People v. Seel

• Decision Date: 29 November 2004
• Docket Number: No. S106273.,S106273.
• Citation: 21 Cal.Rptr.3d 179,100 P.3d 870,34 Cal.4th 535
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. William Harlow SEEL, Defendant and Appellant.

21 Cal.Rptr.3d 179

34 Cal.4th 535

100 P.3d 870

The PEOPLE, Plaintiff and Respondent, v. William Harlow SEEL, Defendant and Appellant.

No. S106273.

Supreme Court of California.

November 29, 2004.

Law Offices of Dennis A. Fischer, Dennis A. Fischer, Santa Monica, and John M. Bishop for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz, Donald E. De Nicola and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

In 1996, we held that an allegation prescribing a greater punishment for an attempt to commit murder that is "willful, deliberate, and premeditated" (Pen.Code,¹ § 664, subd. (a) (section 664(a)) constituted a penalty provision to which double jeopardy protections do not apply. (People v. Bright (1996) 12 Cal.4th 652, 656-657, 49 Cal.Rptr.2d 732, 909 P.2d 1354 (Bright).) Several years later, in a case not involving double jeopardy, the United States Supreme Court concluded that any fact other than a prior conviction that increases punishment beyond the prescribed statutory maximum "is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict." (Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435, (Apprendi).)²

In light of Apprendi and related cases, we must decide whether double jeopardy protections preclude a retrial of the premeditation allegation (§ 664(a)) after an appellate finding of evidentiary insufficiency. For reasons that follow, we conclude that the federal double jeopardy clause (U.S. Const., 5th Amend.) bars retrial.

I. FACTUAL AND PROCEDURAL BACKGROUND

This background is largely drawn from the Court of Appeal's unpublished opinion.

On May 1, 1999, around 11:00 p.m., John Park and three friends, Nathan Yoshizaki, Leland Fong, and Eric Shing, went out for dinner. Yoshizaki drove the group to a restaurant and parked his car in the parking lot. Defendant William Harlow Seel and a female companion, Shanda Bustamante, left the restaurant and got into defendant's car. As defendant drove out of the parking lot, Park, who was standing in front of the restaurant, heard gunfire, dropped to the ground, and took cover on the right side of Yoshizaki's car. Park and his friends had exchanged no words or gestures with defendant or Bustamante. However, Park had glanced over at defendant's car more than once because he "heard the exhaust." Yoshizaki's car had a bullet hole near the left headlight and the bumper. That was "essentially ... exactly where [Park] walked past" as he was going toward the restaurant.

At trial, defendant testified that when he parked his car in the restaurant's lot, Park and his friends drove up and parked one space away from him. One or two of the men got out of their car, and defendant entered the restaurant to pick up Bustamante. The men started yelling, and defendant believed there was going to be trouble. As defendant and Bustamante left the restaurant and walked toward defendant's car, defendant and the other males looked at each other. Defendant became "increasingly fearful" because of the way the four men were looking at him. He "just felt like something bad was going to happen." As defendant drove out of the parking lot and onto the street, he fired his gun "toward the air like above their car, around that area." He fired three rounds. He "felt kind of paranoid and stuff." He did not plan to shoot or kill Park and did not even know him. Defendant said he kept the gun in his car for protection. He also testified that he had smoked methamphetamine earlier that day and was not "thinking clearly."

A jury convicted defendant of the attempted premeditated murder of Park (§§ 664(a), 187, subd. (a)) and found that he personally and intentionally discharged a firearm. (§ 12022.53, subd. (c).) The trial court imposed a sentence of life imprisonment with the possibility of parole, plus 20 years for the section 12022.53, subdivision (c), allegation. Defendant appealed.

Among other things, defendant argued that there was no substantial evidence of premeditation or deliberation. The Court of Appeal agreed. It concluded, "The finding of premeditation and deliberation, therefore, must be reversed and the matter remanded for retrial on the penalty allegation. (See People v. Bright (1996) 12 Cal.4th 652, 671 [49 Cal.Rptr.2d 732, 909 P.2d 1354].)"

We granted defendant's petition for review, limited to the issue whether the premeditation allegation (§ 664(a)) may be retried.

II. DISCUSSION

As relevant here, section 664(a) provides that a defendant convicted of attempted murder is subject to a sentence of life with the possibility of parole if the jury finds that the attempted murder was "willful, deliberate, and premeditated murder, as defined in section 189." (§ 664(a); see Bright, supra, 12 Cal.4th at p. 665, 49 Cal.Rptr.2d 732, 909 P.2d 1354.) Unless the jury finds this premeditation allegation to be true, a defendant convicted of attempted murder is subject to a determinate sentence of five, seven, or nine years. (§ 664(a).)

Defendant here argues that the Court of Appeal's finding that the evidence was insufficient to support the premeditation allegation (§ 664(a)) constituted an acquittal for double jeopardy purposes, thus barring retrial. (See Burks v. United States (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (Burks).) However, in Bright we held that section 664(a) is a penalty provision to which double jeopardy protections do not apply. (Bright, supra, 12 Cal.4th at p. 671,49 Cal.Rptr.2d 732,909 P.2d 1354.) Also, the high court, in affirming our decision in People v. Monge (1997) 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (lead opn. of Chin, J.) (Monge I), held that the double jeopardy clause does not bar retrial of a prior conviction allegation after an appellate finding of evidentiary insufficiency. (Monge v. California (1998) 524 U.S. 721, 734, 118 S.Ct. 2246, 141 L.Ed.2d 615 (Monge II).)

Defendant seeks support in Apprendi, supra, 530 U.S. 466, 120 S.Ct. 2348, a sentence enhancement case not involving double jeopardy. In Apprendi, the high court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490, 120 S.Ct. 2348.) With respect to these constitutional protections at least, the high court made clear that "[m]erely using the label `sentence enhancement'" does not preclude treating the enhancement as an element of an offense. (Apprendi, supra, 530 U.S. at p. 476, 120 S.Ct. 2348.)

The question here is, does Apprendi affect our holding in Bright? Does section 664(a), though designated a penalty provision (Bright, supra, 12 Cal.4th at p. 669, 49 Cal.Rptr.2d 732, 909 P.2d 1354), constitute an element of an offense for double jeopardy purposes? (See Apprendi, supra, 530 U.S. at p. 494, fn. 19, 120 S.Ct. 2348.) For reasons that follow, we conclude it does. Because the premeditation allegation (§ 664(a)) effectively placed defendant in jeopardy for an "offense" greater than attempted murder (Apprendi, supra, 530 U.S. at p. 494, fn. 19, 120 S.Ct. 2348; see Monge II, supra, 524 U.S. at pp. 728-729, 118 S.Ct. 2246), the Court of Appeal's finding of evidentiary insufficiency bars retrial of the allegation under the federal double jeopardy clause. (Burks, supra, 437 U.S. at p. 16, 98 S.Ct. 2141; U.S. Const., 5th Amend.)

A. Double jeopardy protections

The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee that a person may not be placed twice "in jeopardy" for the "same offense." (See Bright, supra, 12 Cal.4th at p. 660, 49 Cal.Rptr.2d 732, 909 P.2d 1354.) "The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense. [Citations.]" (Ibid.) In addition, because greater and lesser included offenses constitute the "same offense" for double jeopardy purposes (ibid.), "a conviction of a lesser included offense bars subsequent prosecution of the greater offense. [Citations.]" (Id. at p. 661, 49 Cal.Rptr.2d 732, 909 P.2d 1354.)

As noted above, the same protections generally do not extend to noncapital sentencing proceedings, or at least not to those involving prior conviction allegations. (Monge II, supra, 524 U.S. at pp. 728, 730, 118 S.Ct. 2246; Monge I, supra, 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121; but see People v. Hernandez (1998) 19 Cal.4th 835, 80 Cal.Rptr.2d 754, 968 P.2d 465 (Hernandez) [hearing on an enhancement is not a court trial].) For purposes of double jeopardy, the high court recognized in Monge II that an appellate finding that the evidence was insufficient to sustain a conviction was "comparable to an acquittal" and thus barred a second trial. (Monge II, supra, 524 U.S. at p. 729, 118 S.Ct. 2246, citing Burks, supra, 437 U.S. at p. 16, 98 S.Ct. 2141.) However, it also concluded that "[w]here a similar failure of proof occurs in a sentencing proceeding ... the analogy is inapt." (Monge II, supra, 524 U.S. at p. 729, 118 S.Ct. 2246; see also People v. Barragan (2004) 32 Cal.4th 236, 241, 9 Cal.Rptr.3d 76, 83 P.3d 480.)

In reaching this conclusion, the high court emphasized that sentencing determinations "do not place a defendant in jeopardy for an `offense,' [citation]. Nor have sentence enhancements been construed as additional punishment for the previous offense; rather, they act to increase a sentence `because of the manner in which [the defendant] committed the crime of conviction.' [Citations.] An enhanced sentence imposed on a persistent offender thus `is not to be viewed as either a new jeopardy or...