Stanford Law School - Robert Crown Law Library

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

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

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

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

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

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

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

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

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

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

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

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