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

People v. Anderson

Filed 7/23/09 (this opn. precedes companion case, S152273, filed same date)

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

This case concerns two questions we did not resolve in People v. Seel
(2006) 34 Cal.4th 535 (Seel). (1) Do double jeopardy principles prohibit retrial
when a jury has 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? We
conclude that, in such circumstances, mistried penalty allegations may be retried,
and the retrial need only encompass the mistried enhancements.
BACKGROUND
In January 2003, Donna Divens saw A.B. and E.M. following defendant
around a block of units in the apartment complex where Divens lived. Both girls
were five years old. Divens followed them around a corner and saw A.B. standing
with her pants down while defendant squatted behind her. E.M. was standing
nearby. When Divens appeared, defendant quickly departed. The girls explained
they had followed him because he promised them candy and kittens.
1



Defendant was charged in count one with committing a lewd and lascivious
act on A.B., a child five years of age. (§ 288, subd. (a).)1 That charge was
followed by two paragraphs containing notices that the offense was a serious
felony (§ 1192.7, subd. (c)) and that conviction would require defendant to register
as a sex offender (§ 290). The complaint went on to allege, in connection with
count one, that defendant kidnapped A.B. “for the purpose of committing that . . .
offense,” in violation of section 667.8, subdivision (b), and that the kidnapping fell
within the meaning of section 667.61, subdivision (e)(1). Under section 667.61, a
defendant who is convicted of a lewd and lascivious act and also found to have
kidnapped the victim for that purpose must be sentenced to 15 years to life
imprisonment. (§ 667.61, subds. (b), (e)(1).) The penalty for a lewd and
lascivious act without a kidnapping allegation is a term of three, six or eight years.
(§ 288, subd. (a).) Section 667.61, which provides indeterminate sentences for
felony sex crimes committed under particular circumstances, is sometimes called
the “One Strike” law. (People v. Rayford (1994) 9 Cal.4th 1, 8.) The complaint
also alleged in separate substantive counts that defendant kidnapped A.B. (count
three) and E.M. (count four) for the purpose of committing a lewd and lascivious
act (§ 207, subd. (b)), attempted to commit the lewd act offense on E.M.
(§ 664/288, subd. (a)) (count two), and possessed child pornography (§ 311.11,
subd. (a)) (counts five through fifteen).
During the second day of deliberations, the jury announced it had reached
verdicts on the lewd act and pornography charges but could not reach a verdict on
the substantive kidnapping counts or on the section 667.61, subdivision (e)(1)
kidnapping allegations. After further deliberations produced the same result, the
court received the jury‟s verdicts of guilty on the lewd act, attempted lewd act and

1
All statutory references are to the Penal Code. The record on appeal does
not contain the information filed before defendant‟s first trial (although it does
include an amended information filed later). As a result, our description of the
original charges is drawn from the felony complaint.
2


child pornography charges, and declared a mistrial on the kidnapping counts and
factual sentencing allegations. Defendant waived time for sentencing, and the
court scheduled a retrial on the mistried counts and sentencing allegations.
Months later, but before defendant‟s second trial, the prosecutor amended the
information to add another, harsher, kidnapping allegation under the One Strike
Law in connection with the crime against A.B. In addition to the allegation of
kidnapping under section 667.61, subdivision (e)(1), the amended information
alleged defendant had kidnapped A.B. to commit a lewd act and that the
movement substantially increased the risk of harm. (§ 667.61, subd. (d)(2).) This
second factual allegation, if found true, carried a punishment of 25 years to life
imprisonment. (§ 667.61, subd. (a).) Defendant did not object to the amendment.
At his second trial, defendant stipulated that he had been convicted of
molesting one little girl, attempting to molest the other, and of possessing child
pornography. The jury in this second trial found defendant guilty of both
substantive kidnapping charges (§ 207, subd. (b)) and found true both the 15-year
and 25-year factual allegations charged in connection with the crimes against A.B.
After receiving these verdicts, the court sentenced defendant to an indeterminate
term of 25 years to life imprisonment under the One Strike law (§ 667.61,
subd. (d)(2)) for violation of section 288, subdivision (a), plus a consecutive
determinate term of 11 years for kidnapping E.M. in violation of section 207,
subdivision (b). (A three-year sentence for the attempted lewd act against E.M.
was ordered to run concurrently, and an 11-year sentence for the kidnapping of
A.B. was stayed pursuant to section 654.)
Defendant appealed on several grounds. The Court of Appeal rejected all
but one of his arguments, on an issue not contested here.2 In all other respects, it

2
The Court of Appeal interpreted subdivisions (d)(2) and (e)(1) of
section 667.61 as being mutually exclusive. Thus, a true finding under
subdivision (d)(2) would preclude imposition of an additional penalty under
subdivision (e)(1). The trial court had imposed an indeterminate sentence of 15
3


affirmed the judgment. We granted review to decide whether federal and state
double jeopardy principles allowed retrial of the factual sentencing allegation of
kidnapping on which defendant‟s first jury deadlocked and, if so, whether retrial
could concern the sentencing allegation alone or had to encompass the underlying
lewd act charge.3
DISCUSSION
I.
Overview of California Sentencing Law
“Every crime consists of a group of elements laid down by the statute or
law defining the offense and every one of these elements must exist or the statute
is not violated. This group of essential elements is known as the „corpus delicti,‟
the body or the elements of the crime. [Citation.]” (Fricke, Cal. Criminal Law
(1970) p. 26.) A criminal offense is thus a collection of specific factual elements
that the Legislature has chosen to define as a crime. Some substantive crimes are
further divided into degrees. For example, the substantive crime of burglary is
defined by its elements as: (1) entry into a structure, (2) with the intent to commit
theft or any felony. (§ 459; see also CALCRIM No. 1700.)4 If these elements are

years to life for the jury‟s subdivision (e)(1) finding but stayed it under
section 654. The Court of Appeal‟s ruling meant the finding and sentence had to
be stricken, not stayed. This interpretation is not before us and we express no
opinion thereon.
3
Defendant did not enter a plea of once in jeopardy before his second trial;
therefore, the double jeopardy issues raised herein were not preserved for review.
(People v. Memro (1995) 11 Cal.4th 786, 821.) Because defendant claims his
attorney rendered ineffective assistance of counsel by failing to assert the plea,
however, the Court of Appeal addressed the merits of the double jeopardy
arguments. We do as well. (See People v. Scott (1997) 15 Cal.4th 1188, 1201;
People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1.)
4
We refer to this simplified description of burglary by way of example. The
burglary statute includes within its scope entry into “any house, room, apartment,
tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building,
tent, vessel, . . . floating home, . . . railroad car, locked or sealed cargo container,
whether or not mounted on a vehicle, trailer coach, . . . any house car, . . .
4


proven, the crime of second degree burglary has been committed. (§§ 459, 460,
subd. (b).) However, if, in addition to these elements, there is also proof that the
structure was inhabited at the time of the entry, the crime is elevated from second
degree to first degree burglary. (§ 460, subd. (a); see also CALCRIM No. 1701.)5
First degree burglary is a greater substantive offense than second degree burglary
because it requires proof of all the elements of second degree burglary and the
additional element that the area entered was used as a dwelling.
The Legislature has prescribed a range of determinate sentences for most
substantive crimes. (See § 1170.)6 For example, first degree burglary is punished
by a term of either two, four or six years in state prison. (§ 461.)
The Legislature has also concluded that some substantive crimes should be
punished more severely because of particular facts attendant upon their
commission. The Legislature has implemented this policy in several ways. It has
provided for greater sentences if certain enhancements are pled and proven. (See
Cal. Rules of Court, rule 4.405(3).) Enhancements have their own factual
elements, such as the personal use of a firearm (§§ 12022.5, 12022.53) or the
infliction of great bodily injury (§ 12022.7). So, a defendant who takes cash from
a victim by threatening to strike the victim if he does not surrender the money may
be charged with robbery (§ 211). However, if the defendant points a handgun at
the victim in order to obtain the money, he may be charged with the substantive
crime of robbery and an enhancement allegation that he personally used a firearm

inhabited camper, . . . vehicle . . . , when the doors are locked, aircraft , . . . or
mine or any underground portion thereof . . . .” (§ 459.)
5
Specifically, section 460 defines first degree burglary as “[e]very burglary
of an inhabited dwelling house, vessel, . . . which is inhabited and designed for
habitation, floating home, . . . or trailer coach . . . or the inhabited portion of any
other building . . . .” (§ 460, subd. (a).)
6
The exceptions are crimes, like murder, for which the Legislature has
prescribed only indeterminate sentences. (See, e.g., § 190, subd. (a) [sentence for
second degree murder is 15 years to life; sentence for first degree murder is 25
years to life].)
5


to commit the robbery (§ 12022.5). If the jury finds that both the substantive
crime and the enhancement have been proven, the defendant may be sentenced to
a base term of two, three or five years for the robbery (§ 213, subd. (a)(2)) and an
additional term of three, four or ten years for the use of the firearm (§ 12022.5,
subd. (a)).
The Legislature and California voters have also enacted a “parallel
sentencing scheme” for repeat offenders. (People v. Anderson (1995) 35
Cal.App.4th 587, 592-593.) Under the “Three Strikes” law, a defendant who is
accused of a felony may also be charged with having previously been convicted of
other crimes. If the previous convictions meet the statutory definitions of “strikes”
and are proven true, the defendant may be sentenced not to a determinate term, but
to an indeterminate term of 15 or 25 years to life. (See §§ 667, 1170.12.) As with
enhancements, a jury considering a Three Strikes allegation must separately
determine whether the defendant has committed the new substantive felony and
whether the allegations of prior strike convictions have been proven. It is well
settled that if the jury‟s finding on a strike allegation is reversed on appeal for
insufficient evidence, the allegation may be retried to a new jury. (People v.
Barragan (2004) 32 Cal.4th 236; People v. Monge (1997) 16 Cal.4th 826.)
The One Strike law (§ 667.61) was added to the Penal Code in 1994. (5
Stats. 1994, 1st Ex. Sess., ch. 14X, § 1, p. 8570; see People v. Hammer (2003) 30
Cal.4th 756, 766.) Like the Three Strikes law, the One Strike law is an alternative
sentencing scheme that applies to certain felony sex offenses. (People v. Jones
(1997) 58 Cal.App.4th 693, 709, fn. 9.) It mandates an indeterminate sentence of
15 or 25 years to life in prison when the jury has convicted the defendant of a
specified felony sex crime (§ 667.61 [listing applicable crimes]) and has also
found certain factual allegations to be true (§ 667.61, subds. (d), (e)). Most of
these factual allegations concern the manner in which the underlying substantive
offense was committed. As with the Three Strikes law and statutory sentencing
enhancements, the jury must first decide whether all the elements of the
6
underlying substantive crime have been proven. If not, it returns an acquittal and
the case is over. If the jury convicts on the substantive crime, it then
independently determines whether the factual allegations that would bring the
defendant under the One Strike sentencing scheme have also been proven.
Because the sentencing allegations have the potential to increase punishment, the
defendant has a Sixth Amendment right to have their truth decided by a jury.
(Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) If the jury cannot
agree whether the One Strike allegations have been proven, the conviction on the
substantive offense stands and a mistrial of necessity is declared as to the factual
sentencing allegations. (See People v. Bright (1996) 12 Cal.4th 652, 661-662
(Bright).)7
Under the One Strike law, certain factual allegations may have the same
elements as a substantive offense. Such was the case here. Kidnapping a child to
commit a lewd and lascivious act is a substantive offense. (§ 207, subd. (b).) The
same conduct may also be alleged as a factual sentencing allegation under the One
Strike law. (§§ 667.61, subds. (c)(4), (e)(1).) The elements of both the
substantive crime and the sentencing allegation are the same. Here, the
prosecution charged kidnapping as both a substantive offense and as a sentencing
allegation attached to the lewd and lascivious conduct offense.
Defendant‟s first jury found him guilty of the substantive offense of
committing a lewd and lascivious act on A.B. (§ 288, subd. (a).) However,
because the jury could not agree about whether he kidnapped her for the purpose
of committing this offense, it hung on both the substantive kidnapping charge
(§ 207, subd. (b)) and the One Strike sentencing allegation (667.61, subd. (e)(1)).
These facts demonstrate the flaw in defendant‟s double jeopardy argument. It is
well settled that when the jury convicts a defendant on some counts but hangs on

7
We disapproved Bright on a related ground in Seel, supra, 34 Cal.4th at
page 542.
7


others, resulting in a mistrial, the mistried counts may be tried to a new jury.
(§ 1160.)8 Under defendant‟s theory, double jeopardy would not prevent a retrial
of the substantive kidnapping offenses alleged in counts three and four, but it
would bar retrial for the same conduct as a factual sentencing allegation under
section 667.61, subdivision (e)(1). As we will explain, this anomalous result is
neither consistent with legislative intent nor compelled by constitutional mandate.
II.
Constitutional Double Jeopardy Protection
The double jeopardy clauses of the Fifth Amendment to the United States
Constitution and article I, section 15, of the California Constitution provide that a
person may not be twice placed “in jeopardy” for the “same offense.” “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.]” (Bright, supra, 12 Cal.4th at p. 660.)
Although some differences in application arise, both federal and California law
generally treat greater and lesser included offenses as the “same offense” for
purposes of double jeopardy. (Id. at pp. 660-661; see Brown v. Ohio (1977) 432
U.S. 161, 165-169.) It is upon this treatment that defendant‟s argument both relies
and ultimately founders.
“The constitutional protection against double jeopardy unequivocally
prohibits a second trial following an acquittal.” (Arizona v. Washington (1978)
434 U.S. 497, 503.) The same is true when a conviction is reversed or set aside
because of insufficient evidence. (Hudson v. Louisiana (1981) 450 U.S. 40; Burks
v. United States (1978) 437 U.S. 1.) The United States Supreme Court has held
that an acquittal barring a second prosecution may be implied where a jury
convicts on a lesser included offense after having “ „a full opportunity to return a

8
Section 1160 provides, in relevant part: “Where two or more offenses are
charged in any accusatory pleading, if the jury cannot agree upon a verdict as to all
of them, they may render a verdict as to the charge or charges upon which they do
agree, and the charges on which they do not agree may be tried again.”
8


verdict‟ ” on the greater charge (Price v. Georgia (1970) 398 U.S. 323, 328-329;
Green v. United States (1957) 355 U.S. 184, 191), and California law has long
recognized that such an “implied acquittal” bars retrial. (People v. Fields (1996)
13 Cal.4th 289, 299 (Fields); Stone v. Superior Court (1982) 31 Cal.3d 503, 511,
518-519.)
However, when a trial produces neither an acquittal nor a conviction, retrial
may be permitted if the trial ended “without finally resolving the merits of the
charges against the accused.” (Arizona v. Washington, supra, 434 U.S. at p. 505.)
In general, if a jury is discharged without returning a verdict, the double jeopardy
bar applies unless manifest necessity required the discharge or the defendant
consented to it. (Green v. United States, supra, 355 U.S. at p. 188.). From the
time of the United States Supreme Court‟s decision in United States v. Perez
(1824) 22 U.S. (9 Wheat.) 579, it has been established that the failure of a jury to
agree on a verdict is an instance of “manifest necessity” permitting retrial of the
defendant “because „the ends of public justice would otherwise be defeated.‟ ”
(Richardson v. United States (1984) 468 U.S. 317, 323-324.) California‟s
application has long been the same. “Like its federal counterpart, the state rule
permits retrial following discharge of a jury that has been unable to agree on a
verdict. [Citations.] The rule is codified in sections 1140 and 1141, which permit
retrial following discharge of a jury after the court has determined „there is no
reasonable probability that the jury can agree.‟ (§ 1140; see People v. Tong (1909)
155 Cal. 579, 581.) Section 1160 implements the legal necessity doctrine in the
multiple count situation by permitting the trial court to receive a verdict on one
count and to discharge the jury with respect to another count on which the jury
deadlocked without jeopardy attaching as to that charge. [Citation.]” (Fields,
supra, 13 Cal.4th at p. 300.)
9

The jury in this case convicted defendant of committing a lewd act but
deadlocked on the One Strike kidnapping allegation attached to that offense.9
These procedural facts raise questions about whether and in what manner this
sentencing allegation could be retried. If a substantive crime is charged against a
defendant and the prosecution alleges additional facts bearing on sentencing, does
that collective allegation of substantive crime plus sentencing factors constitute a
“greater offense” than a charge of the substantive crime standing alone? We
conclude a count alleging a crime plus sentencing factors is not a “greater offense”
for double jeopardy purposes. Thus, if a defendant is convicted of the substantive
crime but the jury deadlocks on attached factual sentencing allegations, neither
federal nor state double jeopardy principles bar a retrial of those sentencing
allegations.
A.
Double Jeopardy Clause Applies to Penalty Allegations
In Bright, supra, 12 Cal.4th 652, the defendant was charged with attempted
murder. It was further alleged that the murder he attempted was willful,
deliberate, and premeditated. A true finding on this allegation would have
elevated his sentence from five, seven, or nine years to life imprisonment with the
possibility of parole. (§ 664, subd. (a).) The jury convicted the defendant of
attempted murder but could not reach a finding on the premeditation allegation.
(Bright, at p. 658.) We considered whether federal or state double jeopardy
principles prevented retrial. We held that the answer depends on the nature of the
allegation. A conviction on a lesser degree of an offense is generally considered
to be an implied acquittal of the greater degree. However, a jury‟s failure to return
a verdict on a penalty allegation does not constitute an acquittal, and thus retrial of
the allegation does not implicate double jeopardy principles. (Id. at pp. 661-662.)

9
As noted, the jury also deadlocked on charges that defendant committed the
substantive crime of kidnapping (§ 207, subd. (b)); however, defendant does not
claim retrial of these charges was improper. Accordingly, we restrict our
discussion to issues concerning retrial of the sentencing allegation.
10


After much analysis, we concluded the allegation under section 669,
subdivision (a) did not create a greater offense, i.e., of attempted premeditated
murder, but rather constituted a penalty provision. (Bright, at pp. 662-669.)
Accordingly, double jeopardy principles did not bar retrial of the allegation. (Id.
at p. 671.)
We revisited this holding after the United States Supreme Court questioned
the constitutional significance of the distinction between penalty provisions and
elements of offenses. In Apprendi, supra, 530 U.S. 466, the high court ruled that,
with the sole exception of facts relating to 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,
italics added.) The court explained that “the relevant inquiry is one not of form,
but of effect—does the required finding expose the defendant to a greater
punishment than that authorized by the jury‟s guilty verdict?” (Id. at p. 494.) If
so, regardless of whether a state labels the fact a sentencing factor or an element of
an offense, the Sixth Amendment requires that it be proven to a jury beyond a
reasonable doubt. (Id. at pp. 494-495; see also Sattazahn v. Pennsylvania (2003)
537 U.S. 101, 111 (lead opn. of Scalia, J.) (Sattazahn).) Thus, the high court
reasoned, “when the term „sentence enhancement‟ is used to describe an increase
beyond the maximum authorized statutory sentence, it is the functional equivalent
of an element of a greater offense than the one covered by the jury‟s guilty
verdict.” (Apprendi, supra, 530 U.S. at p. 494, fn. 19; see also People v.
Sengpadychith (2001) 26 Cal.4th 316, 326 (Sengpadychith) [“Apprendi treated the
crime together with its sentence enhancement as the „functional equivalent‟ of a
single „greater‟ crime”].)
Citing the “functional equivalen[ce]” language from Apprendi, defendant
here argues that a factual allegation charged in connection with an underlying
felony effectively transforms the underlying felony into a greater offense. He then
maintains that a conviction of the underlying offense alone bars retrial on state and
11
federal double jeopardy grounds of an attached penalty allegation on which the
jury has deadlocked. We have not previously discussed Apprendi‟s effect on
mistried sentencing allegations, nor has United States Supreme Court spoken to
the issue directly.

In Seel, supra, 34 Cal.4th 535, we considered whether Apprendi
undermined our holding in Bright that section 664, subdivision (a) is a penalty
provision to which double jeopardy protections do not apply. Seel involved not a
hung jury, but a reversal on appeal. Seel was convicted of attempted murder
(§ 187, subd. (a)) with true findings on allegations that he acted with
premeditation (§ 664, subd. (a)) and intentionally discharged a firearm
(§ 12055.53, subd. (c)) during the offense. (Seel, at p. 540.) However, the Court
of Appeal reversed the premeditation finding as unsupported by substantial
evidence. It then remanded for a retrial of the allegation based on our holding in
Bright. (Seel, at p. 540.) We held that a retrial of the allegation would violate
double jeopardy. Because proof of the premeditation allegation exposes a
defendant to significantly greater punishment than a jury‟s verdict of attempted
murder without premeditation, we concluded Apprendi required the allegation to
be treated as the functional equivalent of an element of a greater offense and not
simply as a penalty provision without constitutional significance. (Seel, at
pp. 548-550.) We rejected the Attorney General‟s argument that Apprendi‟s
reasoning extends only to Sixth Amendment jury trial protections, noting “the high
court has indicated that the principles underlying the double jeopardy clause on the
one hand, and the . . . right to jury trial on the other, are not wholly distinct.
[Citations.]” (Seel, at p. 547; see, e.g., Sattazahn, supra, 537 U.S. at p. 111.)
Seel did not completely overrule Bright, however, because for double
jeopardy purposes the procedural posture of the cases differed in an important
way. In Seel, the section 664, subdivision (a) finding was reversed because the
evidence was insufficient as a matter of law. In Bright, on the other hand, the jury
was unable to reach a verdict on the premeditation allegation. (Seel, supra, 34
12


Cal.4th at p. 550; Bright, supra, 12 Cal.4th at p. 658.) We described this
difference as “[s]ignificant[],” noting “ „[a] mistrial does not constitute a
termination of jeopardy, and accordingly double jeopardy does not arise from the
legal necessity of a mistrial. [Citation.]‟ ([Bright,] at p. 662.)” (Seel, at p. 550;
see also Stone v. Superior Court, supra, 31 Cal.3d at p. 516.) As the Supreme
Court made clear in United States v. DiFrancesco (1980) 449 U.S. 117, 130-131,
the double jeopardy clause prohibits retrial after a conviction has been reversed for
evidentiary insufficiency but allows it after a mistrial occasioned by “manifest
necessity.” Because Apprendi required the premeditation allegation to be resolved
by the jury, and because the appellate court‟s finding of evidentiary insufficiency
was a classic example of a termination of jeopardy barring retrial (Burks v. United
States, supra, 437 U.S. 1), we concluded in Seel that federal double jeopardy
principles barred retrial of the allegation. (Seel, at pp. 548-550.) We expressed no
opinion on the application of these principles when, as in Bright, the trial court has
declared a mistrial on the penalty allegation due to juror deadlock.
Defendant in this case was charged with the substantive crime of lewd and
lascivious conduct on a child under age 14. (§ 288, subd. (a).) It was also alleged,
as a question of fact to be proven under Apprendi, that he kidnapped the victim in
order to commit the substantive offense. (§ 667.61, subd. (e)(1).)10 As discussed,
the One Strike law sets forth an alternative and harsher sentencing scheme for
certain sex crimes, including the lewd act offense alleged here (§ 667.61,

10
In addition to the One Strike allegation, the prosecution also alleged a
kidnapping enhancement to the lewd act offense (§ 667.8, subd. (b) [providing for
additional 15-year term].) Unlike a penalty allegation that, if proven, invokes an
alternate and harsher sentencing scheme, a sentencing enhancement merely adds
an additional term of imprisonment to the base term imposed for an offense. (Cal.
Rules of Court, rule 4.405(3); see Bright, supra, 12 Cal.4th at p. 656, fn. 2.)
However, it appears the kidnapping enhancement was dismissed sometime during
defendant‟s second trial. The jury did not render a verdict on the truth of the
section 667.8, subdivision (b) allegation, and the judgment includes no conviction
or sentence for this provision.
13


subd. (c)(8)). (People v. Mancebo (2002) 27 Cal.4th 735, 741.) The One Strike
law applies if the defendant has previously been convicted of one of seven
enumerated offenses or if the current offense was committed under one or more
specified circumstances. (Ibid.) Section 667.61, subdivision (e)(1), the allegation
at issue in defendant‟s first trial, provides for an indeterminate sentence of 15
years to life imprisonment if the jury finds that the defendant kidnapped the victim
while committing an enumerated offense. (See § 667.61, subd. (b).) Without a
true finding on the section 667.61, subdivision (e)(1) allegation, a defendant can
only be sentenced to a lower determinate term. (§ 288, subd. (a).) Thus, like the
premeditation allegation at issue in Bright and Seel, a One Strike allegation
exposes a defendant to greater punishment than would be authorized by a verdict
on the offense alone. (See Seel, 34 Cal.4th at p. 548.)
Accordingly, unless a defendant waives its protection, the Sixth
Amendment requires that a One Strike allegation be tried to a jury and proven
beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) Our inquiry
does not end here, however, because the factual sentencing allegation in this case
did not result in an acquittal or its legal equivalent (see ibid.), but in a mistrial.
The next question is whether the double jeopardy clause permits retrial of such a
factual sentencing allegation when the first trial did not result in an express or
implied acquittal.
B.
No Constitutional Bar to Retrial of Allegation After Mistrial
In general, the double jeopardy clause of the Fifth Amendment prohibits the
government from prosecuting a defendant for a greater offense after it has
convicted him of a lesser included offense. (Brown v. Ohio, supra, 432 U.S. at
pp. 168-169.) However, the United States Supreme Court has recognized several
exceptions to this rule. In Jeffers v. United States (1977) 432 U.S. 137, 151-152,
the court held that the Brown rule does not apply when the defendant expressly
asks for separate trials on greater and lesser offenses. The high court likened this
situation to others in which double jeopardy protection does not bar a retrial, for
14
example, after a defendant‟s successful appeal for reasons other than insufficiency
of the evidence, or after a mistrial has been granted at the defendant‟s request.
(Jeffers v. United States, at p. 152.) “Both the trial after the appeal and the trial
after the mistrial are, in a sense, a second prosecution for the same offense, but, in
both situations, the policy behind the Double Jeopardy Clause does not require
prohibition of the second trial.” (Ibid.)
The same is true when the court enters a mistrial on a greater offense based
on the “manifest necessity” of a juror deadlock. “[W]ithout exception, the courts
have held that the trial judge may discharge a genuinely deadlocked jury and
require the defendant to submit to a second trial. This rule accords recognition to
society‟s interest in giving the prosecution one complete opportunity to convict
those who have violated its laws.” (Arizona v. Washington, supra, 434 U.S. at
p. 509.) The high court has explained that “the protection of the Double Jeopardy
Clause by its terms applies only if there has been some event, such as an acquittal,
which terminates the original jeopardy,” and “the failure of the jury to reach a
verdict is not an event which terminates jeopardy.” (Richardson v. United States,
supra, 468 U.S. at p. 325, italics added.) “The Government, like the defendant, is
entitled to resolution of the case by verdict from the jury, and jeopardy does not
terminate when the jury is discharged because it is unable to agree.” (Id. at
p. 326.)
When a jury expressly deadlocks on a greater offense and, at the same time,
convicts on a lesser included offense, we have interpreted the federal authorities to
mean that “the conviction on the lesser offense does not operate as an implied
acquittal of the greater.” (Fields, supra, 13 Cal.4th at p. 302.) The same principle
applies under the California Constitution. (Id. at p. 303 [“under the double
jeopardy principles embodied in the California Constitution, when jurors deadlock
on a greater offense, an acquittal on that charge will not be implied by the jury‟s
verdict of guilty on a lesser included offense”].) Thus, defendant‟s conviction of
the underlying lewd act offense cannot be construed as an implied acquittal of the
15
One Strike allegation because the jury expressly declared it was unable to reach a
verdict on the allegation.
Ohio v. Johnson (1984) 467 U.S. 493, 494-496, involved greater and lesser
included offenses, not factual sentencing allegations. There, the United States
Supreme Court rejected an argument that the double jeopardy clause precludes
continued prosecution on greater offenses simply because a defendant has been
convicted and sentenced on lesser included offenses. Johnson was indicted for
murder and aggravated robbery and their lesser included offenses of involuntary
manslaughter and grand theft. (Ohio v. Johnson, at p. 495.) At his arraignment,
Johnson offered to plead guilty to the lesser offenses only. (Id. at p. 496.) The
trial court accepted Johnson‟s guilty pleas over the state‟s objection and dismissed
the more serious offenses on the ground that they were barred by double jeopardy.
(Id. at pp. 494-496.) Although this ruling was upheld by Ohio‟s appellate courts,
the United States Supreme Court disagreed, holding the double jeopardy clause
did not prohibit the state from continuing to prosecute Johnson on the murder and
aggravated robbery charges. (Ohio v. Johnson, at pp. 496, 502.)
The high court explained that continued prosecution did not implicate the
prohibition on multiple punishments for the same offense (see Brown v. Ohio,
supra, 432 U.S. at p. 165) because this protection is only meant to prevent the
government from imposing cumulative punishment, not to halt all proceedings that
might ultimately lead to a cumulative punishment. (Ohio v. Johnson, supra, 467
U.S. at pp. 499-500.) In addition, the court strongly disagreed with Johnson‟s
claim that continued prosecution of the greater offenses would violate the double
jeopardy bar against a second prosecution following a conviction. (Id. at pp. 500-
502.) The court stated, “Respondent‟s argument is apparently based on the
assumption that trial proceedings, like amoebae, are capable of being infinitely
subdivided, so that a determination of guilt and punishment on one count of a
multicount indictment immediately raises a double jeopardy bar to continued
prosecution on any remaining counts that are greater or lesser included offenses of
16
the charge just concluded. We have never held that, and decline to hold it now.”
(Id. at p. 501.) Because Johnson had not yet been tried or exposed to a conviction
on the murder and aggravated robbery charges, and the trial court‟s acceptance of
guilty pleas on the lesser charges had none of the hallmarks of an implied
acquittal, no interest protected by the double jeopardy clause was implicated by a
continuing prosecution. (Ohio v. Johnson, at pp. 501-502.) “On the other hand,
ending prosecution now would deny the State its right to one full and fair
opportunity to convict those who have violated its laws. (Arizona v. Washington,
[supra,] 434 U.S. [at p.] 509.)” (Ohio v. Johnson, at p. 502.)
Defendant here did not try to manipulate the system by entering preemptive
guilty pleas, and unlike the defendant in Johnson he was required to face trial
twice on the One Strike allegation. However, a more recent Supreme Court
decision suggests the overriding lesson is that double jeopardy does not bar retrial
of sentencing facts when there is not an implied acquittal.
In Sattazahn, supra, 537 U.S. 101, 103-104, the jury convicted the
defendant of first degree murder but could not reach a verdict at the penalty phase
of trial. The trial judge discharged the jury as hung and sentenced the defendant to
life imprisonment, as was required by Pennsylvania law in the absence of a
unanimous verdict for death. (Id. at pp. 104-105.) The murder conviction was
reversed on appeal, however, and when the case was remanded for a new trial the
prosecution alleged an additional aggravating circumstance and again sought the
death penalty. At the second trial, the jury convicted the defendant of first degree
murder and imposed a death sentence. (Id. at p. 105.)
The United States Supreme Court concluded the double jeopardy clause did
not prevent the state from seeking the death penalty at the second trial.
(Sattazahn, supra, 537 U.S. at p. 105.) Although double jeopardy principles do
apply to capital sentencing proceedings that “have the hallmarks of the trial on
guilt or innocence” (Bullington v. Missouri (1981) 451 U.S. 430, 439), the court
stressed in Sattazahn that “it is not the mere imposition of a life sentence that
17
raises a double-jeopardy bar.” (Sattazahn, at p. 107.) Rather, what matters is
whether the procedures governing the jury‟s verdict of life imprisonment signify
that it acquitted the defendant of whatever was necessary to impose death. (Id. at
pp. 106-107; Bullington v. Missouri, at p. 445; see also Arizona v. Rumsey (1984)
467 U.S. 203, 211 [because jury‟s findings amounted to “an acquittal on the
merits,” they barred a retrial seeking the death penalty].) Accordingly, “the
relevant inquiry for double-jeopardy purposes [i]s not whether the defendant
received a life sentence the first time around, but rather whether a first life
sentence was an „acquittal‟ based on findings sufficient to establish legal
entitlement to the life sentence . . . .” (Sattazahn, at p. 108.) The Sattazahn court
noted that “whether there has been an „acquittal‟ ” is “the touchstone for double-
jeopardy protection in capital-sentencing proceedings.” (Id. at p. 109.)
Sattazahn teaches that double jeopardy principles do not bar retrial of an
aggravated sentencing allegation if the first trial did not produce an express or
implied acquittal on the allegation. (Sattazahn, supra, 537 U.S. at pp. 106-110.)
Sattazahn was originally sentenced to life, not because a jury acquitted him at the
penalty phase, but because a state statute called for this sentence if the jury hung
on the question of death. (Id. at pp. 104-105.) Sattazahn‟s reasoning guides the
application of Fifth Amendment principles to other penalty allegations that must
be tried to a jury and proven beyond a reasonable doubt.
Sattazhan is also instructive because a plurality of the high court went on to
consider the double jeopardy question in light of the court‟s ruling in Apprendi,
supra, 530 U.S. 466. With regard to the Sixth Amendment‟s jury-trial guarantee,
the court had previously held that when an aggravating circumstance makes the
defendant eligible for the death penalty it is “ „the functional equivalent of an
element of a greater offense.‟ ” (Ring v. Arizona (2002) 536 U.S. 584, 609.) A
plurality of the justices in Sattazahn found “no principled reason to distinguish, in
this context, between what constitutes an offense for purposes of the Sixth
Amendment‟s jury-trial guarantee and what constitutes an „offence‟ for purposes
18
of the Fifth Amendment‟s Double Jeopardy Clause. [Citation.]” (Sattazahn,
supra, 537 U.S. at p. 111.) Applying Apprendi and Ring, the court explained first
degree murder is “properly understood to be a lesser included offense of „first-
degree murder plus aggravating circumstance(s).‟ [Citation.]” (Sattazahn, at
p. 112.) The court reasoned that double jeopardy would have prohibited the state
from retrying the greater offense, i.e., from seeking the death penalty, if but only if
the first sentencing jury had unanimously concluded the state had failed to prove
any aggravating circumstance, a conclusion that would have operated as an
acquittal of the greater offense. “But,” the court observed, “that is not what
happened.” (Ibid.) Instead, because the jury deadlocked at the penalty phase and
did not “acquit” the defendant of this greater offense, the high court concluded
“there was no double-jeopardy bar to Pennsylvania‟s retrying [him] on both the
lesser and the greater offense; his „jeopardy‟ never terminated with respect to
either. [Citations.]” (Id. at p. 113.)
We have rejected defendant‟s argument that the attachment of factual
sentencing allegations to a substantive offense creates a new “greater offense.”
But even if we were to accept this proposition, defendant‟s argument would fail
under Sattazahn. Defendant‟s first jury could not agree on the truth of the
kidnapping allegations. Just as in Sattazahn, the mistrial entered on these
sentencing allegations did not constitute an acquittal, and thus they could be
retried without offending the double jeopardy clause.
The procedural circumstances here parallel Sattazahn. The jury convicted
defendant of a substantive offense but expressly deadlocked on an allegation that
would have increased his penalty for that offense. Even if Apprendi requires us to
consider the One Strike allegation as the equivalent of a greater offense,
conferring a jury trial right, the double jeopardy clause does not prohibit retrial
simply because a judgment was entered on the lewd act offense alone. Because
the jury announced it could not reach a verdict on the One Strike allegation, its
verdict on the underlying offense cannot be construed as an acquittal under either
19
the federal double jeopardy clause or the California Constitution. (See Fields,
supra, 13 Cal.4th at pp. 302-303, 305.) Moreover, under federal constitutional
law, the mistrial due to jury deadlock was not an event that terminated jeopardy on
the allegation. (See Sattazahn, supra, 537 U.S. at p. 113; Richardson v. United
States, supra, 468 U.S. at p. 325.) Accordingly, constitutional double jeopardy
principles did not bar retrial of the One Strike allegation. (See United States v.
Williams (5th Cir. 2006) 449 F.3d 635, 645-646 [when jury returned conviction on
base offense but deadlocked on penalty factors, double jeopardy clause did not bar
retrial of the penalty allegations]; United States v. Bordeaux (8th Cir. 1997) 121
F.3d 1187, 1191-1193 [verdict on lesser included offense did not bar retrial of
greater offense on which jury had deadlocked].)
III.
Statutory Double Jeopardy Protection: Section 1023
Although the double jeopardy clause of the Fifth Amendment permits
retrial of the One Strike allegation at issue here, we have observed that “federal
law sets the minimum standards of double jeopardy protection,” and, “[u]nder
California law, in some instances, an accused may be entitled to greater double
jeopardy protection than that afforded under the federal Constitution. [Citations.]”
(Fields, supra, 13 Cal.4th at p. 302.) Accordingly, we consider whether
defendant‟s second trial on the One Strike allegation violated California‟s
statutory provision against double jeopardy.
Section 1023 states: “When the defendant is convicted or acquitted or has
been once placed in jeopardy upon an accusatory pleading, the conviction,
acquittal, or jeopardy is a bar to another prosecution for the offense charged in
such accusatory pleading, or for an attempt to commit the same, or for an offense
necessarily included therein, of which he might have been convicted under that
accusatory pleading.” “The statute implements the protections of the state
constitutional prohibition against double jeopardy, and, more specifically, the
doctrine of included offenses. [Citations.] Underlying this principle—that a
conviction of a lesser included offense is a bar to a subsequent prosecution for the
20
greater offense—is the notion that, once a conviction on the lesser offense has
been obtained, „ “to [later] convict of the greater would be to convict twice of the
lesser.” ‟ [Citations.]” (Fields, supra, 13 Cal.4th at pp. 305-306.)
In Fields, the defendant was charged with several offenses after he caused a
fatal collision while driving intoxicated. (Fields, supra, 13 Cal.4th at p. 296.) The
jury deadlocked on the greater offense of gross vehicular manslaughter while
intoxicated (Veh. Code, § 191.5, subd. (a)) but convicted on the separately
charged lesser included offense of vehicular manslaughter while intoxicated (Veh.
Code, § 192, subd. (c)(3)). (Fields, at pp. 296-297.) Because of the jury‟s express
deadlock, we concluded its conviction on the lesser included offense was not an
implied acquittal of the greater offense. Thus, his retrial on the greater offense
was not constitutionally prohibited. (Id. at pp. 298-305.) We nevertheless applied
existing case law to conclude retrial was barred by statute.
Nearly 50 years before Fields, we interpreted section 1023 to mean that a
conviction for a lesser included offense bars a later prosecution for the greater
offense. (People v. Greer (1947) 30 Cal.2d 589, 597.) “Underlying Greer‟s
interpretation of section 1023 . . . was the concern that, if such were not the rule,
„section 1023 could be vitiated by the simple device of beginning with a
prosecution of the lesser offense and proceeding up the scale.‟ (People v. Greer,
supra, 30 Cal.2d at p. 597.)” (Fields, supra, 13 Cal.4th at p. 307.) We adhered to
this interpretation in Fields, holding that section 1023 prohibits the retrial of a
greater offense after a defendant‟s conviction of a lesser included offense even
when there has been no express or implied acquittal of the greater offense.
(Fields, at p. 307.) We observed that a contrary rule would result in “numerous
and formidable practical difficulties,” such as whether the second jury should be
advised of the defendant‟s previous conviction and how to resolve potentially
inconsistent verdicts on the lesser included offense. (Id. at p. 307 & fn. 5.)
Our decision in Fields was grounded in an established rule of trial
procedure known as the “acquittal-first rule.” (Fields, supra, 13 Cal.4th at p. 309.)
21
In Stone v. Superior Court, supra, 31 Cal.3d at page 519, we held a defendant‟s
constitutional rights require that the jury be permitted to render a partial verdict of
acquittal on a greater offense when they are deadlocked only as to a lesser
included offense. To aid trial courts in fulfilling this constitutional obligation, we
suggested the court provide separate verdict forms for each offense but stressed,
“[t]he jury must be cautioned, of course, that it should first decide whether the
defendant is guilty of the greater offense before considering the lesser offense
. . . .” (Ibid.) We clarified this rule in People v. Kurtzman (1988) 46 Cal.3d 322, a
case involving jury deadlock on the greater offense but not the lesser. We
explained that in all trials of included offenses, “the jury must acquit of the greater
offense before returning a verdict on the lesser included offense,” although it can
consider or discuss the offenses in any order it chooses. (Id. at p. 330.) The
acquittal-first rule protects a defendant from retrial when the jury agrees that the
greater offense was not proven but cannot agree on a lesser included offense.
Without the rule, a general declaration of mistrial would disguise the fact that the
jury agreed the defendant was not guilty of the greater offense, making the
defendant subject to retrial on both the greater and lesser offenses.
The problem in Fields arose because the defendant‟s jury was not advised
of its obligation to return a verdict on the greater offense first, before rendering a
verdict on the lesser included offense. We explained that a jury‟s verdict on a
lesser included offense only is “incomplete” and constitutes an “irregular verdict”
that is “ „mistaken in the law.‟ ” (Fields, supra, 13 Cal.4th at pp. 310-311.) If the
jury renders only a verdict of guilty on the lesser offense, we stated that the trial
court should decline to receive the verdict and should direct the jury to reconsider
its lone verdict in light of the acquittal-first rule of People v. Kurtzman. (Fields, at
p. 310.) If the court fails to do so, and instead records the partial verdict and
discharges the jury, we held section 1023 requires the consequences of this
“ „mistake in the law‟ ” to be borne by the People, not the defendant, such that the
conviction of the lesser offense will bar the People from retrying the greater,
22
notwithstanding the jury‟s deadlock on that charge. (Fields, at p. 311.) When the
jury is instructed on the acquittal-first rule and hangs on the more serious offense,
the prosecution is put to a choice: It may either move for a mistrial and set the
entire matter for a retrial (§§ 1140, 1141), or, if it wishes to accept a verdict on the
lesser charge and forgo a chance to convict on the greater, the prosecution may ask
the court to dismiss the greater charge in the interest of justice (§ 1385). (Fields,
at p. 311.) As we recognized in Fields, the whole point of the Stone/Kurtzman
rule is to provide a procedure whereby the jury‟s intent is clear, and legitimate
interests of both the defendant and the People are honored.
Defendant seeks to divorce Fields from this intricate context and extend its
holding to the retrial of penalty allegations. Starting from the premise that
Apprendi, supra, 530 U.S. at page 490, requires a penalty allegation to be treated
as the functional equivalent of a greater offense, defendant argues his conviction
for the lewd act offense alone is essentially the same as a conviction for a lesser
included offense. Because he stood convicted of the lewd act offense at the close
of the first trial, defendant argues retrial of the “greater offense” on which the first
jury deadlocked, i.e., the One Strike allegation, was barred by section 1023 and
our holding in Fields. Under defendant‟s reasoning, any time a jury convicts the
accused of an offense but deadlocks on a related sentencing allegation, either the
entire case would have to be retried or the deadlock would have to be given the
same effect as an acquittal, barring retrial of the allegation. Neither Apprendi nor
Fields requires this result.
As discussed, ante at pages 4 to 8, the penalty provisions set forth in our
state‟s Penal Code differ in significant ways from both greater and lesser included
offenses and greater and lesser degrees of the same offense. “[A] penalty
provision prescribes an added penalty to be imposed when the offense is
committed under specified circumstances.” (Bright, supra, 12 Cal.4th at p. 661.)
Under California law, a sentencing enhancement or penalty allegation is not a
complete offense in itself. It is “separate from the underlying offense and does not
23
set forth elements of the offense or a greater degree of the offense charged.
[Citations.]” (Ibid.) Conceptually, a penalty provision is an appendage that
attaches to an offense and, if proven, prescribes additional punishment for the
crime. (People v. Wolcott (1983) 34 Cal.3d 92, 100-101.)
Another important difference between a greater offense and a penalty
provision, for our purposes, is that “[t]he jury does not decide the truth of the
penalty allegation until it first has reached a verdict on the substantive offense
charged. [Citation.]” (Bright, supra, 12 Cal.4th at p. 661.) Here, defendant‟s
attempt to extend Fields to penalty allegations encounters a significant practical
obstacle. It is only logical for the jury to decide first whether a defendant
committed the substantive offense before considering whether the appended
sentencing facts are true. If the substantive offense is not proven, there is no crime
and thus no sentence to be aggravated. Our interpretation of section 1023 in
Fields was grounded on the acquittal-first rule of Stone and Kurtzman (see Fields,
supra, 13 Cal.4th at pp. 308-311), but no such rule governs the order of verdicts
on sentencing allegations. We have never held that a jury‟s conviction of an
offense alone, without an accompanying acquittal on alleged penalty factors,
constitutes an irregular verdict or a mistake of law. Indeed, the whole point of
alleging the enhancing factors separately, and requiring a separate jury
determination under Apprendi, is that they function to increase the punishment for
the underlying crime. If the jury determines the enhancing allegations are not
proven, that separate determination stands, but it does not undermine the jury‟s
conviction on the substantive offense.
For these reasons, we have previously rejected the argument that a
conviction on an underlying offense is enough in itself to bar retrial of attached
sentencing allegations. As noted in Bright, supra, 12 Cal.4th at pages 661-662, “a
defendant‟s conviction of the underlying substantive offense does not (on double
jeopardy grounds) bar further proceedings, such as retrial, on a penalty allegation.
[Citation.] Thus, the circumstance that the jury has returned a verdict on the
24
underlying offense, but is unable to make a finding on the penalty allegation, does
not constitute an „acquittal‟ of (or otherwise bar retrial of) the penalty allegation
on the ground of double jeopardy. [Citations.]” The question now is whether
Apprendi requires us to overrule this holding by treating penalty allegations as
substantive elements of an offense for purposes of section 1023, the state statute
governing retrial of included offenses. We conclude it does not.
Apprendi held that every finding that exposes the defendant to punishment,
or increases the punishment possible for a crime, must be submitted to a jury and
proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490; see
Oregon v. Ice (2009) 555 U.S. __ [129 S.Ct. 711, 716-717] [listing sentencing
facts to which Apprendi has been applied].) The high court‟s holding stemmed
from the Fifth Amendment right to due process and the Sixth Amendment right to
a jury trial. (People v. Izaguirre (2007) 42 Cal.4th 126, 131 (Izaguirre); see
Apprendi, at p. 476.) Apprendi thus requires that any sentencing provision that
increases the penalty for a crime beyond the statutory maximum be treated as the
“functional equivalent” of an element of a greater offense for purposes of a
defendant‟s federal constitutional rights under the Fifth and Sixth Amendments.
(Apprendi, at p. 494 & fn. 19; Sengpadychith, supra, 26 Cal.4th at p. 326.) This
holding parallels the California sentencing scheme. Both substantive offenses and
sentencing allegations require that certain facts be established before the jury can
conclude the allegations have been proven. In addition, although Apprendi itself
was “not grounded on principles of federal double jeopardy protection” (Izaguirre,
at p. 131), we have extended its reasoning to bar retrial of a penalty allegation
after the equivalent of an acquittal under the federal double jeopardy clause.
(Seel¸ supra, 34 Cal.4th at pp. 548-549.)
25

However, to say that a penalty provision must sometimes11 be treated as the
“functional equivalent” of an element for claims arising under the federal
Constitution does not mean such provisions are now elements for all purposes
under California law. We rejected this notion in Izaguirre, supra, 42 Cal.4th at
pages 133-134. (See also People v. Sloan (2007) 42 Cal.4th 110, 123.)
Izaguirre addressed the application of Apprendi to California‟s multiple
conviction rule. “In general, a person may be convicted of, although not punished
for, more than one crime arising out of the same act or course of conduct. . . .
Section 954 generally permits multiple conviction. Section 654 is its counterpart
concerning punishment. It prohibits multiple punishment for the same „act or
omission.‟ When section 954 permits multiple conviction, but section 654
prohibits multiple punishment, the trial court must stay execution of sentence on
the convictions for which multiple punishment is prohibited. [Citations.]”
(People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) A judicially created
exception to this rule prohibits multiple convictions based on necessarily included
offenses. (Id. at p. 1227; People v. Montoya (2004) 33 Cal.4th 1031, 1034.) The
defendant in Izaguirre sought to graft Apprendi onto these state law rules, arguing
his convictions for two firearm enhancements should have been stricken because
they were necessarily included in his conviction for the greater offense of first
degree murder with a drive-by shooting special circumstance. (Izaguirre, supra,
42 Cal.4th at pp. 129-130, 132.) He argued this result followed from Apprendi‟s
directive that a crime and its attached sentence enhancement be treated as the
functional equivalent of a single greater crime. (Izaguirre, at p. 130; see Seel,
supra, 34 Cal.4th at p. 539, fn. 2.)

11
As we made clear in Sengpadychith, the constitutional requirements of
Apprendi apply only when a penalty or enhancement has the potential to increase a
defendant‟s punishment beyond the statutory maximum. (Sengpadychith, supra,
26 Cal.4th at pp. 320, 327.) When such an increase is not possible, Apprendi does
not apply.
26



We disagreed and found Apprendi‟s holding inapposite to the question of
whether enhancements must be considered in defining necessarily included
offenses for purposes of the multiple conviction rule. (Izaguirre, supra, 42 Cal.4th
at p. 133.) “To the extent the firearm-related enhancements in question stood to
increase punishment, Apprendi‟s holding, grounded on the Fifth Amendment right
to due process and Sixth Amendment right to jury trial, requires only that they be
tried to a jury and found true beyond a reasonable doubt, which they were.”
(Izaguirre, at p. 133.) We also observed that the federal double jeopardy concerns
addressed in Seel, supra, 34 Cal.4th 535, were not at issue because the defendant‟s
claim concerned multiple convictions imposed in a unitary trial, not successive
prosecutions. (Izaguirre, at pp. 133-134.) Finally, we rejected the defendant‟s
argument that “conduct enhancements are the functional equivalent of completed
offenses or convictions for purposes of the multiple conviction rule,” noting it had
no support in case law. (Id. at p. 134.) “Conduct enhancements cannot be
imposed standing alone as additional punishment. By definition, an enhancement
is „an additional term of imprisonment added to the base term.‟ (Cal. Rules of
Court, rule 4.405(3); see People v. Jefferson (1999) 21 Cal.4th 86, 101.) For that
reason alone, an enhancement cannot be equated with an offense. (See People v.
Chiu (2003) 113 Cal.App.4th 1260, 1265.)” (Izaguirre, at p. 134.) Thus,
reasoning that “enhancements are not legal elements of the offenses to which they
attach,” we concluded they should not be considered in defining necessarily
included offenses under the multiple conviction rule. (Id. at p. 128, italics added.)
Defendant here also seeks to expand Apprendi to a state statute relating to
an area entirely under the aegis of state law. However, the United States Supreme
Court has made it clear that Apprendi, and cases following it, did not alter state
substantive law. In Schiro v. Summerlin (2004) 542 U.S. 348, the court rejected
an argument that Ring v. Arizona, supra, 536 U.S. 584, created a substantive
change in the law because Apprendi converted aggravating factors into the
functional equivalent of elements of greater offenses. The high court explained
27
that Apprendi and Ring did not create new substantive elements of offenses;
rather, they simply held that when findings function like elements of greater
offenses by increasing punishment, they must be made by a jury under the
reasonable doubt standard. (See Schiro v. Summerlin, at p. 354.) More recently,
the court has observed that the sovereign authority of states in maintaining their
own criminal justice systems counsels against extending Apprendi beyond its
specific context. (Oregon v. Ice, supra, 555 U.S. __ [129 S.Ct. at pp. 718-719].)
As Justice Ginsburg noted, members of the high court “have warned against
„wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its
necessary boundaries.‟ [Citation.]” (Id. at p. __ [129 S.Ct. at p. 719].)
Our holding in Izaguirre illustrates that sentencing enhancements or other
penalty provisions need not be treated as actual elements of offenses for all
conceivable state law purposes, but only where the defendant‟s claim implicates a
federal constitutional right under the Fifth or Sixth Amendment. In California,
“sentence enhancements are not „equivalent‟ to, nor do they „function‟ as,
substantive offenses.” (People v. Wims (1995) 10 Cal.4th 293, 307, overruled on
another ground in Sengpadychith, supra, 26 Cal.4th at p. 326.) Apprendi does not
require or enable us to rewrite the Penal Code to convert penalty provisions such
as the one at issue here into elements of offenses. “[I]t is the function of the
legislative branch to define crimes and prescribe punishments . . . .” (In re Lynch
(1972) 8 Cal.3d 410, 414.)
Under California law, the One Strike allegation on which defendant‟s first
jury deadlocked was not a greater offense that incorporated the underlying lewd
act crime as a lesser included offense. It was simply a penalty allegation. While
Fields does not apply, Bright does. Bright holds that a conviction on an
underlying substantive offense does not bar retrial of a penalty allegation on which
the first jury deadlocked (Bright, supra, 12 Cal.4th at p. 661.) Under Apprendi,
the One Strike allegation had to be tried to a jury, and under Seel an acquittal on
the allegation would have barred retrial. However, these federal constitutional
28
requirements do not persuade us to impose even more sweeping double jeopardy
protections under California statutory law. Retrial of the One Strike allegation did
not violate section 1023.
IV.
Scope of Retrial
Having concluded the retrial of a penalty allegation is permitted, we turn to
the proper scope of such a retrial. Defendant argues it was structural error to retry
the One Strike kidnapping allegation “in isolation” because, even if retrial did not
violate double jeopardy, the law requires all elements of a crime to be tried
together. Construing the One Strike allegation as an element of a greater offense,
defendant contends retrial had to encompass both the kidnapping allegation and
the underlying lewd act offense to which it was attached.
The premise of defendant‟s argument fails. As we have explained, the fact
that a penalty allegation must be treated like an element for certain federal
constitutional purposes does not convert the allegation into an actual element of a
substantive offense. A sentencing enhancement or other penalty provision is not
an element of an offense under California law. (People v. Wims, supra, 10 Cal.4th
at pp. 304, 307; see People v. Wolcott, supra, 34 Cal.3d at p. 101.)
A criminal defendant has a right under both the United States and the
California Constitutions to have every element of an offense tried to a jury and
proved beyond a reasonable doubt. (United States v. Gaudin (1995) 515 U.S. 506,
511; People v. Flood (1998) 18 Cal.4th 470, 479-480.) However, we have not
interpreted this right to mean that the same jury that finds a defendant guilty of an
offense must always decide the truth of an attached penalty allegation. On the
contrary, “prior decisions have held that a trial court may receive a guilty verdict
from a jury that is unable to agree on a penalty provision, declare a mistrial on the
penalty provision alone, and empanel another jury to consider the issue of penalty.
[Citations.]” (People v. Posey (2004) 32 Cal.4th 193, 216.) An example of this
procedure is codified in section 190.4, subdivision (a), which provides that, if the
jury is unable to reach a verdict on special circumstance allegations attached to a
29
first degree murder charge, “the court shall dismiss the jury and shall order a new
jury impaneled to try the issues, but the issue of guilt shall not be tried by such
jury. . . .” Thus, in the death penalty context, which arguably represents the most
severe increase in punishment possible, the Legislature mandates the retrial of
penalty factors apart from their underlying offense. (§ 190.4, subd. (a); People v.
Thompson (1990) 50 Cal.3d 134, 176-177.)
Several cases have approved of the retrial of sentencing allegations after a
defendant has been convicted of the offense to which they were attached. In
People v. Saunders (1993) 5 Cal.4th 580, we held double jeopardy principles did
not bar a second jury from deciding the truth of prior conviction allegations after
the defendant was convicted of the underlying offense. Although the defendant
asserted we had recognized a defendant‟s “ „ “valued right to have his trial
completed by a particular tribunal” ‟ ” (id. at p. 595, quoting Stone v. Superior
Court, supra, 31 Cal.3d at p. 516, fn. 7), we observed, “nothing in our opinion in
Stone suggests that, in a bifurcated trial, the double jeopardy clause guarantees the
defendant the right to have the truth of prior conviction allegations determined by
the same jury that considers the current offenses.” (People v. Saunders, at p. 595,
italics added.)12 And in Bright, supra, 12 Cal.4th at pages 660-661, 671, we held
that a premeditation allegation is not an element of an offense, and therefore
double jeopardy principles did not bar retrial of the allegation. In so doing, we
affirmed the Court of Appeal‟s decision that “retrial on the limited question

12
In considering the double jeopardy consequences of a mistrial granted due
to prosecutorial misconduct, we have observed that “a criminal defendant who is
in the midst of trial has an interest, stemming from the double jeopardy clause, in
having his or her case resolved by the jury that was initially sworn to hear the
case—and in potentially obtaining an acquittal from that jury. [Citation.]”
(People v. Batts (2003) 30 Cal.4th 660, 679, italics added.) The situation here is
quite different, of course, because the defendant‟s trial is over, and it did not result
in an acquittal. Our statement in Batts concerned a different issue and did not
establish an absolute right for all offenses and allegations brought against a
defendant to be decided by a single jury.
30


presented by the penalty allegation” is permissible. (Id. at pp. 660, italics added;
see id. at p. 671.) More recently, in People v. Posey, supra, 32 Cal.4th at
page 216, we held that retrial limited to the issue of venue is permissible after a
jury has found the defendant guilty but deadlocked on venue, because venue is not
an element of an offense.
Courts of Appeal have reached the same conclusion with respect to
sentencing enhancements. In People v. Schulz (1992) 5 Cal.App.4th 563, after a
jury convicted the defendant of attempted murder but deadlocked on an attached
enhancement for inflicting great bodily injury, the defendant argued the
enhancement could not be retried in isolation from the underlying attempted
murder offense. Raising the same argument made here, the defendant in Schulz
asserted, “when the jury hung on the enhancement, the prosecution should have
been given the choice of either accepting the attempted murder verdict and
requesting dismissal of the enhancement, or requesting a mistrial as to the
attempted murder count as well and retrying both the attempted murder charge and
its enhancement.” (Id. at p. 568.) The Court of Appeal rejected this assertion.
Noting that section 1160 expressly permits retrial of charged offenses on which
the jury cannot reach a verdict, the court observed that, although no similar statute
specifically permits the retrial of enhancements, “no legal or practical barrier”
prevents the retrial of an enhancement when, as in the case of a jury deadlock,
jeopardy is not a bar. (People v. Schulz, at p. 569.) Similarly, the court in People
v. Guillen (1994) 25 Cal.App.4th 756, 762, relied on Schulz to permit retrial of a
weight enhancement on which the jury had deadlocked following the defendant‟s
conviction of an underlying drug offense.
In other circumstances, we have disapproved of “piecemeal jury litigation,”
in which penalty issues are reserved for a second trial. (People v. Najera (1972) 8
Cal.3d 504, 511-512.) However, the facts in Najera were quite different. There, a
jury convicted the defendant of robbery and found he was armed with a revolver.
(Id. at p. 506.) A question arose on appeal as to whether he could be punished for
31
having used the gun in the offense, pursuant to section 12022.5. (People v.
Najera, at pp. 506, 508-509.)13 Because the prosecution failed to request an
instruction under section 12022.5 and “took no steps whatever at trial to secure a
verdict or judgment stating the applicability of section 12022.5” (People v. Najera,
at p. 509), we determined the judgment had to be modified to specify that the
enhancement could not be applied. (Id. at p. 517.)
Najera was a case in which the prosecution failed to allege a potentially
relevant enhancement and then tried to invoke the enhancement for the first time
on the defendant‟s appeal from the judgment. (People v. Najera, supra, 8 Cal.3d
at pp. 509-511; see also People v. Salas (2001) 89 Cal.App.4th 1275, 1282.)
Although Najera‟s conviction was being affirmed on appeal, the People urged us
to remand the case for a further jury trial to determine whether a use enhancement
could also be imposed. (People v. Najera, at p. 511.) We concluded fundamental
fairness prohibited this second proceeding, noting, “defendant should not have to
undergo a second „trial‟ on the issue of penalty, especially since the People could
have obviated such a procedure by timely measures during the first trial.” (Id. at
pp. 511-512.) Thus, where the judgment was being affirmed and there was no
legal basis for a remand, we determined it would be unfair to subject the
defendant to a second trial simply to give the People an opportunity to seek an
enhancement they had not previously alleged. (Id. at p. 510-512.) Our statements
in Najera have no bearing on the situation here, in which the penalty allegation
was properly presented to defendant‟s first jury and retrial was necessary because
the jury could not reach a unanimous verdict on the issue. (See People v. Schulz,

13
The Legislature has distinguished between being armed with a firearm, i.e.,
having the weapon available for use, and actually using a firearm in the
commission of a felony. (People v. Bland (1995) 10 Cal.4th 991, 996-998; People
v. Chambers
(1972) 7 Cal.3d 666, 672.) Firearm use is generally subject to more
severe penalties. (Compare § 12022.5 [extending sentence three to 10 years for
firearm use] with § 12022 [extending sentence one year for being armed with a
firearm, with additional punishment provided for certain firearms and felonies].)
32


supra, 5 Cal.App.4th at p. 570 [Najera‟s policy considerations do not apply when
retrial is required by a hung jury]; cf. Sattazahn, supra, 537 U.S. at pp. 105, 109-
110 [state‟s allegation of a second aggravating circumstance on retrial, which
made defendant eligible for death penalty, was permissible because first jury hung
at penalty phase].)14
The proper scope of sentencing allegation retrial has also arisen when
resentencing has been required as a result of Blakely v. Washington (2004) 542
U.S. 296, 303, which held that any facts used to impose an aggravated sentence
must be found by the jury or admitted by the defendant. For example, after
remand from the United States Supreme Court, the Arizona Supreme Court
rejected a claim that resentencing on aggravating circumstances violates double
jeopardy because it deprives a defendant of a right to have trial completed by a
particular tribunal. (State v. Ring (2003) 204 Ariz. 534, 550-551 [65 P.3d 915,
931-932].) Arizona‟s high court observed that, while completing trial before the
same judge or jury “is ideal, a defendant holds no absolute right to such an

14
A related penalty allegation was added in defendant‟s second trial. In
addition to the section 667.61, subdivision (e)(1) allegation presented to the first
jury, the People amended the information to add a second kidnapping allegation
under section 667.61, subdivision (d)(2), which carries a harsher sentence of 25
years to life imprisonment. (See § 1009; People v. Flowers (1971) 14 Cal.App.3d
1017, 1020-1021.) The People sought the amendment because the first jury
expressed confusion about the different levels of proof required for the kidnapping
allegation as opposed to the substantive kidnapping offense. Whereas the offense
requires proof that movement of the victim substantially increased the risk of harm
(§ 207, subd. (b)), a section 667.61, subdivision (e)(1) allegation does not. The
People‟s addition of an allegation under section 667.61, subdivision (d)(2) aligned
the elements required for the substantive kidnapping offense and the penalty
allegation because, in addition to the subdivision (e)(1) requirements,
subdivision (d)(2) requires proof of a substantial increase in the risk of harm.
Defendant did not object to this amendment in the trial court, and he has raised no
legal argument on appeal challenging the addition of the second kidnapping
allegation. Accordingly, any claim of error has been waived. (People v. Carrasco
(2006) 137 Cal.App.4th 1050, 1056; People v. Collins (1963) 217 Cal.App.2d 310,
313.)
33


arrangement.” (Id. at p. 551 [65 P.3d at p. 932].) Similarly, the Oregon Supreme
Court reversed a judgment due to Blakely error but rejected a claim that double
jeopardy barred retrial of the sentencing enhancement. It concluded the retrial was
“not a second prosecution,” but rather a “sentencing proceeding on remand—a
continuation of a single prosecution.” (State v. Sawatzky (2005) 339 Or. 689, 696-
697 [125 P.3d 722, 726]; see also Hankerson v. State (Minn. 2006) 723 N.W.2d
232, 241, fn. 5.)
Defendant has not identified, nor have we found, a single decision holding
that aggravating factors must be retried together with all the elements of the
underlying offenses to which they attach. If Apprendi truly required such a
dramatic change in resentencing proceedings, one would expect to find case law
reaching this conclusion, as well as clear guidance from the United States
Supreme Court about how the change should be implemented. There is none, and
we decline to create it.
Besides this lack of precedential support, defendant‟s view that a penalty
allegation cannot be retried apart from its underlying offense would create
significant practical problems. The most fundamental of these concerns the effect
of the conviction rendered at the first trial. If a jury convicted on a substantive
offense but hung on an attached penalty allegation, and if retrial were ordered on
both the offense and the allegation, should the second jury be told that the
defendant has been convicted of the offense?15 If not, what would become of the
first conviction should the second jury reach a different result? Giving the first
conviction no effect in the second proceeding would fail to accord proper respect
and finality to the initial unanimous verdict. These problems are compounded
when multiple penalty allegations are involved. A single offense may have
several penalty allegations or enhancements attached. Under defendant‟s view, if

15
Cf. Fields, supra, 13 Cal.4th at page 307, footnote 5 (noting the potential
for juror confusion and speculation if they are told the defendant was convicted in
an earlier trial of a lesser included offense).
34


the jury returned a unanimous verdict of guilty on an offense and unanimous true
findings on every penalty allegation except one, the deadlock on this single
allegation would require retrial of the underlying offense and all other allegations
on which the jury had returned verdicts. Such a result would be both inordinately
wasteful and unfair to the People.
V.
Conclusion
For these reasons, we conclude that retrial of a penalty allegation on which
the jury has deadlocked does not violate federal or state double jeopardy
principles, and retrial may be limited to the deadlocked allegation alone. Apprendi
gives criminal defendants the right to a jury trial for all allegations that have the
potential to increase punishment, but Apprendi does not require us to give a
mistrial the same effect as an acquittal in the double jeopardy context, nor does it
alter our state law with respect to the permissible scope of retrial.
DISPOSITION
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.
CORRIGAN, J.
WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
35





CONCURRING OPINION BY MORENO, J.

I concur in the majority opinion. The possible effect of the majority‟s
holding, however, is a cause for some concern. Rather than being required to find
a defendant guilty beyond a reasonable doubt of the underlying offense, the jury
that tries a penalty enhancement separately will presumably be told that a
defendant has been found guilty of that offense, otherwise it would not be able to
convict on the enhancement. In this circumstance, there is the potential that the
presumption of innocence for the penalty enhancement, in practical terms, will be
eroded, and that therefore a defendant being retried on the enhancement alone will
be in a more disadvantageous position than he was in the original trial when the
offense and the enhancement were tried together. Whether current standard jury
instructions are adequate to safeguard the presumption of innocence in this
situation, or a new instruction is needed, remains to be determined.
MORENO, J.
1


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Anderson
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 149 Cal.App.4th 183
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S152695
Date Filed: July 23, 2009
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Patricia C. Esgro

__________________________________________________________________________________

Attorneys for Appellant:

Kat Kozik, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General,
Janet E. Neeley, Charles A. French and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and
Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Kat Kozik
Post Office Box 8445
Berkeley, CA 94707
(510) 524-4020

Brook A. Bennigson
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-5687


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:Cross Referenced Cases:
Thu, 07/23/200947 Cal. 4th 92, 211 P.3d 584, 97 Cal. Rptr. 3d 77S152695Review - Criminal Appealclosed; remittitur issued

PORTER v. S.C. (PEOPLE) (S152273)
PEOPLE v. ANDERSON (S152695)
PEOPLE v. SEEL (S106273)


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
Brief Downloads
application/pdf icon
People v. Anderson (S152695) Answer Brief on the Merits.pdf (135584 bytes) - People v. Anderson - State's Answer Brief
application/pdf icon
Anderson Petition for Review.pdf (4480682 bytes) - People v. Anderson - Anderson's Petition for Review
application/pdf icon
Anderson Opening Brief on the Merits.pdf (2766922 bytes) - People v. Anderson - Anderson's Opening Brief
application/pdf icon
Anderson Reply Brief on the Merits.pdf (1118639 bytes) - People v. Anderson - Anderson's Reply Brief
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 21, 2011
Annotated by holly ragan

Facts

Defendant Barry Lane Anderson was charged with committing a lewd and lascivious act on a five-year-old girl, Cal. Penal Code § 288(a). The complaint also alleged that Anderson kidnapped the girl for the purpose of committing the lewd and lascivious act, which is a violation of Cal. Penal Code Sections 667.8(b) and 667.61(e)(1). Those sections require a mandatory sentence enhancement of 15 years to life imprisonment, rather than the usual three-, six-, or eight-year term if there is no kidnapping allegation; section 667.61 “provides indeterminate sentences for felony sex crimes committed under particular circumstances, [and] is sometimes called the ‘One Strike’ law,” People v. Anderson, 47 Cal. 4th 92, 99 (2009).

Anderson was also charged with attempting to commit a lewd act offense on another five-year-old girl, Cal. Penal Code §§ 664, 288(a), two charges of kidnapping the two girls for the purpose of committing a lewd and lascivious act, id. § 207(b), and eleven counts of possessing child pornography, id. § 311.11. Anderson was charged, therefore, with two substantive counts of kidnapping for the purpose of committing a lewd and lascivious act, and was also subject to the sentence enhancements for kidnapping with that same purpose.


Procedural History

At trial, the jury convicted Anderson of the lewd act, attempted lewd act, and child pornography charges. It was unable, however, to reach a verdict on the substantive kidnapping counts or on the sentence enhancement kidnapping allegations, so the judge declared a mistrial as to those counts and allegations.

Before Anderson’s second trial, the prosecutor added another One Strike Law kidnapping allegation: that Anderson kidnapped the first girl to commit a lewd act and that the movement substantially increased the risk of harm, id. § 667.61(d)(2), which would require a mandatory punishment of 25 years to life, id. § 667.61(a).

At the second trial, the jury reached a guilty verdict on both substantive kidnapping charges and found true the 15- and 25-year factual allegations.

The Court of Appeal of California, Third Appellate District affirmed the judgment as to the double jeopardy issues. The California Supreme Court granted petition for review.


Issues

Anderson appealed on several grounds, but the California Supreme Court granted review only to decide “whether federal and state double jeopardy principles allowed retrial of the factual sentencing allegation of kidnapping on which defendant’s first jury deadlocked and, if so, whether retrial could concern the sentencing allegation alone or had to encompass the underlying lewd act charge,” 47 Cal. 4th at 100.

Anderson contended that his second trial violated double jeopardy because the jury in the first trial had convicted him of some offenses; the sentencing enhancement, he argued, should have been treated as greater included offense for the purpose of double jeopardy. Second, he argued that it was inappropriate to be retried only for the substantive kidnapping charges and the kidnapping enhancements, but not for the underlying counts of lewd acts on which the sentencing enhancements were based.


Holding

The Court held:

  1. Neither state nor federal double jeopardy principles prohibit retrial when a jury has convicted the defendant of an offense but deadlocked on an attached penalty allegation; and
  2. Retrial need not encompass the underlying offense, but the penalty allegation may be retried in isolation.

Analysis

Double Jeopardy does apply to sentencing enhancements, but had not yet attached here.

The Double Jeopardy Clauses of the U.S. Constitution and the California Constitution prohibit a person from being placed “in jeopardy” for the “same offense,” or from being punished multiple times for the same offense. The Court held that penalty allegations are subject to double jeopardy and that the Sixth Amendment requires that One Strike allegations be tried in front of a jury and proven beyond a reasonable doubt; for this purpose, it is irrelevant whether the element at issue is a sentencing enhancement or an element of a crime.

Despite double jeopardy’s general application to sentencing enhancements, the Court held that double jeopardy had not yet attached here. When a trial “produces neither an acquittal nor a conviction,” retrial is permitted “‘because “the ends of public justice would otherwise be defeated.”’” 47 Cal. 4th at 104. The jury at Anderson’s first trial explicitly was unable to reach a verdict on the kidnapping charges and sentencing enhancements, so the mistrial did not constitute acquittal or conviction.

Sentencing enhancements do not operate as greater-included offenses for the purposes of Double Jeopardy.

Generally, lesser and greater included offenses are treated as the “same offense” for double jeopardy, so that if a defendant were charged with and convicted for second-degree murder, he could not be tried again for first-degree murder (a greater-included offense). Anderson argued that the sentencing enhancements function as included offenses, such that he could not be retried for the One Strike kidnapping allegation because he was convicted of committing a lewd act. The Court found this argument unconvincing because “when a jury expressly deadlocks on a greater offense and, at the same time, convicts on a lesser included defense, . . . ‘the conviction on the lesser offense does not operate as an implied acquittal of the greater.’” Id. at 109.

Furthermore, “[i]n California, ‘sentence enhancements are not “equivalent” to, nor do they “function” as, substantive offenses,’” id. at 118; unlike in a trial for murder, in which a person could be convicted of first-degree murder, second-degree murder, or neither, it would not be possible for a defendant to be convicted of a sentencing enhancement without being convicted of the underlying offense.

For One Strike laws, the jury must first reach a decision on the underlying substantive crime; if the elements of that underlying crime have not been proven, the defendant is acquitted. If all of the elements of the substantive crime have been proven, the jury independently considers the factual allegations to determine whether they have been proven as well.

As was the case here, elements of the factual allegation may be the same as the underlying offense; this, the Court says, shows the flaw in Anderson’s double jeopardy argument: Anderson concedes that he could be retried for the substantive kidnapping violations, but argues only that the State is barred from retrial of the same conduct as it applied to the factual sentencing allegations.

It was appropriate to retry the One Strike kidnapping allegation in isolation.

Anderson’s final argument is that it was structural error to retry the One Strike sentencing enhancement without retrying the underlying crime because “the law requires all elements of a crime to be tried together,” id. at 119. Since the sentencing enhancement is not an element of the crime, however, the Court quickly rejected this argument. Furthermore, while defendants do have the right to have every element proved beyond a reasonable doubt to a jury, the Court “ha[s] not interpreted this right to mean that the same jury that finds a defendant guilty of an offense must always decide the truth of an attached penalty allegation.” Id. The alternative—retrying the underlying conviction for a lewd act—would only add confusion if the second jury reached a different verdict. “Giving the first conviction no effect in the second proceeding would fail to accord proper respect and finality to the initial unanimous verdict.” Id. at 123. Therefore, the Court held, the retrial was properly limited to the deadlocked allegation alone.

Justice Moreno concurred in the majority opinion, but wrote separately about a “cause for some concern,” id. at 124: the second jury will be trying only the sentence enhancement and not the underlying offense, but will presumably be told about the defendant’s guilt of the first offense. “[T]here is potential” in that circumstance “that the presumption of innocence for the penalty enhancement, in practical terms, will be eroded.” Id. He noted that while current jury instructions may be adequate to safeguard the presumption of innocence, a new instruction may be needed.

The United States Supreme court denied certiorari on February 22, 2010.


Tags

One Strike, sentencing enhancement, penalty enhancement, lesser included, greater included, Double Jeopardy, penalty allegation, mistrial, substantive crime, underlying offense, kidnapping, lewd and lascivious

Annotation by Holly E. Ragan