankenship does not answer is whether Prop. 8 applies to a special circumstance, which the California Supreme Court has defined as “sui generis-neither a crime, an enhancement, nor a sentencing factor.”  (People v. Crandell (1988) 46 Cal.3d 833, 880, 251 Cal.Rptr. 227, 760 P.2d 423.)   The trial court here concluded it was constrained by Blankenship to apply Prop. 8:  “While I recognize that there is a difference between a special circumstance and an enhancement, I do not find that difference persuasive ․ enough to convince me that Blankenship is not controlling.”

This very problem-Prop. 8's effect on the legality of predicating a prior-murder special circumstance on the out-of-state murder conviction of a 14 or 15-year-old-was foreseen, but left undecided, by Andrews.  “We express no views as to the validity of a prior-murder special-circumstance finding which is based on the conviction of a defendant under the age of 16 in a jurisdiction which permits such a minor to be tried as an adult.   Nor need we consider the effect, if any, of article I, section 28, subdivision (f) of the state Constitution, which states in relevant part that ‘[a]ny prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.’   We have previously held that this provision does not apply to cases where, as here, the offenses were committed before the provision's enactment.  [Citation.]”  (People v. Andrews, supra, 49 Cal.3d at p. 223, fn. 19, 260 Cal.Rptr. 583, 776 P.2d 285.)

Trevino relies on In re Anthony R. (1984) 154 Cal.App.3d 772, 201 Cal.Rptr. 299, which, he asserts, “declined to extend Proposition 8 to cases not involving enhancements.”   We disagree with this characterization.   The minor in Anthony R. had suffered two juvenile court adjudications based on findings that he had committed petty theft, and the People argued Prop. 8 had converted these juvenile adjudications into criminal convictions for purposes of prosecuting the minor under section 666 (petty theft with a prior theft).   The Court of Appeal rejected the People's argument:  “It is apparent that the first sentence of subdivision (f) [of article I, section 28] addresses the use of prior convictions for one of two specific, narrow purposes, impeachment or enhancement, neither of which is involved in the present case.   It is patent that appellant's prior adjudication is not being used for impeachment purposes.   It is equally clear that it is not being used to enhance.  [¶] The term ‘enhancement’ has a well-established meaning in California law.   It is defined as ‘an additional term of imprisonment added to the base term’ for the particular offense.  [Citations.]   In the operation of Penal Code section 666 a prior conviction for an offense specified in that section does not work as an enhancement, i.e., cause an additional term of imprisonment to be added to the base term for petit theft.   Rather, it is a necessary element of an entirely different statutory offense.   It transforms what otherwise would be a misdemeanor into a hybrid felony misdemeanor, with a greatly increased maximum penalty.”  (Id., at pp. 776-777, 201 Cal.Rptr. 299.)   Thus, Anthony R. merely declined to apply Prop. 8 to an entirely new offense.   Trevino's reliance on this case begs the critical question no less than the People's reliance on Blankenship.

Despite the fact the Supreme Court has insisted that special circumstances are sui generis, and therefore different from offenses, enhancements and sentencing factors,8 the court has sometimes analogized to these other categories for analytic purposes.   Thus, special circumstance allegations have been held to be like criminal offense charges for purposes of Sandstrom error 9 (People v. Garcia (1984) 36 Cal.3d 539, 552, 205 Cal.Rptr. 265, 684 P.2d 826, disapproved on other grounds in People v. Lee (1987) 43 Cal.3d 666, 676, 238 Cal.Rptr. 406, 738 P.2d 752 [where trial court failed to instruct on intent to kill element of special circumstance] ) and for purposes of section 995 dismissal motions and the two-dismissal rule of section 1387 (Ramos v. Superior Court (1982) 32 Cal.3d 26, 32-33, 184 Cal.Rptr. 622, 648 P.2d 589).   On the other hand, special circumstance allegations have been held to be unlike criminal offense charges for purposes of applying separate mens rea (People v. Crandell, supra, 46 Cal.3d 833, 880, 251 Cal.Rptr. 227, 760 P.2d 423 [“Because the multiple-murder special circumstance does not define a crime separate from the qualifying murders, there is no need to impose a mental element requirement.”] ) and corpus delicti requirements (People v. Hamilton (1989) 48 Cal.3d 1142, 1175-1176, 259 Cal.Rptr. 701, 774 P.2d 730 [elements of special circumstance need not be proved independently of defendant's admissions].)  In Garcia, supra, “ [s]eeking to distinguish Sandstrom, the Attorney General argue[d] that a special circumstance is not a ‘crime,’ and an element of a special circumstance thus is not an ‘element of a crime.’  ” (People v. Garcia, supra, 36 Cal.3d at p. 552, 205 Cal.Rptr. 265, 684 P.2d 826.)   The Supreme Court called the argument “technically sound;  special circumstances are sui generis-neither a crime, an enhancement, nor a sentencing factor.   We have, however, noted the resemblance between a special circumstance proceeding and a trial to determine guilt․  [¶] ․ In view of the importance of a special circumstance finding, we do not believe the courts can extend a defendant less protection with regard to the elements of a special circumstance than for the elements of a criminal charge.   If failure to instruct on the element of a crime is a denial of federal due process, the same consequence should attend failure to instruct on the element of a special circumstance.”  (Ibid.)

Thus, although there is arguably some support in the case law for the trial court's analogy of special circumstances and enhancements, we will reverse.   “In view of the importance of a special circumstance finding․”  (People v. Garcia, supra, 36 Cal.3d at p. 552, 205 Cal.Rptr. 265, 684 P.2d 826), and because of the Supreme Court's insistence that a special circumstance is sui generis and technically not an enhancement, we conclude the trial court improperly applied Prop. 8 to this case.   Therefore, the prior-murder special circumstance finding must be reversed, along with Trevino's life without possibility of parole prison term.   We will remand the case to the trial court for resentencing.

6. Sentence modification and abstract of judgment correction.†

DISPOSITION

The judgment is affirmed in part, reversed in part, and remanded.   The prior-murder special circumstance finding is reversed and the life without possibility of parole prison term is vacated.   The matter is remanded to the trial court for resentencing.   The trial court is directed to prepare an amended abstract of judgment and forward a copy thereof to the Department of Corrections.

FOOTNOTES

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

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

6.   Although the People suggest Trevino's age when he committed the Texas murder is irrelevant so long as the elements of the Texas offense would have constituted murder in California, such a conclusion is incompatible with the analysis in Andrews.   Trevino does not claim his Texas crime would not have constituted murder in California.

7.   Now, 14- and 15-year-olds accused of murder may be found unfit for juvenile court adjudication.  (Welf. & Inst.Code, § 707, subd. (d).)

8.   Compare, e.g., People v. Marshall (1997) 15 Cal.4th 1, 61 Cal.Rptr.2d 84, 931 P.2d 262 (failure to instruct on element of special circumstance measured by Chapman harmless error test) with People v. Wims (1995) 10 Cal.4th 293, 315, 41 Cal.Rptr.2d 241, 895 P.2d 77 (failure to instruct on element of enhancement measured by Watson harmless error test).

9.   Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.

FOOTNOTE.   See footnote *, ante.

KLEIN, P.J.

CROSKEY, J., and ALDRICH, J., concur.

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