Court: Superior Sacramento County Judge: Patricia C. Esgro. Super. Ct. No. 03F00398 Ct.App. 3 C048283, C047502
The opinion of the court was delivered by: Corrigan, J.
(this opn. precedes companion case, S152273, filed same date)
This case concerns two questions we did not resolve in People v. Seel (2006) 34 Cal.4th 535 (Seel). (1) Do double jeopardy principles prohibit retrial when a jury has convicted the defendant of an offense but deadlocked on an attached penalty allegation? (2) If retrial is permissible, must it encompass the underlying offense, or may the penalty allegation be retried in isolation? We conclude that, in such circumstances, mistried penalty allegations may be retried, and the retrial need only encompass the mistried enhancements.
In January 2003, Donna Divens saw A.B. and E.M. following defendant around a block of units in the apartment complex where Divens lived. Both girls were five years old. Divens followed them around a corner and saw A.B. standing with her pants down while defendant squatted behind her. E.M. was standing nearby. When Divens appeared, defendant quickly departed. The girls explained they had followed him because he promised them candy and kittens.
Defendant was charged in count one with committing a lewd and lascivious act on A.B., a child five years of age. (§ 288, subd. (a).)*fn1 That charge was followed by two paragraphs containing notices that the offense was a serious felony (§ 1192.7, subd. (c)) and that conviction would require defendant to register as a sex offender (§ 290). The complaint went on to allege, in connection with count one, that defendant kidnapped A.B. "for the purpose of committing that . . . offense," in violation of section 667.8, subdivision (b), and that the kidnapping fell within the meaning of section 667.61, subdivision (e)(1). Under section 667.61, a defendant who is convicted of a lewd and lascivious act and also found to have kidnapped the victim for that purpose must be sentenced to 15 years to life imprisonment. (§ 667.61, subds. (b), (e)(1).) The penalty for a lewd and lascivious act without a kidnapping allegation is a term of three, six or eight years. (§ 288, subd. (a).) Section 667.61, which provides indeterminate sentences for felony sex crimes committed under particular circumstances, is sometimes called the "One Strike" law. (People v. Rayford (1994) 9 Cal.4th 1, 8.) The complaint also alleged in separate substantive counts that defendant kidnapped A.B. (count three) and E.M. (count four) for the purpose of committing a lewd and lascivious act (§ 207, subd. (b)), attempted to commit the lewd act offense on E.M. (§ 664/288, subd. (a)) (count two), and possessed child pornography (§ 311.11, subd. (a)) (counts five through fifteen).
During the second day of deliberations, the jury announced it had reached verdicts on the lewd act and pornography charges but could not reach a verdict on the substantive kidnapping counts or on the section 667.61, subdivision (e)(1) kidnapping allegations. After further deliberations produced the same result, the court received the jury‟s verdicts of guilty on the lewd act, attempted lewd act and child pornography charges, and declared a mistrial on the kidnapping counts and factual sentencing allegations. Defendant waived time for sentencing, and the court scheduled a retrial on the mistried counts and sentencing allegations. Months later, but before defendant‟s second trial, the prosecutor amended the information to add another, harsher, kidnapping allegation under the One Strike Law in connection with the crime against A.B. In addition to the allegation of kidnapping under section 667.61, subdivision (e)(1), the amended information alleged defendant had kidnapped A.B. to commit a lewd act and that the movement substantially increased the risk of harm. (§ 667.61, subd. (d)(2).) This second factual allegation, if found true, carried a punishment of 25 years to life imprisonment. (§ 667.61, subd. (a).) Defendant did not object to the amendment.
At his second trial, defendant stipulated that he had been convicted of molesting one little girl, attempting to molest the other, and of possessing child pornography. The jury in this second trial found defendant guilty of both substantive kidnapping charges (§ 207, subd. (b)) and found true both the 15-year and 25-year factual allegations charged in connection with the crimes against A.B. After receiving these verdicts, the court sentenced defendant to an indeterminate term of 25 years to life imprisonment under the One Strike law (§ 667.61, subd. (d)(2)) for violation of section 288, subdivision (a), plus a consecutive determinate term of 11 years for kidnapping E.M. in violation of section 207, subdivision (b). (A three-year sentence for the attempted lewd act against E.M. was ordered to run concurrently, and an 11-year sentence for the kidnapping of A.B. was stayed pursuant to section 654.)
Defendant appealed on several grounds. The Court of Appeal rejected all but one of his arguments, on an issue not contested here.*fn2 In all other respects, it affirmed the judgment. We granted review to decide whether federal and state double jeopardy principles allowed retrial of the factual sentencing allegation of kidnapping on which defendant‟s first jury deadlocked and, if so, whether retrial could concern the sentencing allegation alone or had to encompass the underlying lewd act charge.*fn3
I. Overview of California Sentencing Law
"Every crime consists of a group of elements laid down by the statute or law defining the offense and every one of these elements must exist or the statute is not violated. This group of essential elements is known as the "corpus delicti,‟ the body or the elements of the crime. [Citation.]" (Fricke, Cal. Criminal Law (1970) p. 26.) A criminal offense is thus a collection of specific factual elements that the Legislature has chosen to define as a crime. Some substantive crimes are further divided into degrees. For example, the substantive crime of burglary is defined by its elements as: (1) entry into a structure, (2) with the intent to commit theft or any felony. (§ 459; see also CALCRIM No. 1700.)*fn4 If these elements are proven, the crime of second degree burglary has been committed. (§§ 459, 460, subd. (b).) However, if, in addition to these elements, there is also proof that the structure was inhabited at the time of the entry, the crime is elevated from second degree to first degree burglary. (§ 460, subd. (a); see also CALCRIM No. 1701.)*fn5
First degree burglary is a greater substantive offense than second degree burglary because it requires proof of all the elements of second degree burglary and the additional element that the area entered was used as a dwelling.
The Legislature has prescribed a range of determinate sentences for most substantive crimes. (See § 1170.)*fn6 For example, first degree burglary is punished by a term of either two, four or six years in state prison. (§ 461.)
The Legislature has also concluded that some substantive crimes should be punished more severely because of particular facts attendant upon their commission. The Legislature has implemented this policy in several ways. It has provided for greater sentences if certain enhancements are pled and proven. (See Cal. Rules of Court, rule 4.405(3).) Enhancements have their own factual elements, such as the personal use of a firearm (§§ 12022.5, 12022.53) or the infliction of great bodily injury (§ 12022.7). So, a defendant who takes cash from a victim by threatening to strike the victim if he does not surrender the money may be charged with robbery (§ 211). However, if the defendant points a handgun at the victim in order to obtain the money, he may be charged with the substantive crime of robbery and an enhancement allegation that he personally used a firearm to commit the robbery (§ 12022.5). If the jury finds that both the substantive crime and the enhancement have been proven, the defendant may be sentenced to a base term of two, three or five years for the robbery (§ 213, subd. (a)(2)) and an additional term of three, four or ten years for the use of the firearm (§ 12022.5, subd. (a)).
The Legislature and California voters have also enacted a "parallel sentencing scheme" for repeat offenders. (People v. Anderson (1995) 35 Cal.App.4th 587, 592-593.) Under the "Three Strikes" law, a defendant who is accused of a felony may also be charged with having previously been convicted of other crimes. If the previous convictions meet the statutory definitions of "strikes" and are proven true, the defendant may be sentenced not to a determinate term, but to an indeterminate term of 15 or 25 years to life. (See §§ 667, 1170.12.) As with enhancements, a jury considering a Three Strikes allegation must separately determine whether the defendant has committed the new substantive felony and whether the allegations of prior strike convictions have been proven. It is well settled that if the jury‟s finding on a strike allegation is reversed on appeal for insufficient evidence, the allegation may be retried to a new jury. (People v. Barragan (2004) 32 Cal.4th 236; People v. Monge (1997) 16 Cal.4th 826.)
The One Strike law (§ 667.61) was added to the Penal Code in 1994. (5 Stats. 1994, 1st Ex. Sess., ch. 14X, § 1, p. 8570; see People v. Hammer (2003) 30 Cal.4th 756, 766.) Like the Three Strikes law, the One Strike law is an alternative sentencing scheme that applies to certain felony sex offenses. (People v. Jones (1997) 58 Cal.App.4th 693, 709, fn. 9.) It mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime (§ 667.61 [listing applicable crimes]) and has also found certain factual allegations to be true (§ 667.61, subds. (d), (e)). Most of these factual allegations concern the manner in which the underlying substantive offense was committed. As with the Three Strikes law and statutory sentencing enhancements, the jury must first decide whether all the elements of the underlying substantive crime have been proven. If not, it returns an acquittal and the case is over. If the jury convicts on the substantive crime, it then independently determines whether the factual allegations that would bring the defendant under the One Strike sentencing scheme have also been proven. Because the sentencing allegations have the potential to increase punishment, the defendant has a Sixth Amendment right to have their truth decided by a jury. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) If the jury cannot agree whether the One Strike allegations have been proven, the conviction on the substantive offense stands and a mistrial of necessity is declared as to the factual sentencing allegations. (See People v. Bright (1996) 12 Cal.4th 652, 661-662 (Bright).)*fn7
Under the One Strike law, certain factual allegations may have the same elements as a substantive offense. Such was the case here. Kidnapping a child to commit a lewd and lascivious act is a substantive offense. (§ 207, subd. (b).) The same conduct may also be alleged as a factual sentencing allegation under the One Strike law. (§§ 667.61, subds. (c)(4), (e)(1).) The elements of both the substantive crime and the sentencing allegation are the same. Here, the prosecution charged kidnapping as both a substantive offense and as a sentencing allegation attached to the lewd and lascivious conduct offense.
Defendant‟s first jury found him guilty of the substantive offense of committing a lewd and lascivious act on A.B. (§ 288, subd. (a).) However, because the jury could not agree about whether he kidnapped her for the purpose of committing this offense, it hung on both the substantive kidnapping charge (§ 207, subd. (b)) and the One Strike sentencing allegation (667.61, subd. (e)(1)). These facts demonstrate the flaw in defendant‟s double jeopardy argument. It is well settled that when the jury convicts a defendant on some counts but hangs on others, resulting in a mistrial, the mistried counts may be tried to a new jury. (§ 1160.)*fn8 Under defendant‟s theory, double jeopardy would not prevent a retrial of the substantive kidnapping offenses alleged in counts three and four, but it would bar retrial for the same conduct as a factual sentencing allegation under section 667.61, subdivision (e)(1). As we will explain, this anomalous result is neither consistent with legislative intent nor compelled by constitutional mandate.
II. Constitutional Double Jeopardy Protection
The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15, of the California Constitution provide that a person may not be twice placed "in jeopardy" for the "same offense." "The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense. [Citations.]" (Bright, supra, 12 Cal.4th at p. 660.) Although some differences in application arise, both federal and California law generally treat greater and lesser included offenses as the "same offense" for purposes of double jeopardy. (Id. at pp. 660-661; see Brown v. Ohio (1977) 432 U.S. 161, 165-169.) It is upon this treatment that defendant‟s argument both relies and ultimately founders.
"The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal." (Arizona v. Washington (1978) 434 U.S. 497, 503.) The same is true when a conviction is reversed or set aside because of insufficient evidence. (Hudson v. Louisiana (1981) 450 U.S. 40; Burks v. United States (1978) 437 U.S. 1.) The United States Supreme Court has held that an acquittal barring a second prosecution may be implied where a jury convicts on a lesser included offense after having " "a full opportunity to return a verdict‟ " on the greater charge (Price v. Georgia (1970) 398 U.S. 323, 328-329; Green v. United States (1957) 355 U.S. 184, 191), and California law has long recognized that such an "implied acquittal" bars retrial. (People v. Fields (1996) 13 Cal.4th 289, 299 (Fields); Stone v. Superior Court (1982) 31 Cal.3d 503, 511, 518-519.)
However, when a trial produces neither an acquittal nor a conviction, retrial may be permitted if the trial ended "without finally resolving the merits of the charges against the accused." (Arizona v. Washington, supra, 434 U.S. at p. 505.) In general, if a jury is discharged without returning a verdict, the double jeopardy bar applies unless manifest necessity required the discharge or the defendant consented to it. (Green v. United States, supra, 355 U.S. at p. 188.). From the time of the United States Supreme Court‟s decision in United States v. Perez (1824) 22 U.S. (9 Wheat.) 579, it has been established that the failure of a jury to agree on a verdict is an instance of "manifest necessity" permitting retrial of the defendant "because "the ends of public justice would otherwise be defeated.‟ " (Richardson v. United States (1984) 468 U.S. 317, 323-324.) California‟s application has long been the same. "Like its federal counterpart, the state rule permits retrial following discharge of a jury that has been unable to agree on a verdict. [Citations.] The rule is codified in sections 1140 and 1141, which permit retrial following discharge of a jury after the court has determined "there is no reasonable probability that the jury can agree.‟ (§ 1140; see People v. Tong (1909) 155 Cal. 579, 581.) Section 1160 implements the legal necessity doctrine in the multiple count situation by permitting the trial court to receive a verdict on one count and to discharge the jury with respect to another count on which the jury deadlocked without jeopardy attaching as to that charge. [Citation.]" (Fields, supra, 13 Cal.4th at p. 300.)
The jury in this case convicted defendant of committing a lewd act but deadlocked on the One Strike kidnapping allegation attached to that offense.*fn9
These procedural facts raise questions about whether and in what manner this sentencing allegation could be retried. If a substantive crime is charged against a defendant and the prosecution alleges additional facts bearing on sentencing, does that collective allegation of substantive crime plus sentencing factors constitute a "greater offense" than a charge of the substantive crime standing alone? We conclude a count alleging a crime plus sentencing factors is not a "greater offense" for double jeopardy purposes. Thus, if a defendant is convicted of the substantive crime but the jury ...