Opinion
A097931.
10-9-2003
THE PEOPLE, Plaintiff and Respondent, v. MAURICE CELESTINE, Defendant and Appellant.
A jury convicted defendant Maurice Celestine of robbery and attempted robbery. The trial court thereafter found two on-bail enhancements to be true. Defendant contends that his conviction and sentence should be overturned because the trial court: (1) improperly admitted the robbery victims preliminary hearing testimony despite the prosecutions lack of reasonable diligence in attempting to procure the witnesss appearance at trial; and (2) improperly reopened the trial to allow the prosecution a second opportunity to prove the on-bail allegations. We find no merit in defendants contentions, and affirm the judgment.
BACKGROUND
On November 20, 2000, defendant was charged in information No. 139837 with entering an inhabited dwelling with the intent to commit theft. (Pen. Code, § 459.) The information alleged that at the time he committed the offense, defendant had been released from custody on bail, pending trial on an earlier felony offense. (§ 12022.1.)
All statutory references are to the Penal Code, unless otherwise indicated.
On May 4, 2001, defendant was charged in amended information No. 140446B with the second degree robbery of Antone Adger (& sect; 211; count one) and the attempted first degree robbery of Michael Dong (§§ 211, 212.5, subd. (b) & 664; count two). The information alleged as to each count that at the time of the offense defendant had been released from custody on bail, pending trial on an earlier, unspecified felony offense. (§ 12022.1.) In conjunction with count one, the information alleged that defendant personally used a handgun during commission of the offense.
After jury trial commenced, the trial court granted the prosecutions motion to consolidate information No. 139837 with information No. 140446B. Before the jury was sworn, Antone Adger was deemed unavailable to testify at trial and his preliminary hearing testimony was allowed to be used instead. Defendant thereafter waived his right to a jury trial on the on-bail allegations.
The jury found defendant guilty of the attempted first degree robbery of Michael Dong and second degree robbery of Antone Adger. The jury found him not guilty of residential burglary and found the allegation of firearm use in connection with the Adger robbery not true.
Following a subsequent court trial, the court found true the on-bail enhancements as to the Adger robbery and the Dong attempted robbery. The only evidence of defendants on-bail status offered at the court trial was documentation that defendant had been on bail for the residential burglary count alleged in information No. 139837 at the time of the offenses alleged in information No. 140446B.
At the sentencing hearing, the trial court proposed to sentence defendant to seven years, eight months, including two two-year consecutive terms added for the on-bail enhancements. Defense counsel asked the court to stay imposition of the bail enhancements because defendant had, in fact, been acquitted of the only crime for which it was proven at the court trial that he had been on bail at the time of the Adger and Dong offenses.
After allowing further briefing, the trial court reopened the court trial on the on-bail allegation, and took additional evidence showing that defendant had been released on bail in another proceeding, docket No. 138890, at the time of the offenses alleged in information No. 140446B. The trial court found the on-bail enhancements true based on the evidence from docket No. 138890. It sentenced defendant to a total term of five years and eight months, including a single, two-year on-bail enhancement pursuant to section 12022.1. This timely appeal followed.
DISCUSSION
Admission of Adgers Preliminary Hearing Testimony
Defendant contends the prosecution failed to demonstrate due diligence in procuring Antone Adger as a witness for trial and the court therefore erred in permitting Adgers preliminary hearing testimony to be read to the jury.
At the preliminary hearing on information No. 140446B, Adger testified in substance as follows: Adger was sitting in his car when he was approached by seven or eight men who surrounded the car and claimed Adger owed one of their friends money. The group included Willie Breedlove and defendant, both of whom were known to Adger. Defendant pulled open the passenger door, got in the car, and produced a handgun. Defendant stuck it in Adgers rib cage and said, "Dont move; if you move, Im going to shoot you." At the same time, Breedlove opened the drivers door and began hitting Adger on the side of the face and head. Defendant put the gun to Adgers head. Breedlove tore Adgers sweatpants off of him, took $170 from his pocket, and took 60 or 70 CDs, the ignition keys, and some jewelry from Adger. Defendant took a cell phone and chain.
At trial, defendant sought to impeach Adgers preliminary hearing testimony by introducing evidence of Adgers extensive criminal record, calling attention to inconsistencies in his prior statements, and questioning why Adger had failed to testify.
Adger was incarcerated at the California Correctional Center in Susanville and was to be transported to Alameda County to appear as a witness at trial. A week before he was to testify, Adger escaped from custody. A team of law enforcement personnel, headed by a California Department of Corrections (CDC) special agent, was assigned to find Adger. After commencement of the trial, the trial court held a hearing to determine whether the prosecution had exercised due diligence in attempting to procure Adgers appearance. Inspector Jack Huth from the Alameda County District Attorneys office and Agent Leo Burgos of the CDC testified regarding their efforts to locate Adger.
Burgos testified that four agents from the CDC, three Oakland police officers, two U.S. Marshals, and two state parole agents participated in the CDC team working to find Adger. They interviewed several of Adgers acquaintances and family members. They interviewed a person with whom Adger had spoken on the telephone the night before his escape and learned that Adger had arranged for an unidentified woman to pick him up in Susanville on the night of his escape. By searching through Adgers possessions and prison records, agents eventually identified the woman and set up surveillance on her residence.
On the day after his escape, officers searched a Fremont apartment listed as his mothers residence. Officers learned that Adgers mother did not live at that address but that his ex-fiancée, a Ms. Taylor, did live there. Officers conducted surveillance at Taylors residence, and established contact with her. After Adger began calling Taylor, officers were able to communicate with him by passing messages through her. Taylor denied any knowledge of his whereabouts, but she was able to confirm that he approached her and spoke to her at a gas station in Oakland about a week after his escape.
The day before the hearing, Adger told officers that he intended to turn himself in. On the date of the hearing, agents were also about to begin surveillance of an Oakland address found for Adgers mother in his prison records. Huth testified that he contacted local hospitals, monitored Adgers rap sheet to determine if he had been taken into custody in Alameda County, and checked with the coroners office to see if Adger had been reported dead.
Defendant claims these efforts to find Adger fell short of the level of diligence required of the prosecution under People v. Cromer (2001) 24 Cal.4th 889 (Cromer). In Cromer, the prosecution was on notice of the witnesss absence fully six months before trial. (Id. at p. 903.) After learning that the witness might have moved to her mothers residence, the prosecution took no action for two days even though the case had already been called for trial. (Id. at pp. 903—904.) The prosecution investigator finally went to the mothers home after two days and learned that the mother would be out until the following day. (Id. at p. 904.) He failed to return the next day and made no attempt to contact the mother by telephone or at work. (Ibid. ) Apart from consulting computerized databases and the county jail and hospital, the prosecution made no other effort to locate the witness. (Ibid.) The Supreme Court found these efforts insufficient, especially the failure of the prosecution to adequately follow up on the promising lead that the witness had moved in with her mother. (Ibid.)
Defendant claims that the prosecution did not exercise reasonable diligence in this case because it failed to trace Adgers telephone calls with persons known to be in contact with him, failed to conduct timely and sustained surveillance at all locations he might visit, and failed to contact Adgers mother or conduct surveillance at the Oakland address found for her in Adgers prison records. However, the fact that additional efforts might have been made does not establish a lack of reasonable diligence. (People v. Cummings (1993) 4 Cal.4th 1233, 1297-1298.) Reasonable diligence does not require doing everything possible to procure a witnesss attendance. (People v. Lopez (1998) 64 Cal.App.4th 1122, 1128.)
Here, as the trial court observed, a "small battalion" of law enforcement personnel had been involved in trying to locate Adger. The search began immediately after Adgers escape. Documentary records were combed for useful information, several persons with potential knowledge of Adgers whereabouts were contacted, surveillance was conducted at two residences of persons known to have had recent contact with Adger, and a line of communication was established with him. Although it is always possible with hindsight to point out stones left unturned, it is hard to fault the prosecution for a lack of diligence on this record. The search team proactively sought promising leads and pursued the leads it found as vigorously as its resources permitted. The fact that Adger was not merely a witness, but an escapee, affords an assurance not usually present that locating him was given high priority.
Reviewing this evidence independently, Cromer, supra, 24 Cal.4th at p. 901, we conclude that the prosecution demonstrated reasonable diligence in attempting to procure Adgers appearance at trial, and the trial court properly admitted his preliminary hearing testimony when that effort failed.
Retrial of On-Bail Enhancement
Defendant asserts that the trial court erred in reopening the on-bail enhancement allegation. According to defendant, once the allegation was found not true due to his acquittal in case No. 139837, the court was barred—on grounds of double jeopardy, res judicata, and collateral estoppel—from retrying the allegation based on evidence that he was also on bail on another charge. We are not persuaded.
In People v. Monge (1997) 16 Cal.4th 826 (Monge), the California Supreme Court held that state and federal double jeopardy protections did not apply to the retrial of a sentence enhancement allegation in a noncapital case. (Id. at pp. 843—845.) The court stressed that the purpose of these protections is to " `. . . recognize the defendants interest in avoiding both the stress of repeated prosecutions and the enhanced risk of erroneous conviction. " (Id. at p. 844, quoting People v. Fields (1996) 13 Cal.4th 289, 298.) The court found that, outside of the death penalty context, the retrial of sentence enhancements presented no such risks: "[T]hough the effect on a defendants sentence may be significant, the embarrassment, expense, and anxiety of trying a prior conviction allegation are relatively minor, and the risk of an erroneous result is slight. The primary source of embarrassment is the defendants present offense, not an allegation of a prior conviction. The trial of a prior conviction allegation is relatively perfunctory, and the outcome is usually predictable." (Monge, at pp. 844—845.)
The United States Supreme Court affirmed the holding and reasoning of Monge in Monge v. California (1998) 524 U.S. 721. The Supreme Court observed that historically it had held double jeopardy protections inapplicable to noncapital sentencing determinations because such determinations "do not place a defendant in jeopardy for an `offense " and decisions favorable to the defendant in such proceedings cannot be analogized to an acquittal. (Id. at pp. 728, 729.)
In reliance on Monge and Monge v. California, the California Supreme Court held in People v. Hernandez (1998) 19 Cal.4th 835 (Hernandez) that double jeopardy principles were not implicated when a trial court reconsidered and reversed its initial determination that a five-year enhancement for a prior felony conviction did not apply. (Id. at pp. 838—843.)
Defendant contends that Monge is no longer good law in light of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). Apprendi involved the application of a New Jersey hate crimes statute that authorized extension of the sentence for certain crimes by 10 to 20 years if the trial court found by a preponderance of the evidence that the defendant committed the crime with the purpose of intimidating a person because of the persons race, color, gender, handicap, religion, sexual orientation or ethnicity. (Id. at pp. 468—469.) Apprendi rejected New Jerseys procedures for applying its hate crimes statute, holding on federal due process grounds that any factual determination increasing a criminal defendants sentence beyond the statutory maximum under state law, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. (Id. at pp. 469, 476.) According to defendant, Apprendi applied to the on-bail enhancement proceedings that occurred in this case and, if defendant was constitutionally entitled to a jury trial on the enhancement, he was also protected by double jeopardy principles.
To establish that double jeopardy protections apply to all sentencing proceedings for which a jury trial is required under Apprendi, defendant quotes the following language from Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 111 (Sattazahn): "We can think of no principled reason to distinguish, in this context, between what constitutes an offense for purposes of the Sixth Amendments jury-trial guarantee and what constitutes an `offence for purposes of the Fifth Amendments Double Jeopardy Clause. Cf. Monge [, supra, 524 U.S. 721, 738] (SCALIA, J., dissenting) (`The fundamental distinction between facts that are elements of a criminal offense and facts that go only to the sentence not only `delimits the boundaries of . . . important constitutional rights, like the Sixth Amendment right to trial by jury, but also `provides the foundation for our entire double jeopardy jurisprudence)."
However, the "context" the Court was referring to in this passage from Sattazahn was capital sentencing, not sentencing in general. Nothing in Sattazahn or Apprendi, and no other United States Supreme Court or California Supreme Court case decided since California v. Monge, has overruled the holdings of Monge and Hernandez. These cases squarely hold that noncapital sentence enhancement proceedings are not subject to double jeopardy protections. Under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, we are bound by that determination unless and until Monge and Hernandez are overruled. Accordingly, we hold that double jeopardy principles did not preclude the trial court from retrying the on-bail allegations of information No. 140446B.
We have assumed for purposes of analysis that Apprendi applies to proceedings under Penal Code section 12022.1 even though no case so holds. Some courts have construed Apprendis exception for "prior convictions" to encompass proceedings on any enhancement based on recidivism. (See People v. Thomas (2001) 91 Cal.App.4th 212, 221—222 and cases cited therein.) The purpose of section 12022.1 is precisely to punish recidivist conduct. (People v. Walker (2002) 29 Cal.4th 577, 584.) For purposes of the due process analysis made in Apprendi there seems little to distinguish a section 12022.1 on-bail allegation from a prior conviction allegation.
Defendants res judicata and collateral estoppel arguments also fall short. As stated in People v. Davis (1995) 10 Cal.4th 463: "Double jeopardy precludes reprosecution for an offense of which a defendant has been acquitted or to which jeopardy has otherwise attached. Res judicata gives conclusive effect to a final judgment on the merits in subsequent litigation of the same controversy. Collateral estoppel bars relitigation of an issue decided in a previous proceeding in a different cause of action if `(1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; and (2) the previous proceeding resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior proceeding. [Citations.]" (Id. at pp. 514—515, fn. 10.)
In this case, the trial courts original true finding on the on-bail enhancement was not a "final judgment on the merits." Further, the issue decided in the first proceeding, whether the enhancement was true as to case No. 139837, was not identical to the issue determined in the retrial, whether the allegation was true as to case No. 138890. (See People v. Scott (2000) 85 Cal.App.4th 905, 916—920 [discussing necessity for final judgment on the merits for res judicata or collateral estoppel to apply in the sentencing context].) Defendant relies principally on People v. Mitchell (2000) 81 Cal.App.4th 132 (Mitchell), which holds that retrial of a prior conviction allegation is barred by principles of res judicata and collateral estoppel after a determination has been made that the evidence was insufficient to support a true finding on the allegation. We agree with those cases that have rejected Mitchells analysis and found no equitable bar to retrial of a sentencing enhancement allegation. (See, e.g., People v. Sotello (2002) 94 Cal.App.4th 1349, 1356; People v. Franz (2001) 88 Cal.App.4th 1426, 1455; Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1301—1305.)
Defendant was never sentenced based on a finding that he was on bail for residential burglary at the time of his current offenses, nor was he ever "acquitted" of having been on bail when he committed those offenses. The trial of the on-bail allegation was simply reopened based on additional facts not before the court in the first proceeding, facts that the defendant has never disputed. We perceive no abuse of discretion in this procedure and no violation of defendants right to finality, whether grounded in principles of equity or of double jeopardy.
DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J. and Stein, J.