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Double Jeopardy-Strike
(Barragan)

Double Jeopardy-Not Applicable to Retrial of Strike
(Barragan)

Discussion

            As the Court of Appeal noted, California appellate courts have disagreed on whether retrial of a strike allegation is proper after an appellate court reverses a true finding for insufficient evidence.  Mitchell, which was decided by the same appellate court that decided the case now before us, held that retrial is impermissible “where the government has had a full and fair opportunity to present its case unhampered by evidentiary error or other impediment . . . .”  (Mitchell, supra, 81 Cal.App.4th at p. 136.)  Courts of Appeal that have subsequently considered the issue have consistently rejected Mitchell and held that retrial of an alleged prior conviction is both permissible and proper.  (E.g., People v. Sotello (2002) 94 Cal.App.4th 1349; People v. Franz (2001) 88 Cal.App.4th 1426; Cherry v. Superior Court (2001) 86 Cal.App.4th 1296; People v. Scott (2000) 85 Cal.App.4th 905.)

            In resolving this conflict, we begin with a related principle that the United States Supreme Court has recently established:  in the noncapital sentencing context, retrial of a prior conviction allegation does not violate the double jeopardy clause of the federal Constitution.  (Monge v. California (1998) 524 U.S. 721, 734 (Monge II).)  In reaching this conclusion, the high court acknowledged that a finding on appeal that the evidence at trial was insufficient to sustain a “conviction” on a substantive offense “is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial.   [Citation.]”  (Id. at p. 729.)  However, the court explained, “[w]here a similar failure of proof occurs in a sentencing proceeding, . . . the analogy is inapt.”  (Ibid.)  “[T]he determinations at issue [in noncapital sentencing proceedings] do not place a defendant in jeopardy for an ‘offense,’ [citation].”  (Id. at p. 728.)  “An enhanced sentence imposed on a persistent offender” does not constitute “ ‘either a new jeopardy or additional penalty for the earlier crimes’ but [is simply] ‘a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.’  [Citations.]” (Ibid.)  “The pronouncement of sentence simply does not ‘have the qualities of constitutional finality that attend an acquittal.’  [Citations.]”  (Id. at p. 729.)  Thus, a “[s]entencing decision[] favorable to the defendant . . . cannot generally be analogized to an acquittal.”  (Ibid.)  This rule applies even in states that, as “a matter of legislative grace,” have enacted “procedural safeguards to protect defendants who may face dramatic increases in their sentences as a result of recidivism enhancements.”   (Id. at p. 734.)

            The high court’s decision in Monge II reviewed and affirmed our decision in People v. Monge (1997) 16 Cal.4th 826 (Monge I), which held that retrial of a prior conviction allegation does not violate the double jeopardy protections of either the federal Constitution or the California Constitution.  Like the high court, the lead opinion in Monge I rejected the analogy between a “failure of proof” on a prior conviction allegation and “an acquittal at the guilt phase of a criminal trial.”  (Id. at p. 837 (lead opn. of Chin, J.).)  The lead opinion reasoned that a trial of such an allegation “is simple and straightforward as compared to the guilt phase of a criminal trial,” and “[o]ften . . . involves only the presentation of a certified copy of the prior conviction along with the defendant’s photograph and fingerprints.  In many cases, defendants offer no evidence at all, and the outcome is relatively predictable.” (Id. at p. 838.)  Moreover, such a trial “is merely a determination, for purposes of punishment, of the defendant’s status, which, like age or gender, is readily determinable from the public record.”  (Ibid.)  “Like a trial in which the defendant’s age or gender is at issue, the prior conviction trial merely determines a question of the defendant’s continuing status, irrespective of the present offense, and the prosecution may reallege and retry that status in as many successive cases as it is relevant [citations], even if a prior jury has rejected the allegation [citation].  If a jury rejects the allegation, it has not acquitted the defendant of his prior conviction status.  [Citation.]  ‘A defendant cannot be “acquitted” of that status any more than he can be “acquitted” of being a certain age or sex or any other inherent fact.’  [Citation.]”  (Id. at p. 839.)

            Foreshadowing defendant’s contentions here, the lead opinion in Monge I noted that the inapplicability of double jeopardy protections “raises numerous secondary issues.  For example, [a] Court of Appeal’s determination that the evidence [at trial] was insufficient to prove [a] defendant’s prior conviction was of a serious felony is, at the very least, the law of th[e] case.  Thus, the prosecution would have to present additional evidence at a retrial of the prior conviction allegation in order to obtain a different result.  What limitations might apply to this additional evidence . . . we do not decide, because the Court of Appeal did not address that issue.  For the same reason, we express no opinion about whether [Penal Code] section 1025[[2]] (or some other applicable provision) might in some cases bar retrial of the prior conviction allegation as a statutory matter irrespective of constitutional constraints.  Finally, we express no opinion about whether due process protections preclude the prosecution from retrying the prior conviction allegation.”  (Monge I, supra, 16 Cal.4th at p. 845 (lead opn. of Chin, J.).)

            Before addressing defendant’s contentions, we also note that 50 years ago, in People v. Morton (1953) 41 Cal.2d 536, 541 (Morton), we considered “the order that should . . . be made” by an appellate court if it concludes that the evidence at trial was insufficient to support a finding that a defendant sustained an alleged prior conviction.  In Morton, the trial court had found that the defendant was “an habitual criminal” under former section 644 based on two prior convictions for felonies listed in that section.  (Morton, supra, 41 Cal.2d at p. 538.)  On review, we found insufficient evidence to support the finding because, as to one of the prior convictions, the evidence at trial failed to show the nature of the offense and, thus, that it was one of the listed offenses.  (Id. at pp. 540-541.)  We next explained that, in similar circumstances, “conflicting” precedents offered the following remedial options:  (1) “revers[ing] the entire judgment and remand[ing] the cause for a new trial on all issues, including the charge of the primary offenses”; (2) “set[ting] aside the finding that the defendant suffered the challenged prior conviction” and either “modif[ying]” the judgment “by vacating” the habitual-criminal finding or “remand[ing] for resentencing on the basis of the primary offenses . . . and any unchallenged prior convictions”; and (3) “set[ting] aside the finding that the defendant suffered the challenged prior conviction” and “remand[ing] . . . for a new trial on the issue of the challenged prior conviction.”  (Id. at pp. 541-542.)  We held that where “the defects in the proof of the prior convictions [are] capable of correction on a retrial,” the “proper” procedure is the last option, i.e., setting the finding aside and remanding for a new trial only on the challenged prior conviction.  (Id. at p. 544.)  “This procedure,” we explained, “carries out the policy of the statutes imposing ‘more severe punishment, proportionate to their persistence in crime, of those who have proved immune to lesser punishment’ [citation], and prevents defendants from escaping the penalties imposed by those statutes through technical defects in . . . proof.  It affords the defendant a fair hearing on the charge, and if it cannot be proved he will not have to suffer the more severe punishment.”  (Id. at pp. 544-545.)

            Although cognizant of Morton’s holding, we agree with defendant that Morton is not dispositive.  Defendant correctly notes that Morton “did not address whether retrial of the prior conviction was barred by the doctrines of collateral estoppel, res judicata, law of the case, or fundamental fairness.”  Nor did any of the cases Morton discussed.  “[C]ases are not authority for propositions not considered.  [Citations.]”  (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)  With this background in mind, we now turn to defendant’s specific contentions. People v. Barragan S105734 1/29/04 - [PDF] [DOC] SC

Res Judicata - New Hampshire    
Res Judicata Collateral Estoppel - Barragan

 

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