People v. Hernandez

• Decision Date: 04 August 1988
• Docket Number: No. S001689,S001689
• Citation: 249 Cal.Rptr. 850,757 P.2d 1013,46 Cal.3d 194
• Court: California Supreme Court
• Parties: , 757 P.2d 1013 The PEOPLE, Plaintiff and Respondent, v. James HERNANDEZ, Defendant and Appellant.

Page 850

249 Cal.Rptr. 850

46 Cal.3d 194, 757 P.2d 1013

The PEOPLE, Plaintiff and Respondent, v. James HERNANDEZ, Defendant and Appellant.

No. S001689.

Supreme Court of California In Bank.

Aug. 4, 1988.

[46 Cal.3d 197] David L. Tucker, Jr., Ocotillo, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Steve White, Chief Asst. Atty. Gen., William M. Wood, Robert M. Foster and Tim J. Nader, Deputy Attys. Gen., for plaintiff and respondent.

ARGUELLES, Justice.

This case requires us to resolve whether a sentencing judge may impose an additional three-year term under Penal Code section 667.8 (kidnapping for purposes of rape) ¹ when violation of that section was not pled or proven and was mentioned for the first time in a probation report. We conclude that such additional term may not be imposed, since a pleading and proof requirement should be implied as a matter of statutory interpretation and must be implied as a matter of due process.

FACTS

The offense in this case occurred on the night of September 6, 1985, in Big Pine, Inyo County, California. The victim, Marion M., had known defendant for about 10 years and in the preceding year or two had been on intimate terms with him. He had fathered her youngest child.

By August 1985, however, the relationship had soured, and M., who had been living at defendant's residence, moved out and returned to her own home. Police logs reflect several contacts in the ensuing weeks for incidents in which M. claimed defendant had attacked or falsely imprisoned her. Often, however, she would not "press charges." She had even applied for and obtained a restraining order against defendant, only to forego its protection and seek joint counseling instead.

Marion M. claimed that in August defendant frequently entered her home through a window and forced her to have sex. She had no telephone in the house, and a neighbor was either asked to call police or called in response to screaming and fighting at M.'s house.

On September 6, M. again went to court to obtain a restraining order and to settle child visitation rights. At the conclusion of the hearing, she thought she had obtained a restraining order prohibiting defendant from coming to her home except for weekly visits with their baby and only then if he was sober.

That evening, however, around 10 p.m., defendant arrived at M.'s house, knocked and entered without waiting for a response. He appeared to be intoxicated, staggered when he walked, and smelled of beer. Defendant first checked the bedrooms, apparently to be sure no other man was in the house. Then he sat next to M.; and after she asked him to leave, they began to argue. After 15 or 20 minutes, defendant began striking M. who had endured prior physical abuse and at first did not resist. One blow rendered her dizzy, however, and fearing for her life, she fought back, only provoking harsher blows.

After a time, defendant stopped, and M., to forestall further beatings, tried to calm him, hugged him, and reminded him that they had cared for each other. Defendant's response was to say they were going to the bedroom, words M. associated with his desire to engage in sex. He grabbed her by the wrist and headed for a back bedroom; however, when he briefly released her to turn off the light, she fled.

M. ran across the street to the home of a neighbor, some 153 feet from her front door; but despite her screams and banging on the door, no one responded. ² Defendant ran after her, and perceiving that no one was answering the door, he seized M. and the two fell struggling to the ground. Finally defendant grabbed M. by the wrist and walked her back to the house. ³ Never letting go, he brought her to the baby's room and sat her down on a mat on the floor. He then engaged in forcible sexual intercourse, threatened to blow her up if she pressed charges, threatened to have some friends come in and have intercourse with her when he was done, and urinated on her.

After a prolonged sexual assault, defendant fell asleep and M. decided to escape. ⁴ She put on some clothing, left the house, and drove to a nearby Chevron station where at about 1 a.m. September 7, she called police. Police met her at the station and found she was shaken, crying, and disheveled. Her nose was bloody, her lips were swollen, and she was bruised. She expressed fear that defendant was still in the house with her children. Police entered the house and found defendant naked and still asleep near the baby's crib. They also encountered the strong odor of alcohol and urine.

Defendant was charged by information with violation of: count I, section 261, subdivision (2) (forcible rape), count II, section 207, subdivision (a) (kidnapping), count III, section 273.5 (corporal injury on a cohabitant), count IV, section 245 (assault by means of force likely to produce great bodily injury), and count V, section 166, subdivision 4 (willful disobedience of court order). Additionally it was alleged with respect to counts I and II that defendant had served a prior prison term within the meaning of section 667.5, subdivision (b), and with respect to count I that the crime had occurred while defendant was on parole within the meaning of section 1203.085, subdivision (b). Violation of section 667.8 was not alleged.

The charges of contempt and injuring a cohabitant in counts III and V were dismissed pursuant to section 995, ⁵ however defendant was convicted of rape, assault, and kidnapping and both special allegations were found true. It was in the probation report that section 667.8 was first mentioned as an additional term to be applied in this case. At the sentencing hearing, defendant urged that imposition of a three-year enhancement under section 667.8, when violation of that section had not been pled and proven, would violate due process; but the prosecutor argued there was no requirement that the section be pled and proven and urged that, in any event, proving the crimes in this case proved the elements of the enhancement.

The trial court sentenced defendant to the middle term of six years for rape and added one year for the prior prison term and three years for violation of section 667.8. ⁶ The Court of Appeal affirmed, holding that section 667.8 did not have to be pled and proven and that in any event it involved no new fact not already an ingredient of the underlying offenses of kidnapping and rape. We disagree.

DISCUSSION

1. Language of Section 667.8

The language of section 667.8, as it read at the time the crimes in this case were committed, did not of itself require that violation of the section be pled and proven before its additional term could be imposed. The section at that time simply provided: "Any person convicted of a felony violation of Section 261, 264.1, 286, 288, 288a or 289 who, for the purpose of committing such sexual offense, kidnapped the victim in violation of Section 207, shall be punished by an additional term of three years." (Stats.1983, ch. 950, § 1, pp. 3418-3419.) Section 1170.1, subdivision (f), which requires that numerous enhancements be pled and proven, did not list section 667.8 among those enhancements. (Stats.1982, ch. 1551, § 1.5, p. 6049.)

By the same token, however, section 667.8 did not make it clear that, in contrast to the numerous other sentence enhancements specifically required to be pled and proven, the Legislature intended that this enhancement would not have to be pled and found true by the trier of fact; and it is not unknown for an omission of the normal pleading and proof requirement to be inadvertent. (See, e.g., People v. Jackson (1985) 37 Cal.3d 826, 835, fn. 12, 210 Cal.Rptr. 623, 694 P.2d 736; People v. Najera (1972) 8 Cal.3d 504, 509-510, 105 Cal.Rptr. 345, 503 P.2d 1353.) The statute's failure to address the pleading and proof question distinguishes section 667.8 in an important way from the statute in McMillan v. Pennsylvania (1986) 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67, relied on in this case by the Court of Appeal and the People.

McMillan involved a Pennsylvania statute that provided anyone convicted of certain enumerated felonies was subject to a mandatory minimum sentence of five years' imprisonment if the sentencing judge found that the person "visibly possessed a firearm" during the commission of the offense. ( McMillan, supra, 477 U.S. at p. 81, 106 S.Ct. at p. 2414.) The statute explicitly stated: " 'Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing....' " (Id. at p. 81, fn. 1, 106 S.Ct. at p. 2414, fn. 1.)

Section 667.8's failure to mention a pleading-and-proof requirement or to specifically structure a procedure for notice and hearing on the new factor as was done in McMillan creates an ambiguity inviting inquiry into the Legislature's intent in enacting this statute. (See Sand v. Superior Court (1983) 34 Cal.3d 567, 570, 194 Cal.Rptr. 480, 668 P.2d 787.)

2. Development and Importance of the Requirement That Kidnapping Be "for the Purpose of" a Listed Sex Offense

As noted above, the Court of Appeal in this case held that section 667.8 did not require proof of any new fact not already established by defendant's conviction for rape and kidnapping. It suggested that section 667.8 describes a mere "motive" that could be ascertained by the trial court at the time of sentencing and need not be pled and proven before the trier of fact. Choosing to call the mental element of section 667.8 a "motive" perhaps draws upon the general rule that motive is not ordinarily an element of a crime and hence need not be proved by the prosecution even though it is often relevant and involves admissible evidence. (1...