People v. Hernandez

• Decision Date: 24 December 1998
• Docket Number: No. S047306,S047306
• Court: California Supreme Court
• Parties: , 968 P.2d 465, 98 Cal. Daily Op. Serv. 9337, 98 Daily Journal D.A.R. 13,009 The PEOPLE, Plaintiff and Respondent, v. David HERNANDEZ, Defendant and Appellant

Page 754

80 Cal.Rptr.2d 754

19 Cal.4th 835, 968 P.2d 465, 98 Cal. Daily Op. Serv. 9337,

98 Daily Journal D.A.R. 13,009

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

No. S047306.

Supreme Court of California

Dec. 24, 1998.

[968 P.2d 466] [19 Cal.4th 836] Martha M. Hall, under appointment by the Supreme Court, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, M. Howard Wayne, Keith I. Motley, Esteban Hernandez and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

In this case, we consider whether either the state or federal prohibition against double jeopardy bars a trial court from changing its ruling on the applicability of a sentence enhancement.

Following defendant's conviction on various felony charges, the trial court considered whether he should receive a five-year sentence enhancement under Penal Code section 667, former subdivision (a) (now designated subdivision (a)(1)), ¹ because he had a prior serious felony conviction. The trial court agreed with the prosecution that defendant had a prior serious felony conviction, but it found that section 667, former subdivision (a), did not apply because, in its opinion, none of defendant's present convictions constituted a serious felony. The trial court later reconsidered and reversed that initial decision. The Court of Appeal held that the trial court's reconsideration of its initial decision constituted double jeopardy and was therefore unconstitutional. We conclude that the state and federal prohibitions against double jeopardy do not apply to noncapital sentencing determinations. We also conclude that imposition of the sentence enhancement here constituted a noncapital sentencing determination, not a conviction of a new crime. Accordingly, we reverse the judgment of the Court of Appeal.

FACTUAL AND PROCEDURAL BACKGROUND

A jury found defendant guilty of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), battery with serious bodily injury (§ 243, subd. (d)), petty theft (§ 484), and corporal injury to a cohabitant (§ 273.5, subd. (a)). After recording the verdict and dismissing the jury, the court held a hearing on whether defendant should receive a five-year sentence enhancement under section 667, former subdivision (a), because he had a prior serious felony conviction. The prosecution presented certified copies of the prior conviction and of booking documents bearing defendant's fingerprints. Defense counsel then argued that none of defendant's present felonies qualified as a "serious felony,"," When defendant committed his present crimes, section 667, former subdivision (a), provided that "any person convicted of a serious felony who previously has been convicted of a serious felony ... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately." (Stats.1989, ch. 1043, § 1, p. 3619, italics added.) Former subdivision (d) of section 667 defined " 'serious felony' " as "a serious felony listed in subdivision (c) of Section 1192.7." (Stats.1989, ch. 1043, § 1, p. 3620.) The court concluded that, of defendant's four present crimes, only battery with serious bodily injury (§ 243, subd. (d)) might qualify as a "serious felony." Section 1192.7, subdivision (c), does not expressly mention battery with serious bodily injury, but subdivision (c)(8) refers to "any other felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice...." This language would seem to cover defendant's battery conviction, but the court nevertheless concluded that defendant had not committed a serious felony. The court reasoned that section 1192.7, subdivision (c)(8), implicitly requires proof of specific intent to inflict great bodily injury. It noted that battery with serious bodily injury is a general intent crime and that, given that defendant was intoxicated at the time of his offense, the prosecution had not proved specific intent. Because the court believed that none of defendant's present felonies was a serious felony, it agreed with defendant that section 667, former subdivision (a), did not apply. Nevertheless, the court specifically found that defendant had in fact been convicted of a prior serious felony as alleged.

and therefore section 667, former subdivision (a), did not apply.

Later, at sentencing, the prosecution challenged the court's conclusion that section 1192.7, subdivision (c)(8), required proof of specific intent, citing for the first time People v. Moore (1992) 10 Cal.App.4th 1868, 13 Cal.Rptr.2d 713 (Moore ). Moore held that battery with serious bodily injury (§ 243, subd. (d)) is, as a matter of law, a "serious felony," assuming, as is true here, that the defendant is "the sole perpetrator of the crime." (Moore, supra, 10 Cal.App.4th at p. 1871, 13 Cal.Rptr.2d 713.) Noting, in light of Moore, that proof of specific intent is not necessary under section 1192.7, subdivision (c)(8), the court reversed its previous ruling and held that defendant's present battery conviction constituted a "serious felony," and therefore that section 667, former subdivision (a), applied. The court imposed a sentence of four years in state prison for the present felony convictions plus a five-year enhancement for the prior serious felony conviction, for a total sentence of nine years.

Concluding that defendant "was put in jeopardy twice" when the trial court reconsidered its initial decision, the Court of Appeal reversed the trial court's application of section 667, former subdivision (a), and struck the five-year sentence enhancement. We granted review to decide whether double jeopardy principles precluded the trial court from reconsidering its initial decision finding section 667, former subdivision (a), inapplicable.

DISCUSSION

The double jeopardy clause of the federal Constitution provides that "[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb...." (U.S. Const., Amend.V.) In Monge v. California (1998) 524 U.S. 721 [118 S.Ct. 2246, 141 L.Ed.2d 615] (Monge ), a case similar in many ways to this one, the United States Supreme Court held that this prohibition against double jeopardy does not apply to noncapital sentencing determinations. (Id. at p. ----, 118 S.Ct. at p. 2248, 141 L.Ed.2d at p. 621.)

At issue in Monge was the truth of a prior serious felony allegation. (Monge, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2249, 141 L.Ed.2d at p. 622.) The trial court found the allegation true and doubled the defendant's sentence in accordance with the "Three Strikes" law. (Ibid.; §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) The Court of Appeal reversed the true finding, holding that the prior felony did not qualify as a serious felony for purposes of the Three Strikes law because the record contained no evidence that defendant personally used a deadly weapon or personally inflicted great bodily injury. (Monge, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2249, 141 L.Ed.2d at p. 622.) The Court of Appeal also held that double jeopardy protections barred retrial of the allegation. (Ibid.) We granted review and found the state and federal double jeopardy protections inapplicable. (People v. Monge (1997) 16 Cal.4th 826, 845, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (plur. opn. of Chin, J.); see also id. at p. 847, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (conc. opn. of Brown, J.).)

The United States Supreme Court affirmed. The high court stated that the federal Constitution's double jeopardy prohibition does not apply to noncapital sentencing determinations even if the sentencing proceeding had the " 'hallmarks of the trial on guilt or innocence.' " (Monge, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2251, 141 L.Ed.2d at p. 625; see also id. at pp. ---- - ----, 118 S.Ct. at pp. 2252-2253, 141 L.Ed.2d at pp. 626-628.) The court stated, "Where noncapital sentencing proceedings contain trial-like protections, that is a matter of legislative grace, not constitutional command. Many States have chosen to implement procedural safeguards to protect defendants who may face dramatic increases in their sentences as a result of recidivism enhancements. We do not believe that because the States have done so, we are compelled to extend the double jeopardy bar. Indeed, were we to apply double jeopardy here, we might create disincentives that would diminish these important procedural protections." (Id. at p. ---- , 118 S.Ct. at p. 2253, 141 L.Ed.2d at pp. 627-628.)

Justice Scalia, joined by Justices Souter and Ginsburg, agreed with the majority that the federal prohibition against double jeopardy does not apply to noncapital sentencing determinations. (Monge, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2255, 141 L.Ed.2d at p. 630 (dis. opn. of Scalia, J.).) He nevertheless dissented, arguing that, for federal Constitutional purposes, a sentence enhancement is "conviction of a new crime," not merely a sentencing determination. (Id. at p. ----, 118 S.Ct. at p. 2256, 141 L.Ed.2d at p. 632 (dis. opn. of Scalia, J.), fn. omitted.) Justice Scalia acknowledged that the court had held otherwise in Almendarez-Torres v. United States (1998) 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (Almendarez-Torres ), but he noted "that Almendarez-Torres left open the question whether 'enhancements' ... that do not involve the defendant's prior criminal history are valid. That qualification is an implicit limitation on the Court's holding today." (Monge, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2257, 141 L.Ed.2d at p. 632 (dis. opn. of Scalia, J.), italics added.)

Presumably, Justice Scalia would conclude that an enhancement not involving the defendant's prior criminal...