People v. Gonzalez

• Decision Date: 29 October 2015
• Docket Number: B262300
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Danny Frank GONZALEZ, Defendant and Respondent.

241 Cal.App.4th 1103

194 Cal.Rptr.3d 373

The PEOPLE, Plaintiff and Appellant,

v.Danny Frank GONZALEZ, Defendant and Respondent.

B262300

Court of Appeal, Second District, Division 8, California.

Filed 10/29/2015

As Modified on Denial of Rehearing 11/24/2015

Jackie Lacey, Los Angeles County District Attorney, Roberta Schwartzand Matthew Brown, Deputy District Attorneys, for Plaintiff and Appellant.

Ronald L. Brown, Los Angeles County Public Defender, Albert J. Menaster, John Henderson and Thomas Moore, Deputy Public Defenders, for Defendant and Respondent.

Opinion

OHTA, J.^*

Defendant Danny Frank Gonzalez was charged with one count of violating Penal Code section 247.5,¹discharging a laser at an occupied aircraft. On the date of the preliminary hearing, Gonzalez filed a motion to dismiss the complaint based on double jeopardy for a prior payment of a civil penalty to the federal government. The trial court granted the motion. We reverse.

FACTS

The facts underlying this case are not disputed. On April 23, 2014, Gonzalez discharged a laser at an occupied aircraft operated by the Los Angeles County Sheriff's Department, Air 29. The deputy in Air 29 observed Gonzalez's action and relayed information to ground units who detained him and found a laser.²The Los Angeles County District Attorney's Office (People) filed a felony complaint for arrest warrant charging Gonzalez as noted, ante. He was arraigned on the complaint, entered a not guilty plea, and was released on his own recognizance. On December 2, 2014, the date for the preliminary hearing, Gonzalez filed a motion entitled a “Plea of Once in Jeopardy.”

In support of the motion, Gonzalez attached a letter from the U.S. Department of Transportation, Federal Aviation Administration (FAA). The FAA letter referenced a case number (2014WP010068) and acknowledged Gonzalez's payment of a $2,000 civil penalty.³The record on appeal shows nothing else about Gonzalez's contact with the FAA.

In ruling on the motion, the trial court found “the civil penalty is tantamount to punishment” under United States v. Halper(1989) 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487(Halper) and granted the dismissal.

The People timely appealed.

DISCUSSION

A. Introduction

The core issue is whether Gonzalez's payment of a $2,000 civil penalty to a federal agency constitutes criminal punishment subject to the proscription against double jeopardy.⁴Gonzalez's a plea of once in jeopardy may be based on three separate provisions of law: (1) the Fifth Amendment of the federal Constitution, made applicable to the states through the Fourteenth Amendment, (2) statutory double jeopardy provisions enacted by the California Legislature, specifically sections 656 and 793,⁵and (3) article I, section 15 of the California Constitution.

We hold Gonzalez is not entitled to a dismissal of the criminal charge based on double jeopardy under the federal Constitution, California's statutes, or the California Constitution. In reaching this conclusion, we apply federal constitutional principles to our state Constitution, and conclude Gonzalez has failed to establish the civil penalty imposed by the FAA was criminal punishment.

B. Standard of Review

When evidence is uncontradicted, the question of former jeopardy is one of law for the court to decide. (People v. Davis(2011) 202 Cal.App.4th 429, 438, 134 Cal.Rptr.3d 713.) Here, because neither party raises any factual disputes, we apply de novo review.

Gonzalez bears the burden of establishing the necessary facts to prove he was placed in former jeopardy by reason of a prior conviction or acquittal. (People v. Burkhart(1936) 5 Cal.2d 641, 643, 55 P.2d 846; People v. Morales(2003) 112 Cal.App.4th 1176, 1187, 5 Cal.Rptr.3d 615; People v. Mason(1962) 200 Cal.App.2d 282, 285, 19 Cal.Rptr. 240.) We find no reason why this burden should be different in the context of a double jeopardy claim based on multiple punishments.

C. The People's and Gonzalez's Contentions

The People claim the trial court erred for several reasons. First, the People assert neither the state nor the federal double jeopardy clause prevent successive prosecutions by separate sovereigns. Since the FAA is a federal agency, the People contend a state prosecution based on California law is not barred. Second, the People argue double jeopardy only prohibits successive prosecutions for the “same offense,not the same act.” Citing several federal statutes as possible bases for the imposition of the fine, the People contend conduct regulated under federal statutes and section 247.5differ. The People also claim double jeopardy only applies to successive criminal punishments, not civil sanctions. Citing Hudson v. United States(1997) 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450(Hudson), the People argue Gonzalez has failed to show by the “clearest proof” necessary the FAA civil penalty was criminal punishment. Lastly, the People assert California's double jeopardy statutes do not apply to Gonzalez's case because they pertain only to prior criminal cases.

Gonzalez counters the statutory provisions set forth in sections 656 and 793 are intended to provide broader protection for individuals than the federal Constitution. Thus, even if the federal double jeopardy clause does not bar successive prosecutions by separate sovereigns for the same act, sections 656 and 793 do.⁶Gonzalez further argues the civil penalty imposed by the FAA was criminal punishment under the fourth and fifth factors identified in Kennedy v. Mendoza–Martinez(1963) 372 U.S. 144, 168–169, 83 S.Ct. 554, 9 L.Ed.2d 644(Kennedy); the civil penalty served the purpose of retribution and deterrence and the behavior to which the civil penalty applied is already a crime.

D. Federal Constitution

The double jeopardy clause of the Fifth Amendment provides no “person be subject for the same offense to be twice put in jeopardy of life or limb....” (U.S. Const., 5thAmend.) In Benton v. Maryland(1969) 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707, the double jeopardy clause of the federal Constitution was made enforceable against the states through the due process clause of the Fourteenth Amendment.

The federal double jeopardy clause “consist[s] of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (North Carolina v. Pearce(1969) 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656, fns. omitted, overruled as stated in Alabama v. Smith(1989) 490 U.S. 794, 798–803, 109 S.Ct. 2201, 104 L.Ed.2d 865.) For ease of reference, appellate courts often use the terms “successive prosecutions” and “successive punishments” when referring to the protection afforded by the clause. We shall do the same. The instant case involves successive punishments for the same conduct.

1. Successive Punishment Jurisprudence

A payment of a civil penalty not based on a criminal prosecution may be protected under the federal double jeopardy clause if it constitutes criminal punishment. Hudsonre-established the two-part analysis on how a civil penalty imposed by the government may constitute criminal punishment under the double jeopardy clause of the Fifth Amendment. The United States Supreme Court explained, “The Clause protects only against the imposition of multiple criminalpunishments for the same offense.” (Hudson, supra,522 U.S. at p. 99, 118 S.Ct. 488, citations omitted.)

In Hudson,the high court asked whether a civil penalty imposed by a federal agency, the Office of the Comptroller of the Currency, constituted criminal punishment barring a subsequent federal criminal prosecution under the double jeopardy clause of the Fifth Amendment. Answering in the negative, Hudsoncontrasted two prior cases: Halperand United States v. Ward(1980) 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742(Ward). In holding the federal law authorizing the civil penalty was not criminal punishment subject to the double jeopardy clause of the Fifth Amendment, the high court disapproved Halperand reaffirmed the traditional double jeopardy principles used in Ward.

Hudsonfound Halperill-considered and unworkable. The high court explained, “If a sanction must be ‘solely’ remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause.” (Hudson, supra,522 U.S. at p. 102, 118 S.Ct. 488.) Hudsonfurther reasoned, “The analysis applied by the HalperCourt deviated from our traditional double jeopardy doctrine in two key respects. First, the HalperCourt bypassed the threshold question: whether the successive punishment at issue is a ‘criminal’ punishment. Instead, it focused on whether the sanction, regardless of whether it was civil or criminal, was so grossly disproportionate to the harm caused as to constitute ‘punishment.’ ... The second significant departure in Halperwas the Court's decision to ‘assess the character of the actual sanctions imposed,’ ... rather than, ... evaluating the ‘statute on its face’ to determine whether it provided for what amounted to a criminal sanction.” (Id.at p. 101, 118 S.Ct. 488, citations omitted.)

Hudsonapplied Ward's two-step process on what it called “traditional double jeopardy principles” to the facts. (Hudson, supra,522 U.S. at p. 103, 118 S.Ct. 488.) First, “the question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction.” (Ward, supra,448 U.S. at p. 248, 100 S.Ct. 2636; see Hudson,at pp. 99, 103, 118 S.Ct. 488.) Here, the question is whether the Legislature intended the sanction to be civil or criminal in nature. Next, Hudsonconsidered whether the sanction, “despite [the Legislature's] manifest intention to establish a civil, remedial mechanism, nevertheless, provided for sanctions so punitive as to ‘[transform] what was clearly intended as a civil remedy into a...