Opinion
Review Granted May 13, 1993.
Previously published at 13 Cal.App.4th 630, 18 Cal.App.4th 1339
Janice Wellborn, San Francisco, and Janyce Keiko Imata Blair, El Sugundo, under appointments by the Court of Appeal, and Lynda Romero, San Diego, for defendants and appellants.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Pat Zaharopoulos, Supervising Deputy Atty. Gen., and Garrett Beaumont, Deputy Atty. Gen., for plaintiff and respondent.
OPINION
DABNEY, Associate Justice.
Defendants appeal from the judgments entered against them claiming that the trial court failed to obtain a valid waiver by defendants of their right to a jury trial on
FACTS
By amended information filed in July 1990, defendants were charged with one count of robbery in violation of Penal Code section 211. Defendant Ward was further charged, in count II, with falsely representing his identity to a police officer in violation of Penal Code section 148.9, subdivision (a).
Count I further alleged, under Penal Code section 667.9, that at the time of the offense the victim was 65 years old or older. This allegation would result in enhanced punishment. The court subsequently permitted an amendment to the information to allege that the victim was over 60 years of age at the time of the offense within the meaning of Penal Code section 1203.09. This allegation would render the defendant ineligible for probation.
The information alleged as a prior offense punishable by a five-year sentence enhancement under Penal Code section 667 that defendant Ward had been convicted in 1986 of burglary in the first degree (Pen.Code, § 459) for which he was convicted and served a term in state prison. As a second prior offense, punishable by a one-year consecutive enhancement under Penal Code section 667.5, subdivision (b), the information alleged that Ward had committed a further offense within five years of the conclusion of the term served for the 1986 burglary.
As a third prior offense the information alleged that in August 1989 Ward had been convicted of, and had served a prison term for, possession of a controlled substance in violation of Health and Safety Code section 11350, and that under Penal Code section 667.5, subdivision (b), Ward was subject to a one-year enhancement because he had committed additional offenses within five years of the end of that prison term.
As a fourth prior offense alleged against defendant Rogers the information stated that in December 1983 Rogers was convicted of petty theft with a prior, a felony, in violation of Penal Code section 666, and was subject to a one-year enhancement under Penal Code section 667.5, subdivision (b), as described above.
At the time of trial on the priors the prosecution asked permission to amend the information to allege that the fourth prior offense in fact had occurred on July 11, 1985. That request was denied by the trial court.
The fifth and final prior offense in the information alleged that in December 1983 defendant Rogers had been convicted of possession of a controlled substance, a felony, in violation of Health and Safety Code section 11377, that he committed another felony during the subsequent five years, and that he was subject to a one-year enhancement under Penal Code section 667.5, subdivision (b).
As a preliminary matter the court bifurcated trial on the prior conviction issues leaving those issues to be tried, if necessary, at the conclusion of the case. At the end of the trial but before the jury verdict was announced the trial court asked whether defendants wished to have a jury trial on the prior convictions. The reporter's transcript reveals the following exchange:
"THE COURT: Do the defendants wish to have jury trial, assuming, or if they are convicted, that is the only time that the "Is there any request by the defendants with regard to whether they want to have the jury hear that issue, if it does apply, or would they waive jury trial?
"[Counsel for defendant Ward]: Your Honor, I've talked to Mr. Ward. Should the jury come back to a conviction, it would be his wish to waive this jury deciding the priors and allow the Court to make the decision on the priors, Your Honor.
"[Counsel for defendant Rogers]: Your Honor, I discussed the matter with Mr. Rogers and at this time, if it is necessary to go into the priors, we would also be waiving jury on those issues.
"THE COURT: Court would accept those waivers...."
The jury found both defendants guilty of robbery in the second degree charged under count I; found that the victim was over the age of 60; and found defendant Ward guilty under count II of giving false information to a peace officer. The jury was then discharged.
At a court trial held the same day on the prior offenses the trial court found the allegations as the to the first, second and third prior offenses relating to Ward to be true and found the allegations as to the fourth and fifth prior offenses relating to defendant Rogers also to be true.
At a subsequent sentencing hearing counsel for defendant Ward, joined by counsel for Rogers, renewed a motion for a new trial or reduction in the penalty. In denying the motion the trial court made the following statement:
"THE COURT: I have--as I indicated, I've read the motion, also having heard the trial, I thought that the evidence with regard to the robbery was a little on the weak side. However, I think [the prosecutor] did make a strong point with regard to what the intent was when the wallet was taken from ... the victim in this case. And also, I think there was sufficient evidence that the jury could conclude that the keys were taken, it was circumstantial, but that the keys were taken, and I think that the jury could have found and apparently did find that the intent with which the keys were taken from the vehicle or from [the victim] for the vehicle was to permanently deprive him of the keys and/or the vehicle.
"On that basis, the court will deny the motion for new trial and also the motion for the reduction in the term. I do admit, however, I think it was a very close case with regard to the question of whether it was robbery or attempt[ed] robbery, but I feel there was sufficient evidence for the jury to conclude that it was a robbery, and I do not feel that under the factors of this case and the law that has been cited that it would be appropriate for me to interpose my opinion over and above that of the jurors who did hear the evidence. They heard the instructions. They had the instructions with them in the jury room, and after their due deliberation, returned a verdict of guilty of robbery in the second degree."
Defendant Ward was sentenced to the midterm of three years on the robbery conviction; a two-year enhancement under Penal Code section 667.9 for a victim over the age of 65; a five-year enhancement under Penal Code section 667 for the prior offense; and a one-year enhancement under Penal Code section 667.5, subdivision (b), for a felony committed within five years of completing a prison term. In total, a sentence of 11 years was imposed on Ward.
The jury returned a finding pursuant to Penal Code section 1203.09 that the victim was over 60 years of age. The court at the bifurcated portion of the trial found true the allegation that the victim was over 65 years of age at the time of the offense. The undisputed evidence showed the victim was in fact over the age of 65 (69) at the time of the offense.
Defendant Rogers was sentenced to the upper term of five years on the second degree robbery. Because the prosecution had not been timely in asking to amend the date on the fourth prior offense set forth in the information, the prosecution sought, and the court imposed, only a single one-year enhancement as to defendant Rogers. The total term imposed on Rogers on the
Both defendants have appealed.
DISCUSSION
On appeal defendants claim that we must reverse the prior-felony-conviction findings because the trial court failed to obtain a valid waiver by defendants of their right to a jury trial on the prior-conviction allegations in the information. They further claim that the trial court applied the wrong legal standard in ruling on the motion for a new trial.
Defendant Ward specifically seeks reversal only of the five-year enhancement under Penal Code section 667 and the one-year enhancement under Penal Code section 667.5, subdivision (b). The propriety of the enhancement under Penal Code section 667.9 is not therefore before us and we express no opinion upon it.
I
Waiver of Jury Trial on Prior-Conviction Allegations
Article I, section 16 of the California Constitution states, in relevant part, that "A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel." The California Supreme Court has applied this requirement literally to mean that waiver by counsel, even in the presence of defendant, is not sufficient. (People v. Holmes (1960) 54 Cal.2d 442, 444, 5 Cal.Rptr. 871, 353 P.2d 583.)
In Holmes, the defendant was asked whether he understood that he had a right to have a jury determine his guilt or innocence of the charged offense and also whether he understood that he had a right to have a jury determine the truth of an alleged prior felony conviction. Defendant answered, "Yes." Counsel for defendant then stated "I join in the waiver." (Holmes, supra, 54 Cal.2d at p. 443, 5 Cal.Rptr. 871, 353 P.2d 583.) At no time, however, was the defendant asked whether he waived his right to a jury trial. The Supreme Court reversed the conviction, stating: "Defendant did not express in words a waiver of his right to a jury trial, and it has been uniformly held that the waiver must be so expressed and will not be implied from a defendant's conduct. [Citations.]" (Id., at pp. 443-444, 5 Cal.Rptr. 871, 353 P.2d 583.)
The right to a jury trial includes the right to have a jury decide whether defendant has suffered a previous conviction charged in a criminal information. (People v. Ford (1964) 60 Cal.2d 772, 794, 36 Cal.Rptr. 620, 388 P.2d 892.) As with a charged offense, waiver of a jury trial on the issue of a prior conviction will not be implied. In addition, under Penal Code section 1025 the question whether defendant has suffered the previous conviction must be tried by the same jury which hears the substantive offense.
Penal Code section 1025 states, in relevant part: "When a defendant who is charged in the accusatory pleading with having suffered a previous conviction pleads either guilty or not guilty of the offense charged against him, he must be asked whether he has suffered such previous conviction.... If he answers that he has not, his answer must be entered in the minutes of the court, and the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue ... or by the court if a jury is waived...." (Emphasis added.)
In the case before us neither defendant expressed in words a waiver of the right to a jury trial on the prior convictions alleged in the information. Although defendants were present at the time of the purported waiver, and counsel for both defendants stated that they were carrying out the wishes of their clients, the standard stated in Holmes was not satisfied.
In their respondent's brief on appeal the People offered authority in support of a different standard for evaluating the waiver in this case. Both cases cited by the People have been granted review by the California Supreme Court, however, and therefore are not properly considered as authority by this court.
At oral argument before this court counsel for defendants presented argument,
First, unlike the Boykin/ Tahl waivers considered in Howard, whose scope had been established by the courts, the specific requirement that the right to a jury trial be waived by both defendant and counsel is stated in the California Constitution. (Cal. Const., art. I, § 16; "A jury may be waived in a criminal cause by the consent ... expressed in open court by the defendant and the defendant's counsel.") As we have discussed above, previous decisions of the California Supreme Court have established that the defendant's silence is insufficient to satisfy the constitutional requirement. (Cf. People v. Upshaw (1974) 13 Cal.3d 29, 34, 117 Cal.Rptr. 668, 528 P.2d 756 [rejecting prosecution's argument that knowing and intelligent waiver of jury trial by defendant alone was sufficient; "the crucial circumstance here is the mandatory language of article I, section 16, which specifically provides that defense counsel must consent to the jury waiver"].)
We are reluctant to infer, contrary to existing Supreme Court decisions, that People v. Howard, supra, 1 Cal.4th 1132, 5 Cal.Rptr.2d 268, 824 P.2d 1315, has now implied that we may look beyond the defendant's silence to the "totality of the circumstances," in determining a proper waiver of jury trial. We prefer instead to await further clarification by the Supreme Court itself or by the Legislature and the electorate.
Second, even if we were to read Howard as permitting this court to determine whether a proper knowing and voluntary waiver was made "under the totality of the circumstances," we would decline to so find on this record. Two cases which have applied Howard provide a useful contrast. Both cases involved waivers of constitutional rights preceding admission of priors.
In People v. Moore (1992) 8 Cal.App.4th 411, 10 Cal.Rptr.2d 286 the defendant was not personally admonished of his rights before taking the plea. Rather, the record showed only counsel's stipulation to the prior and his statement that the defendant wished to admit it. The totality of the circumstances did not support a waiver in Moore.
In People v. Randle (1992) 8 Cal.App.4th 1023, 10 Cal.Rptr.2d 804, on the other hand, the defendant expressly discussed the waiver of rights on the record. He expressly waived the rights of confrontation and against self-incrimination. He appeared to have some confusion about his right to jury trial and consulted with counsel off the record. He did not expressly waive jury trial. Under the totality of the circumstances there shown, the Randle court found a valid waiver.
Here, the facts much more closely resemble Moore. We have only counsels' representation on the record that defendants would wish to waive jury trial on the priors. In the absence of anything further, it is unclear that the "totality of the circumstances" affirmatively demonstrate a knowing and intelligent waiver by both defendants and their respective counsel.
We conclude that the trial court's findings as to the prior convictions were made in violation of the constitutional rights of the defendants and therefore must be reversed. Accordingly, we must also vacate the five-year enhancement under Penal Code section 667 and the one-year enhancement under Penal Code section 667.5, subdivision (b), as to defendant Ward, and the one-year enhancement under Penal Code A. Retrial of Priors
Relying on People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, and its progeny, defendants here also argue that relitigation of the prior-conviction allegations is barred by the double jeopardy clauses of the federal and state Constitutions. The contention raises complex and serious questions deserving of a more substantial explication than has been heretofore undertaken in the cases considering the issue. For the reasons detailed below, we reject the contention.
We have determined, after careful consideration, that the prior-conviction allegations may be retried. In our view, none of the cases previously discussing the problem have come fully to grips with the double jeopardy question; under a proper analysis, however, it is clear the prior conviction allegations do not implicate double jeopardy and hence there is no bar to retrial.
1. Background of the Problem
The problem of premature discharge of the jury arises as a result of People v. Bracamonte (1981) 119 Cal.App.3d 644, 174 Cal.Rptr. 191. The court created a new rule of practice bifurcating trial on the prior-conviction allegations from trial on the substantive offenses. The bifurcated procedure would come within the literal terms of Penal Code section 1025--requiring that the prior must be tried by "the same jury" which tried the issue of substantive guilt--without running the risk of undue prejudice at the guilt trial from evidence of prior crimes. (Bracamonte, supra, at pp. 650-651, 174 Cal.Rptr. 191.)
Inevitably, as numerous cases attest, courts have inadvertently (or, as here, in the mistaken belief that a proper waiver had been given) discharged the jury before taking personal waivers of jury trial on the priors. The question then arose as to the appropriate disposition of the prior-conviction allegations.
2. Wojahn
In Wojahn, the First District Court of Appeal held that the terms of Penal Code section 1025 do not permit the court to impanel a new jury to try the prior, for good cause or any cause. The same jury was statutorily mandated to hear both aspects of the trial. Thus, the Wojahn court reasoned, "when the jury was sworn, it was sworn to try both the issue of guilt of the substantive criminal offense and the issue of the truth of the alleged prior conviction. Consequently jeopardy attached to both issues. When the trial court improvidently discharged the jury after it returned a guilty verdict but before the issue of the prior conviction was tendered to it, double jeopardy considerations prohibited the impanelling of a new jury to try the issue of the prior conviction." (People v. Wojahn, supra, 150 Cal.App.3d at p. 1035, 198 Cal.Rptr. 277.)
3. Cases Following Wojahn: Hockersmith, Dee and West
Wojahn has been followed in several subsequent cases. In People v. Hockersmith (1990) 217 Cal.App.3d 968, 266 Cal.Rptr. 380, there was no bifurcation and no waiver of jury trial on the prior-conviction allegation. The record did not show the jury considered and decided the issue of truth of the prior, or that there was any hearing or evidence on the issue. The Fourth District, Division Three held: "Jeopardy attaches in criminal cases when a jury is impaneled and sworn to try a case. [Citations.] If a criminal conviction is reversed for insufficiency of the evidence the principles of double jeopardy prevent a retrial ... [because] ' "The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials." [Citations.]' " (Id., at p. 972, 266 Cal.Rptr. 380.) The court held, in reliance on People v. Jones (1988) 203 Cal.App.3d 456, 249 Cal.Rptr. 840, that the same double jeopardy rules "apply in the context of a trial of a prior conviction when insufficient evidence The People then argued that jeopardy did not attach to the prior-conviction allegations because they were not substantive offenses but involved punishment. The Hockersmith court rejected the People's argument. In reliance on Arizona v. Rumsey (1984) 467 U.S. 203, 209-211, 104 S.Ct. 2305, 2309-2310, 81 L.Ed.2d 164, 170-171 and other cases, the court held that two factors determine whether jeopardy attaches: "1) whether the procedures involved in adjudicating the issue are those traditionally associated with criminal trials, and; 2) whether the sanction imposed as a consequence of the determination is punitive in nature." (People v. Hockersmith, supra, 217 Cal.App.3d at pp. 972-973, 266 Cal.Rptr. 380.) Because the prior-conviction allegation is charged in a pleading, because the defendant must be arraigned and enter a plea, because the matter is tried to a jury and the prosecutor must prove the prior beyond a reasonable doubt, the procedures were like those in criminal trials. In addition, because the sanction (there, mandatory incarceration on account of ineligibility for probation; an enhancement prior increases the prison sentence) was punitive, jeopardy attached. (Id. at p. 973, 266 Cal.Rptr. 380.)
The Hockersmith court further relied on People v. Bonner (1979) 97 Cal.App.3d 573, 158 Cal.Rptr. 821 as having "debunked the ... theory that because a prior conviction allegation involves only increased punishment double jeopardy principles are inapplicable." (People v. Hockersmith, supra, 217 Cal.App.3d at p. 974, 266 Cal.Rptr. 380.) Accordingly, the court determined that Wojahn was correctly decided and double jeopardy precluded remand for a new trial on the prior-conviction allegation.
People v. Dee (1990) 222 Cal.App.3d 760, 272 Cal.Rptr. 208, followed Wojahn and adopted the reasoning of Hockersmith: because the procedures with respect to the priors were like criminal trial procedures and because the consequence of the determination (enhancement of sentence) was punitive, jeopardy had attached. (Id. at pp. 763, 765, 272 Cal.Rptr. 208.)
This court in People v. West (1990) 224 Cal.App.3d 1283, 274 Cal.Rptr. 524, followed Wojahn, Hockersmith and Dee without extensive analysis.
Upon a deeper examination of the double jeopardy clause, however, and its application to increased punishment for recidivist criminal conduct in particular, we are now convinced that double jeopardy generally does not attach to prior-conviction allegations.
4. The Double Jeopardy Clause
The double jeopardy clause of the federal Constitution states: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." (U.S. Const., 5th Amend.)
The purpose underlying the provision "is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." (Green v. United States (1957) 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204; Benton v. Maryland (1969) 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707.)
The double jeopardy clause actually embraces three separate rules prohibiting (1) reprosecution for the same offense after an acquittal, (2) reprosecution for the same offense after a conviction, and (3) multiple punishment for the same offense. (United States v. Coke (2d Cir.1968) 404 F.2d 836; Patton v. North Carolina (4th Cir.1967) 381 F.2d 636, cert. den. 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871.) Applicable rules of construction also guide our examination of the double jeopardy clause. The relevant rules instruct, among other things, that interpretation should begin with the language of the provision itself. In addition, the provision should be construed in a manner consistent with and not contrary to its purpose.
5. Recidivist Enhancement Provisions and Double Jeopardy
With the preceding precepts in mind, we analyze the applicability of the double jeopardy clause to enhanced punishment for the recidivist criminal conduct.
a. Enhancements Punish the New Offense, Not the Old
Recidivist enhancement provisions were initially challenged with respect to the double jeopardy clause as imposing a double punishment or retrial for the prior offense. It has uniformly been held that the recidivist proceeding is not a double punishment for or retrial of the original offense.
The United States Supreme Court resolved this question in 1895 in Moore v. State of Missouri (1895) 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301. The court noted that special punishment statutes for recidivist criminals "have been contained in state statutes for many years and they have been uniformly sustained by the courts.... 'The increased severity of the punishment for the subsequent offense is not a punishment for the same offense for the second time, but a severer punishment for the subsequent offense.... The averments as to the former offense go as to the punishment only.' [Citations.]" (Id. at pp. 676-677, 16 S.Ct. at p. 181, 40 L.Ed. at p. 303.)
The recidivist punishment applies to the new offense (1) because it is triggered by the latest offense, but is the more severe on account of the situation the offender previously brought upon himself; (2) a more severe sentence should apply to a new crime because the normal punishment has previously proved ineffective in reforming the defendant's conduct; (3) the persistence of criminal behavior demonstrates a greater depravity, meriting more severe punishment; and (4) the repetition of offenses aggravates guilt. The Supreme Court held, consequently, that statutes may provide greater punishment for second offenders than for first offenders without violating the double jeopardy clause. (Moore v. State of Missouri, supra, 159 U.S. at pp. 677-678, 16 S.Ct. at p. 181, 40 L.Ed. at p. 303.)
The court reaffirmed this view in McDonald v. Massachusetts (1901) 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542, stating that the statute was "aimed at habitual criminals," and that the punishment prescribed "is for the new crime only, but is the heavier if he is an habitual criminal." (Id. at p. 312, 21 S.Ct. at p. 390, 45 L.Ed. at pp. 546-547.) The prior-conviction allegation "is not a distinct charge of crimes, .. and goes to the punishment only." (Id. at p. 313, 21 S.Ct. at p. 390, 45 L.Ed. at p. 547.) Further, the statute "impos[es] a punishment on none but future crimes" and does not place the defendant in double jeopardy. (Ibid.)
In Gryger v. Burke (1948) 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 the defendant claimed his habitual offender conviction was improper because one of the convictions on which the finding of habitual criminality was based had occurred before enactment of the habitual offender statute. The United States Supreme Court rejected double jeopardy and ex post facto claims, because "[t]he sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one." (Id. at p. 732, 68 S.Ct. at p. 1258, 92 L.Ed. at p. 1687.)
Many other cases reiterate the point. California courts also have a long history establishing that recidivist enhancements are not a second jeopardy, but are in consequence of the new offense. (People v. Stanley (1873) 47 Cal. 113; People v. Lewis (1883) 64 Cal. 401, 404, 1 P. 490; see also People v. Johnson (1979) 95 Cal.App.3d 352, 357, 157 Cal.Rptr. 150; In re Aaron N. (1977) 70 Cal.App.3d 931, 940, b. Recidivist Enhancements Are Not "Offenses"
The appropriate conclusion, which has been universally drawn, is that recidivist penalties do not define a separate offense, but only go to punishment or sentencing. (See McDonald v. Massachusetts, supra, 180 U.S. at p. 313, 21 S.Ct. at p. 390, 45 L.Ed. at p. 547 ["The allegation of previous convictions is not a distinct charge of crimes, but ... goes to the punishment only"]; Oyler v. Boles (1962) 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446, 450 [West Virginia] ["habitual criminal charge does not state a separate offense" and "the determination of whether one is an habitual criminal is 'essentially independent' of the determination of guilt on the underlying substantive offense"]; Graham v. West Virginia (1912) 224 U.S. 616, 624, 32 S.Ct. 583, 586, 56 L.Ed. 917, 921 ["By this [habitual offender] proceeding he was not held to answer for an offense; the information did not allege crime"]; Davis v. Bennett (8th Cir.1968) 400 F.2d 279, 281 [Iowa] ["the habitual offender statute does not create a separate and distinct crime, but is merely relevant in determining the penalty to be imposed should a conviction be obtained on the 'primary' charge."]; Duffel v. Dutton (6th Cir.1986) 785 F.2d 131, 135 [Tennessee] ["habitual criminal statutes do not create separate crimes, but merely define the circumstances under which an enhanced punishment may be imposed for a charged offense. [Citation.] Just as habitual criminality is not an independent crime, enhancement is not a separate punishment."]; State v. Rogers (1979) 93 N.M. 519, 602 P.2d 616, 618 ["An habitual proceeding involves only sentencing, not trial of an 'offense', and therefore jeopardy does not attach."]; State v. Hill (La.1976) 340 So.2d 309, 311 ["the bill of information 'accusing the person of a previous conviction' is not a charge of a criminal offense which is subject to ... bans on double jeopardy. ... [A] multiple bill proceeding is in the nature, merely, of an enhancement of penalty rather than of a prosecution for a crime."].)
The Fifth Amendment provides that no person shall be "subject for the same offense to be twice put in jeopardy life or limb; ..." Recidivist enhancements are not "offenses;" by the literal terms of the double jeopardy clause itself, therefore, double jeopardy would not appear to be applicable to enhancement priors. Recidivist enhancements merely describe a status or characteristic of the person, (i.e., the offender) which renders it appropriate to impose greater, not multiple, punishment.
c. Recidivist Enhancements Merely Define a Status
As suggested in People v. Dutton, supra, 9 Cal.2d at page 507, 71 P.2d 218, many cases support the view that recidivist enhancements are not separate "crimes" or "offenses," but in fact punish the person on account of a particular status of being a multiple offender, creating a special class of incorrigible convicts who are thus deserving of more severe punishment. (Accord, People v. Johnson, supra, 95 Cal.App.3d at pp. 357-358, 157 Cal.Rptr. 150; Hardin v. Commonwealth (Ky.1978) 573 S.W.2d 657, 661 ["We have held, and it is universally recognized, that a person who d. Double Jeopardy Does Not Bar Retrial of Enhancements
Following the rules established in the above-mentioned cases, the courts have broadly held double jeopardy inapplicable to recidivist penalty proceedings. Accordingly, courts have routinely permitted retrial of recidivist punishment allegations, expressly finding no double jeopardy bar. (Davis v. Bennett, supra, 400 F.2d at pp. 280, 282 [at first trial, defendant was found guilty of primary robbery charge; jury returned no verdict on "habitual criminal" charge. On defendant's appeal, new trial was ordered. After second trial, jury convicted of robbery and answered affirmative interrogatories as to defendant's prior felonies. Iowa Supreme Court rejected claims of double jeopardy. Federal Court of Appeals upheld the second trial, denying habeas relief on the ground that "since habitual criminal statutes do not constitute separate offenses, they do not violate double jeopardy as to prior convictions."]; Duffel v. Dutton, supra, 785 F.2d at pp. 132-133 [state trial court erroneously excluded evidence relating to proof of defendant's qualifying prior felonies, but jury nonetheless found defendant to be an habitual criminal. Defendant appealed, alleging insufficiency of the evidence. The evidence was insufficient, but only because the evidence was erroneously excluded. The state court remanded for retrial; defendant was again found to be an habitual criminal. The Circuit Court of Appeals rejected defendant's habeas corpus claim of double jeopardy]; State v. Rogers, supra, 602 P.2d at pp. 618-619 [proof of prior convictions on habitual criminal charge did not show sequential dates of prior offenses. Court held "An habitual proceeding involves only sentencing, not trial of an 'offense', and therefore jeopardy does not attach. [Citations.] No impediment exists if the State, at a new trial, can furnish proof of the sequential order of commission of the felonies, thus establishing that [defendant] is a four-time felony offender...."]; State v. Linam (1979) 93 N.M. 307, 600 P.2d 253, 256, cert. den. sub nom. Linam v. New Mexico (1979) 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 [Court reversed habitual criminal finding because the offenses were not shown to be sequential, stating "Because an habitual criminal proceeding involves only sentencing, not trial of an 'offense', and therefore jeopardy does not attach, [citations], we remand for a new trial."]; State v. McIntyre e. Double Jeopardy Does Not Apply to Sentencing Generally
The United States Supreme Court has specifically "resisted attempts to extend [the] principle [of double jeopardy, barring retrial of a defendant who has been acquitted of an offense,] to sentencing. The imposition of a particular sentence usually is not regarded as an 'acquittal' of any more severe sentence that could have been imposed. The Court generally has concluded, therefore, that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside. [Citations.]" (Bullington v. Missouri (1981) 451 U.S. 430, 438, 101 S.Ct. 1852, 1857, 68 L.Ed.2d 270, 278.)
i. Exception for Capital Penalty Sentencing Trials
The court made an exception in Bullington, however, for a death penalty sentencing determination, in which a separate trial was had, limited to issues of finding applicable mitigating or aggravating circumstances, and in which the jury was required to find one of two penalties (death or life imprisonment without parole for 50 years) beyond a reasonable doubt. The court appeared to rest its departure from the ordinary rule--that double jeopardy does not apply to sentencing determinations--on the consideration that the capital sentence proceeding essentially resembled a trial of guilt or innocence on the issue of sentence. The sentencer's discretion was closely limited to two choices and the prosecutor in effect had to "prove the case" as to penalty beyond a reasonable doubt; if he failed to do so, that verdict of "acquittal" would prevent retrial and would not allow the government another opportunity to seek the ultimate penalty. Thus, a verdict of life imprisonment at the first trial was an "acquittal" on the penalty of death for double jeopardy purposes.
The court followed up its holding in Bullington with Arizona v. Rumsey (1984) 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 three years later. There, the Arizona death sentencing proceeding also resembled the Missouri capital determination. The sentencer (the trial judge in Arizona; the jury in Missouri) was required to choose one of two penalties based on statutory standards defining aggravating and mitigating circumstances. Because it legally misconstrued the statutory aggravating factors, the trial court returned a sentence of life imprisonment. The state reviewing court determined the sentence was erroneous. The United States Supreme Court held, however, that the double jeopardy clause would bar retrial of the capital penalty sentence, as in Bullington. The Supreme Court reiterated that the capital sentencing could not be remanded because the proceeding was like a trial.
f. Do "Criminal Trial Proceeding" and "Criminal Penalty" Factors Determine Whether Double Jeopardy Applies to Recidivist Enhancements?
As noted above, the Wojahn cases, particularly People v. Hockersmith, supra, 217 Cal.App.3d 968, 266 Cal.Rptr. 380 and People v. Dee, supra, 222 Cal.App.3d 760, 272 Cal.Rptr. 208, seized on Bullington,
Bullington v. Missouri, supra, 451 U.S. 430, 437-438, 101 S.Ct. 1852, 1857, 68 L.Ed.2d 270, 278.
This rote and facile approach does not withstand analysis.
i. Double Jeopardy Policy and Death Sentencing
The exception to the general rule--that double jeopardy considerations do not apply to sentencing--for the kind of death sentence trials at issue in Bullington v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 and Arizona v. Rumsey, supra, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164, is supportable in light of the peculiar and unique question at issue--the defendant's life--and is fully consistent with the most important policies underlying the double jeopardy clause.
The double jeopardy clause is intended, as we have previously noted, to protect the accused not only against double punishment, but also against the harassment and ordeal of multiple trials. (Bullington v. Missouri, supra, 451, U.S. 430, 450, 101 S.Ct. 1852, 1864, 68 L.Ed.2d 270, 283, citing Green v. United States, supra, 355 U.S. at pp. 187-188, 78 S.Ct. at p. 223, 2 L.Ed.2d at p. 204.)
One of the fundamental tenets of double jeopardy doctrine, as we have noted, is that the state, with all its power and resources, should not be permitted multiple opportunities to subject the accused to a trial, i.e., until the state obtains the result it desires. As the court observed in Breed v. Jones, supra, 421 U.S. at p. 528, 95 S.Ct. at p. 1785, 44 L.Ed.2d at p. 354, "Jeopardy denotes risk." A death penalty determination is peculiarly subject to the risk that, if the penalty phase is permitted to be retried without regard to double jeopardy limitations merely because the issue goes only to "sentencing," the state will be able simply by reason of its superior resources alone to conduct multiple penalty trials until it obtains the result it desires. Where the issue is death, the risk of unfairness is both unique and devastatingly irreparable.
The flip side of the policy that the state should not be allowed to overbear justice with its superior resources is the related idea that the accused should not have to expend his or her lesser resources in multiple defenses. The Bullington court expressed concern that the " 'embarrassment, expense and ordeal' and the 'anxiety and insecurity' faced by a defendant at the penalty phase of a ... capital murder trial surely are at least equivalent to that ii. Recidivist Enhancements Have Not Been Held Subject to Double Jeopardy Despite "Criminal Trial Proceedings" and "Criminal Sanction"
However, it cannot be implied that the United States Supreme Court intended to alter double jeopardy law with respect to sentencing generally or with respect to recidivist punishment proceedings in particular. In fact, the high court's recent pronouncements demonstrate quite the opposite. In Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391, the court iterated that "Statutes that punish recidivists more severely than first offenders have a long tradition in this country that dates back to colonial times. [Citations.] Such laws currently are in effect in all 50 States [citations], and several have been enacted by the Federal Government, as well, [citations]. [p] States have a valid purpose in deterring and segregating habitual criminals. [Citation.] We have said before that a charge under a recidivism statute does not state a separate offense, but goes to punishment only. [Citations.] And we have repeatedly upheld recidivism statutes 'against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities.' [Citations.]" (Id., 506 U.S. at p. ----, 113 S.Ct. at pp. 521-522, 121 L.Ed.2d at pp. 401-402.)
The difference with respect to Bullington v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 and Arizona v. Rumsey, supra, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164, lies not in the fact that the determinations there at issue had procedural trappings similar to criminal trials, nor merely in the fact that the consequence of the proceeding was a criminal sanction: The United States Supreme Court has demonstrated its awareness on many occasions of the fact that state recidivist proceedings are in the nature of a criminal trial; indeed, many states file an information or indictment for the nominal "offense" of being an habitual criminal, the defendant is arraigned, trial is to a court or jury, and the necessary findings are sometimes made beyond a reasonable doubt. g. "Acquittal" or "Conviction" on Recidivist Determination
In Moore v. Missouri, supra, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301, the indictment included as a charge that the defendant had suffered a former conviction, the defendant was arraigned, the trial was to a jury on that charge, and the jury fixed sentence at life imprisonment pursuant to the recidivist statute; held, double jeopardy inapplicable.
The universal and historical treatment of recidivist enhancement allegations compels the conclusion that jeopardy does not attach to these determinations. We advert again to the principle that double jeopardy is a bar not only to double punishment for the same offense, but also to retrial. If the defendant is convicted of an offense, he may not be retried; likewise, if he is acquitted, no retrial may be had.
This rule has been applied so that, for example, if the jury returns a verdict finding the defendant guilty of a lesser included offense of the charged offense, the verdict is deemed an acquittal of the greater offense. Consequently, the defendant may not be retried on the original charge should he succeed in overturning the conviction on the lesser offense and obtaining a new trial. (Green v. United States, supra, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199.)
As noted, the rule does not apply with respect to sentencing matters generally, however. The fact that a particular sentence has been imposed is thus not an implied "acquittal" of any greater sentence within the range of possible sentences that might have been imposed. (Bullington v. Missouri, supra, 451 U.S. at p. 438, 101 S.Ct. at p. 1857, 68 L.Ed.2d at p. 278; North Carolina v. Pearce (1969) 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656.)
For similar reasons, jeopardy does not attach to recidivist enhancement determinations. Otherwise, the state would not be able, for example, to fashion an effective Again, if jeopardy truly attached to recidivist proceedings, it would bar any subsequent use of the prior. Thus, if a prior were alleged and proved with respect to trial of one offense, it could not be again alleged as a prior at the trial of any other offense. The courts have consistently rejected this argument. "It is the majority view that the second use of a prior conviction to establish a persistent violator charge does not constitute double jeopardy. State v. Losieau, 182 Neb. 367, 154 N.W.2d 762 (1967); State v. Gaskey, 255 Iowa 967, 124 N.W.2d 723 (1963); City of Cincinnati v. McKinney, 101 Ohio App. 511, 137 N.E.2d 589 (1955)." ( Pearson v. State, supra, 521 S.W.2d at p. 227.) Texas courts also hold that "use of a prior conviction to enhance the punishment as a second offender does not preclude the State from again using that conviction to fix the status of an habitual criminal." (Ex parte Calloway (Tex.Cr.App.1947) 205 S.W.2d 583, 586.)
The reason is obvious: "We see no reason why a first conviction under the habitual criminal law which increases the penalty for the felony conviction with which it is associated should be treated as wiping the slate clean and permitting the defendant to start over again as though he had never been convicted of any felony. Where the very purpose of the habitual criminal act is to penalize the repetition of criminal conduct, we find nothing unfair, much less unconstitutional, in using the same criminal conviction as the basis for the increased punishment for a subsequent felony conviction." (State v. Losieau (1967) 182 Neb. 367, 154 N.W.2d 762, 763-764.)
The dissent argues that a separate jeopardy may attach each time a prior-conviction allegation is made because the allegation has meaning only in relation to a new offense. By definition, however, added punishment for the status of being a repeat offender will be imposed only if in fact the defendant becomes a "repeat offender," i.e., commits a new offense. The dissent's argument appears not to take account of the language and policy of the double jeopardy clause. The double jeopardy clause protects an accused from being twice subject to punishment for the "same offense." A recidivist enhancement, as we have demonstrated, punishes a status, and is not an "offense." Moreover, the double jeopardy clause prohibits not only multiple punishment, but also multiple iterations of criminal proceedings. If the same prior felony is alleged with respect to several separate "new offenses," the defendant will nevertheless be subject to multiple instances of enhanced punishment and multiple trials of the identical issue.
Other hypotheticals illustrate: Suppose a defendant is charged with a felony, and a prior conviction is alleged. The jury is empaneled and sworn to try both issues. Suppose the jury returns a not guilty verdict on the substantive offense. The jury makes no finding with respect to the prior, because the defendant was acquitted of the underlying charge. If jeopardy truly attached, The conclusion is inescapable that the United States Supreme Court meant what it said when it determined that recidivist enhancements are not substantive offenses and go to punishment only. The sole purpose of the prior conviction allegation is to enhance punishment if, and only if, the defendant is found guilty of the substantive offense. Jeopardy does not attach to this determination.
As the Court of Appeal pointedly noted in People v. Trujillo (1984) 154 Cal.App.3d 1077, 1091, 202 Cal.Rptr. 832, "It is doubtful that a true factual question appropriate for a jury's resolution has ever arisen with respect to a charged prior term of imprisonment. An accused either is the person who was so imprisoned or he is not. Not only will he and his counsel entertain no doubt on this score, fingerprints, photographs and official documents resolve any rational dispute on the point beyond cavil. Any debate concerning the constitutionality of the underlying convictions or the nature of the offenses involved therein, present legal, not factual, issues as to which a jury's opinion will be quite irrelevant in any event."
6. Wojahn Revisited
The holding to the contrary in Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, is insupportable in logic. The Wojahn court essentially determined: (1) jeopardy attaches when the jury is sworn; (2) the jury is sworn to try both the substantive offense and the prior; therefore, (3) jeopardy attaches to the prior. It is true that jeopardy attaches when the jury is sworn, but this does not define to what jeopardy attaches. It is also true that the jury is sworn to try both issues, but this has nothing to do with double jeopardy. Juries in other jurisdictions have for years been sworn to affix sentences, but, as the United States Supreme Court has explained, jeopardy generally does not attach to sentencing.
Hockersmith, supra, 217 Cal.App.3d 968, 266 Cal.Rptr. 380, reasoned that (1) jeopardy attaches to determinations in which (a) the proceedings are like those of a criminal trial and (b) the sanction is punitive; (2) prior conviction enhancements are subject to trial-type proceedings and the consequence is a punitive sanction; therefore, (3) jeopardy attaches to prior conviction enhancements. As we have demonstrated, however, the original premise has never been true with respect to recidivist enhancement proceedings, despite the fact that the determinations are made in "trial-like" proceedings and the fact that the consequence is unquestionably a punitive sanction.
The Hockersmith court's claim that People v. Bonner (1979) 97 Cal.App.3d 573, 158 Cal.Rptr. 821, "debunked the ... theory People v. Dee, supra, 222 Cal.App.3d 760, 272 Cal.Rptr. 208, followed Wojahn and Hockersmith because the California Supreme Court had depublished a number of other cases disagreeing with Wojahn, and because it found the Hockersmith court's reasoning persuasive. Under compulsion of the authorities remaining published, the Dee court concluded the prior conviction enhancement could not be retried after the jury was improvidently discharged.
In People v. West, supra, 224 Cal.App.3d 1283, 274 Cal.Rptr. 524, this court followed Wojahn, Hockersmith, and Dee, again under the compulsion of the published authority, and by implication from the Supreme Court's actions in depublishing other contrary cases.
None of the California cases previously considering the issue, however, published or otherwise, have come to grips with the foundations of double jeopardy doctrine in the same manner as attempted here. Upon reexamination, and in accord with universal and historical practice, we believe it is irrefutable that jeopardy does not attach to the recidivist prior conviction enhancements. We conclude, therefore, that Wojahn and its progeny have improperly analyzed the problem; in effect, the double jeopardy question is a non-issue with respect to prior enhancements, and there is therefore no constitutional bar to retrial if for some reason no finding is made on the enhancement.
There remains, however, the proper application of Penal Code section 1025 (hereafter section 1025) following improvident discharge of the jury. Section 1025 provides in relevant part, "the question whether or not [the defendant] has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty, or in case of a plea of guilty, by a jury impaneled for that purpose, or by the court if a jury is waived." The language of the provision, that the prior "must be tried by the jury which tries the issue upon the plea of not guilty [of the substantive offense]," could be applied literally so as to preclude trial of the prior except by the same jury which also tried guilt or innocence of the substantive charge. Thus, if the jury is prematurely discharged, the statute would prohibit retrial of the prior, because the "same" jury could not be impaneled to try it.
The decisions in Wojahn and Hockersmith were based in part on the notion that the defendant had a protectible interest in retaining a chosen jury to try the entire case.
We confess serious doubt whether solicitousness for the defendant's interest in having all issues tried to one jury was the purpose of section 1025. (See Hockersmith, supra, 217 Cal.App.3d at p. 976, 266 Cal.Rptr. 380.) We think it hardly likely the Legislature intended to so enshrine this "right" as to create a "lottery" for recidivist In practice, few defendants want the jury that has just convicted them to determine the truth of the priors. This is especially true if the defendant has testified--the priors may have been presented to the jury for impeachment or other purposes. As noted in People v. Trujillo, supra, 154 Cal.App.3d at page 1091, 202 Cal.Rptr. 832, there is seldom anything to "try" with respect to a prior conviction allegation.
Moreover, even the constitutional aspect of the "right" to have the same jury try both matters does not stand on the same footing as, e.g., the right to counsel. It may be waived by requesting a mistrial or reversal, and does not require a voluntary and intelligent waiver. (United States v. Dinitz (1976) 424 U.S. 600, 609-610, 96 S.Ct. 1075, 1080-1081, 47 L.Ed.2d 267, 275.) It may be waived by counsel alone. (People v. Moore (1983) 140 Cal.App.3d 508, 513-514.)
We discern no purpose in section 1025 to create an absolute requirement that the prior be tried by the guilt jury and no other. Indeed, if the prior is actually tried to a jury and reversed, it is common practice to order retrial on the prior alone. (People v. Weathington (1991) 231 Cal.App.3d 69, 91, 282 Cal.Rptr. 170; People v. Tipton (1984) 160 Cal.App.3d 853, 857, 206 Cal.Rptr. 821; see also People v. Morton (1953) 41 Cal.2d 536, 543, 261 P.2d 523.) In point of fact, section 1025 is silent with respect to retrial by a new jury. "It does not address the circumstance of an appellate reversal of only an alleged prior conviction, coupled with an affirmance of the conviction on the primary offense. There is nothing in the statute to suggest that when this occurs, the defendant cannot be retried because the jury has been discharged. The consequence of the construction urged by appellant would be a windfall; he would forever escape the effect of his prior conviction on his present sentence. That is the sort of absurd result that courts are adjured to avoid in construing statutes. (See People v. Boggs (1985) 166 Cal.App.3d 851, 856, 212 Cal.Rptr. 683.)" (People v. Moore (1992) 8 Cal.App.4th 411, 421, 10 Cal.Rptr.2d 286.) Rather, in our view section 1025 is intended generally to ensure that the recidivist penalty is tried together with its related underlying offense. Nothing in section 1025 persuades us that, for good cause, another jury may not be empaneled to retry the prior conviction enhancements.
II
Denial of Motions for a New Trial
Defendants also contend that the trial court applied the wrong standard in reviewing their motions for a new trial. "In ruling upon a motion for a new trial, the trial court is required to independently weigh the evidence, but an appellate court will not modify or set aside the verdict if there is any substantial evidence to support it. [Citations.] [p] The distinction is not a difference in power, but in the circumstances under which it will be exercised." (People v. Serrato (1973) 9 Cal.3d 753, 761, 109 Cal.Rptr. 65, 512 P.2d 289.)
"[I]n the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. [Citations.] It has been stated that a defendant is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial." (People v. Robarge (1953) 41 Cal.2d 628, 633, 262 P.2d 14.) The court went on to state: "[I]t is the province of the trial judge to see that the jury intelligently and justly performs its duty and, in the exercise of a proper legal discretion, to determine whether there is sufficient credible evidence to sustain the verdict." (Id., at p. 634, 262 P.2d 14.)
In Robarge, the court held, on the basis of the statements by the court at the time
The statements by the court in the present case compel us to reach the same conclusion here. As we quoted above, at the time it denied the motion the trial court stated: "I do not feel that under the factors of this case and the law that has been cited that it would be appropriate for me to interpose my opinion over and above that of the jurors who did hear the evidence." In our view, that statement by the trial court indicates that the court did in fact defer to the jury's conclusion and did not make an independent evaluation of the evidence.
The People argue that the trial court's remarks "taken as a whole" show that the court independently considered the testimony under the appropriate standard. In our summary of the facts we have quoted the entire statement made by the trial court at the time it denied the motions for a new trial. In our view, that statement does not demonstrate that there was such an independent evaluation. Accordingly, we must reverse the judgment with directions to the trial court to again consider the motions for a new trial applying the correct standard.
DISPOSITION
The findings as to the prior convictions are reversed as to both defendants. The cause is remanded to the trial court with directions to resentence defendants after a new trial on the issue of the prior convictions. The order denying defendants' new trial motions is also reversed and remanded with directions to the trial court to reconsider the motions under the appropriate standard.
HOLLENHORST, J., concurs.
RAMIREZ, Presiding Justice.
I agree with the majority opinion on all issues except the retrial of the prior-conviction allegations. In my view People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277 was correctly decided and the conclusion in that case--that relitigation of the prior-conviction allegations is barred by the double jeopardy clauses of the federal and state constitutions--governs the outcome here.
In People v. Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, the court stated that "when the jury was sworn, it was sworn to try both the issue of guilt of the substantive criminal offense and the issue of the truth of the alleged prior conviction. Consequently jeopardy attached to both issues. When the trial court improvidently discharged the jury after it returned a guilty verdict but before the issue of the prior conviction was tendered to it, double jeopardy considerations prohibited the impanelling of a new jury to try the issue of the prior conviction." (Id., at p. 1035, 198 Cal.Rptr. 277.)
The People here argue that a defendant's agreement to discharge of the jury should be treated, as a matter of law, as waiver of the right to have the same jury try both issues, and that the appropriate remedy should we reverse would be to "remand the case to give appellants the opportunity to exercise their right to a jury trial on the priors before a second jury." I disagree.
Relying on People v. Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, this court and others have held that if a trial court discharges a jury before obtaining a waiver of defendant's right to have a jury consider the prior offenses alleged as enhancements, retrial of those prior offenses is precluded on double jeopardy grounds. (See People v. West (1990) 224 Cal.App.3d 1283, 1287, 274 Cal.Rptr. 524; People v. Dee (1990) 222 Cal.App.3d 760, 272 Cal.Rptr. In the recent decision in People v. Moore (1992) 8 Cal.App.4th 411, 10 Cal.Rptr.2d 286, the court distinguished between those cases in which no waiver of a jury trial on the prior offenses was obtained prior to discharge of the jury, and cases such as Moore and the present case in which the trial court attempted to obtain a waiver before discharging the jury but the waiver was inadequate. The court in Moore concluded that if the jury was still available to try the issue at the time of the purported waiver, retrial of the prior offenses was not barred by double jeopardy. (Accord People v. Esquibel (1992) 3 Cal.App.4th 850, 856, 5 Cal.Rptr.2d 47.) In my view the distinction drawn by the court in Moore does not withstand scrutiny.
In People v. Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, the court recognized the distinction between bifurcation of a jury trial and severance. (Id., at p. 1033, 198 Cal.Rptr. 277.) In the latter case the issues are tried in two separate trials and by two separate juries. In a bifurcated trial "different issues in a case will be tried seriatim by the same jury.... There is but one trial." (Ibid.; accord, People v. Givan (1992) 4 Cal.App.4th 1107, 1114, 6 Cal.Rptr.2d 339.) Application of the bifurcation rule to a prior-conviction charge is recognized in Penal Code section 1025 which states that the prior conviction must be tried by the jury which tries the charged offense. The consequence of this rule is that in a case such as the one now before us jeopardy attaches on the issue of the prior convictions at the time the jury is sworn to hear the substantive offense.
In People v. Moore, supra, 8 Cal.App.4th 411, 10 Cal.Rptr.2d 286, the court reasons that the inadequate waiver of the right to a jury trial prior to discharge of the jury amounts to no more than "a procedural error by the trial court" which does not preclude retrial. (Id., at p. 419, 10 Cal.Rptr.2d 286.) In my view that decision fails to identify a substantive distinction between an inadequate waiver which occurs before discharge of the jury and a failure to obtain any waiver before discharge of the jury. In order to permit retrial in either circumstance the court must be able to conclude that the defendant's double jeopardy claim was waived. Since jeopardy attached at the time the jury was sworn, "discharge of that jury without a verdict is equivalent in law to an acquittal and bars a retrial, unless the defendant consented thereto or legal necessity required it. [Citations.]" (Curry v. Superior Court (1970) 2 Cal.3d 707, 712, 87 Cal.Rptr. 361, 470 P.2d 345.) Legal necessity is not a factor in the case before us so what remains is the question of defendants' consent.
"When a trial court proposes to discharge a jury without legal necessity therefor, the defendant is under no duty to object in order to claim the protection of the constitutional guarantee, and his mere silence in the face of an ensuing discharge cannot be deemed a waiver. [Citations.] It is true that affirmative conduct by the defendant may constitute a waiver if it clearly evidences consent [citations], and such a waiver will a fortiori be implied when the defendant actually initiates or joins in a motion for mistrial [citation]." (Curry v. Superior Court, supra, 2 Cal.3d at p. 713, 87 Cal.Rptr. 361, 470 P.2d 345.)
The only action taken by defendants here was their failure to object to discharge of the jury following the inadequate waiver of a jury trial. The People here argue that permitting discharge of the jury should be treated, as a matter of law, as a waiver by defendants of their double jeopardy rights. In my view the constitutional double jeopardy right cannot be waived by defendants' silence under these circumstances.
The principle that mere silence does not serve as a waiver of double jeopardy rights following procedural error by the trial court was reaffirmed in the recent opinion of the California Supreme Court in People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 2 Cal.Rptr.2d 389, 820 P.2d 613. The People there sought to retry defendant on a charge of first degree murder following reversal of the earlier conviction. Defendant argued that since the first jury had Nor does it appear to me that permitting discharge of a jury after an inadequate waiver of a jury trial is sufficiently different from permitting discharge of a jury after no waiver of a jury trial to allow us to find that the former, but not the latter, constitutes a waiver of defendants' double jeopardy rights. In the case before us the only plausible distinction between the inadequate waiver which occurred and no waiver at all is that here the trial court relied on the representations of defense counsel that the defendants wished to waive a jury trial, and in the absence of any waiver there would have been no such reliance.
However, an attempt to establish waiver on the basis of similar actions by defense counsel was rejected in People v. Upshaw (1974) 13 Cal.3d 29, 117 Cal.Rptr. 668, 528 P.2d 756. The People there argued that "defendant cannot assert the plea of once in jeopardy when the conduct of defense counsel led the trial judge into committing the original error." (Id., at p. 34, 117 Cal.Rptr. 668, 528 P.2d 756.)
The Supreme Court responded that "The purpose of the constitutional provision against double jeopardy is to prevent harassment of a defendant by repeated trials on the same criminal charge. [Citation.] This purpose would be frustrated were we to allow remarks of counsel, even if legally untenable, to result in a vicarious waiver by the defendant of his constitutional protection against double jeopardy." Moreover, the Supreme Court concluded by noting that "Because of the historic importance of the constitutional protection against double jeopardy, neither the action nor silence of defense counsel here furnish any reason to retreat from this rule." (People v. Upshaw, supra, 13 Cal.3d at p. 34, 117 Cal.Rptr. 668, 528 P.2d 756.)
I conclude that there is no valid basis for distinguishing between the result in People v. Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, and the outcome of the present case.
The majority here make no attempt to distinguish Wojahn but instead analyze the underpinnings of that decision and conclude that it was not correctly decided because "we are now convinced that double jeopardy generally does not attach to prior-conviction allegations." (Maj. opn. at p. 871 of 16 Cal.Rptr.2d).
In reaching their conclusion the majority argue that sentencing decisions, including those involving penalty enhancement for prior offenses, have traditionally not been considered to be subject to double jeopardy. Supreme Court decisions cited in support of this contention have not addressed the specific issue now before us but have held that a penalty enhancement for a prior offense "is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes" (Gryger v. Burke (1948) 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683, 1687); and that there is no double jeopardy bar to imposition of a more severe sentence following retrial of a defendant whose conviction has been overturned (North Carolina v. Pearce (1969) 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656).
The majority cited six cases for the proposition that "the courts have broadly held double jeopardy inapplicable to recidivist penalty proceedings." Of these cases, one held only that "the habitual offender statute does not create a separate and distinct crime" and that double jeopardy was not a bar to resentencing the defendant under the habitual offender statute following reversal and reconviction on the underlying The sixth case, Duffel v. Dutton (6th Cir.1986) 785 F.2d 131, addresses the disputed issue directly. On appeal in a habeas corpus proceeding defendant argued that his right not to be placed twice in jeopardy had been violated by a second prosecution of defendant under the Tennessee habitual criminal statute following reversal for insufficient evidence of the first sentence imposed under that statute. The underlying felony conviction had been affirmed. The appellate court acknowledged that in Burks v. United States (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, the Supreme Court had held that "an appellate court which reverses a conviction for insufficiency of evidence may not remand for a new trial, but must order the indictment dismissed." (Duffel v. Dutton, supra, 785 F.2d at p. 133.) The court ruled, however, that under the facts before it the Tennessee court had not erred in permitting retrial of defendant because the insufficiency of the evidence in the first sentencing proceeding was the result of an erroneous evidentiary ruling on the part of the sentencing court and had not been attributable to a lack of evidence "mustered" by the prosecution. The court concluded that double jeopardy did not prohibit a second trial of the habitual criminal charge. (Id., at p. 134.)
If we apply the analysis of Duffel v. Dutton, supra, 785 F.2d 131, to the case now before us we would be compelled to find that retrial of the sentence enhancements is barred. The evidence in our case was necessarily insufficient since no evidence was presented before discharge of the jury on the issue of defendants' prior convictions.
The reason for the failure to present evidence was not a mere "procedural error," such as an erroneous evidentiary ruling, but was an error which deprived defendants of their right, set forth in the state constitution, to personally waive a jury trial. If that constitutional provision is to have any meaning it cannot be deemed to be merely procedural for purposes of permitting retrial once the insufficiency of the evidence has resulted in a reversal. To permit a retrial would, in effect, give defendants the benefit of either the constitutional right to waive a jury trial or the constitutional right to be free from being placed twice in jeopardy but not both.
The majority reject the result in People v. Hockersmith, supra, 217 Cal.App.3d 968, 266 Cal.Rptr. 380, which was based on that court's analysis that "In determining whether jeopardy attaches to a particular determination, the court focuses on two factors: 1) whether the procedures involved in adjudicating the issue are those traditionally associated with criminal trials" and "2) whether the sanction imposed as a consequence of the determination is punitive in nature. [Citations.]" (Id., at pp. 972-973, 266 Cal.Rptr. 380.) These factors derived from the Supreme Court's decisions in Bullington v. Missouri (1981) 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 and Arizona v. Rumsey (1984) 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 in which the court for the first time applied double jeopardy protection to sentencing proceedings.
The majority opinion discusses and distinguishes the rule applied by the Supreme Court in those cases and concludes that those decisions provide no obstacle to retrial in the present case. In my view the factors relied on by the court in those decisions are relevant considerations here.
In Bullington v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270, the court held that following a capital-murder In Arizona v. Rumsey, supra, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164, imposition of a sentence of life imprisonment under a similar bifurcated sentencing procedure was held by the court to prohibit, on double jeopardy grounds, imposition of a sentence of death following reversal of the prior sentence. Reversal of the sentence was based on the sentencing court's error of law in interpreting the statute defining a particular aggravating factor, and the underlying felony conviction was not disturbed.
The factors cited by the court in Bullington, and reiterated in Rumsey, are the procedures surrounding the sentencing proceedings and whether those proceedings had "the hallmarks of the trial on guilt or innocence." (Bullington v. Missouri, supra, 451 U.S. at p. 439, 101 S.Ct. at p. 1858, 68 L.Ed.2d at p. 279.) The factors emphasized by the court were that "The discretion of the sentencer ... is restricted to precisely two options.... In addition, the sentencer is to make its decision guided by substantive standards and based on evidence introduced in a separate proceeding that formally resembles a trial. Finally, the prosecution has to prove certain statutorily defined facts beyond a reasonable doubt...." (Arizona v. Rumsey, supra, 467 U.S. at p. 209, 104 S.Ct. at p. 2309, 81 L.Ed.2d at p. 170.) The court concluded that when, after following these procedures, the sentencing body imposes the lower sentence "it has determined that the prosecution has failed to prove its case." (Ibid.)
These factors are present in the proceedings to establish the existence of prior offenses under California law. The sentencing body is given no discretion in determining what sentence to impose once it has established the underlying facts, and the prosecution "must prove the alleged prior convictions beyond a reasonable doubt." (People v. Morton (1953) 41 Cal.2d 536, 539, 261 P.2d 523.) A determination on the part of the sentencing body that the prior-conviction allegations are not true is a determination that the prosecution has failed to prove its case.
This again raises the question of whether there should be a different result if the prosecution's failure was the result of error which denied the prosecution the opportunity to present evidence. I remain convinced, however, that if the error was of constitutional magnitude it cannot be corrected by depriving the defendants of another constitutional right.
The court in People v. Hockersmith, supra, 217 Cal.App.3d 968, 266 Cal.Rptr. 380, identified a second factor relevant to the decision of whether jeopardy attaches to a particular determination: whether the determination results in a punitive sanction. (Id., at p. 973, 266 Cal.Rptr. 380.)
It cannot be disputed that establishing the truth of the prior-offense allegations has consequences which are severe. As to one of the defendants in the present case, the sentence imposed for the prior-offense enhancements was substantially greater than the sentence for the underlying offense. While I would not venture to compare the relative severity of enhancement provisions in capital and non-capital cases, I do recognize that enhancement provisions can in some cases result in what amounts to a sentence of life imprisonment. A determination of such potential magnitude is entitled to the protection of the double jeopardy clause.
The majority argue that if jeopardy attaches to the prior-conviction determinations made to enhance the sentence for one offense, use of those same prior convictions to enhance the sentence for a different or subsequent offense would be barred on double jeopardy grounds. I do not agree.
The prior-offense enhancement provisions at issue here are defined in terms of their relationship to the charged offense. Enhancement of the sentence under Penal Code section 667, subdivision (a), requires a Penal Code section 667.5, subdivision (b), which authorizes a one-year sentence enhancement for a prior felony prison term, includes the limitation that "no additional terms shall be imposed ... for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction." As to the charged offense that five-year period can accurately be calculated only as of the time sentence is imposed.
In each case the statutory determination of whether the enhancement is applicable is made only in relation to the charged offense; defendant would not be placed in jeopardy with regard to an enhancement provision in another proceeding and there would be no obstacle to use of the same prior offenses to enhance the sentence imposed in a subsequent prosecution.
I recognize that the Wojahn issue is presently before the California Supreme Court (People v. Saunders (1991) 9 Cal.App.4th 909, 285 Cal.Rptr. 485, review granted, (1991) 1 Cal.Rptr.2d 391, 818 P.2d 1152), and that the court may ultimately determine that Wojahn was incorrectly decided. I am of the opinion, however, that retrial of the prior offenses charged against the defendants in this case is barred by double jeopardy considerations and therefore I respectfully dissent.
We have determined that it would serve the interest of justice and judicial economy to permit defendant Rogers to join defendant Ward in raising in this appeal the issue of the trial court's ruling on the motion for a new trial. As stated by the court in People v. Ford (1948) 89 Cal.App.2d 467, 471, 200 P.2d 867 "The mere oversight of the attorney for an accused to present a serious claim of error which is justified by the record furnishes no excuse for the perpetuation by the reviewing court of an obvious injustice."
The court held double jeopardy inapplicable to the Massachusetts statute in McDonald v. Massachusetts, supra, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542. There, a four-count indictment included allegations that the defendant had previously suffered other felony convictions, the defendant pleaded not guilty, and was tried by a jury "who returned a verdict that he was guilty of the whole indictment." (Id. at p. 312, 21 S.Ct. at p. 390, 45 L.Ed. at p. 546.) The judge therefore found him to be an habitual criminal and imposed a 25-year sentence.
Under the West Virginia statute at issue in Graham v. West Virginia, supra, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917, all habitual criminal proceedings were initiated by separate information in the county where the prison was located, after the defendant was convicted of the latest substantive offense and committed to the penitentiary. Upon the filing of the information, the prisoner was brought to court, a plea was taken; if he denied being the prisoner named in the prior convictions, a jury trial was had. The United States Supreme Court held the recidivist determination by a separate proceeding was proper and did not violate double jeopardy.
In Gryger v. Burke, supra, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683, the court upheld a Pennsylvania statute against double jeopardy claims. The Pennsylvania procedure charged the defendant by information with being a fourth offender. He was "[b]rought into court on that limited charge" and admitted his identity as the convict in each of the prior offenses listed in the information. (Id. at p. 730, 68 S.Ct. at p. 1257, 92 L.Ed. at p. 1686.)
Under the West Virginia act at issue in Oyler v. Boles, supra, 368 U.S. at p. 449, 82 S.Ct. at p. 502, 7 L.Ed.2d at p. 448, the recidivist enhancement was "to be invoked by an information filed by the prosecuting attorney 'immediately upon conviction and before sentence' " on the underlying substantive charge.
In Spencer v. Texas (1967) 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, the Texas procedure included a prior allegation in the indictment on substantive crime. Evidence of the prior was admitted at the trial of the substantive offense, although the jury was instructed not to consider the prior when passing upon guilt or innocence of the primary charge. After (if) the jury determined guilt of the primary charge, it was then instructed to find whether the defendant had been previously convicted as charged, and was directed to fix the punishment according to other instructions. The Supreme Court reaffirmed that the recidivist statute did not violate double jeopardy, and also upheld the practice of introducing evidence of the prior during trial of the primary charge. (Id. at p. 560, 87 S.Ct. at p. 651, 17 L.Ed.2d at p. 611.)
In Louisiana, a separate bill of information as a multiple offender is filed after conviction of the substantive offense; the matter is tried to the court. (State v. Hill, supra, 340 So.2d at p. 310.) The Louisiana Supreme Court held a refiled bill of indictment, after the state failed to submit sufficient authenticated documentation of the prior convictions, did not violate double jeopardy. (Ibid.; see also State v. Johnson, supra, 432 So.2d at p. 817).
New Mexico procedure includes filing of a supplemental information following conviction on the primary charges, and trial to a jury. (State v. Linam, supra, 600 P.2d 253; see also State v. Rogers, supra, 602 P.2d 616.)
Tennessee includes habitual offender charges as individual counts in the indictment and lists the habitual offender convictions as separate convictions. The habitual offender charges are tried to the jury. (Pearson v. State, supra, 521 S.W.2d 225; Duffel v. Dutton, supra, 785 F.2d 131.)
In Hardin v. Commonwealth, supra, 573 S.W.2d 657, the court upheld against a double jeopardy claim Kentucky's use of separate proceedings for the determination of guilt on the primary offense and the "persistent offender" offense. The matter is tried to the jury, which fixes the sentence. (See also Montgomery v. Bordenkircher, supra, 620 F.2d at p. 129 [defendant convicted by jury of one count armed robbery and one count of habitual criminality; double jeopardy inapplicable to habitual criminality conviction, because it does not define an offense].)
Iowa includes allegations of prior convictions in the charges on the underlying substantive offense. The matter is tried to the jury, which returns answers to special interrogatories finding the truth of the prior convictions. The findings must be made beyond a reasonable doubt. (Davis v. Bennett, supra, 400 F.2d at pp. 280-281.)
The fact that Penal Code section 667.5, subdivision (b), contains a self-limitation, that only those prior prison terms less than five years old may be charged, is of no moment. Even though the five-year period must of course be calculated with respect to the date of a new offense, the Legislature was not obligated to give recidivist offenders a five-year "clean slate" benefit. The fact it has chosen to do so does not alter the fundamental nature of recidivist punishment.
Accordingly, in State v. Hill, supra, 340 So.2d 309, the court found the failure to properly authenticate the records of the defendant's prior convictions did not result in a double jeopardy bar against retrial. "A hearing on a multiple offender bill is a trial in only a very broad sense. It is more pertinently an inquiry into defendant's prior criminal conviction or convictions, as part of the sentencing process. Technical inadequacies in the state's documentation at such 'trial' mandates a negative determination by the court. On the other hand, such a determination is not a conclusive one 'on a fact distinctly put in issue,' as is the case where, relative to prosecution for commission of a criminal offense, there is a judgment that defendant be freed 'as a matter of substantive law' [citation]." (Id., at p. 312; see also Graham v. West Virginia, supra, 224 U.S. at p. 627, 32 S.Ct. at p. 587, 56 L.Ed. at p. 922 ["the inquiry is not into the commission of an offense; as to this, indictment has already been found and the accused convicted. There remains simply the question as to the fact of the previous conviction."]; Ross's Case, supra, 19 Mass (2 Pick.) at p. 170 ["this is not an information of an offence for which a trial is to be had, but of a fact, namely, that the prisoner has already been convicted of an offence;"].)