PEOPLE v. HERNANDEZ (1995)

In this case we conclude the trial court violated David Hernandez's constitutional right not to be placed twice in jeopardy when it subjected him to a rehearing on its decision made after a court trial on the “truthfulness” of the prior serious felony conviction allegation under Penal Code 2 section 667, subdivision (a).³

SUMMARY BACKGROUND

Initially, a jury found David Hernandez guilty of inflicting corporal injury upon his live-in girlfriend Patricia Ana Martinez (Patricia) (§ 273.5) and of committing the battery with serious bodily injury (§ 243, subd. (d)), the assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and the petty theft (§ 484 [the lesser included offense of the charged grand theft (§ 487, former subd. 2) ] ) of Enrique Martinez (Enrique).⁴  Thereafter, a bifurcated court trial to determine the truth of his alleged prior for enhancement purposes was held over several days.

On November 1, 1993, Judge Susan P. Finlay found Hernandez had previously been convicted of a serious felony for attempted robbery (§ 1192.7, subds. (c)(19) and (c)(27)) and continued to November 3, 1993, the question of whether any of Hernandez's current convictions was a “serious felony” to which his prior serious felony conviction could attach.  (§§ 667, subd. (a), 1192.7.)

At that time, Judge Finlay reiterated her earlier finding Hernandez had previously suffered a serious felony conviction, but found as a matter of law that none of his present convictions constituted a serious felony under section 1192.7, and therefore the enhancement would not apply.⁵

On the scheduled sentencing date (November 30, 1993), the People requested Judge Jesus Rodriguez to reconsider Judge Finlay's determination the requirements of section 667, subdivision (a) were not proven as pled.   Judge Rodriguez ordered the matter briefed and set before Judge Finlay on December 17, 1993.

On that date, Judge Finlay first ruled she had jurisdiction to hear the motion to reconsider on a legal issue prior to sentencing.⁶  Then, based on case authority ⁷ not cited by the People at the court trial on the prior allegation, Judge Finlay found Hernandez's current section 243, subdivision (d) conviction qualified as a “serious felony” to which his prior serious felony conviction could attach under sections 667, subdivision (a) and 1192.7,⁸ reversed her original determination and returned the matter to Judge Rodriquez for sentencing.

Hernandez was sentenced to prison for a total of nine years, consisting of a three-year midterm for inflicting injury on Patricia, a one-year consecutive term (one-third of the three-year midterm) for the battery with serious bodily injury inflicted on Enrique, and a consecutive five-year enhancement for the prior serious felony found true after reconsideration by Judge Finlay.⁹

Hernandez has timely appealed, contending the trial court committed prejudicial evidentiary error and both legal and constitutional error in imposing the five-year enhancement for his prior serious felony conviction.   Concerning the enhancement, he specifically asserts the trial court violated the double jeopardy clause of both the United States and California Constitutions when it reconsidered and changed its original “not true” determination, or verdict, at the conclusion of the court trial on the prior serious felony conviction allegation.   He further claims the court erred, after reconsideration, when it found his current battery with serious bodily injury conviction constituted a “serious felony” under section 1192.7 even though the evidence failed to show he intentionally inflicted great bodily injury.

In the unpublished portion of this opinion we conclude Hernandez's claim of evidentiary error has been waived.   In the published part, we conclude the trial court violated double jeopardy principles in trying or considering the truth of Hernandez's section 667, subdivision (a) enhancement allegation a second time.   Because we do so, we need not determine whether the trial court also erred in factually determining Hernandez's current section 243, subdivision (d) conviction qualified as a “serious felony” under section 1192.7.   We therefore affirm his convictions, reverse the true finding on the prior serious felony conviction allegation and modify the sentence imposed to strike the punishment for that enhancement.

DISCUSSION

IAlleged Evidentiary Error *

II

Double Jeopardy

Almost a month after the trial court found Hernandez's prior serious felony conviction allegation was not proven under section 667, subdivision (a), the People sought to have that determination reconsidered.   The court granted the People's motion to reconsider the matter and, after so doing, reversed its earlier decision, ruling the prior enhancement was “true” within the meaning of sections 667, subdivision (a) and 1192.7 and would be used to increase Hernandez's prison term by five years.

Hernandez claims he was placed in jeopardy when the court trial on the prior serious felony conviction allegation commenced, that the trial court's determination the allegation was not proven stands as a “verdict” of “not true,” or an “acquittal,” on the enhancement allegation, that such in effect terminated his jeopardy as to the prior allegation, and that principles of double jeopardy thus barred reconsideration or retrial of the allegation.

We agree the record in this case demonstrates Hernandez was put in jeopardy twice for the determination of the “truth” of the alleged prior serious felony enhancement in violation of the double jeopardy clause.   The trial court's determination after the court trial constituted a “not true” finding of the allegation (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1439–1440, 18 Cal.Rptr.2d 371), essentially the equivalent of an “acquittal” (§§ 1158, 1167),¹⁵ and such bars the court's subsequent decision on the “retrial” of the matter, even on the purported grounds of legal error.   (See Sanabria v. United States (1978) 437 U.S. 54, 64, 98 S.Ct. 2170, 2178–2179, 57 L.Ed.2d 43;  People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 77–78, 2 Cal.Rptr.2d 389, 820 P.2d 613.)   We explain.

The double jeopardy clause of the Fifth Amendment of the United States Constitution states, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”   This constitutional guaranty is applicable to the states via the Fourteenth Amendment.¹⁶  (Benton v. Maryland (1969) 395 U.S. 784, 793–794, 89 S.Ct. 2056, 2061–2062, 23 L.Ed.2d 707.)   The California Constitution similarly provides that “[p]ersons may not be twice put in jeopardy for the same offense.”  (Cal.Const., art. I, § 15.)   The purpose of these constitutional rules is “to protect an individual from being subjected to trial and possible conviction more than once for the ‘same offense’ ․ [or] against a second prosecution for the [‘]same offense [’] after an acquittal․  [Citation.]”  (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1230, 6 Cal.Rptr.2d 242.)  “ ‘The theory of double jeopardy is that a person need run the gantlet only once.   The gantlet is the risk of the range of punishment which the State or Federal Government imposes for that particular conduct.’ ”  (People v. Superior Court (Harris) (1990) 217 Cal.App.3d 1332, 1341, 266 Cal.Rptr. 563, quoting from North Carolina v. Pearce (1969) 395 U.S. 711, 727, 89 S.Ct. 2089, 2089, 23 L.Ed.2d 656 (conc. opn. of Douglas, J.).)

As pertinent to this case, California statutory law provides an enhancement for a prior serious felony conviction (§ 667, subd. (a)) ¹⁷ must be pled and proven before it may be imposed.  (§ 1170.1, subd. (f).)  Where a prior serious felony conviction has been alleged and the defendant has denied having suffered such prior felony, the additional term for the enhancement will only be imposed after it has been found true by the trier of fact, be it the jury or the court, if jury is waived.  (See §§ 969f, 1025,¹⁸ & 1158;  People v. Hernandez (1988) 46 Cal.3d 194, 206, 249 Cal.Rptr. 850, 757 P.2d 1013, overruled on another point in People v. King (1993) 5 Cal.4th 59, 78, fn. 5, 19 Cal.Rptr.2d 233, 851 P.2d 27 and distinguished on yet another point in People v. Rayford (1994) 9 Cal.4th 1, 9, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)

To find true, the elements of such contested enhancement allegation must be proved beyond a reasonable doubt.  (People v. Tenner (1993) 6 Cal.4th 559, 566, 24 Cal.Rptr.2d 840, 862 P.2d 840.)   If contested and there are no other prior serious felony enhancements at issue,¹⁹ such enhancement has three elements or facts to be determined by the “trier of fact”:  (1) Conduct in the current case that constitutes a serious felony under section 1192.7, (2) the fact of a prior conviction, and (3) an offense underlying the prior that constitutes a serious felony, again under section 1192.7.  (§ 667, subd. (a);  People v. Shirley (1993) 18 Cal.App.4th 40, 44, 22 Cal.Rptr.2d 340.)   When the prior conviction is not on its face a serious felony within the definition of section 1192.7, the question of whether the conduct underlying the prior meets such definition is a factual issue to be determined, if not admitted, by the trier of fact.  (People v. Myers (1993) 5 Cal.4th 1193, 1195, 22 Cal.Rptr.2d 911, 858 P.2d 301.)   By parity of reasoning, so too the query of whether the conduct in the current case constitutes a serious felony is a factual determination to be made, if not admitted, by the trier of fact.   Once the determination is made as to whether the prior allegation is “proven as pled,” i.e. true or not true, a decision or verdict of “conviction” or “acquittal” has effectively been made.  (§§ 1158, 1167.)

The pivotal inquiry then becomes when does jeopardy begin and end for such determinations.   In the case of regular criminal offenses, jeopardy clearly attaches when a jury is impaneled and sworn to try a case.   (Crist v. Bretz (1978) 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24.)   If a court trial is held, jeopardy attaches when the first witness is sworn, or evidence is taken.  (Jurado, supra, 4 Cal.App.4th at p. 1231, 6 Cal.Rptr.2d 242.)   Up until very recently in California, jeopardy as to the “truth” of an alleged prior conviction also attached at the time the jury was first impaneled, regardless of whether its determination were bifurcated.   (See People v. Saunders (1993) 5 Cal.4th 580, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)   Now it appears that when a criminal trial has been bifurcated as to a prior conviction allegation and the defendant has waived his statutory right to have a jury determine the truth of that allegation, jeopardy necessarily attaches when the trial court commences to take evidence on that issue in the court trial on the prior allegation.  (Id. at pp. 585, 595–597, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)   Logically, jeopardy terminates when that determination is made.  (Ibid.;  see also Richardson v. United States (1984) 468 U.S. 317, 325, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242;  People v. Bryant (1992) 10 Cal.App.4th 1584, 1597, 13 Cal.Rptr.2d 601.)

While the question as to whether the federal constitutional prohibition against “double jeopardy” applies to successive noncapital sentencing proceedings is still unanswered (see Caspari v. Bohlen (1994) 510 U.S. 383, –––– – ––––, 114 S.Ct. 948, 952–957, 127 L.Ed.2d 236, 245–250), several California cases have acknowledged double jeopardy principles preclude retrial of a sentence enhancement when insufficient evidence has been introduced to sustain the allegation.  (See Marks, supra, 1 Cal.4th at p. 78, fn. 22, 2 Cal.Rptr.2d 389, 820 P.2d 613;  People v. Goodner (1990) 226 Cal.App.3d 609, 613, 276 Cal.Rptr. 542;  People v. Hockersmith (1990) 217 Cal.App.3d 968, 266 Cal.Rptr. 380, overruled on other grounds in People v. Saunders, supra, 5 Cal.4th at p. 597, fn. 9, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)

Further, “[t]he United States Supreme Court has repeatedly counseled against subjecting a defendant to further proceedings to allow the prosecution the opportunity to ameliorate trial deficiencies, evidentiary or procedural, that could have been otherwise timely corrected.  [Citations.]”  (Marks, supra, 1 Cal.4th at p. 77, 2 Cal.Rptr.2d 389, 820 P.2d 613.)   And, it has found no reason to allow a second trial for a prosecutor's own inaccuracy or neglect as to legal or factual matters or a court's legal errors.²⁰  (See Sanabria v. United States, supra, 437 U.S. at p. 64, 98 S.Ct. at pp. 2178–2179;  Ball v. United States (1896) 163 U.S. 662, 667, 16 S.Ct. 1192, 1193–1194, 41 L.Ed. 300.)

Because the statutory scheme in California requires a trial on a prior allegation “with the hallmarks of the trial on guilt or innocence,” i.e., before a trier of fact with specific findings to be made “beyond a reasonable doubt” standard, similar to the trial-like determination in a capital sentencing proceeding to which double jeopardy protections apply, we see no meaningful reason not to apply such protections to the trial of that enhancement.  (Bullington v. Missouri (1981) 451 U.S. 430, 438–439, 101 S.Ct. 1852, 1857–1858, 68 L.Ed.2d 270;  see also Lockhart v. Nelson (1988) 488 U.S. 33, 37–42, 109 S.Ct. 285, 289–292, 102 L.Ed.2d 265;  Arizona v. Rumsey (1984) 467 U.S. 203, 209–211, 104 S.Ct. 2305, 2309–2310, 81 L.Ed.2d 164.)

Here, the trial on Hernandez's prior serious felony allegation was bifurcated from the trial on the substantive criminal charges, and Hernandez waived jury trial.   As to the truth of the prior serious felony allegation, evidence was presented and legal arguments were made.   The court found the first element to establish the prior allegation not true, i.e., the conduct in the current case did not constitute a serious felony under section 1192.7, and in essence determined the enhancement could not apply.  (§§ 1158, 1167;  see People v. Gutierrez, supra, 14 Cal.App.4th at pp. 1439–1440, 18 Cal.Rptr.2d 371.)   Such determination was tantamount to an “acquittal,” and ended jeopardy as to that prior allegation.

Because the People have no right to move for new trial or appeal after an “acquittal” or determination in favor of the defendant (§ 1238), based on the above well established constitutional principles, the trial court violated Hernandez's right not to be put twice in jeopardy by reconsidering the “truth” of the prior over his “once in jeopardy” objection.²¹  Accordingly, we reverse that part of the judgment finding Hernandez's prior conviction to be true and strike the punishment imposed for that true finding.  (§ 1260.)

DISPOSITION

The convictions are affirmed.   The true finding on the section 667, subdivision (a) prior serious felony conviction allegation is reversed and the punishment for that enhancement is stricken.   The trial court is directed to prepare an amended abstract of judgment to reflect the sentence as modified by this opinion and to forward it to the Department of Corrections.

FOOTNOTES

FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

3.   As of March 7, 1994, section 667 has been amended to include what is known as the “Three Strikes” legislation, and to redesignate subdivision (a) as “(a)(1).”  (Stats.1994, ch. 12, § 1, eff. March 7, 1994.)   In this opinion, however, we refer to the former section and subdivisions then in effect.

4.   The criminal charges had arisen after Enrique and Patricia (who are not related) were attacked and injured on their way home by Hernandez in an alley outside the Roundup Bar in National City where the three had previously been drinking.   Hernandez had also picked up Enrique's wallet during the melee.   It was later found during a search of Hernandez's home.

5.   The transcript of the hearing and the court minutes reflect Judge Finlay also found Hernandez had proper notice of the section 1192.7 allegation, had personally used force likely to inflict great bodily injury in the commission of the crimes against Enrique, and there were no aiders or abettors in those crimes.

6.   Judge Finlay and defense counsel differed on the characterization of the trial on the prior serious felony allegation.   Defense counsel thought the requirements of section 667, subdivision (a) constituted one decision or verdict on whether the allegation was proven, whereas Judge Finlay thought the verdict was that the prior was proven true and the finding there was no serious felony to which it could attach was a separate order after the verdict.

7.   People v. Moore (1992) 10 Cal.App.4th 1868, 13 Cal.Rptr.2d 713 determined a prior conviction of section 243, subdivision (d) could qualify as a serious felony under section 1192.7, subdivision (c)(8) when a defendant personally committed the battery causing the serious (great) bodily injury.

8.   Judge Finlay expressed she was doing so only because she felt bound to apply Moore, supra, 10 Cal.App.4th 1868, 13 Cal.Rptr.2d 713.   She further opined Hernandez's particular battery conviction would not qualify as a serious felony if “intent” to injure were a necessary element for a “serious felony” as defined by section 1192.7, since Hernandez, as well as the victim, was intoxicated at the time the crime was committed.

9.   Judge Rodriquez also imposed 180 days of local custody for the petty theft against Enrique, credited Hernandez with 206 days of presentence custody credits, and imposed a $100 restitution fine.

FOOTNOTE.   See footnote 1, ante.

15.   Section 1158 provides in part that, “Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction.   The verdict or finding upon the charge of previous conviction may be:  ‘We (or I) find the charge of previous conviction true’ or ‘We (or I) find the charge of previous conviction not true,’ according as the jury or the judge find that the defendant has or has not suffered such conviction.”Section 1167 requires that, “When a jury trial is waived, the judge ․ before whom the trial is had shall, at the conclusion thereof, announce his findings upon the issues of fact, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered upon the minutes.”

16.   “[T]he minimum standards of double jeopardy protection for criminal defendants, as enunciated by numerous United States Supreme Court decisions, are binding on [California courts].”  (Stone v. Superior Court (1982) 31 Cal.3d 503, 510, 183 Cal.Rptr. 647, 646 P.2d 809.)   And, California is free to provide for an even higher level of protection under its own constitution.  (See ibid.)

17.   At the time of Hernandez's sentencing, section 667, subdivision (a) provided in part that “any person convicted of a serious felony who previously has been convicted of a serious felony ․ shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.”

18.   If a defendant pleads not guilty to the current charges, the issue of whether he has committed a serious felony “shall be tried by the court or jury which tries the issue upon the plea of not guilty.”  (§ 969f.)Section 1025 as originally enacted in 1874, provided that when a defendant pleaded not guilty and denied having suffered an alleged prior conviction, “ ‘the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty.’ ”  (People v. Calderon (1994) 9 Cal.4th 69, 74, 36 Cal.Rptr.2d 333, 885 P.2d 83, citing People v. Bracamonte (1981) 119 Cal.App.3d 644, 652, 174 Cal.Rptr. 191.)   Our Supreme Court has long held that nothing in the language of section 1025 prohibits a trial court from bifurcating the determination of the truth of a prior conviction that has been denied by a defendant from the determination of the defendant's guilt or innocence of the charged offense.  (People v. Calderon, supra, 9 Cal.4th at p. 74, 36 Cal.Rptr.2d 333, 885 P.2d 83, citing People v. Morton (1953) 41 Cal.2d 536, 543, 261 P.2d 523.)

19.   In such case, the fact that the prior conviction was brought on charges tried separately is not an issue that needs to be determined.

20.   In this case the prosecutor apparently did not discover the case of People v. Moore, supra, 10 Cal.App.4th 1868, 13 Cal.Rptr.2d 713 until well after the trial on the serious felony prior.   The case was not presented to the trial court until the purported reconsideration.

21.   Contrary to the position taken by the People, that the prosecutor had the right to have the legal issues reconsidered by the trial court so that it could review all pertinent law, even assuming the court's legal rulings, findings or decision were erroneous, double jeopardy principles still bar such reconsideration once the favorable ruling or finding has been embodied in the court's decision, which in this case was done after the continued court trial on the prior allegation on November 3, 1993.  (See Sanabria v. United States, supra, 437 U.S. at p. 64, 98 S.Ct. at pp. 2178–2179.)

HUFFMAN, Associate Justice.

KREMER, P.J., and BENKE, J., concur.