People v. Superior Court (Marks)

• Decision Date: 19 December 1991
• Docket Number: No. S013832,S013832
• Citation: 820 P.2d 613,2 Cal.Rptr.2d 389,1 Cal.4th 56
• Parties: , 820 P.2d 613 The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. John MARKS, Real Party in Interest.
• Court: California Supreme Court

Page 389

2 Cal.Rptr.2d 389

1 Cal.4th 56, 820 P.2d 613

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent.

John MARKS, Real Party in Interest.

No. S013832.

Supreme Court of California,

In Bank.

Dec. 19, 1991.

Ira Reiner, Dist. Atty., Harry B. Sondheim, Donald J. Kaplan and Brent Riggs, Deputy District Attys., for petitioner.

Kent S. Scheidegger, as amicus curiae, on behalf of petitioner.

No appearance for respondent.

John Marks, in pro. per.

Lawrence A. Morse and Robert S. Gerstein, for real party in interest.

Farella, Braun & Martel, Douglas R. Young, Douglas Sortino and Ann G. Daniels, as amici curiae, on behalf of real party in interest.

ARABIAN, Justice.

I. INTRODUCTION

We confront in this case the interplay of two otherwise unrelated constitutional concerns: the prohibition against being twice put in jeopardy and the right of a criminal defendant to be mentally as well as physically present at trial. In deciding whether real party in interest John Marks ¹ may invoke the protections of the double jeopardy clause, we first consider whether a trial court suffers a fundamental loss of jurisdiction when it subjects a defendant to trial without first determining that he has the requisite capacity to understand, consult, and assist in the defense of his life or liberty. (Pen.Code, § 1368.) We resolve this threshold question in the negative and conclude the court retains jurisdiction over the subsequent, albeit defective, proceedings.

This determination does not end our inquiry, however. Because the failure to evaluate a defendant's competence to stand trial mandates reversal, principles of double jeopardy may limit the scope of reprosecution. To assess the proper application of this constitutional guaranty in the present factual context, we also address whether a conviction of a lesser degree crime by operation of law (Pen.Code, § 1157) ² should be accorded the same effect on retrial as an express finding of the lesser degree crime by the previous trier of fact. This question we answer in the affirmative.

II. FACTUAL AND PROCEDURAL BACKGROUND

We are not unacquainted with the underlying factual and procedural history herein, portions of which we reviewed on automatic appeal. ³ (People v. Marks (1988) 45 Cal.3d 1335, 1338-1339, 248 Cal.Rptr. 874, 756 P.2d 260 (Marks I ).) The record established reversible error because the trial court failed to hold a competency hearing in compliance with section 1368, subdivision (b), after expressing a doubt as to defendant's ability to proceed with the guilt phase. (45 Cal.3d at pp. 1340-1344, 248 Cal.Rptr. 874, 756 P.2d 260; see People v. Hale (1988) 44 Cal.3d 531, 541, 244 Cal.Rptr. 114, 749 P.2d 769.) " [T]o provide brief guidance to the trial court for the possibility of a retrial," we noted that "[t]he jury's verdict did not specify the degree of murder of which defendant was convicted [contrary to the mandate of section 1157]." (45 Cal.3d at p. 1344, 248 Cal.Rptr. 874, 756 P.2d 260.)

The matter returned to the trial court, where defendant was found competent. The prosecution reinstated all charges, including first degree murder, both special circumstance allegations, and all enhancement allegations, and indicated its intention again to seek the death penalty. Defendant entered pleas of former acquittal and once in jeopardy (§ 1016), essentially contending that by operation of section 1157 the prosecution could not retry him on any offense greater than second degree murder. ⁴ The People responded that the trial court's section 1368 error rendered it without jurisdiction except to hold a competency hearing and that all other proceedings were a nullity. Since jeopardy never attached, the proffered pleas were unavailable.

After a hearing on the matter, the trial court agreed with defendant and limited the prosecution to retrial for second degree murder. ⁵ The People petitioned for extraordinary relief; in a divided opinion, the Court of Appeal issued a peremptory writ of mandate directing the trial court to set aside its order precluding prosecution for first degree murder and to strike defendant's pleas of former acquittal and once in jeopardy.

In reversing the trial court, the Court of Appeal majority accepted the People's jurisdictional argument, obviating the need to consider defendant's double jeopardy claims. In a lengthy explication, the dissent vigorously disagreed, positing that the trial court did not proceed without jurisdiction but only in excess of jurisdiction because its failure to hold a competency hearing denied defendant his due process right to a fair trial. Since the trial proceedings were thus not void, double jeopardy might preclude retrial for first degree murder. The dissent declined, however, to reach this issue in light of countervailing policy considerations, concluding instead that due process required the same result to avoid penalizing defendant for exercising his right to appeal.

We granted defendant's petition for review and stayed further proceedings.

III. DISCUSSION

A. Trial Court Jurisdiction

The parties have framed the nature and scope of our threshold inquiry thusly: The People contend double jeopardy is not implicated because the trial court's failure to observe the mandate of section 1368 divested it of fundamental, i.e., subject matter, jurisdiction. "Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier 'having jurisdiction to try the question of guilt or innocence of the accused.' [Citations.]" (Serfass v. United States (1975) 420 U.S. 377, 391, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265; see United States v. Perez (1824) 22 U.S. (9 Wheat. 579) 579, 6 L.Ed. 165.) From this perspective, since section 1368 error requires reversal irrespective of prejudice (see, e.g., People v. Hale, supra, 44 Cal.3d at p. 541, 244 Cal.Rptr. 114, 749 P.2d 769), defendant was never subjected to the possibility of a valid conviction. "Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy." (Serfass v. United States, supra, 420 U.S. at pp. 391-392, 95 S.Ct. at p. 1064.) Put succinctly, "an accused must suffer jeopardy before he can suffer double jeopardy." (Id., at p. 393, 95 S.Ct. at p. 1065.)

Defendant counters that principles of double jeopardy obtain because "[t]he jurisdictional concept involved ... is not lack of jurisdiction of the cause but excess of jurisdiction. [Citation.]" (In re Griffin (1967) 67 Cal.2d 343, 347, 62 Cal.Rptr. 1, 431 P.2d 625; see also, e.g., People v. Superior Court (Prudencio) (1927) 202 Cal. 165, 174, 259 P. 943, disapproved on other grounds in People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 501, 72 Cal.Rptr. 330, 446 P.2d 138.) Accordingly, even when, for example, a case proceeds under a "fatally defective" indictment, "if the court had jurisdiction of the cause and the party, its judgment is not void, but only voidable"; and the defendant may invoke double jeopardy. (United States v. Ball (1896) 163 U.S. 662, 669-670, 16 S.Ct. 1192, 1194-1195, 41 L.Ed. 300; Benton v. Maryland (1969) 395 U.S. 784, 797, 89 S.Ct. 2056, 2064, 23 L.Ed.2d 707; see In re Hess (1955) 45 Cal.2d 171, 175-176, 288 P.2d 5; In re Dellasala (1977) 66 Cal.App.3d 453, 456-457, 136 Cal.Rptr. 99.) In defendant's view, the trial court retained subject matter jurisdiction even if it lacked discretion to act other than in compliance with section 1368.

In arguing an absence of fundamental jurisdiction, the People rely substantially on our statement in Marks I that "once a trial court has ordered a competency hearing pursuant to section 1368, the court lacks jurisdiction to conduct further proceedings on the criminal charge or charges against the defendant until the court has determined whether he is competent." (Marks I, supra, 45 Cal.3d at p. 1337, 248 Cal.Rptr. 874, 756 P.2d 260; citing People v. Hale, supra, 44 Cal.3d 531, 244 Cal.Rptr. 114, 749 P.2d 769.) We also reiterated our earlier conclusion in Hale: " 'The sub silentio disposition of the section 1368 proceedings without a full competency hearing rendered the subsequent trial proceedings void because the court had been divested of jurisdiction to proceed pending express determination of the competency issue.' [Citation.]" ⁶ (Marks I, supra, 45 Cal.3d at p. 1344, 248 Cal.Rptr. 874, 756 P.2d 260.) The People also note that since People v. Pennington (1967) 66 Cal.2d 508, 58 Cal.Rptr. 374, 426 P.2d 942 (Pennington), this court and the Courts of Appeal have consistently spoken in jurisdictional terms when referring to this species of error. (Id., at p. 521, 58 Cal.Rptr. 374, 426 P.2d 942 [trial court "pronounced judgment ... without jurisdiction to do so."]; see People v. Hale, supra, 44 Cal.3d at p. 541, 244 Cal.Rptr. 114, 749 P.2d 769 [trial court "has no jurisdiction to proceed"]; In re Davis (1973) 8 Cal.3d 798, 808, 106 Cal.Rptr. 178, 505 P.2d 1018 ["the matter is jurisdictional"]; People v. Day (1988) 201 Cal.App.3d 112, 119, 247 Cal.Rptr. 68 ["the court has no power to proceed"]; People v. Conrad (1982) 132 Cal.App.3d 361, 367, 182 Cal.Rptr. 912 [trial court "lacks jurisdiction to try, judge, or sentence a defendant"]; People v. Tomas (1977) 74 Cal.App.3d 75, 87-88, 141 Cal.Rptr. 453 ["Since the matter is jurisdictional [citation], the court lacks the power to try, judge, or sentence...."]; cf. § 1367 [defendant "cannot be tried or adjudged to punishment while ... mentally incompetent"].)

Despite their imperative tenor, however, none of the cited authorities squarely addressed a question of the trial court's jurisdiction to proceed notwithstanding an erroneous failure to hold a competency hearing. The principal consideration was invariably limited to the effect of section 1368 error on the underlying judgment of conviction; subsequent to Pennington, supra, 66...