People v. Hanson

• Decision Date: 30 March 1999
• Docket Number: No. B120251,B120251
• Citation: 70 Cal.App.4th 1372,83 Cal.Rptr.2d 381
• Parties: Previously published at 70 Cal.App.4th 1372 70 Cal.App.4th 1372, 99 Cal. Daily Op. Serv. 2332, 1999 Daily Journal D.A.R. 3039 The PEOPLE, Plaintiff and Respondent, v. Melvin Eugene HANSON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 381

83 Cal.Rptr.2d 381

Previously published at 70 Cal.App.4th 1372

70 Cal.App.4th 1372, 99 Cal. Daily Op. Serv. 2332,

1999 Daily Journal D.A.R. 3039

The PEOPLE, Plaintiff and Respondent, v. Melvin Eugene HANSON, Defendant and Appellant.

No. B120251.

Court of Appeal, Second District, Division 5, California.

March 30, 1999.

Rehearing Denied April 29, 1999.

Review Granted July 28, 1999.

Mark D. Greenberg, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and William V. Ballough, Deputy Attorney General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Melvin Eugene Hanson, appeals from a fine which was part of the sentence imposed on remand following his previous partially successful appeal from his convictions for: conspiracy to commit the crimes of insurance fraud, murder, and grand theft (Pen.Code, ¹ §§ 182, 187, former § 487, subd. 1; former Ins.Code, § 556, now renumbered as § 1871.1); first degree murder with special circumstances (§§ 187, subd. (a), 190.2, subd. (a)(1)); three counts of insurance fraud (former Ins.Code, § 556, now renumbered as § 1871.1); and two counts of grand theft. (former § 487, subd. 1.) The jury found two excessive taking allegations to be true as to single counts of grand theft and insurance fraud. (§ 12022.6, subd. (b).) Prior to the partially successful prior appeal which will be discussed shortly, defendant had been sentenced to life without the possibility of parole by the Honorable Paul G. Flynn as a result of the first degree murder with special circumstances conviction in addition to other sentences on other counts. A restitution fine in the sum of $1,000 was imposed pursuant to former Government Code section 13967, subdivision (a). (Stats.1988, ch. 975, § 1, p. 3151.) In an unpublished opinion filed June 16, 1997, we did the following: affirmed defendant's conviction in part; modified his conviction for special circumstances murder to the second degree; reversed and dismissed with prejudice the special circumstance finding; and reversed his sentences as to all counts. We remanded the matter to the trial court solely for resentencing. (People v. Hanson (June 16, 1997) B096073 [nonpub. opn.] [typed opn. pp. 23-24].) On December 19, 1997, the Honorable Patricia L. Collins resentenced defendant on count 1, the murder conspiracy charge, to 25 years to life. On count 2, second degree murder, Judge Collins sentenced defendant to 15 years to life and stayed the sentence pursuant to section 654. The remaining sentences imposed as to counts 3 through 7 were also stayed pursuant to section 654. Judge Collins also increased the fine imposed pursuant to former Government Code section 13967, subdivision (a), from $1,000 to $10,000.

Defendant argues that the increased fine violates the state constitutional prohibition against double jeopardy. (Cal. Const., art. I, § 15.) We disagree. We reach this decision for the following combination of reasons: the California Supreme Court has never held that the double jeopardy protections of the state Constitution which prohibit increasing a sentence after a reversal on appeal apply to fines; the California Supreme Court does not rigidly apply the state constitutional double jeopardy provisions differently from the same clause in the United States Constitution; for example, the state constitutional rule against increasing punishment does not apply across the board as evidenced by the fact a jurisdictionally unlawful grant of leniency by a trial judge may be set aside to the detriment of the accused after an appeal; further, a full four justice majority of the California Supreme Court in People v. Hernandez (1998) 19 Cal.4th 835, 842, 80 Cal.Rptr.2d 754, 968 P.2d 465, held that a noncapital sentencing decision involving an enhancement was not one to which the state double jeopardy prohibition applies; and there are no "cogent reasons" to apply the state and federal double jeopardy provisions differently in the case of the imposition of an increased fine after a reversal on appeal.

II. DEVELOPMENT OF CALIFORNIA DOUBLE JEOPARDY JURISPRUDENCE

The California Constitution provides, "Persons may not twice be put in jeopardy for the same offense...." (Cal. Const., art. I, § 15.) The California Supreme Court has previously strictly interpreted the double jeopardy principles of the California Constitution to prohibit the imposition of a more severe prison sentence on retrial or resentencing after an appeal. (People v. Collins (1978) 21 Cal.3d 208, 216, 145 Cal.Rptr. 686, 577 P.2d 1026 [noncapital prison sentences]; People v. Hood (1969) 1 Cal.3d 444, 459, 82 Cal.Rptr. 618, 462 P.2d 370 [noncapital assault sentence to the state penitentiary]; People v. Ali (1967) 66 Cal.2d 277, 281, 57 Cal.Rptr. 348, 424 P.2d 932 ["Where a defendant has been sentenced to concurrent terms and then upon a retrial is sentenced to consecutive terms for the same offenses, his punishment has been increased by indirect means. The reasoning which prevents an increase by direct means would seem to be applicable in such a situation, as a defendant should not be required to risk being given greater punishment on a retrial for the privilege of exercising his right to appeal."].) The same rule applies to a retrial in a capital case where the jury in the first trial returns a non-death verdict. (People v. Henderson (1963) 60 Cal.2d 482, 497, 35 Cal.Rptr. 77, 386 P.2d 677 [defendant sentenced to life imprisonment following first trial may not receive the death penalty upon retrial after a successful appeal].) Although the subject has been discussed in the capital and noncapital prison sentence context, the California Supreme Court has never addressed the issue of the application of the double jeopardy provisions of the state Constitution to an increase of a fine after an appeal.

After Henderson was decided in 1973, the California Supreme Court identified an exception to the state double jeopardy prohibition against increasing a prison term after an appeal. In People v. Serrato (1973) 9 Cal.3d 753, 763-764, 109 Cal.Rptr. 65, 512 P.2d 289, the California Supreme Court carved out an exception to the state double jeopardy rule precluding the imposition of a harsher prison term after an reversal on appeal. The exception applies in cases involving unlawful or jurisdictionally void sentences which resulted in legally unauthorized leniency being granted to criminal defendants. In Serrato, the California Supreme Court held: "Defendants' alternate contention is that if they have not been acquitted, they are at least protected against more severe punishment under the rule established in People v. Henderson (1963) 60 Cal.2d 482 [35 Cal.Rptr. 77, 386 P.2d 677], and followed in People v. Ali (1967) 66 Cal.2d 277 [57 Cal.Rptr. 348, 424 P.2d 932]; People v. Hood (1969) 1 Cal.3d 444 [82 Cal.Rptr. 618, 462 P.2d 370]; and In re Ferguson (1965) 233 Cal.App.2d 79 . [p] In Henderson, defendant was convicted of first degree murder and sentenced to life imprisonment. Following reversal of that conviction, he was again tried and convicted, and the jury fixed the penalty at death. This court held that the California Constitution's guarantee against double jeopardy (art. I, § 13) precluded the imposition of a more severe sentence upon retrial. [p] In the Henderson case, as in each of the cited cases which followed it, the sentence imposed after the first trial was a lawful one, within the limits of the discretion conferred by statute for the offense of which the defendant had been convicted. The judgments pronounced at the first trials were reversed because of errors having nothing to do with the sentences. [p] The rule is otherwise when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement." (People v. Serrato, supra, 9 Cal.3d at pp. 763-764, 109 Cal.Rptr. 65, 512 P.2d 289.) The Serrato exception to Henderson is fully consistent with the federal rule pertaining to unlawful jurisdictionally void sentences and the imposition of a greater penalty after an appeal. (Bozza v. United States (1947) 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818; see United States v. DiFrancesco (1980) 449 U.S. 117, 134-135, 101 S.Ct. 426, 66 L.Ed.2d 328.)

In 1997, the California Supreme Court began to revisit double jeopardy issues in the context of noncapital sentencing. In People v. Monge (1997) 16 Cal.4th 826, 843-845, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (lead opn. of Chin, J.), a California Supreme Court plurality indicated it would in the future interpret the state constitutional double jeopardy provisions in the same fashion as its federal counterpart except in the face of cogent reasons to do otherwise. The California Supreme Court plurality held: "The 'California Constitution is a document of independent force and effect that may be interpreted in a manner more protective of defendants' rights than that extended by the federal Constitution....' (People v. Fields (1996) 13 Cal.4th 289, 298 [52 Cal.Rptr.2d 282, 914 P.2d 832].) Nevertheless, when we interpret a provision of the California Constitution that is similar to a provision of the federal Constitution, ' "cogent reasons must exist" ' before we will construe the Constitutions differently and ' "depart from the construction placed by the Supreme Court of the United States." ' (Raven v. Deukmejian (1990) 52 Cal.3d 336, 353 [276 Cal.Rptr. 326, 801 P.2d 1077], quoting Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 89 .)" (People v. Monge, supra, 16 Cal.4th at p. 844, 66 Cal.Rptr.2d 853, 941 P.2d 1121.) Associate Justice...