Stanford Law School - Robert Crown Law Library

Filed 1/29/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S105734
v.
Ct.App. 4/1 D036697
ANTONIO J. BARRAGAN,
San Diego County
Defendant and Appellant.
Super. Ct. No. SCE201483

The so-called Three Strikes law prescribes increased punishment for a
person who is convicted of a felony after sustaining one or more qualifying prior
felony convictions or juvenile adjudications, which are commonly known as
strikes. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) The issue here is whether
retrial of a strike allegation is permissible where a trier of fact finds the allegation
to be true, but an appellate court reverses that finding for insufficient evidence.
Defendant Antonio J. Barragan argues that retrial is barred by the constitutional
requirement of fundamental fairness, equitable principles of res judicata and law
of the case, and relevant statutory provisions. We conclude that retrial is
permissible. We reverse the Court of Appeal’s judgment insofar as it bars retrial
of a strike allegation.
FACTS
An information charged defendant with several crimes, including being a
felon in possession of a firearm, and alleged that he had one prior strike: a
juvenile adjudication on June 8, 1995, for assault with a deadly weapon and with

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personal infliction of great bodily injury. To prove the alleged prior juvenile
adjudication, the prosecution introduced into evidence copies of the juvenile court
petition alleging the assault and a minute order showing the juvenile court’s
finding that defendant committed the assault. While testifying at trial, defendant
admitted that he had sustained a “true finding” in juvenile court in 1995 for
striking someone with a baseball bat. During closing argument, defendant’s
counsel stated: “[Defendant] has been very candid . . . about [his] priors. You’ve
heard about them. There’s not an issue. . . . [Defendant] has been very candid . . .
about his testimony and his prior convictions as an adult and the true finding as a
juvenile.” The trial court instructed the jury that if it found defendant guilty, then
it had to “determine whether the allegation of the prior ‘serious felony’ conviction
is true.” The court also instructed the jury that “as a matter of law,” assault with a
deadly weapon and with infliction of great bodily injury “is a ‘serious felony’
offense” under the Three Strikes law, and that “a ‘conviction’ occurs by a ‘true
finding’ in Juvenile Court after trial, or upon an admission by the accused without
trial.” The jury found defendant guilty of being a felon in possession of a firearm,
found him not guilty of the remaining charges, and found true “the allegation that
[he] . . . suffered a true finding of a serious felony offense in Juvenile Court,
within the meaning of [the Three Strikes law], to wit: on or about June 8, 1995,
. . . defendant was convicted of Assault with a Deadly Weapon With Personal
Infliction of Great Bodily Injury . . . .” The trial court imposed a four-year prison
term, which it calculated by taking the two-year middle term ordinarily applicable
to a “felon in possession” conviction and doubling it under the Three Strikes law
for defendant’s prior strike.
The Court of Appeal affirmed defendant’s conviction, but found
insufficient evidence to support the jury’s true finding on the strike allegation.
Regarding the latter issue, the court first reasoned that in order to prove the strike
allegation, the prosecution had to prove that defendant’s prior juvenile court
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adjudication “resulted in a declaration of wardship.” The court then found that the
prosecution failed to meet this burden, explaining: “The prosecution did no more
than prove that true findings were made on the petition and the matter was set for a
dispositional hearing. While it is possible to speculate that the true finding on the
petition resulted in a declaration of wardship, we conclude on this record it is not
possible to so infer. The evidence supporting the finding of a strike based on
[defendant’s] prior juvenile adjudication was insufficient.” Turning to remedy,
the court noted a split of authority regarding whether retrial of a strike allegation is
permissible after a reversal for insufficient evidence. “[S]tand[ing] by” its prior
decision in People v. Mitchell (2000) 81 Cal.App.4th 132 (Mitchell), the court
held that retrial is impermissible.
Defendant filed a petition for review, challenging the affirmance of his
conviction. The People also filed a petition for review, challenging only the Court
of Appeal’s conclusion that retrial of the strike allegation is impermissible. We
granted the People’s petition and denied defendant’s.1
DISCUSSION
As the Court of Appeal noted, California appellate courts have disagreed on
whether retrial of a strike allegation is proper after an appellate court reverses a
true finding for insufficient evidence. Mitchell, which was decided by the same
appellate court that decided the case now before us, held that retrial is
impermissible “where the government has had a full and fair opportunity to
present its case unhampered by evidentiary error or other impediment . . . .”
(Mitchell, supra, 81 Cal.App.4th at p. 136.) Courts of Appeal that have
subsequently considered the issue have consistently rejected Mitchell and held that

1
In neither their petition nor their briefs have the People challenged the
Court of Appeal’s conclusion that the evidence at trial was insufficient to establish
(Footnote continued on next page.)
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retrial of an alleged prior conviction is both permissible and proper. (E.g., People
v. Sotello (2002) 94 Cal.App.4th 1349; People v. Franz (2001) 88 Cal.App.4th
1426; Cherry v. Superior Court (2001) 86 Cal.App.4th 1296; People v. Scott
(2000) 85 Cal.App.4th 905.)
In resolving this conflict, we begin with a related principle that the United
States Supreme Court has recently established: in the noncapital sentencing
context, retrial of a prior conviction allegation does not violate the double
jeopardy clause of the federal Constitution. (Monge v. California (1998) 524 U.S.
721, 734 (Monge II).) In reaching this conclusion, the high court acknowledged
that a finding on appeal that the evidence at trial was insufficient to sustain a
“conviction” on a substantive offense “is comparable to an acquittal, and the
Double Jeopardy Clause precludes a second trial. [Citation.]” (Id. at p. 729.)
However, the court explained, “[w]here a similar failure of proof occurs in a
sentencing proceeding, . . . the analogy is inapt.” (Ibid.) “[T]he determinations at
issue [in noncapital sentencing proceedings] do not place a defendant in jeopardy
for an ‘offense,’ [citation].” (Id. at p. 728.) “An enhanced sentence imposed on a
persistent offender” does not constitute “ ‘either a new jeopardy or additional
penalty for the earlier crimes’ but [is simply] ‘a stiffened penalty for the latest
crime, which is considered to be an aggravated offense because a repetitive one.’
[Citations.]” (Ibid.) “The pronouncement of sentence simply does not ‘have the
qualities of constitutional finality that attend an acquittal.’ [Citations.]” (Id. at p.
729.) Thus, a “[s]entencing decision[] favorable to the defendant . . . cannot
generally be analogized to an acquittal.” (Ibid.) This rule applies even in states
that, as “a matter of legislative grace,” have enacted “procedural safeguards to

(Footnote continued from previous page.)

a strike based on defendant’s alleged prior juvenile adjudication. We express no
(Footnote continued on next page.)
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protect defendants who may face dramatic increases in their sentences as a result
of recidivism enhancements.” (Id. at p. 734.)
The high court’s decision in Monge II reviewed and affirmed our decision
in People v. Monge (1997) 16 Cal.4th 826 (Monge I), which held that retrial of a
prior conviction allegation does not violate the double jeopardy protections of
either the federal Constitution or the California Constitution. Like the high court,
the lead opinion in Monge I rejected the analogy between a “failure of proof” on a
prior conviction allegation and “an acquittal at the guilt phase of a criminal trial.”
(Id. at p. 837 (lead opn. of Chin, J.).) The lead opinion reasoned that a trial of
such an allegation “is simple and straightforward as compared to the guilt phase of
a criminal trial,” and “[o]ften . . . involves only the presentation of a certified copy
of the prior conviction along with the defendant’s photograph and fingerprints. In
many cases, defendants offer no evidence at all, and the outcome is relatively
predictable.” (Id. at p. 838.) Moreover, such a trial “is merely a determination, for
purposes of punishment, of the defendant’s status, which, like age or gender, is
readily determinable from the public record.” (Ibid.) “Like a trial in which the
defendant’s age or gender is at issue, the prior conviction trial merely determines a
question of the defendant’s continuing status, irrespective of the present offense,
and the prosecution may reallege and retry that status in as many successive cases
as it is relevant [citations], even if a prior jury has rejected the allegation [citation].
If a jury rejects the allegation, it has not acquitted the defendant of his prior
conviction status. [Citation.] ‘A defendant cannot be “acquitted” of that status
any more than he can be “acquitted” of being a certain age or sex or any other
inherent fact.’ [Citation.]” (Id. at p. 839.)

(Footnote continued from previous page.)

opinion on that question.
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Foreshadowing defendant’s contentions here, the lead opinion in Monge I
noted that the inapplicability of double jeopardy protections “raises numerous
secondary issues. For example, [a] Court of Appeal’s determination that the
evidence [at trial] was insufficient to prove [a] defendant’s prior conviction was of
a serious felony is, at the very least, the law of th[e] case. Thus, the prosecution
would have to present additional evidence at a retrial of the prior conviction
allegation in order to obtain a different result. What limitations might apply to this
additional evidence . . . we do not decide, because the Court of Appeal did not
address that issue. For the same reason, we express no opinion about whether
[Penal Code] section 1025[2] (or some other applicable provision) might in some
cases bar retrial of the prior conviction allegation as a statutory matter irrespective
of constitutional constraints. Finally, we express no opinion about whether due
process protections preclude the prosecution from retrying the prior conviction
allegation.” (Monge I, supra, 16 Cal.4th at p. 845 (lead opn. of Chin, J.).)
Before addressing defendant’s contentions, we also note that 50 years ago,
in People v. Morton (1953) 41 Cal.2d 536, 541 (Morton), we considered “the
order that should . . . be made” by an appellate court if it concludes that the
evidence at trial was insufficient to support a finding that a defendant sustained an
alleged prior conviction. In Morton, the trial court had found that the defendant
was “an habitual criminal” under former section 644 based on two prior
convictions for felonies listed in that section. (Morton, supra, 41 Cal.2d at p.
538.) On review, we found insufficient evidence to support the finding because,
as to one of the prior convictions, the evidence at trial failed to show the nature of
the offense and, thus, that it was one of the listed offenses. (Id. at pp. 540-541.)
We next explained that, in similar circumstances, “conflicting” precedents offered

2
Unless otherwise indicated, all further statutory references are to the Penal
Code.
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the following remedial options: (1) “revers[ing] the entire judgment and
remand[ing] the cause for a new trial on all issues, including the charge of the
primary offenses”; (2) “set[ting] aside the finding that the defendant suffered the
challenged prior conviction” and either “modif[ying]” the judgment “by vacating”
the habitual-criminal finding or “remand[ing] for resentencing on the basis of the
primary offenses . . . and any unchallenged prior convictions”; and (3) “set[ting]
aside the finding that the defendant suffered the challenged prior conviction” and
“remand[ing] . . . for a new trial on the issue of the challenged prior conviction.”
(Id. at pp. 541-542.) We held that where “the defects in the proof of the prior
convictions [are] capable of correction on a retrial,” the “proper” procedure is the
last option, i.e., setting the finding aside and remanding for a new trial only on the
challenged prior conviction. (Id. at p. 544.) “This procedure,” we explained,
“carries out the policy of the statutes imposing ‘more severe punishment,
proportionate to their persistence in crime, of those who have proved immune to
lesser punishment’ [citation], and prevents defendants from escaping the penalties
imposed by those statutes through technical defects in . . . proof. It affords the
defendant a fair hearing on the charge, and if it cannot be proved he will not have
to suffer the more severe punishment.” (Id. at pp. 544-545.)
Although cognizant of Morton’s holding, we agree with defendant that
Morton is not dispositive. Defendant correctly notes that Morton “did not address
whether retrial of the prior conviction was barred by the doctrines of collateral
estoppel, res judicata, law of the case, or fundamental fairness.” Nor did any of
the cases Morton discussed. “[C]ases are not authority for propositions not
considered. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) With
this background in mind, we now turn to defendant’s specific contentions.
I. FUNDAMENTAL FAIRNESS
Defendant argues that “[t]he doctrine of fundamental fairness, as
incorporated in the due process clause of the federal and state Constitutions,
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suggests that it is unfair to give the prosecution a second opportunity to prove an
allegation [where] it failed to carry its burden of proof during the first trial.” He
asserts that a state may not regulate its own judicial procedures in a manner that
“ ‘offends some principle of justice so rooted in the traditions and conscience of
our people as to be ranked as fundamental.’ [Citations.]” He also asserts that
“[t]he due process clause may be invoked ‘to insure that [a] state created right is
not arbitrarily abrogated.’ [Citation.]” According to defendant, California accords
him a “statutory right to a trial on the truth of” his alleged prior conviction, and
allowing a “retrial of the truth of that allegation after an appellate court reversal
for insufficient evidence would abrogate [his] right to be discharged from the
penalties associated with a not true finding to that allegation.”
In considering defendant’s due process argument, we find instructive the
high court’s rejection of a similar argument in Dowling v. United States (1990)
493 U.S. 342 (Dowling). There, the defendant argued that both the double
jeopardy and due process clauses of the United States Constitution barred the
prosecution from introducing at his criminal trial evidence of his alleged
commission of another crime of which he had previously been acquitted. (Id. at
pp. 343-344.) The high court first held that the double jeopardy clause did not bar
admission of the evidence, because “the prior acquittal did not determine an
ultimate issue in the [subsequent] case” and the evidence’s admissibility in the
subsequent prosecution was “governed by a lower standard of proof” than the
standard that governed during the prior proceeding. (Id. at p. 349.) The court next
held that admission of the evidence did not “fail[] the due process test of
‘fundamental fairness’ ” or “violate[] ‘fundamental conceptions of justice.’
[Citation.]” (Id. at p. 352.) Regarding this issue, the defendant argued in part that
admission of the evidence “contravene[d] a tradition that the government may not
force a person acquitted in one trial to defend against the same accusation in a
subsequent proceeding.” (Id. at p. 354.) The court replied: “We acknowledge the
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tradition, but find it amply protected by the Double Jeopardy Clause. We decline
to use the Due Process Clause as a device for extending the double jeopardy
protection to cases where it otherwise would not extend.” (Ibid.)
We reject defendant’s due process argument because it essentially asks us
to do what the high court in Dowling said we could not do: “use the Due Process
Clause as a device for extending the double jeopardy protection to cases where it
otherwise would not extend.” (Dowling, supra, 493 U.S. at p. 354.) Defendant,
who cannot, after Monge I and Monge II, invoke the protection of the double
jeopardy clause to bar retrial, invites us to achieve the same end via the due
process clause. We decline his invitation because, as the high court told us in
Dowling: “Beyond the specific guarantees enumerated in the Bill of Rights, the
Due Process Clause has limited operation. . . . ‘Judges are not free, in defining
“due process,” to impose on law enforcement officials [their] “personal and
private notions” of fairness and to “disregard the limits that bind judges in their
judicial function.” [Citation.]’ ” (Id. at pp. 352-353.)
Our rejection of defendant’s due process argument is also consistent with
the high court’s decision in Caspari v. Bohlen (1994) 510 U.S. 383 (Caspari).
There, a lower court granted a habeas corpus petition after ruling that where trial-
like procedures apply in determining persistent offender status, the federal double
jeopardy clause prohibits retrial after an appellate court reverses such a
determination for insufficient evidence. (Id. at pp. 386-388.) The high court held
that the habeas petition should not have been granted, because the lower court’s
conclusion constituted “a new rule” (id. at p. 395) and a court generally may not
grant habeas relief “based on a rule announced after [the defendant’s] conviction
and sentence became final. [Citation.]”3 (Caspari, supra, at p. 389.) In reaching

3
Given its conclusion, the high court did not consider the merits of the lower
court’s rule. (Caspari, supra, 510 U.S. at p. 397.) As previously explained, the
(Footnote continued on next page.)
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(Footnote continued from previous page.)

high court later announced a contrary rule in Monge II, supra, 524 U.S. at page
734.
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this conclusion, the high court rejected the argument that the defendant was
entitled to relief because the new rule constituted a “ ‘ “watershed rule[] of
criminal procedure” implicating the fundamental fairness and accuracy of the
criminal proceeding.’ [Citation.]” (Id. at p. 396, italics added.) The high court
found that “[a]pplying the Double Jeopardy Clause to successive noncapital
sentencing is not such a groundbreaking occurrence. Persistent-offender status is
a fact objectively ascertainable on the basis of readily available evidence. Either a
defendant has the requisite number of prior convictions, or he does not.
Subjecting him to a second proceeding at which the State has the opportunity to
show those convictions is not unfair and will enhance the accuracy of the
proceeding by ensuring that the determination is made on the basis of competent
evidence.” (Ibid., italics added.) Caspari lends additional support to our
conclusion that permitting retrial under the circumstances now before us does not
violate defendant’s due process right to fundamental fairness.
The high court’s discussion in Caspari mirrors our earlier discussion in
Morton. As previously noted, there, in holding that retrial is “proper” where “the
defects in the proof of the prior convictions [are] capable of correction on a
retrial,” we explained: “This procedure . . . carries out the policy of the statutes
imposing ‘more severe punishment, proportionate to their persistence in crime, of
those who have proved immune to lesser punishment’ [citation], and prevents
defendants from escaping the penalties imposed by those statutes through
technical defects in . . . proof. It affords the defendant a fair hearing on the charge,
and if it cannot be proved he will not have to suffer the more severe punishment.”
(Morton, supra, 41 Cal.2d at pp. 544-545.) In light of Dowling, Caspari, and
Morton, we reject defendant’s due process argument.
II. THE LAW OF THE CASE
As previously noted, in Monge I, after concluding that double jeopardy
protections did not bar retrial of a prior conviction allegation, the lead opinion

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noted: “Of course, this conclusion raises numerous secondary issues. For
example, the Court of Appeal’s determination that the evidence [at trial] was
insufficient to prove [the] defendant’s prior conviction was of a serious felony is,
at the very least, the law of this case. Thus, the prosecution would have to present
additional evidence at a retrial of the prior conviction allegation in order to obtain
a different result.” (Monge I, supra, 16 Cal.4th at p. 845 (lead opn. of Chin, J.).)
Defendant argues that “retrial should be barred under the doctrine of the law of the
case unless the prosecution can establish that it has discovered new evidence
which could not have been presented at the first trial through the exercise of due
diligence.” We disagree.
Under the law of the case doctrine, when an appellate court “ ‘states in its
opinion a principle or rule of law necessary to the decision, that principle or rule
becomes the law of the case and must be adhered to throughout [the case’s]
subsequent progress, both in the lower court and upon subsequent appeal . . . .’ ”
(Kowis v. Howard (1992) 3 Cal.4th 888, 893.) Absent an applicable exception,
the doctrine “requir[es] both trial and appellate courts to follow the rules laid
down upon a former appeal whether such rules are right or wrong.” (Estate of
Baird (1924) 193 Cal. 225, 234.) As its name suggests, the doctrine applies only
to an appellate court’s decision on a question of law; it does not apply to questions
of fact. (Id. at pp. 234-239.) Nevertheless, it is potentially relevant here because
an appellate court’s determination “that the evidence is insufficient to justify a
finding or a judgment is necessarily a decision upon a question of law.” (Id. at p.
238.) Such a determination “establishe[s] as the law of the case that all the
evidence adduced at the previous trial was insufficient as a matter of law to
establish” the finding or judgment. (Id. at p. 234; see also People v. Shuey (1975)
13 Cal.3d 835, 842 [doctrine applies to finding of evidence’s “legal sufficiency”].)
As here relevant, the law of the case doctrine is subject to an important
limitation: it “applie[s] only to the principles of law laid down by the court as
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applicable to a retrial of fact,” and “does not embrace the facts themselves . . . .”
(Moore v. Trott (1912) 162 Cal. 268, 273, italics added.) In other words, although
an appellate court’s legal determination constitutes the law of the case, “upon a
retrial . . . that law must be applied by the trial court to the evidence presented
upon the second trial.” (Erlin v. National Union Fire Ins. Co. (1936) 7 Cal.2d
547, 549 (Erlin).) Thus, during subsequent proceedings in the same case, an
appellate court’s binding legal determination “controls the outcome only if the
evidence on retrial or rehearing of an issue is substantially the same as that upon
which the appellate ruling was based. [Citations.]” (People v. Mattson (1990) 50
Cal.3d 826, 850 (Mattson).) Where, on remand, “there is a substantial difference
in the evidence to which the [announced] principle of law is applied, . . . the
[doctrine] may not be invoked.” (Hoffman v. Southern Pac. Co. (1932) 215 Cal.
455, 457.) Even where the appellate court reverses based on “the ‘sufficiency of
the evidence’, the rule of the law of the case may not be extended to be an
estoppel when new material facts, or evidence, or explanation of previous
evidence appears in the subsequent trial. [Citations.]” (Weaver v. Shell Company
(1939) 34 Cal.App.2d 713, 717.) These well-established principles explain the
lead opinion’s statement in Monge I that, under the law of the case doctrine, “the
prosecution would have to present additional evidence at a retrial of the prior
conviction allegation in order to” overcome the appellate court’s determination
that the evidence at the first trial was legally insufficient to prove the allegation.
(Monge I, supra, 16 Cal.4th at p. 845 (lead opn. of Chin, J.).)
Our decisions make clear that, contrary to defendant’s assertion, nothing in
the law of the case doctrine itself limits the additional evidence that a party may
introduce on retrial to that which “could not have been presented at the first trial
through the exercise of due diligence.” Perhaps the most relevant case in this
regard is Mattson. During a prior appeal in that matter, we reversed the
defendant’s convictions after concluding from “the record of the first trial” that
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police had illegally obtained his confessions and that the trial court had erred in
denying his suppression motion. (Mattson, supra, 50 Cal.3d at p. 848.) During
retrial, which again resulted in conviction, the trial court allowed the prosecution
“to relitigate the admissibility of the confessions” and to “introduce[] evidence” on
the issue that “had not been presented at the first trial . . . .” (Id. at p. 849.) On
review after retrial, we affirmed the trial court’s ruling and rejected the
defendant’s claim that various principles, including the law of the case,
“preclude[d] relitigation” of the issue “based on facts that [were] inconsistent and
irreconcilable with facts established in the initial [suppression] hearing.” (Ibid.)
In affirming the trial court’s ruling in Mattson, we first found the
defendant’s attempt to limit the evidence on retrial to be contrary to statute. We
explained: “A reversal of a judgment without directions is an order for a new trial.
(§ 1262.) ‘An unqualified reversal remands the cause for new trial and places the
parties in the trial court in the same position as if the cause had never been tried.’
[Citation.] ‘The granting of a new trial places the parties in the same position as if
no trial had been had. . . . .’ (§ 1180.) [¶] That status even permits amendment of
the accusatory pleading [citation], as well as renewal and reconsideration of
pretrial motions and objections to the admission of evidence. [Citation.] Absent a
statutory provision precluding relitigation, a stipulation by the parties, or an order
by the court that prior rulings made in the prior trial will be binding at the new
trial, objections must be made to the admission of evidence (Evid. Code, § 353),
and the court must consider the admissibility of that evidence at the time it is
offered. [Citations.]” (Mattson, supra, 50 Cal.3d at pp. 849-850, fn. omitted.)
In
Mattson, we next rejected the defendant’s reliance on the law of the case
doctrine, explaining: “The law-of-the-case doctrine binds the trial court as to the
law but controls the outcome only if the evidence on retrial or rehearing of an
issue is substantially the same as that upon which the appellate ruling was based.
[Citations.] The law-of-the-case doctrine applied to this court’s prior ruling only
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insofar as we held that California law governed the admissibility of the
confessions. The trial court did not depart from that ruling in its determination,
based on new evidence, that the confessions were admissible.” (Mattson, supra,
50 Cal.3d at p. 850, italics added.) “Since there was no [statutory or
constitutional] bar to a new hearing on the admissibility of the confessions, and
additional evidence on the question of who initiated the interviews was heard, the
law-of-the-case doctrine did not compel the trial court to exclude [the] defendant’s
confessions. Except where insufficiency of the evidence to sustain a judgment of
conviction was the basis for reversal, in which case double jeopardy
considerations preclude relitigation [citations], the law-of-the-case doctrine is
inapplicable to the determination of questions of fact [citation] decided on the
basis of new or different evidence in a new trial following reversal on appeal.
[Citation.]” (Id. at pp. 852-853, fn. omitted, italics added.) Notably, in rejecting
the defendant’s claim, we did not condition the prosecution’s right to introduce
“new or different evidence” at retrial (id. at p. 853) on a showing that the evidence
could not have been presented at the first trial through the exercise of due
diligence. Thus, Mattson establishes that nothing in the law of the case doctrine
itself imposes this limitation on the introduction of new evidence; any such
limitation must come from some other statutory, constitutional, or equitable
source.
In this regard, Mattson is consistent with a long line of California decisions.
For example, in Chandler v. People’s Sav. Bank (1884) 65 Cal. 498, 499-500, we
held that after an appellate reversal of a judgment for the plaintiff for insufficient
evidence and a remand for further proceedings according to the views stated in the
appellate opinion, the plaintiff “was at liberty in a new trial” (id. at p. 499) to
introduce additional evidence on the unproven issue, and the trial court had erred
in precluding introduction of additional evidence at trial. In Mitchell v. Davis
(1863) 23 Cal. 381, 383-384, we held that an appellate court’s finding of
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insufficient evidence is law of the case but “does not operate as a bar or estoppel
upon the plaintiff from showing the true facts of the case,” and that after a remand
for a new trial, “the plaintiff had a clear right to introduce any evidence relevant to
the issues to be tried.” Finally, in Weightman v. Hadley (1956) 138 Cal.App.2d
831, the court held that at a retrial after an unqualified appellate reversal for
insufficient evidence, the plaintiff had “the right to introduce . . . any additional
and new evidence” (id. at p. 840) on issues as to which proof at the first trial was
insufficient, and that because the law of the case doctrine “does not apply to new
and additional evidence,” “there can be no application of the doctrine until the
facts have been elicited on a retrial.” (Id. at p. 841.) Like Mattson, these
decisions demonstrate that nothing in the law of the case doctrine itself limits a
party’s ability to introduce additional evidence at retrial after a reversal for
insufficient evidence. (See also Erlin, supra, 7 Cal.2d at p. 549 [after
“unqualified” appellate reversal of judgment for plaintiff for insufficient evidence,
law of the case established by the appellate court must “be applied . . . to the
evidence presented upon the second trial,” and plaintiff is “entitled” at a second
trial “to . . . the opportunity to present evidence in support of” his allegations].)
In arguing for a “due diligence” standard, defendant relies on statutes
governing motions for new trial, for reconsideration, and for relief from default.
He notes that under section 1181, subdivision 8, a criminal defendant cannot
obtain a new trial based on “new evidence” without showing that “he could not,
with reasonable diligence, have discovered and produced” the evidence “at trial.”
He notes that a civil litigant relying on new evidence must make a similar showing
to obtain either a new trial under Code of Civil Procedure section 657, subdivision
4, or reconsideration under Code of Civil Procedure section 1008, as the latter
provision has been judicially construed. (See Blue Mountain Development Co. v.
Carville (1982) 132 Cal.App.3d 1005, 1013.) He also asserts that “ignorance of
the law” does not establish “mistake, inadvertence, surprise, or excusable neglect”
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for purposes of obtaining relief from judgment under Code of Civil Procedure
section 473. He argues that we should extend the rule of these statutes to the
factual context now before us, and hold that retrial after an appellate reversal for
insufficient evidence is “barred under the doctrine of the law of the case unless the
prosecution can establish that it has discovered new evidence which could not
have been presented at the first trial through the exercise of due diligence.”
We reject defendant’s argument as being inconsistent with the separate
scheme that has long governed retrials after appellate reversals for insufficient
evidence.4 As previously noted, section 1262 provides that a reversal of a
judgment against the defendant “shall be deemed an order for a new trial, unless
the appellate court shall otherwise direct.” As we explained over 80 years ago, an
appellate court’s power to direct otherwise—i.e., to direct a trial court to enter
judgment on an issue in the appellant’s favor—“should be exercised only when,
upon a full consideration of the record, the party against whom the judgment is [to
be] entered in the trial court could not successfully meet the contentions of his
adversary upon a retrial or reconsideration of the case in the trial court.” (Tupman
v. Haberkern (1929) 208 Cal. 256, 269.) Before an appellate court may exercise
this power, “ ‘it must appear from the record . . . that on no theory grounded in
reason and justice could the party defeated on appeal make a further substantial
showing in the trial court in support of his cause. [Citations.]” (Boyle v. Hawkins
(1969) 71 Cal.2d 229, 232, fn. 3 (Boyle).) Thus, where an appellate court finds
that “the evidence is insufficient to support the verdict,” the “normal rule” is that
the losing party on appeal is “entitled to a retrial.” (Id. at pp. 232-233, fn. 3.)
Under section 1180, “[t]he granting of a new trial places the parties in the same

4
We also note that a criminal defendant’s ability to obtain a new trial based
on new evidence is not as limited as defendant suggests. (See People v. Hayes
(1990) 52 Cal.3d 577, 614-615; People v. Martinez (1984) 36 Cal.3d 816, 825-
826.)
17

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position as if no trial had been had” and “[a]ll the testimony must be produced
anew.”
These well-established principles were at work in Mattson. As previously
discussed, we held in Mattson that, after our reversal for insufficient evidence at
trial to establish the admissibility of the defendant’s confession, sections 1180 and
1262 authorized the prosecution at retrial to relitigate this issue using evidence it
failed to present at the first trial, and the law of the case doctrine did not require
exclusion because the prosecution had, in fact, introduced additional evidence at
retrial. (Mattson, supra, 50 Cal.3d at pp. 849-853.) As we have shown, Mattson
is consistent with a long line of cases applying the law of the case doctrine after
reversals for insufficient evidence, none of which imposed or even mentioned a
“due diligence” limitation on the introduction of new evidence at retrial. We
therefore reject defendant’s argument.
In arguing for a “due diligence” requirement, defendant also relies on
Mitchell. There, the court held that because “the government ha[d] had a full and
fair opportunity to present its case unhampered by evidentiary error or other
impediment, fundamental fairness require[d] application of equitable principles of
res judicata (direct estoppel) and law of the case to preclude relitigation” of an
alleged prior conviction after the court’s prior reversal of an earlier true finding for
insufficient evidence. (Mitchell, supra, 81 Cal.App.4th at p. 136.) The court
reasoned that “when the People on remand did not show there was newly
discovered evidence which they, in due diligence, could not have presented at the
first trial on the truth of the priors, that decision and its necessary resolution of the
legal sufficiency of the evidence for the prior allegations became the law of the
case as between these parties. [Citations.]” (Id. at p. 155.) Defendant cites this
decision in arguing that the law of the case doctrine bars retrial unless the
prosecution makes a “due diligence” showing as to new evidence.
18

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We conclude that Mitchell erred in applying the law of the case doctrine
based on the prosecution’s failure to show “due diligence.” In imposing this
requirement, Mitchell failed to cite or discuss the statutes and cases that authorize
introduction of new evidence, without limitation, on retrial after an appellate
reversal for insufficient evidence. Instead, Mitchell cited the lead opinion in
Monge I and two civil decisions from the First District Court of Appeal, Bank of
America v. Superior Court (1990) 220 Cal.App.3d 613 (Bank of America) and
McCoy v. Hearst Corp. (1991) 227 Cal.App.3d 1657 (McCoy). (Mitchell, supra,
81 Cal.App.4th at p. 155.) Regarding Monge I, the lead opinion there stated only
that, in light of the law of the case doctrine, “the prosecution would have to
present additional evidence at a retrial of the prior conviction allegation in order
to” overcome the appellate court’s determination that the evidence at the first trial
was legally insufficient to prove the allegation. (Monge I, supra, 16 Cal.4th at p.
845 (lead opn. of Chin, J.).) It said nothing about a “due diligence” requirement,
and thus does not support Mitchell’s imposition of this requirement.
Bank of America also does not support Mitchell’s “due diligence” gloss on
the law of the case doctrine. There, the court held that where a motion for
judgment notwithstanding the verdict (JNOV) is “made and denied by the trial
court, and the appellate court reverses the judgment for insufficiency of the
evidence,” retrial is improper even where the reversal is “unqualified.” (Bank of
America, supra, 220 Cal.App.3d at p. 626.) In reaching this conclusion, the court
specifically relied on Code of Civil Procedure section 629, which mandates entry
of judgment in a civil case, rather than a new trial, when an appellate court finds
that the trial court erred in denying a JNOV motion. (Bank of America, supra, 220
Cal.App.3d at pp. 624-626.) Bank of America is inapposite because Code of Civil
Procedure section 629 is inapplicable to a criminal sentencing proceeding, and
neither Mitchell nor defendant here identifies a similar statute that governs retrial
of the prior juvenile adjudication allegation at issue in this criminal case.
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Moreover, Mitchell incorrectly reasoned that “[i]n granting the relief requested,
the court in Bank of America” relied in part on the “law of the case.” (Mitchell,
supra, 81 Cal.App.4th at p. 150.) On the contrary, the court in Bank of America
expressly noted that, given its conclusion based on Code of Civil Procedure
section 629, it did not need “to determine whether [the plaintiffs’] claims would be
barred by law of the case if the action were retried . . . .” (Bank of America, supra,
220 Cal.App.3d at p. 627.) Thus, although noting that the law of the case doctrine
does not apply where the “evidence . . . produced at a subsequent trial . . . is
‘materially,’ ‘essentially,’ or ‘substantially’ different from that passed upon in the
first appeal,” the court declined to decide whether the new evidence the plaintiffs
“proffered . . . would be sufficient to overcome the law of the case.” (Id. at p. 621,
fn. 3.) Furthermore, Bank of America’s holding absolutely precludes retrial; it
does not allow for an exception based on new evidence that could not have been
discovered with reasonable diligence. Finally, the court in Bank of America could
find “no compelling policy reason” for giving a civil litigant “another day in
court” simply because an appellate court, after finding that JNOV should have
been entered, fails to follow a statute requiring entry of judgment under these
circumstances. (Id. at p. 626.) In the criminal sentencing proceeding now before
us, the public policy considerations are decidedly different. As we explained in
Morton many years ago, retrial of a prior conviction allegation “carries out the
policy of the statutes imposing ‘more severe punishment, proportionate to their
persistence in crime, of those who have proved immune to lesser punishment’
[citation], and prevents defendants from escaping the penalties imposed by those
statutes through technical defects in . . . proof.” (Morton, supra, 41 Cal.2d at pp.
544-545.) California “has a strong interest in protecting its citizenry from
individuals who, by their repeated criminal conduct, demonstrate an incapacity to
reform.” (People v. Levin (Ill. 1993) 623 N.E.2d 317, 327.) For all of these
reasons, Mitchell’s reliance on Bank of America is erroneous.
20

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McCoy, the other First District decision Mitchell cited, is factually similar
to Bank of America and is similarly inapposite. In McCoy, the defendants, whose
JNOV motion had been denied, moved for entry of judgment in the trial court on
remand after our “unqualified reversal” of judgments against the defendants “for
insufficiency of the evidence.” (McCoy, supra, 227 Cal.App.2d at pp. 1658-
1659.) The trial court granted the motion and entered judgments for the
defendants. (Id. at pp. 1658-1659.) The Court of Appeal affirmed the judgments
for the defendants, following Bank of America and holding that, where JNOV
motions are improperly denied, Code of Civil Procedure section 629 modifies the
general rule that an unqualified reversal for insufficient evidence remands the case
for a new trial. (McCoy, supra, 227 Cal.App.3d at p. 1662.) Because McCoy
simply followed Bank of America and applied Code of Civil Procedure section
629, Mitchell’s reliance on McCoy, like its reliance on Bank of America, is
erroneous.
For all of the reasons discussed above, we reject defendant’s argument that
“retrial should be barred under the doctrine of the law of the case unless the
prosecution can establish that it has discovered new evidence which could not
have been presented at the first trial through the exercise of due diligence.”

III. RES JUDICATA/COLLATERAL ESTOPPEL
As generally understood, “[t]he doctrine of res judicata gives certain
conclusive effect to a former judgment in subsequent litigation involving the same
controversy.” (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 280, p. 820.)
The doctrine “has a double aspect.” (Todhunter v. Smith (1934) 219 Cal. 690,
695.) “In its primary aspect,” commonly known as claim preclusion, it “operates
as a bar to the maintenance of a second suit between the same parties on the same
cause of action. [Citation.]” (Clark v. Lesher (1956) 46 Cal.2d 874, 880.) “In its
secondary aspect,” commonly known as collateral estoppel, “[t]he prior judgment
. . . ‘operates’ ” in “a second suit . . . based on a different cause of action . . . ‘as an
21

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estoppel or conclusive adjudication as to such issues in the second action as were
actually litigated and determined in the first action.’ [Citation.]” (Ibid.) “The
prerequisite elements for applying the doctrine to either an entire cause of action
or one or more issues are the same: (1) A claim or issue raised in the present
action is identical to a claim or issue litigated in a prior proceeding; (2) the prior
proceeding resulted in a final judgment on the merits; and (3) the party against
whom the doctrine is being asserted was a party or in privity with a party to the
prior proceeding. [Citations.]” (Brinton v. Bankers Pension Services, Inc. (1999)
76 Cal.App.4th 550, 556.) Defendant asserts that both aspects of the doctrine bar
retrial of his alleged prior conviction.
Defendant’s claim raises a threshold issue that we have not yet decided:
whether either aspect of the res judicata doctrine “even applies to further
proceedings in the same litigation. [Citation.]” (People v. Memro (1995) 11
Cal.4th 786, 821.) As the court observed in Mitchell, “[t]he traditional application
of such doctrines [is] to ‘successive prosecutions’ [citation] or rulings from a
former action [citation].” (Mitchell, supra, 81 Cal.App.4th at pp. 147-148.) For
example, as we have explained, appellate court judgments establish the law that
“ ‘must be applied in the subsequent stages of the cause’ ”—i.e., the law of the
case—“ ‘and they are res adjudicata in other cases as to every matter
adjudicated.’ ” (Dept. of Water & Power v. Inyo Chem. Co. (1940) 16 Cal.2d 744,
750, italics added.) Relying principally on U.S. v. Bailin (7th Cir. 1992) 977 F.2d
270 (Bailin), defendant asserts that “[f]ederal courts and courts from other states
have routinely applied collateral estoppel, or direct estoppel, to bar further
proceedings in the same action.” However, as defendant correctly notes, we
specifically questioned Bailin’s holding in People v. Santamaria (1994) 8 Cal.4th
903, 915, footnote 5. There, after reviewing relevant high court authority, “we
question[ed] whether collateral estoppel applies to [retrial in] the same proceeding
where the government won by securing a conviction of the substantive count” and
22

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the conviction was reversed on appeal. (Id. at p. 913; see also Memro, supra, 11
Cal.4th at p. 821 [“[i]t is questionable whether the doctrine of collateral estoppel
even applies to further proceedings in the same litigation”].) Ultimately, we did
not decide the question in Santamaria because we found that the collateral
estoppel claim in that case failed “on the merits” for other reasons. (Santamaria,
supra, 8 Cal.4th at p. 916.)
Similarly, in this case, we need not resolve this threshold question because
defendant’s res judicata claim fails for other reasons. Initially, we agree with the
People that neither aspect of res judicata applies because an appellate reversal, for
insufficient evidence, of a true finding regarding an alleged prior conviction or
juvenile adjudication does not generally constitute a final decision on the merits
regarding the truth of the alleged prior conviction or juvenile adjudication.5 As
previously discussed, where an appellate court finds that the evidence at trial was
insufficient to support the verdict, the “normal rule” is that the losing party on
appeal is “entitled to a retrial” unless the record shows “ ‘that on no theory
grounded in reason and justice could the party defeated on appeal make a further
substantial showing in the trial court in support of his cause.’ [Citations.]”
(Boyle, supra, 71 Cal.2d at pp. 232-233, fn. 3.) Here, nothing in the record
suggests that, at a retrial, the People would be unable to make the necessary
showing regarding the declaration of wardship, and defendant has never

5
In their reply brief in this court, the People also argue that collateral
estoppel does not apply for the additional reason that “[t]he factual issue to be
litigated in a retrial of the strike—whether the required juvenile wardship
declaration exists—was never litigated or determined in a former proceeding,”
inasmuch as defendant did not contest the issue at trial. Because the People did
not raise this argument in either the Court of Appeal or their opening brief in this
court, we decline to address it. (See Varjabedian v. City of Madera (1977) 20
Cal.3d 285, 295, fn. 11.)
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contended otherwise.6 Monge I and Monge II established that such retrials are not
precluded by double jeopardy principles, and we found earlier in this opinion that
such retrials are not precluded by due process principles or the law of the case
doctrine. Thus, “the Court of Appeal should not have departed from the normal
rule that [the People were] entitled to a retrial” on defendant’s alleged prior
juvenile adjudication. (Boyle, supra, 71 Cal.2d at p. 233, fn. 3.) Given that the
Court of Appeal should have ordered a new trial of the alleged prior juvenile
adjudication, its reversal of the true finding for insufficient evidence lacks the
requisite finality for purposes of applying res judicata or collateral estoppel. (See
Pillsbury v. Superior Court (1937) 8 Cal.2d 469, 472 [appellate order reversing
for further proceedings “is not an adjudication in the same sense as a final
judgment” for purposes of applying res judicata]; Board of Education v. Fowler
(1861) 19 Cal. 11, 26 [appellate decision reversing judgment and remanding is not
a “final judgment” that would bar subsequent action].)
Our conclusion is fully consistent with the high court’s decision in Monge
II. As previously explained, there the high court held that where an appellate
court finds insufficient evidence to support a true finding regarding an alleged
prior conviction, the order reversing the finding lacks the “ ‘constitutional
finality’ ” to trigger double jeopardy protections and, therefore, does not preclude
retrial. (Monge II, supra, 524 U.S. at p. 729.) The purposes of the double
jeopardy and res judicata doctrines substantially overlap. We have explained that
the purposes of the res judicata doctrine include “prevent[ing] inconsistent
judgments which undermine the integrity of the judicial system” and “preventing a

6
As previously noted, defendant admitted at trial that he had sustained a
“true finding” in juvenile court in 1995 for striking someone with a baseball bat,
and his counsel told the jury during closing argument that “[t]here’s not an issue”
regarding defendant’s “priors.” Moreover, the probation department’s sentencing
(Footnote continued on next page.)
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person from being harassed by vexatious litigation. [Citation.]” (People v. Taylor
(1974) 12 Cal.3d 686, 695.) Similarly, the high court has explained that the
purposes of the double jeopardy clause include preserving “the integrity of a final
judgment” (United States v. Scott (1978) 437 U.S. 82, 92) and protecting
individuals “from the harassment and vexation of unbounded litigation.” (Arizona
v. Manypenny (1981) 451 U.S. 232, 246.) The high court has also observed that
“[a] primary purpose served” by the double jeopardy clause—preserving the
finality of judgments—“is akin to that served by the doctrines of res judicata and
collateral estoppel.” (Crist v. Bretz (1978) 437 U.S. 28, 33.) Defendant offers no
reason for ignoring these overlapping purposes and refusing to apply, in the res
judicata context, Monge II’s holding that an appellate reversal, for insufficient
evidence, of a true finding on a prior conviction allegation lacks the requisite
finality for purposes of the double jeopardy clause.
The conclusion that res judicata does not apply here is also consistent with
our prior decision in Mattson. As previously explained, Mattson held that after an
appellate court reverses a conviction because the evidence at trial was insufficient
to establish the admissibility of confessions, the prosecution on remand may
“relitigate” that issue and “introduce[] evidence [that] had not been presented at
the first trial . . . .” (Mattson, supra, 50 Cal.3d at p. 849.) In rejecting the
defendant’s many arguments against this conclusion, we held that “[n]either
constitutional nor ‘equitable’ double jeopardy nor collateral estoppel
considerations bar relitigation of the admissibility of defendant’s confessions in
this case.” (Id. at p. 853, fn. 16, italics added.) Although we did not explain the
basis for this conclusion, our holding in Mattson is, nevertheless, inconsistent with

(Footnote continued from previous page.)

report in this case states that defendant was committed to a juvenile ranch facility
(Footnote continued on next page.)
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defendant’s assertion of collateral estoppel in this case. In short, because
defendant cannot establish one of the threshold requirements for application of res
judicata—finality of the prior decision—his attempt to invoke either aspect of that
doctrine necessarily fails.7
Moreover, we find that even if defendant could satisfy the technical,
threshold requirements of the res judicata doctrine, application of the doctrine
would be inappropriate here. Whether res judicata applies in a given context is not
simply a matter of satisfying the doctrine’s technical requirements. As we have
explained, “ ‘the rule of collateral estoppel in criminal cases is not to be applied
with the hypertechnical and archaic approach of a nineteenth century pleading
book, but with realism and rationality.’ [Citations.] Accordingly, the public
policies underlying collateral estoppel—preservation of the integrity of the judicial
system, promotion of judicial economy, and protection of litigants from
harassment by vexatious litigation—strongly influence whether its application in a

(Footnote continued from previous page.)

as a result of the true finding in the 1995 juvenile court proceeding.
7
The cases defendant cites do not require a different conclusion. They
address the estoppel effect of a jury’s final verdict acquitting a defendant of one
count in a multicount complaint, during retrial on a separate count in the
complaint after a mistrial or appellate reversal as to that separate count. (U.S. v.
Romeo (9th Cir. 1997) 114 F.3d 141, 144; U.S. v. Shenberg (11th Cir. 1996) 89
F.3d 1461, 1478; Bailin, supra, 977 F.2d at pp. 275-276; U.S. v. Seley (9th Cir.
1992) 957 F.2d 717, 720-723; U.S. v. Corley (11th Cir. 1987) 824 F.2d 931, 935-
937; U.S. v. Shenberg (S.D.Fla. 1993) 828 F.Supp. 968, 970.) They are consistent
with our longstanding rule that “where a defendant is tried on multiple counts of a
single information, each count being considered as a separate and distinct offense,
the doctrine of res judicata operates to preclude the relitigation of issues finally
determined upon retrial of only one count. [Citation.]” (People v. Ford (1966) 65
Cal.2d 41, 50, italics added.) They do not present the issue now before us:
whether an appellate reversal of a jury’s true finding regarding a strike allegation
has estoppel effect with respect to a retrial of the same strike allegation.
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particular circumstance would be fair to the parties and constitutes sound judicial
policy. [Citation.]” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 343
(Lucido).) Thus, “[w]e have repeatedly looked to the public policies underlying
the doctrine before concluding that collateral estoppel should be applied in a
particular setting. [Citation.]” (Id. at pp. 342-343.) We have also recognized that
public policy considerations may warrant an exception to the claim preclusion
aspect of res judicata, at least where the issue is a question of law, rather than of
fact. (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 620-622;
Greenfield v. Mather (1948) 32 Cal.2d 23, 35; Guardianship of Di Carlo (1935) 3
Cal.2d 225, 235.) As previously noted, an appellate court’s determination “that
the evidence is insufficient to justify a finding or a judgment is necessarily a
decision upon a question of law.” (Estate of Baird, supra, 193 Cal. at p. 238; see
also Sharon v. Sharon (1889) 79 Cal. 633, 672.)
Looking at the relevant policy considerations, we conclude that application
of the res judicata doctrine is inappropriate here, even if defendant could otherwise
satisfy the doctrine’s technical requirements. Regarding the integrity of the
criminal justice system, declining to apply res judicata principles after appellate
reversal of a factfinder’s true finding on a prior conviction allegation does not
create a risk of “inconsistent verdicts.” (Lucido, supra, 51 Cal.3d at p. 347.) On
the other hand, applying such principles under these circumstances would
“undermine public confidence in the judicial system” (ibid.), because the public
has a substantial interest in the implementation of statutes imposing more severe
punishment on “ ‘persisten[t]’ ” offenders who “ ‘have proved immune to lesser
punishment,’ ” and in “prevent[ing]” such offenders “from escaping the penalties
imposed by those statutes through technical defects in . . . proof.” (Morton, supra,
41 Cal.2d at pp. 544-545.) As the high court has explained, where “a State adopts
the policy of imposing heavier punishment for repeated offending, there is
manifest propriety in guarding against the escape from this penalty those whose
27

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previous conviction was not suitably made known to the court at the time of their
trial.” (Graham v. West Virginia (1912) 224 U.S. 616, 626.) “Either a defendant
has the requisite number of prior convictions, or he does not,” and “[s]ubjecting
him to a second proceeding at which the State has the opportunity to show those
convictions is not unfair and will enhance the accuracy of the proceeding by
ensuring that the determination is made on the basis of competent evidence.”
(Caspari, supra, 510 U.S. at p. 396.) Moreover, applying res judicata principles
here “might create disincentives that would” prompt the Legislature to cut back on
the “trial-like protections” it has, as “a matter of legislative grace,” accorded
defendants who “face dramatic increases in their sentences as a result of
recidivism enhancements.” (Monge II, supra, 524 U.S. at p. 734.) Thus, the goal
of preserving the integrity of the justice system weighs against applying the res
judicata doctrine in this context.
We disagree with defendant that application of res judicata principles is
necessary to “prevent [him] from being harassed by multiple trials on the same
allegation.” Although defendant’s approach “would eliminate repetitive
litigation,” “[t]he essence of vexatiousness . . . is not mere repetition. Rather, it is
harassment through baseless or unjustified litigation. [Citation.] [Defendant] does
not assert that the criminal proceedings in this case are intended to harass.”
(Lucido, supra, 51 Cal.3d at p. 351.) As just explained, the public has a legitimate
expectation that persons with prior convictions who are convicted of new offenses
will not, “through technical defects in . . . proof,” “escap[e]” the increased
punishment statutorily proscribed to reflect “ ‘their persistence in crime . . . .’ ”
(Morton, supra, 41 Cal.2d at pp. 544-545.) “For this reason, it is neither vexatious
nor unfair” (Lucido, supra, 51 Cal.3d at p. 351) to permit retrial of prior
conviction allegations where a defendant is properly convicted of a new crime and
an appellate court reverses the true finding on the prior convictions for insufficient
evidence, at least where evidence exists to correct the defects in proof.
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Finally, considerations of judicial economy do not justify application of res
judicata principles in this context. Because most failures of proof like the one at
issue here are inadvertent, rather than strategic or otherwise intentional, the
number of retrials our conclusion permits would, no doubt, be fairly small.
Moreover, a trial of a prior conviction allegation “is simple and straightforward,”
and “[o]ften . . . involves only the presentation of a certified copy of the prior
conviction along with the defendant’s photograph and fingerprints. In many
cases, defendants offer no evidence at all, and the outcome is relatively
predictable.” (Monge I, supra, 16 Cal.4th at p. 838 (lead opn. of Chin, J.).) Thus,
the judicial resources saved by precluding retrials of prior conviction allegations
would be minimal. Any concern about judicial economy is insufficient to
overcome California’s “strong interest” in protecting its citizens from recidivists.
(People v. Levin, supra, 623 N.E.2d at p. 327.) Thus, the balance of policy
interests justifies our refusal to apply either aspect of the res judicata doctrine in
the present context.
IV. LEGISLATIVE INTENT
Defendant argues that retrial of the prior juvenile adjudication allegation
“should be barred because the statutes which grant[ed] [him] a right to an
adversarial hearing on the truth of [the] allegation suggest that the Legislature did
not want the prosecution to have a remedy from a not true finding.” In support of
his argument, he cites statutes requiring the prosecution to plead and prove each
prior conviction that qualifies as a strike, and requiring the jury (or the court if a
jury is waived) to try the alleged prior conviction and make a finding on the
allegation. (§§ 667, subd. (f)(1), 1025, subd. (b), 1158.) He also asserts that no
statute authorizes the People to “appeal . . . from a not true finding to a prior
conviction allegation” or “to seek a second trial” on such an allegation “based on
the discovery of new evidence.” This statutory framework, defendant contends,
“suggests that the prosecution should not be allowed to proceed with a second trial
29

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on” a prior conviction allegation after an appellate reversal of a true finding “for
insufficient evidence.” “If the trier of fact had properly performed [its] duty, a not
true finding would have been entered at the first trial and the matter would have
concluded at that time. [A] defendant should not be worse off because he was
required to appeal to obtain an accurate result.” Moreover, permitting a retrial
after an appellate reversal for insufficient evidence “would, in effect, provide the
prosecution with a remedy that has been denied it by the Legislature.”
For several reasons, we find defendant’s legislative intent argument
unpersuasive. First, the issue of whether the People have a statutory right to
appeal a not true finding on a prior conviction allegation is unsettled and is
currently pending before this court. (People v. Samples, review granted Feb. 25,
2003, S112201.) Thus, defendant’s argument depends on an assumption that may
prove incorrect. Second, we find nothing in the pleading and proof requirement of
the cited statutes that suggests a legislative intent to preclude retrial after an
appellate court reverses, for insufficient evidence, a factfinder’s true finding on a
prior conviction allegation.8 Third, were we to construe the cited statutes to
preclude retrial, “we might create disincentives” that would cause the Legislature
to “diminish the[] important procedural protections” it has statutorily provided as
“a matter of legislative grace, not constitutional command.” (Monge II, supra, 524
U.S. at p. 734.) Finally, as defendant explains, his statutory argument rests on the

8
Although citing section 1025, subdivision (b), in support of his “pleading
and proof” argument, defendant does not contend that this statute directly bars
retrial by providing that a prior conviction allegation “shall be tried by the jury
that tries the issue upon the plea of not guilty . . . .” (See People v. Moore (1992)
8 Cal.App.4th 411, 421 [§ 1025, subd. (b), “speaks to the initial trial of a
defendant who is charged with a new offense and prior convictions alleged for
purposes of sentence,” and “does not address the circumstance of an appellate
reversal of only an alleged prior conviction, coupled with an affirmance of the
conviction on the primary offense”]; see also People v. Tindall (2000) 24 Cal.4th
767, 780 [citing Moore].)
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alleged “unfairness of allowing retrial” after an appellate reversal for insufficient
evidence while prohibiting retrial after a trier of fact’s not true finding. However,
for the reasons set forth earlier in this opinion, permitting retrial of a prior
conviction allegation after an appellate reversal is not fundamentally unfair.9
V. CONCLUSION
The Court of Appeal erred in concluding that the People may not retry
defendant’s alleged prior juvenile adjudication. We reverse the judgment of the
Court of Appeal insofar as it prohibits retrial of the alleged prior juvenile
adjudication. We otherwise affirm the Court of Appeal’s judgment.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.
MORENO, J.

9
Defendant’s arguments mirror the reasoning the court in Mitchell set forth
in holding that the doctrines of res judicata and law of the case bar retrial of an
alleged prior conviction after an appellate court reverses a true finding for
insufficient evidence. Like defendant, the court in Mitchell assumed that “the
People do not have the right to appeal” (Mitchell, supra, 81 Cal.App.4th at p. 154)
a not true finding and emphasized that “California statutorily provides [a]
defendant the hallmarks of a trial on guilt or innocence on the truth of prior
conviction allegations, including the mandate that a true or not true finding be
made . . . .” (Id. at p. 155, fn. omitted.) Based on these considerations, the court
in Mitchell found “the requisite showing of finality, akin to an acquittal of an
offense, for purposes of applying the equitable doctrines of res judicata and law of
the case . . . .” (Ibid.) For the same reasons we reject defendant’s arguments, we
reject Mitchell’s reasoning and conclusion. We disapprove Mitchell to the extent
it is inconsistent with this opinion.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Barragan
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Unpublished Opinion

XXX NP opn. filed 3/8/02 - 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

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Opinion No.

S105734
Date Filed: January 29, 2004
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Court:

Superior
County: San Diego
Judge: Allan J. Preckel

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Attorneys for Appellant:

John L. Staley, under appointment by the Supreme Court, for Defendant and Appellant.

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Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Robert M. Foster, Steven T. Oetting and Garrett Beamuont, Deputy Attorneys
General, for Plaintiff and Respondent.

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

John L. Staley
15706 Pomerado Road, Suite S-210
Poway, CA 92064
(858) 613-1047

Garrett Beaumont
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2277

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Opinion Information

Date:	Docket Number:
Thu, 01/29/2004	S105734

Disposition
Jan 29 2004	Opinion: Affirmed in part/reversed in part

Dockets
Mar 19 2002	Received premature petition for review   by counsel for appellant Antonio J. Barragan. (received in San Diego)
Mar 21 2002	Received Court of Appeal record   2 doghouses.
Apr 9 2002	Case start: Petition for review filed   by counsel for appellant Antonio J. Barragan.
Apr 17 2002	2nd petition for review filed   by AG for respondent (The People). (filed in San Diego)
Apr 26 2002	Note:   requested remaining volume by overnight service.
Apr 29 2002	Received Court of Appeal record   One doghouse (Vol. 3 of 3).
May 15 2002	Petition for Review Granted (criminal case)   Respondent's Appellant's petition for review denied. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown & Moreno, JJ.
Jun 12 2002	Request for extension of time filed   Respondent asking until July 15, 2002 to file respondent's opening brief on the merits.
Jun 14 2002	Counsel appointment order filed   Upon request of appellant ANTONIO J. BARRAGAN for appointment of counsel, John L. Staley 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 days from the date respondent's opening brief on the merits is filed.
Jun 14 2002	Counsel appointment order filed   Upon request of appellant CARLOS DAVID PAZ for appointment of counsel, Appellate Defenders Inc. 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 days from the date respondent's opening brief on the merits is filed.
Jun 14 2002	Extension of time granted   To July 15, 2002 to file respondent's opening brief on the merits.
Jul 12 2002	Opening brief on the merits filed   In San Diego by counsel for respondent {The People}.
Jul 22 2002	Filed:   Letter from Mr. Howard C. Cohen, counsel for appellant Carlos Paz, to notify the court that he will not be filing an answer brief on the merits.
Jul 29 2002	Request for extension of time filed   By counsel for appellant {Antonio Barragan} asking until September 10, 2002 to file appellant's Answer Brief on the Merits.
Aug 1 2002	Extension of time granted   To September 10, 2002 to file appellant's {Antonio Barragan} answer brief on the merits.
Sep 3 2002	Request for extension of time filed   By Appellant {Antonio Barragan} asking to October 10, 2002 to file apellant's answer brief on the merits.
Sep 4 2002	Extension of time granted   To October 10, 2002 to file appellant's {Antonio Barragan} answer brief on the merits.
Oct 15 2002	Received:   Appellant's {Antonio Barragan} Untimely Answer Brief on the Merits.
Oct 24 2002	Application for relief from default filed   Counsel for appellant {Antonio Barragan}.
Oct 24 2002	Answer brief on the merits filed   Appellant {Antonio J. Barragan}. / Filed with permission.
Oct 29 2002	Request for extension of time filed   By Respondent asking until November 25, 2002 to file Respondent's Reply Brief on the Merits.
Nov 4 2002	Extension of time granted   To November 25, 2002 to file Respondent's Reply Brief on the Merits.
Nov 22 2002	Reply brief filed (case fully briefed)   in San Diego by respondent People
Nov 26 2002	Compensation awarded counsel   Atty Staley
Oct 1 2003	Case ordered on calendar   Wednesday,November 5, 2003 @ 9 AM (Sacramento)
Oct 9 2003	Received letter from:   Counsel for
Oct 9 2003	Received letter from:   Counsel for appellant {Carlos D. Paz} dated October 7, 2003 to inform the court that counsel does not intend to attend oral argument.
Oct 29 2003	Received letter from:   Counsel for respondent dated October 24, 2003. Respondent intends to refer to supplemental authority: People v. Burbine (2003) 106 Cal.App.4th 1250, 1259-61.
Nov 5 2003	Cause argued and submitted
Jan 29 2004	Opinion filed: Affirmed in part, reversed in part   Majority Opinion by Chin, J., ----- Joined by George, CJ., Kennard, Baxter, Werdegar, Brown and Moreno, JJ.
Mar 2 2004	Remittitur issued (criminal case)
Mar 3 2004	Compensation awarded counsel   Atty Staley
Mar 19 2004	Received:   Receipt of remittitur from CA4/1.

Briefs
Jul 12 2002	Opening brief on the merits filed
Oct 24 2002	Answer brief on the merits filed
Nov 22 2002	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