People v. Barragan

• Decision Date: 29 January 2004
• Docket Number: No. S105734.,S105734.
• Citation: 83 P.3d 480,32 Cal.4th 236,9 Cal.Rptr.3d 76
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Antonio J. BARRAGAN, Defendant and Appellant.

9 Cal.Rptr.3d 76

32 Cal.4th 236

83 P.3d 480

The PEOPLE, Plaintiff and Respondent, v. Antonio J. BARRAGAN, Defendant and Appellant.

No. S105734.

Supreme Court of California.

January 29, 2004.

John L. Staley, under appointment by the Supreme Court, Poway, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster, Steven T. Oetting and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

The so-called Three Strikes law prescribes increased punishment for a person who is convicted of a felony after sustaining one or more qualifying prior felony convictions or juvenile adjudications, which are commonly known as strikes. (Pen.Code, §§ 667, subds.(b)-(i), 1170.12.) The issue here is whether retrial of a strike allegation is permissible where a trier of fact finds the allegation to be true, but an appellate court reverses that finding for insufficient evidence. Defendant Antonio J. Barragan argues that retrial is barred by the constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, and relevant statutory provisions. We conclude that retrial is permissible. We reverse the Court of Appeal's judgment insofar as it bars retrial of a strike allegation.

FACTS

An information charged defendant with several crimes, including being a felon in possession of a firearm, and alleged that he had one prior strike: a juvenile adjudication on June 8, 1995, for assault with a deadly weapon and with personal infliction of great bodily injury. To prove the alleged prior juvenile adjudication, the prosecution introduced into evidence copies of the juvenile court petition alleging the assault, and a minute order showing the juvenile court's finding that defendant committed the assault. While testifying at trial, defendant admitted that he had sustained a "true finding" in juvenile court in 1995 for striking someone with a baseball bat. During closing argument, defendant's counsel stated: "[Defendant] has been very candid ... about [his] priors. You've heard about them. There's not an issue.... [Defendant] has been very candid ... about his testimony and his prior convictions as an adult and the true finding as a juvenile." The trial court instructed the jury that if it found defendant guilty, then it had to "determine whether the allegation of the prior `serious felony' conviction is true." The court also instructed the jury that "as a matter of law," assault with a deadly weapon and with infliction of great bodily injury "is a `serious felony' offense" under the Three Strikes law, and that "a `conviction' occurs by a `true finding' in Juvenile Court after trial, or upon an admission by the accused without trial." The jury found defendant guilty of being a felon in possession of a firearm, found him not guilty of the remaining charges, and found true "the allegation that [he] ... suffered a true finding of a serious felony offense in Juvenile Court, within the meaning of [the Three Strikes law], to wit: on or about June 8, 1995, ... defendant was convicted of Assault with a Deadly Weapon With Personal Infliction of Great Bodily Injury...." The trial court imposed a four-year prison term, which it calculated by taking the two-year middle term ordinarily applicable to a "felon in possession" conviction and doubling it under the Three Strikes law for defendant's prior strike.

The Court of Appeal affirmed defendant's conviction, but found insufficient evidence to support the jury's true finding on the strike allegation. Regarding the latter issue, the court first reasoned that in order to prove the strike allegation, the prosecution had to prove that defendant's prior juvenile court adjudication "resulted in a declaration of wardship." The court then found that the prosecution failed to meet this burden, explaining: "The prosecution did no more than prove that true findings were made on the petition and the matter was set for a dispositional hearing. While it is possible to speculate that the true finding on the petition resulted in a declaration of wardship, we conclude on this record it is not possible to so infer. The evidence supporting the finding of a strike based on [defendant's] prior juvenile adjudication was insufficient." Turning to remedy, the court noted a split of authority regarding whether retrial of a strike allegation is permissible after a reversal for insufficient evidence. "[S]tand[ing] by" its prior decision in People v. Mitchell (2000) 81 Cal.App.4th 132, 96 Cal.Rptr.2d 401 (Mitchell), the court held that retrial is impermissible.

Defendant filed a petition for review, challenging the affirmance of his conviction. The People also filed a petition for review, challenging only the Court of Appeal's conclusion that retrial of the strike allegation is impermissible. We granted the People's petition and denied defendant's.¹

DISCUSSION

As the Court of Appeal noted, California appellate courts have disagreed on whether retrial of a strike allegation is proper after an appellate court reverses a true finding for insufficient evidence. Mitchell, which was decided by the same appellate court that decided the case now before us, held that retrial is impermissible "where the government has had a full and fair opportunity to present its case unhampered by evidentiary error or other impediment...." (Mitchell, supra, 81 Cal.App.4th at p. 136, 96 Cal.Rptr.2d 401.) Courts of Appeal that have subsequently considered the issue have consistently rejected Mitchell and held that retrial of an alleged prior conviction is both permissible and proper. (E.g., People v. Sotello (2002) 94 Cal.App.4th 1349, 115 Cal.Rptr.2d 118; People v. Franz (2001) 88 Cal.App.4th 1426, 106 Cal.Rptr.2d 773; Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 104 Cal.Rptr.2d 131; People v. Scott (2000) 85 Cal.App.4th 905, 102 Cal.Rptr.2d 622.)

In resolving this conflict, we begin with a related principle that the United States Supreme Court has recently established: lished: in the noncapital sentencing context, retrial of a prior conviction allegation does not violate the double jeopardy clause of the federal Constitution. (Monge v. California (1998) 524 U.S. 721, 734, 118 S.Ct. 2246, 141 L.Ed.2d 615 (Monge II).) In reaching this conclusion, the high court acknowledged that a finding on appeal that the evidence at trial was insufficient to sustain a "conviction" on a substantive offense "is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial. [Citation.]" (Id. at p. 729, 118 S.Ct. 2246.) However, the court explained, "[w]here a similar failure of proof occurs in a sentencing proceeding, ... the analogy is inapt." (Ibid.) "[T]he determinations at issue [in noncapital sentencing proceedings] do not place a defendant in jeopardy for an `offense,' [citation]." (Id. at p. 728, 118 S.Ct. 2246.) "An enhanced sentence imposed on a persistent offender" does not constitute "`either a new jeopardy or additional penalty for the earlier crimes' but [is simply] `a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.' [Citations.]" (Ibid.) "The pronouncement of sentence simply does not `have the qualities of constitutional finality that attend an acquittal.' [Citations.]" (Id. at p. 729, 118 S.Ct. 2246.) Thus, a "[s]entencing decision[] favorable to the defendant ... cannot generally be analogized to an acquittal." (Ibid.) This rule applies even in states that, as "a matter of legislative grace," have enacted "procedural safeguards to protect defendants who may face dramatic increases in their sentences as a result of recidivism enhancements." (Id. at p. 734, 118 S.Ct. 2246.)

The high court's decision in Monge II reviewed and affirmed our decision in People v. Monge (1997) 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (Monge I), which held that retrial of a prior conviction allegation does not violate the double jeopardy protections of either the federal Constitution or the California Constitution. Like the high court, the lead opinion in Monge I rejected the analogy between a "failure of proof" on a prior conviction allegation and "an acquittal at the guilt phase of a criminal trial." (Id. at p. 837, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (lead opn. of Chin, J.).) The lead opinion reasoned that a trial of such an allegation "is simple and straightforward as compared to the guilt phase of a criminal trial," and "[o]ften ... involves only the presentation of a certified copy of the prior conviction along with the defendant's photograph and fingerprints. In many cases, defendants offer no evidence at all, and the outcome is relatively predictable." (Id. at p. 838, 66 Cal.Rptr.2d 853, 941 P.2d 1121.) Moreover, such a trial "is merely a determination, for purposes of punishment, of the defendant's status, which, like age or gender, is readily determinable from the public record." (Ibid.) "Like a trial in which the defendant's age or gender is at issue, the prior conviction trial merely determines a question of the defendant's continuing status, irrespective of the present offense, and the prosecution may reallege and retry that status in as many successive cases as it is relevant [citations], even if a prior jury has rejected the allegation [citation]. If a jury rejects the allegation, it has not acquitted the defendant of his prior conviction status. [Citation.] `A defendant cannot be "acquitted" of that status any more than he can be "acquitted" of being a certain age or sex or any other inherent fact.' [Citation.]" (Id. at p. 839, 66 Cal.Rptr.2d 853, 941 P.2d 1121.)

Foreshadowing defendant's contentions here, the lead opinion in Monge I noted that the inapplicability of double jeopardy protections "raises numerous secondary issues. For example, [a] Court of Appeal's...