IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
March 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MERRELL A. SANCHEZ, DEFENDANT AND APPELLANT.
Super. Ct. No. 09F01290
The opinion of the court was delivered by: Butz, J.
P. v. Sanchez
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.
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.
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 enhancement expressly for the underlying prior conviction." (Ibid.; see also Chambers, supra, at pp. 1050-1051 [trial court impliedly and sufficiently rendered true finding regarding firearm use allegation when it imposed a 10-year enhancement for underlying use of firearm].)
As in Clair and Chambers, the court here imposed sentence on all three of the prior prison term enhancements. The court delineated each of the offenses underlying the prior prison terms and the year the conviction was sustained. The court also noted at the second hearing that when it initially sentenced defendant, that sentence was based on its "understanding that these had already been proven."*fn3 Thus, on this record the evidence contradicts any inference that the omission at the initial sentencing was intended as an act of leniency by the court. Accordingly, on this record, the court's silence at the initial sentencing hearing acted not as an implied acquittal on the prior prison term allegations, but as an implied finding of true.
However, it appears from the record that at the time the court made its implied true finding, it had not admitted the exhibits supporting this finding into evidence. Thus, at that time, there was insufficient evidence to support the findings. To remedy this error, the court held a second hearing. This process also did not violate double jeopardy. Double jeopardy does not apply to non-capital sentencing determinations based on a defendant's prior criminal history. (People v. Seel (2004) 34 Cal.4th 535, 541-542; People v. Barragan (2004) 32 Cal.4th 236, 239; People v. Monge (1997) 16 Cal.4th 826, 844-845, cert. granted in part & affd. sub nom. Monge v. California (1998) 524 U.S. 721, 728-729, 734 [141 L.Ed.2d 615, 623-624, 628].)
Defendant argues the prior decisions in Monge are no longer viable as they were decided before Jones v. United States (1999) 526 U.S. 227 [143 L.Ed.2d 311], Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] and Shepard v. United States (2005) 544 U.S. 13 [161 L.Ed.2d 205]. These cases are inapposite, as none involved a double jeopardy claim. Apprendi distinguishes itself from Monge on this very point (compare Apprendi, supra, 530 U.S. at p. 488, fn. 14 [147 L.Ed.2d at p. 454] with Monge v. California, supra, 524 U.S. at pp. 728-729, 734 [141 L.Ed.2d at pp. 623-624, 628]). The Monge decisions remain good law and govern our determination. "Until our Supreme Court decides otherwise, we are bound to follow [People v.] Monge, [supra, 16 Cal.4th 826] and therefore, we are not at liberty to find that a retrial in this matter is barred by the principles of double jeopardy. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)" (Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1303.)
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J. MAURO , J.