People v. Mitchell
| Decision Date | 01 June 2000 |
| Docket Number | No. D034236.,D034236. |
| Citation | 81 Cal.App.4th 132,96 Cal.Rptr.2d 401 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Richard Allen MITCHELL, Defendant and Appellant. |
In this third appeal from Richard Allen Mitchell's judgment and sentence, we conclude that even in the wake of Monge v. California (1998) 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 and People v. Monge (1997) 16 Cal.4th 826, 66 Cal. Rptr.2d 853, 941 P.2d 1121, where the government has had a full and fair opportunity to present its case unhampered by evidentiary error or other impediment, fundamental fairness requires application of equitable principles of res judicata (direct estoppel) and law of the case to preclude the relitigation of Mitchell's prior serious felony conviction allegations for purposes of both a five-year enhancement and a strike under the three strikes law. (Pen.Code,1 §§ 667, subd. (a)(1), 667, subds. (b)-(i), 1192.7, subd. (c)(19).) Accordingly, we conclude the true findings on those allegations must be vacated and the matter remanded for further proceedings.
In a 1995 unpublished opinion, People v. Mitchell (July 26, 1995, D022353) (), this court affirmed Mitchell's jury conviction for assault with a deadly weapon and enhancement finding of infliction of great bodily injury, the trial court's true finding he had previously suffered a prior serious felony conviction, and Mitchell's total nine-year sentence. (§§ 245, subd. (a)(1), 1192.7, subd. (c)(23), 12022.7, subd. (a), 667, subds. (a), (d) & (e).) Mitchell, through his first appointed counsel, had appealed solely on grounds his restitution fine was excessive.
Shortly after the California Supreme Court decided People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal. Rptr.2d 789, 917 P.2d 628, on the advice of his first appellate counsel, Mitchell filed an in propria persona petition for writ of habeas corpus seeking resentencing without the strike prior on grounds the trial court had erroneously believed it did not have discretion to strike such prior. In January 1997, pursuant to an order to show cause (OSC), the trial court conducted resentencing proceedings, agreeing with the prosecution that it was required to impose a mandatory five-year enhancement for Mitchell's prior serious felony which should have been imposed on his original sentence and declining to strike the prior. The court resentenced Mitchell to a total 12-year term in prison.
Mitchell, with new appellate counsel, again appealed and also filed a related petition for habeas corpus relief. After issuing an OSC, receiving further briefing and hearing oral argument, we consolidated the petition for decision with the appeal and the People's motion for costs and sanctions based on a frivolous appeal. We received additional briefing from the parties after the United States Supreme Court issued its opinion in Monge v. California, supra, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615, upholding our Supreme Court's determination in People v. Monge, supra, 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121, that there is no state or federal double jeopardy bar to retrial on a prior conviction allegation in a noncapital sentencing proceeding. (People v. Mange, supra, 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (Monge I), affirmed sub nom. Monge v. California, supra, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (Monge II)).
In a 1999 published opinion, People v. Mitchell (Jan. 7, 1999, D028246, 1999 WL 4088),3 we granted Mitchell's petition for habeas relief on the ground he received ineffective assistance of counsel in Mitchell I because his first appellate counsel failed to raise the sufficiency of the evidence to support the bank robbery prior, which was shown as a matter of law to be insufficient on the record to support the allegations for the strike and five-year enhancement.4 We therefore denied the motion for costs and reversed the trial court's true findings on the prior conviction allegations, remanding for retrial and resentencing in light of Monge I, supra, 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121 and Monge II, supra, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615, on condition that the new sentence imposed not exceed the original nine-year term pursuant to state double jeopardy principles. On April 28, 1999, the California Supreme Court denied review in Mitchell II and ordered it not to be published.
When the case was remanded to the trial court, Mitchell filed motions to enter judgment in his favor on the serious felony allegations and to preclude retrial of those allegations for enhancement and strike purposes. Mitchell argued that despite our holding in Mitchell II that a retrial on the truth of the prior for the various allegations should be conducted on remand, legal principles other than double jeopardy, which were not considered by Monge I, supra, 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121, Monge II, supra, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 or Mitchell II, precluded retrial of those prior allegations. Mitchell asserted that based on this court's determination, the trial court's original true findings on the bank robbery were not supported by legally sufficient evidence, entitling him to an entry of judgment of not true on those priors under the law of the case doctrine. He also claimed that such judgment then became a "plea of former judgment of acquittal" under section 1016, subdivision 4 and res judicata as to the merits in any subsequent litigation of the same controversy." Mitchell further contended the application of res judicata and collateral estoppel principles were constitutionally mandated by due process and equal protection requirements.
The prosecution responded that the trial court was bound to follow this court's clear directions to retry the prior allegations (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), that other California appellate courts after Monge I, supra, 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121 and Monge II, supra, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 had similarly remanded insufficient determinations of serious or violent priors for retrial, that the law of this case was that the priors must be retried, that section 1016, subdivision 4 did not apply because the findings on the prior allegations were not acquittals, and that the doctrines of collateral estoppel and res judicata did not prevent a retrial on the allegations in this case.
After oral argument on the matter, the trial court denied Mitchell's motions, noting they involved an "interesting issue." Then, after Mitchell waived a jury, the court considered and determined that additional evidence presented by the prosecution as to "whether or not force was used in [the] bank robbery" was sufficient to support findings the prior serious felony allegations were true for enhancement and strike purposes. After the court entered its true findings on the priors, Mitchell waived time for resentencing. The court then denied his motion to strike the prior strike allegation and imposed the nine-year lid as required by Mitchell II. Mitchell thereafter timely filed this appeal.
On appeal, Mitchell again presses his claim that a retrial of the prior allegations is barred. As below, he couches his arguments in support of this contention in terms of due process, equal protection, law of the case and res judicata, with an emphasis on the latter. In essence, Mitchell asserts that notwithstanding the holdings in Monge I, supra, 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121, Monge II, supra, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 and People v. Hernandez (1998) 19 Cal.4th 835, 80 Cal.Rptr.2d 754, 968 P.2d 465 (Hernandez), the only post-Monge I and II case from our Supreme Court, other constitutional, statutory and equitable provisions preclude retrial.
The Attorney General responds our statement in Mitchell II that there was no applicable prohibition to the retrial of the allegation of whether Mitchell suffered the prior bank robbery conviction and the holdings in Monge II, supra, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 and Hernandez, supra, 19 Cal.4th 835, 80 Cal. Rptr.2d 754, 968 P.2d 465 are dispositive of Mitchell's assertion. The Attorney General also attacks as wrong our determination in Mitchell II that Mitchell's sentence was limited to the original nine-year term by state double jeopardy principles.
Aside from reading more into Mitchell II than it actually holds, the Attorney General fails to respond to the issues raised by Mitchell on appeal that were left open by Monge I, supra, 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121, Monge II, supra, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 and Hernandez, supra, 19 Cal.4th 835, 80 Cal.Rptr.2d 754, 968 P.2d 465. Further, the Attorney General has already fully litigated and lost a challenge to our decision to limit the total sentence in this case to nine years in Mitchell II. As noted earlier, our Supreme Court denied the Attorney General's petition for review regarding such matter, in which the Attorney General specifically invited that court to abandon or retreat from the controlling precedents of People v. Henderson (1963) 60 Cal.2d 482, 495-497, 35 Cal.Rptr. 77, 386 P.2d 677 and People v. Collins (1978) 21 Cal.3d 208, 216, 145 Cal. Rptr. 686, 577 P.2d 1026, upon which we based our ...
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