Supreme Court of California Justia
Citation 47 Cal. 4th 92; 211 P.3d 584; 97 Cal. Rptr. 3d 77

People v. Anderson

Filed 8/26/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S152695
v.
Ct.App. 3 C048283, C047502
BARRY LANE ANDERSON,
Sacramento County
Defendant and Appellant.
Super. Ct. No. 03F00398

BY THE COURT:

MODIFICATION OF OPINION

The majority opinion filed in this case on July 23, 2009, is modified to
delete the second and third sentences of footnote 1, on page 2 of the opinion.
There is no change in the judgment.


Petition for review after the Court of Appeal modified and affirmed a judgment of conviction of criminal offenses. The court limited review to the following issue: Do double jeopardy principles preclude retrial of a sentencing allegation under the one strike law (Pen. Code, section 667.61) if the jury convicts the defendant of a qualifying offense but is unable to reach a verdict on the related sentencing allegation? (See also Porter v. Superior Court [S152273].)

Opinion Information
Date:Citation:Docket Number:Category:Status:
Wed, 08/26/200947 Cal. 4th 92; 211 P.3d 584; 97 Cal. Rptr. 3d 77S152695MReview - Criminal Appealclosed; remittitur issued

Parties
1The People (Plaintiff and Respondent)
Represented by Brook Altose Bennigson
Office of the Attorney General
P.O. Box 944255
Sacramento, CA

2Anderson, Barry Lane (Defendant and Appellant)
P.O. Box 409020
Ione, CA 95640

Represented by Kat Kozik
Attorney at Law
P.O. Box 8445
Berkeley, CA


Opinion Authors
OpinionJustice Carol A. Corrigan
ConcurJustice Carlos R. Moreno

Disposition
Jul 23 2009Opinion: Affirmed with directions

Dockets
May 16 2007Petition for review filed
Barry Lane Anderson, defendant and appellant by Kat Kozik, CA-appointed counsel CRC 8.25
May 16 2007Record requested
Consolidated records ordered for C047502 and C048283
May 18 2007Received Court of Appeal record
C048283-one doghouse - also - C047502-one doghouse
Jun 26 2007Note:
Requested remaining volumes.
Jun 27 2007Received additional record
one box (four doghouses)
Jul 11 2007Petition for review granted; issues limited (criminal case)
The petition for review is granted. The issue to be briefed and argued shall be limited to the following: Whether federal and state double jeopardy principles allowed a retrial of an allegation under the One Strike law (Pen. Code ? 667.61) upon which the jury deadlocked and, if so, whether such a retrial could encompass only the allegation or must also encompass the underlying offense of committing a lewd act on a minor under 14 (Pen. Code ? 288, subd. (a)). (See U.S. Const., 5th Amend., Cal. Const., art. I, ? 15; Pen. Code ? 1023; People v. Seel (2004) 34 Cal.4th 535, 548-550; People v. Fields (1996) 13 Cal.4th 289, 305-308; Porter v. Superior Court (2007) 148 Cal.App.4th 889, 901-910.) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Aug 13 2007Counsel appointment order filed
Upon request of appellant for appointment of counsel, Kat Kozik is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Sep 7 2007Request for extension of time filed
for appellant to file the opening brief on the merits, to 10-12-07.
Sep 11 2007Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including October 12, 2007.
Oct 9 2007Request for extension of time filed
for appellant to file the opening brief on the merits, to 11-13-2007.
Oct 12 2007Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including November 13, 2007. No further extensions of time are contemplated.
Nov 13 2007Request for extension of time filed
for appellant to file the opening brief on the merits, to 11-27
Nov 19 2007Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including November 27, 2007.
Nov 21 2007Opening brief on the merits filed
Barry Anderson, defendant and appellant Kat Kozik, counsel
Dec 17 2007Request for extension of time filed
Respondent requesting a 30-day extension to and Including January 22, 2008, to file respondent's answer brief on the merits.
Dec 26 2007Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's answer brief on the merits is hereby extended to and including January 22, 2007.
Jan 23 2008Request for extension of time filed
for respondent to file the answer brief on the merits, to 2-21-08
Jan 25 2008Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including February 21, 2008.
Feb 21 2008Answer brief on the merits filed
the People, plaintiff and respondent Brook Bennigson, Dep. A.G.
Mar 10 2008Request for extension of time filed
for appellant to file the reply brief on the merits, to March 26.
Mar 18 2008Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including March 26, 2008.
Mar 25 2008Request for extension of time filed
for appellant to file the reply brief on the merits, to 3-31-08 (4-1-08)
Apr 1 2008Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including April 1, 2008.
Apr 1 2008Received:
(oversize) reply brief on the merits; with application for permission. Barry Anderson, defendant and appellant Kat Kozik, counsel
Apr 7 2008Reply brief filed (case fully briefed)
Barry Anderson, appellant Kat Kozik, counsel filed with permission
Apr 28 2008Received:
Letter from Barry Lane Anderson, counsel for appellant Anderson, advising unavailability for oral argument from May 6 through May 18, 2008.
Jun 25 2008Compensation awarded counsel
Atty Kozik $11,555.90
Apr 1 2009Case ordered on calendar
to be argued Wednesday, May 6, 2009, at 9:00 a.m., in San Francisco
May 6 2009Cause argued and submitted
Jun 23 2009Filed:
notice of unavailability of counsel, 6/25 - 7/14/09. Kat Kozik
Jul 22 2009Notice of forthcoming opinion posted
Jul 23 2009Opinion filed: Affirmed in full with directions
The judgment of the Court of Appeal is affirmed. The case is remanded to the trial court for further proceedings in accordance with the Court of Appeal's decision. Majority opinion by Corrigan, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin and Moreno, JJ. Concurring Opinion by Moreno, J.
Jul 30 2009Request for modification of opinion filed
The People, Respondent by Brook Bennigson, counsel
Aug 6 2009Request for modification of opinion filed
Barry Anderson, appellant, Kat Kozik, counsel
Aug 26 2009Time extended to consider modification or rehearing
The finality of the opinion in the above-entitled case is hereby extended to and including September 23, 2009. This order is entered nunc pro tunc as of August 24, 2009, due to clerical error.
Aug 26 2009Request for modification granted
The opinion is modified.
Aug 26 2009Opinion modified - no change in judgment
The majority opinion filed in this case on July 23, 2009, is modified to delete the second and third sentences of footnote 1, on page 2 of the opinion. There is no change in the judgment.
Aug 26 2009Remittitur issued

Briefs
Nov 21 2007Opening brief on the merits filed
Barry Anderson, defendant and appellant Kat Kozik, counsel
Feb 21 2008Answer brief on the merits filed
the People, plaintiff and respondent Brook Bennigson, Dep. A.G.
Apr 7 2008Reply brief filed (case fully briefed)
Barry Anderson, appellant Kat Kozik, counsel filed with permission
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 3, 2010
Annotated by ashleyms

Facts:
In January 2003, Donna Divens saw two five-year-old girls (A.B. and E.M.) in her apartment complex following the defendant around a corner. She followed them and discovered one of the girls (A.B.) standing with her pants down and the defendant squatting behind her. The defendant fled when Divens appeared, and the girls said that they followed him because he had promised them candy and kittens.

Among the many counts of the indictment was the charge that the defendant committed a lewd and lascivious act against A.B., and in connection with that count, the complaint alleged that the defendant had kidnapped her for the purposes of committing the offense. (A defendant found guilty of both must be sentenced to 15 years to life imprisonment under section 667.61, which is referred to as the “One Strike” Law because of its sentence aggravating function). The jury found the defendant guilty of the lewd act, the attempted lewd act, and child pornography charges, and declared a mistrial on substantive kidnapping counts and the 667.61 factual sentencing allegations. Before the defendant’s second trial, the prosecution amended the complaint, without objection from the defendant, to include a harsher kidnapping allegation under the One Strike Law, alleging that the defendant had kidnapped A.B. to commit a lewd act and that the movement substantially increased the risk of harm. This latter clause carried a sentence of 25 years to life imprisonment.

At the second trial, the defendant stipulated to his guilty convictions. He was subsequently found guilty of the substantive kidnapping charges and both One Strike factual allegations were found to be true. Defendant appealed his 25 to life sentence on multiple grounds, but the court granted review only on the issues listed below.

Procedural History:
The Court of Appeals rejected all but one of the defendant’s arguments (not at issue here), and affirmed the trial court’s judgment on the rest. The Supreme Court of California granted review decide the issues below:

Issues:
(1) Do federal and state double jeopardy principles prohibit retrial when a jury as convicted the defendant of an offense but deadlocked on an attached penalty allegation?
(2) If retrial is permissible, must it encompass the underlying offense, or may the penalty allegation be retried in isolation?

Holding:
Mistried penalty allegations may be retried, and the retrial need only encompass the mistried enhancements.

Reasoning: (Corrigan, J.)
The Court discusses the background and meaning of penalty enhancements and, in particular, the sentencing scheme created by the One Strike law. It explores the constitutional protection against double jeopardy for the “same offense” offered by the Fifth Amendment of the U.S. Constitution and Article I, section 15 of the California Constitution. Both treat greater and lesser included offenses as the “same offense” for purposes of double jeopardy, and the court concludes that a count alleging a crime plus sentencing factors does not constitute a greater offense. In People v. Bright, 12 Cal.4th 652 (1996), the court held that because a jury’s failure to return a verdict on a penalty allegation is not an acquittal, retrial of that allegation does not implicate double jeopardy principles. After the U.S. Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), had required a functional inquiry into the question of penalty provisions and substantive offenses – “does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” – an answer in the affirmative mandates the Sixth Amendment requirement of proof beyond a reasonable doubt to a jury. The One Strike law meets the criteria for exposing the defendant to greater punishment and therefore must go to a jury. Additionally, because the defendant’s conviction of the underlying lewd act cannot be construed as an acquittal of the One Strike allegation – the jury had expressly deadlocked on that issue – and because, as the U.S. Supreme Court held in Sattazahn v. Pennsylvania, 537 U.S. 101 (2003), retrial of a sentencing aggravator is permissible if the first trial did not produce an acquittal on the allegation, there is no constitutional bar to retrial.

The court then rejects the defendant’s argument that the second trial on the One Strike law violated Section 1023, California’s statutory provision against double jeopardy. The defendant invoked the acquittal-first rule, which protects defendants from retrial when the jury agrees that the greater offense was not proven but cannot agree on the lesser included offense. However, the court rejects this argument as applied to the defendant’s case because it worries that anytime a jury convicted for an offense but deadlocked on a related sentencing allegation, the entire case would have be retried or the deadlock would have the same retrial-barring effect as an acquittal. A jury’s determination that sentencing enhancements are not proven does not undermine a conviction on the substantive offense. Enhancements are not legal elements of the offenses to which they are attached, though they may function like elements of greater offenses. As such, though an acquittal on the sentencing allegation would have barred retrial, and the One Strike allegation must be tried by a jury, its retrial is not barred by section 1023.

Finally, the court examines the extensive jurisprudence holding that penalty allegations may be tried separately from the substantive offenses to which they are tied. The defendant argued that he was entitled to a verdict rendered by the same jury for all the questions of fact. After noting that in the death penalty context, the Legislature mandates the retrial of sentencing allegations apart from their underlying offense, the court points to the practical problems that upholding the defendant’s proposition would entail: lack of finality and respect owed to a jury’s verdict, wastefulness because of the need to retry everything, and unfairness to the People of California.

Disposition:
The court affirmed the Court of Appeals’ judgment and remanded to trial court for further proceedings.

The opinion was joined by George, C.J., Kennard, J., Baxter, J., Werdergar, J., Chin, J., Moreno, J.

Concurring Opinion: (Moreno, J.)
The concurrence worried that the presumption of innocence for the penalty enhancement would be eroded because the jury will have been told that the defendant has been found guilty of the underlying offense. It remains to be seen whether special jury instructions will cure this problem.