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The People v. Merrell A. Sanchez

March 16, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MERRELL A. SANCHEZ, DEFENDANT AND APPELLANT.



Super. Ct. No. 09F01290

The opinion of the court was delivered by: Butz, J.

P. v. Sanchez

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COPY

Following a jury trial in which he was found guilty of committing a battery (Pen. Code, § 243, subd. (d))*fn1 and causing serious bodily injury (§ 1192.7, subd. (c)(8)), defendant Merrell A. Sanchez waived his right to a jury trial as to the allegations that he had served three prior prison terms (§ 667.5, subd. (b)). The parties agreed to submit the prior prison term allegations and evidence as to those priors at the time of sentencing. Without making an express true finding on the prior prison term allegations, the trial court sentenced defendant to the midterm of three years, plus one year for each of the three prior prison term enhancements.*fn2 Shortly after sentencing, the court recalled the matter and noted "everybody" had gotten ahead of themselves at the sentencing hearing, and the prior prison term allegations had not properly been addressed. The court then admitted the People's exhibits into evidence, noted it had reviewed the evidence, expressly found the allegations true, and resentenced defendant to the same term previously indicated. On appeal, defendant challenges the court's true finding regarding the prior prison term allegations, contending the failure to make the true finding prior to sentencing at the initial hearing violated double jeopardy. We shall affirm the judgment.

FACTUAL BACKGROUND

The facts of defendant's offenses are not at issue and need not be recounted. Additional relevant procedural facts, to the extent they are necessary, will be set forth in the Discussion.

DISCUSSION

Defendant contends that at the initial sentencing hearing, the trial court's failure to expressly make a true finding as to the prior prison term allegations operated as an acquittal on those charges. Thus, he contends, jeopardy attached to those allegations and the subsequent proceeding--at which the court admitted evidence, found the prior prison term allegations true, and resentenced him--violated the prohibition against double jeopardy. It did not.

The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15, of the California Constitution preclude, "reprosecution for an offense of which a defendant has been acquitted or to which jeopardy has otherwise attached." (People v. Davis (1995) 10 Cal.4th 463, 514, fn. 10; People v. Anderson (2009) 47 Cal.4th 92, 104.)

Defendant's argument that the trial court's "silence" on the prior prison term allegations in the initial sentencing hearing necessarily acquitted him of those charges relies on a number of decisions holding that the jury's or court's failure to make a finding on a prior conviction allegation operates as an acquittal. (People v. Mesa (1975) 14 Cal.3d 466, 471; In re Candelario (1970) 3 Cal.3d 702, 706; People v. Eppinger (1895) 109 Cal. 294, 298; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440; People v. Garcia (1970) 4 Cal.App.3d 904, 907, fn. 2; People v. Huffman (1967) 248 Cal.App.2d 260, 261.) To be sure, these cases support the proposition that "'[r]eference to the prior conviction must be included in the pronouncement of judgment for if the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true.' ([In re Candelario, supra,] 3 Cal.3d at p. 706.)" (People v. Mesa, supra, 14 Cal.3d at p. 471.)

However, defendant fails to cite or distinguish cases, as in his case, where there is reference to the prior criminal history in the oral pronouncement of judgment. In such cases, the record is not "silent." Rather the oral pronouncement of judgment speaks to impliedly affirm the truth of the enhancement allegation. (People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17; People v. Chambers (2002) 104 Cal.App.4th 1047, 1050-1051.) Thus, in Clair, in bifurcated proceedings before the court on prior serious felony allegations, the trial court did not expressly find that the prior allegation was true. Nonetheless, it imposed a five-year prison term on the prior serious felony conviction. Our Supreme Court rejected the contention "that the sentence on the serious-felony enhancement must be set aside because no finding on the underlying prior-conviction allegation appears." (Clair, supra, at p. 691, fn. 17.) It reasoned: "At sentencing, the court impliedly--but sufficiently--rendered a finding of true as to the allegation when it imposed an ...


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