Stanford Law School - Robert Crown Law Library

Filed 8/16/07 (follows in sequence companion case, S132605, also filed 8/16/07)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S132980
v.
Ct.App. 2/2 B169352
JOHNNY A. IZAGUIRRE,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA-232697
This is a companion case to People v. Sloan (Aug. 16, 2007, S132605) __
Cal.4th ___ (Sloan), also filed today. Sloan holds that enhancement allegations
may not be considered for purposes of the rule prohibiting multiple convictions
based on necessarily included offenses, also referred to as the multiple conviction
rule. (See People v. Pearson (1986) 42 Cal.3d 351 (Pearson).) The holding in
Sloan is consistent with this court’s recent decision in People v. Reed (2006) 38
Cal.4th 1224 (Reed), which held that the legal elements test, rather than the
accusatory pleading test, should be used in determining whether conviction of a
charged offense is barred under the rule. Since enhancements are not legal
elements of the offenses to which they attach, they are not considered in defining
necessarily included offenses under that test.
Both this case and Sloan were decided in the Court of Appeal before we
filed our decision in Reed, supra, 38 Cal.4th 1224. The defendant in this matter
raised an argument not considered in Reed. He argues that under the high court’s
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decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), as interpreted
by this court in People v. Seel (2004) 34 Cal.4th 535 (Seel) in the context of
federal double jeopardy jurisprudence, enhancements must be treated as legal
elements under the multiple conviction rule. We granted the petition for review to
consider the argument, and his further assertion that certain firearm-related
enhancements found true by the jury themselves must be stricken under the rule as
necessarily included within his conviction of first degree, drive-by shooting
murder.
As will be explained, defendant’s arguments are without merit—the
holdings in Apprendi, supra, 530 U.S. 466, and Seel, supra, 34 Cal.4th 535, are
inapposite here and have no impact on the rule announced in Reed, supra, 38
Cal.4th 1224. The judgment of the Court of Appeal, fully consistent with our
decision in Reed, shall therefore be affirmed.
FACTS AND PROCEDURAL BACKGROUND
The facts are not disputed. In the early hours of June 1, 2002, as four
unarmed young men were leaving an after-prom party in East Los Angeles, three
vehicles approached them. Words were exchanged, and some of the occupants of
the cars displayed gang signs. Defendant, who was seated in the front passenger
seat of one of the vehicles, urged the young men to come closer, and then fired
several shots. Jose Bernal died as the result of a gunshot wound to the chest.
Lionell Rivera sustained gunshot wounds to the arm and upper torso. Jose Chavez
was hit in the arm, and a bullet grazed his mouth. Eric Garcia was not hit.
Defendant was identified as the shooter by eyewitnesses, including two of the
surviving victims and individuals who had been in the cars.
Following a jury trial, defendant was convicted of first degree murder with
personal firearm use causing death, with a special circumstance found true that the
murder was intentional and perpetrated by the discharge of a firearm from a motor
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vehicle. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d), 190.2, subd. (a)(21).)1
He was also convicted of three counts of willful, deliberate and premeditated
attempted murder (§§ 187, subd. (a), 664), under one count of which it was found
that he personally discharged a firearm, causing great bodily injury (§ 12022.53,
subd. (c)), and under the remaining counts of which it was found that he
personally discharged a firearm.(§ 12022.53, subd. (d)). He was sentenced to life
in prison without the possibility of parole with a firearm enhancement of 25 years
to life on the murder count, and to concurrent life terms, one with a 25-year-to-life
firearm enhancement, and two with 20-year firearm enhancements, for the
attempted murders.2
The Court of Appeal granted rehearing to consider defendant’s claims that
under Apprendi, supra, 530 U.S. 466, as interpreted by this court’s recent decision
in Seel, supra, 34 Cal.4th 535, neither the firearm discharge enhancement under
the murder count nor the firearm-related enhancements under the attempted
murder counts could be imposed, and indeed should have been stricken rather than
imposed or stayed, because they were all necessarily included within the
conviction of first degree murder with a drive-by shooting special circumstance.
In a modified opinion after rehearing, the Court of Appeal rejected defendant’s
claims. We granted his petition for review.
DISCUSSION
Defendant argued in the Court of Appeal that the trial court was precluded
from imposing the various firearm-related enhancements, whether attached to the
murder count or attempted murder counts, and further, that the trial court at

1
All further statutory references are to the Penal Code.
2
Additional enhancements unrelated to defendant’s claims under the
multiple conviction rule were also found true; some were stayed, some were struck
by the Court of Appeal on unrelated grounds.
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sentencing should have struck the enhancements rather than imposed or stayed
them, because the fact of firearm use had already been established through his
conviction of first degree, drive-by shooting murder.3
In this case, then, in contrast to the arguments and holding in Pearson,
supra, 42 Cal.3d 35, Reed, supra, 38 Cal.4th 1224, Sloan, supra, __ Cal.4th __,
and other multiple-conviction-rule cases, defendant is arguing that enhancements
themselves, rather than the convictions to which they attach, are subject to being
struck under the multiple conviction rule. His argument is that, under Apprendi,
supra, 530 U.S. 466, conduct enhancements are to be treated like offenses for
purposes of fundamental due process, including the right to jury trial and the
requirement of proof beyond a reasonable doubt. Based on this court’s statement
in Seel, supra, 34 Cal.4th 535, that “ ‘Apprendi treated the crime together with its
sentence enhancement as the “functional equivalent” of a single “greater” crime’ ”
(id. at p. 539, fn. 2), defendant argues that conduct enhancements must be treated
like necessarily included offenses for purposes of the multiple conviction rule.
As the Court of Appeal below observed, “In effect, [defendant] asks us to
hold, pursuant to Apprendi, that when a defendant is convicted of first degree
murder on a theory of drive-by shooting, a firearm discharge enhancement or
firearm use enhancement can never be imposed, although found true by a jury
beyond a reasonable doubt.” The court went on to reject defendant’s claim.4

3
In view of defendant’s life without possibility of parole sentence for first
degree, drive-by special-circumstance murder, his claim under the multiple
conviction rule, as a practical matter, is moot.
4
Reed, supra, 38 Cal.4th 1224, which held that the accusatory pleading test
is not applicable in this context, had not yet been decided. However, in People v.
Wolcott (1983) 34 Cal.3d 92, this court held that enhancements are not considered
part of the accusatory pleading to begin with. (Id. at pp. 96, 100-101.) Arguably,
Wolcott itself resolves the issue in this case and Sloan, but defendants in both
cases seek to distinguish Wolcott on the ground it involved the specific question
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Our decision in Reed, supra, 38 Cal.4th 1224, explains that “Under the
[legal] elements test, if the statutory elements of the greater offense include all of
the statutory elements of the lesser offense, the latter is necessarily included in the
former. Under the accusatory pleading test, if the facts actually alleged in the
accusatory pleading include all of the elements of the lesser offense, the latter is
necessarily included in the former. [Citation.]” (Id. at pp. 1227-1228.) Reed held
that “Courts should consider the statutory elements and accusatory pleading in
deciding whether a defendant received notice, and therefore may be convicted, of
an uncharged crime, but only the statutory elements in deciding whether a
defendant may be convicted of multiple charged crimes.” (Id. at p. 1231.) Here
we are concerned with charged crimes and enhancements. The legal elements
test, not the accusatory pleading test, applies.
We nonetheless had no occasion in Reed, supra, 38 Cal.4th 1224, to
consider defendant’s argument that even under the legal elements test, Apprendi,
supra, 530 U.S. 466, and Seel, supra, 34 Cal.4th 535, together require conduct
enhancements to be treated the same as legal elements for the purpose of defining
necessarily included offenses under the multiple conviction rule. We agree with
the Court of Appeal below that the argument is without merit.
In Apprendi, supra, 530 U.S. 466, the high court held that “Other than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” (Id. at p. 490.) The rule of Apprendi is grounded on the
reasoning that “The federal Constitution requires the elements of a crime to be
proved beyond a reasonable doubt because they expose the defendant to

whether enhancement allegations should be taken into account when identifying
necessarily included offenses for which sua sponte instructions must be given.
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punishment; likewise, the elements of a sentence enhancement must be proved
beyond a reasonable doubt if there is exposure to increased punishment.
[Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326.) The rule
is compelled by the federal Constitution’s Fifth Amendment right to due process
and Sixth Amendment right to jury trial, made applicable to the states through the
Fourteenth Amendment. (26 Cal.4th at p. 324.) It is not grounded on principles of
federal double jeopardy protection.
Here, the firearm-related enhancements in question were submitted to the
jury and found true beyond a reasonable doubt. But, defendant argues, Apprendi
requires more under this court’s interpretation of that decision in Seel.
In Seel, supra, 34 Cal.4th 535, the defendant was convicted by a jury of
attempted premeditated murder (§§ 664, subd. (a), 187, subd. (a)), and was found
to have personally and intentionally discharged a firearm in connection with that
offense. (§ 12022.53, subd. (c).) He argued on appeal that there was no
substantial evidence of premeditation or deliberation. The Court of Appeal
agreed, concluding the finding of premeditation and deliberation had to be
reversed, but further concluding the matter could be remanded for retrial on the
penalty allegation under this court’s holding in People v. Bright (1996) 12 Cal.4th
652, 671 (Bright). We granted review in Seel to consider the effect of Apprendi
on our holding in Bright—that under the federal double jeopardy clause, a section
664, subdivision (a) allegation prescribing a greater punishment for an attempt to
commit murder that is “willful, deliberate, and premeditated” merely constitutes a
penalty provision, to which double jeopardy protection does not attach.
Seel, supra, 34 Cal.4th 535, disapproved Bright, supra, 12 Cal.4th 652, on
the double jeopardy point, observing that in Apprendi the high court stated,
“‘[W]hen the term “sentence enhancement” is used to describe an increase beyond
the maximum authorized statutory sentence, it is the functional equivalent of an
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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.)” (Seel, supra, 34 Cal.4th at pp.
546-547.) We reasoned in Seel that because the premeditation allegation (§ 664,
subd. (a)), though designated a penalty provision in Bright, supra, 12 Cal.4th at
page 669, “goes precisely to what happened in the ‘commission of the offense’ ”
(Apprendi, supra, 530 U.S. at p. 496) and effectively placed the defendant in
jeopardy for an “offense” greater than attempted murder (id., at p. 494, fn. 19), the
Court of Appeal’s finding of evidentiary insufficiency barred retrial of the
allegation under the federal double jeopardy clause. (Seel, supra, 34 Cal.4th at
pp. 548-549.)
As defendant’s argument goes here, under Apprendi, supra, 530 U.S. 466,
conduct enhancements are treated like offenses for purposes of fundamental due
process, including the right to jury trial and the requirement of proof beyond a
reasonable doubt. Based on Seel’s statement that “‘Apprendi treated the crime
together with its sentence enhancement as the “functional equivalent” of a single
“greater” crime’” (Seel, supra, 34 Cal.4th at p. 539, fn. 2), such enhancements
must now be treated like criminal offenses for purposes of sections 954 and 654,
and the multiple conviction rule. Defendant therefore claims the firearm-related
enhancements alleged and found true under the murder and attempted murder
counts are necessarily included within the offense of first degree, drive-by
shooting murder and must be struck under the multiple conviction rule, even
though they are not necessarily included offenses, and regardless of whether they
were actually imposed as punishment at sentencing.
We disagree with defendant. Apprendi, supra, 530 U.S. 466, and Seel,
supra, 34 Cal.4th 535, are inapposite to the issue posed here—whether
enhancement allegations may be considered in defining necessarily included
offenses for purposes of the multiple conviction rule. To the extent the firearm-
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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. Defendant’s argument
overlooks the fact that the aspect of federal double jeopardy protection at issue in
Seel is not implicated in this case. As explained in Sloan, “ ‘[t]he Double
Jeopardy Clause “protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the same offense.”
[Citation.]’ (Brown v. Ohio (1977) 432 U.S. 161, 165, italics added.) The first
two categories of protection afforded by the double jeopardy clause . . . are . . . not
implicated here. . . .” (Sloan, supra, __ Cal.4th at pp. __-__ [pp. 11-12].)
The first category of double jeopardy protection, the prohibition against a
second prosecution for the same offense after acquittal, is the constitutional
provision that was directly implicated in Seel, supra, 34 Cal.4th 535. In light of
Apprendi’s holding that enhancements that increase punishment must be treated as
elements of an offense for purposes of Fifth and Sixth Amendment protection, we
concluded in Seel, with regard to a second prosecution after acquittal, that our
earlier holding in Bright, supra, 12 Cal.4th 652—that a section 664,
subdivision (a) allegation, prescribing a greater punishment for an attempt to
commit murder that is willful, deliberate, and premeditated, merely constitutes a
penalty provision to which federal double jeopardy protection pertaining to retrial
does not attach—must be disapproved.
Our decision in Seel supra, 34 Cal.4th 535, explains that, “In contrast to a
prior conviction allegation, a section [664, subdivision (a)] allegation requires the
trier of fact to determine whether ‘the attempted murder was willful, deliberate,
and premeditated’ before imposing the term of life imprisonment with the
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possibility of parole. ‘The defendant’s intent in committing a crime is perhaps as
close as one might hope to come to a core criminal offense “element.” ’
(Apprendi, supra, 530 U.S. at p. 493.)” (Seel, at p. 549.) We concluded the
section 664, subdivision (a) allegation effectively placed the defendant in jeopardy
for an “offense” greater than attempted murder, that it was tantamount to an
element of the offense for purposes of Fifth and Sixth Amendment analysis under
Apprendi, and that the Court of Appeal’s finding of evidentiary insufficiency with
respect to that “element” implicated the double jeopardy protection against retrial
for the same offense after acquittal. (Seel, supra, 34 Cal.4th at pp. 548-549, citing
Apprendi, supra, 530 U.S. at p. 494, fn. 19.)
Here, in contrast, the firearm-related enhancements did not serve to further
characterize defendant’s intent in committing the drive-by shooting murder and
attempted murders, nor effectively place defendant in jeopardy for an “offense”
greater than the murder or the attempted murders with which he was charged, as
was the case with the section 664, subdivision (a) enhancement in Seel. The rule
of Reed, supra, 38 Cal.4th 1224, barring consideration of enhancements in
defining necessarily included charged offenses under the multiple conviction rule
does not implicate the double jeopardy clause’s protection against a second
prosecution for the same offense after acquittal or conviction. We are not here
concerned with a retrial or “second prosecution,” but instead with a unitary trial in
which section 954 expressly permits conviction of more than one crime arising out
of the same act or course of conduct. The exception to section 954 created in
Pearson, supra, 42 Cal.3d 351, was specifically addressed to convictions of
necessarily included offenses in a unitary proceeding that could lead to improper
multiple punishments in contravention of section 654, not multiple enhancements
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expressly authorized under other sentencing provisions.5 Nor does defendant’s
claim that these conduct enhancements are the functional equivalent of completed
offenses or convictions for purposes of the multiple conviction rule find any
support in the case law. 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);
People v. Jefferson (1999) 21 Cal.4th 86, 101.) For that reason alone, an
enhancement cannot be equated with an offense. (See People v. Chin (2003) 113
Cal.App.4th 1260, 1265.)
To the extent defendant claims enhancements should be considered when
applying the multiple conviction rule to charged offenses, our holding in Reed,
supra, 38 Cal.4th 1224, controls. They may not. Beyond that, Apprendi, supra,
530 U.S. 466, requires only that the firearm-related enhancements below had to be
found true by a jury beyond a reasonable doubt, which they were. Seel’s
interpretation of the scope of the holding in Apprendi pertained to an aspect of
federal double jeopardy protection—protection against a second prosecution for
the same offense after acquittal—that is not implicated in this case. (Seel, supra,
34 Cal.4th at pp. 548-549.)

5
Section 12022.53, the statute authorizing the firearm-related enhancements
here at issue (id., subds. (b) through (d)), itself contains provisions specifically
addressed to the matter of multiple punishments arising from imposition of those
enhancements. (Id., subds. (f) through (j).)
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CONCLUSION
The judgment of the Court of Appeal is affirmed, and the matter remanded
to that court for further proceedings consistent with the views expressed herein.

BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

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

Name of Opinion People v. Izaguirre
__________________________________________________________________________________

Unpublished Opinion

NP opn. filed 3/8/05 – 2d Dist., Div. 3
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S132980
Date Filed: August 16, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Bob S. Bowers, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Edward H. Schulman, 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, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Kristofer Jorstad, Jaime L. Fuster, Steven D.
Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

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

Edward H. Schulman
9420 Reseda Boulevard, #530
Northridge, CA 91324
(818) 363-6906

David F. Glassman
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2355

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Opinion Information

Date:	Docket Number:
Thu, 08/16/2007	S132980

Disposition
Aug 16 2007	Opinion: Affirmed

Dockets
Apr 11 2005	Petition for review filed   appellant Johnny A. Izaguirre
Apr 13 2005	Received Court of Appeal record
Jun 8 2005	Petition for review granted (criminal case)   Petition for review GRANTED. The issues to be briefed and argued are limited to the following: (1) whether enhancements should be considered in applying the multiple conviction rule of People v. Pearson (1986) 42 Cal.3d 351, and if so, was a Penal Code section 12022.53, subdivision (d) enhancement necessarily included within the conviction for first degree murder (Pen. Code, section 187) with a drive-by shooting special circumstance (Pen. Code, section 190.2(a)(21)); (2) was imposition of the enhancement precluded by Penal Code section 654's ban on multiple punishment, and (3) whether imposition of the enhancement on the special circumstance murder conviction was barred by Penal Code section 12022.53, subdivision (j). Briefing on the first issue is to proceed at this time. (Cal. Rules of Court, rule 29 (a)(1).) Briefing or other further action on the second and third issues is deferred pending consideration and disposition of related issues in People v. Palacios, S132144, and People v. Shabazz, S131048 (see Cal. Rules of Court, rule 28.2(d)(2)), or pending further order of the court. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Jun 9 2005	Note:   Records sent to Cal-Coord. Office:CT=3, RT=1, 2, 3, 4 =2, 5, 6, 7, 8, Confid. Envelope, Rehrg. opinion, (manila jacket, misc. docs.)
Jun 23 2005	Counsel appointment order filed   Edward Schulman is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of this order.
Jul 18 2005	Opening brief on the merits filed   by counsel for aplt. (J. Izaguirre)
Aug 12 2005	Request for extension of time filed   answer brief/merits to 9-16-05>>respondent People
Aug 16 2005	Extension of time granted   Respondent's time to serve and file the answer brief is extended to and including September 16, 2005.
Aug 31 2005	Compensation awarded counsel   Atty Schulman
Sep 14 2005	Request for extension of time filed   answer brief/merits to 10-17-05>>respondent People
Sep 20 2005	Extension of time granted   Respondent's time to serve and file the respondent's answer brief on the merits is extended to and including October 17, 2005. No further extension of time are contemplated.
Oct 17 2005	Answer brief on the merits filed   respondent People
Nov 7 2005	Reply brief filed (case fully briefed)   by counsel for aplt. (J. A. Izaguirre)
Jul 17 2006	Application filed to:   File Supplemental Brief on the Merits, counsel for appellant
Jul 26 2006	Supplemental brief filed   Johnny Izaguirre, appellant Edward Schulman, counsel (filed by permission of court)
May 2 2007	Case ordered on calendar   to be argued on Thursday, May 31, at 1:30 p.m., in San Francisco
May 31 2007	Cause argued and submitted
Aug 15 2007	Notice of forthcoming opinion posted
Aug 16 2007	Opinion filed: Judgment affirmed in full   and the matter remanded to that court for further proceedings consistent with the views expressed herein. Majority Opinion by Baxter, J., ----- Joined by George, C. J., Kennard, Werdegar, Chin, Moreno and Corrigan, JJ.
Sep 12 2007	Compensation awarded counsel   Atty Schulman
Sep 18 2007	Remittitur issued (criminal case)
Sep 24 2007	Received:   receipt for remittitur

Briefs
Jul 18 2005	Opening brief on the merits filed
Oct 17 2005	Answer brief on the merits filed
Nov 7 2005	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website