Brief Bank # B-786 (Re: FORECITE PG VII(C)32(1); F 8.67 n2; EA V(L) [Substantive Federal Constitutional Issues: Applicability Of Constitutional Rights To Sentencing Decisions: A Decision Which Substantially Raises The Range Of Punishment Is Subject To Due Process And Trial By Jury Principles (5th, 6th and 14th Amendments)].)
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IN THE COURT, OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
Hon. Rene Navarro, Judge
APPELLANT’S SUPPLEMENTAL BRIEF
LAWRENCE A. GIBBS (No. 98866)
1510 – Fourth St.
Berkeley, California 94710
Tel: (510) 525-6847
Attorney for Appellant
Respondent has conceded that the trial court failed to instruct on all elements of the enhancement charged under Penal Code section 12022.5(b). (RB 43.) The parties differ, however, on the appropriate standard of prejudice for evaluating that error. Appellant has contended that the failure to instruct on an element of the enhancement must be reviewed for federal constitutional error under Chapman v. California (1967) 386 U.S. 18. The People have responded that the error is only one of state law and is therefore reviewable under People v. Watson (1956) 46 Cal.2d 818. (See AOB 48-53; RB 43-56.)
On March 24, 1999, the United States Supreme Court issued an opinion in Jones v. United States (1999) ____US ____, 99 C.D.O.S. 2116, 99 DJ D.A.R. 2721, 1999 WL 155688, which compels the conclusion that Chapman is the appropriate standard. Upon appellant’s application, this court permitted appellant to file a supplemental brief explaining the relevance of Jones.
JONES v. UNITED STATES ESTABLISHES THAT THE FAILURE
TO INSTRUCT ON ALL ELEMENTS OF THE FIREARM ENHANCEMENT
IS AN ERROR OF FEDERAL CONSTITUTIONAL DIMENSION.
THE ERROR THUS REQUIRES REVERSAL UNLESS THE PEOPLE
CAN PROVE IT WAS HARMLESS BEYOND A REASONABLE DOUBT.
A. Legal Landscape Before Jones
Prior to the decision in Jones v. United States, the law in California provided that the federal constitutional guarantees of notice, proof beyond a reasonable doubt and jury trial applied only to offenses, not to sentencing enhancements. People v.Wims (1995) 10 Cal.4th 293.) The jury in Wims convicted the defendant of robbery and found true the allegation that defendant used a deadly weapon in the commission of the felony in violation of Penal Code section 12022(b). Defendant argued that the enhancement finding had to be reversed because the trial court failed to instruct the on its essential elements. The California Supreme Court held that, while the failure to instruct was error, it did not violate the federal constitution. In reaching this conclusion, the court rejected defendant’s contention that enhancements (which impose prison time for prohibited conduct) are the functional equivalent of crimes and therefore deserve the same constitutional protection. (Id. at p. 304-309.) The court reasoned that the enhancement provision “merely focuses on a circumstance involved in the commission of some felonies (i.e., the use of a ‘deadly or dangerous weapon’) that the Legislature apparently believed justifies an additional penalty to that prescribed for the underlying felonies.” (Id. at p. 305.) The court noted that previous United States Supreme Court cases had never applied the Sixth Amendment’s right to jury trial to matters relating to the “appropriate punishment.” (Ibid.) The Wims majority relied in particular on McMillan v. Pennsylvania (1986) 477 U.S. 79, where the high court held that the right to jury trial did not apply to a sentencing provision that removed a judge’s discretion to sentence within the given statutory range when evidence showed that the defendant possessed a firearm in the commission of the offenses (Id. at p. 305-306.)
The dissent in Wims argued that the right to jury trial did apply because sentence enhancements “are more like criminal offenses than sentencing factors in their consequences to the defendant.” (Id. at p. 323.) The dissent distinguished McMillan v. Pennsylvania on the ground that the statute there only limited the sentencing court’s discretion in selecting a penalty within the range already available to it, while the firearm enhancement in Penal Code section 12022.5 “increase[s] a defendant’s sentence beyond the maximum sentence prescribed for the underlying offense, thereby exposing the defendant ‘to greater additional punishment.”‘ (Id. at p. 324.)
The majority’s determination that the federal right to jury trial dict not apply to enhancements dictated that the error was merely one of state law, reviewable under the forgiving standard of People v. Watson (1956) 46 Cal.2d 818. (Wims, supra, 10 Cal.4th at pp. 314-315.) This was the state of the law prior to Jones.
B. Jones v. United States
The defendant in Jones was charged with carjacking under a federal statute which provided that a person possessing a firearm who “takes a motor vehicle … by force shall- (1) be … imprisoned not more than 15 years …, (2) if serious bodily injury results, be … imprisoned not more than 25 years …, and (3) if death results, be imprisoned for any number of years up to life…” Neither the indictment nor the jury instructions made any reference to the factual matters in subsections (2) or (3). After being found guilty, however, the trial court imposed a 25 year sentence because one victim suffered serious bodily injury. The trial court rejected the contention that serious bodily injury was an element of the offense and the failure to submit it to the jury violated the Sixth Amendment. (Jones, supra, 99 C.D.O.S. at pp. 2116-2117.)
The Supreme Court reversed, reasoning that, in order to be consistent with the constitution, the statute had, to be interpreted as enumerating separate substantive offenses to which the right to jury trial and due process apply. If the statute were interpreted as containing mere penalty provisions rather than substantive crimes, it would be open to serious constitutional doubt. As the court explained:
If serious bodily injury were merely a sentencing factor … then death would presumably be nothing more than a sentencing factor under subsection (3)…. If a potential penalty might rise from 15 years to life on a nonjury determination, the jury’s role would correspondingly shrink from the significance usually carried by determinations of guilt to the relative importance of low-level gatekeeping: in some cases, a jury finding of fact necessary for a maximum 15-year sentence would merely open the door to a judicial finding sufficient for life imprisonment. It is therefore no trivial question to ask whether recognizing an unlimited legislative power to authorize determinations setting ultimate sentencing limits without a jury would invite erosion of the jury’s function to a point against which a line most necessarily be drawn.
(Id. at p. 2119.)
Significantly, the majority in Jones agreed with the analysis of the Wims dissent as to the application of McMillan v. Pennsylvania. The court noted that McMillan only disposed of the question whether the right to jury trial applied to a factor affecting the choice of a sentence within a statutory range. McMillan did not resolve the question whether the jury trial right applies to proof of facts which “expose a defendant to a sentence beyond the maximum that the statute otherwise set without reference to that fact.” (Ibid.)
The Supreme Court thus held that, to avoid grave constitutional difficulties inherent in a contrary interpretation of the statute, the government was obligated under the federal constitution to give the defendant notice of the charge, provide a jury trial and prove the charge beyond a reasonable doubt. (Id. at p. 2120.) As an error of federal constitutional dimension, the failure to instruct on an element is subject to the Chapman standard. (See United-States v. Gaudin (1995) 515 U.S. 506.)
C. Application Of Jones To The Error In Appellant’s Trial
After Jones, the analysis for determining whether a failure to instruct on elements of an enhancement must proceed along the following lines: If the sentencing enhancement only limits the sentencing court’s discretion to impose a sentence within a statutory range, the failure to submit the elements to the jury does not violate the federal constitution. If, however, the enhancement exposes the defendant to a penalty in addition to the statutory maximum for the underlying offense, then it must be treated as a separate, substantive offense; the failure to instruct on the elements of the enhancement would then violate the federal constitution.
The enhancement at issue in the instant case is of the latter variety. It exposed appellant to a term of imprisonment in addition to that for the underlying offense. Indeed, the sentence range for involuntary manslaughter was 2,3 or 4 years. (Pen. Code § 193(b).) The additional term for the enhancement was 5, 6 or 10 years. (Pen. Code § 12022.5(b)(1).) Thus, as in Jones, the enhancement in appellant’s case exposed him to a substantial, additional prison term of up to 10 years. The effect of the enhancement on appellant’s actual sentence (3 years for the involuntary manslaughter and 6 years for the enhancement), was to triple appellant’s prison term.
Under these circumstances, a finding that the legislature intended the enhancement to be merely a sentencing factor for which there are no due process protections would place the constitutionality of the enhancement in grave constitutional doubt. Under both federal and California law, a statute must be interpreted in a way that “will render it valid in its entirety, or free from doubt as to its constitutionality…… make (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509. See generally Witkin & Epstein, 1 Cal.Crim.Law § 31 at pp. 40-41.) This doctrine dictates that the court find, as in Jones, that the enhancement charged in appellant’s case be treated as a substantive offense with the attendant due process protections, including, the right to jury trial. The failure to instruct on all the elements would therefore be reviewed under Chapman.
Appellant recognizes that in Wims, the California Supreme Court stated that, in enacting the enhancement contained in Penal Code section 12022(b), the legislature did not intend to enact a substantive offense rather than a sentencing provision. (People v. Wims, supra, 10 Cal.4th at p. 306.) If this court believes that it is bound by Wims’ determination of legislative intent that the enhancement not be treated as a substantive offense, its only alternative in light of Jones would be to confront the constitutionality of the sentencing provision. Jones leaves little doubt as to the outcome of such a constitutional challenge: Because Penal Code section 12022.5(b)(1) exposes the defendant to a substantial additional prison term, it is the functional equivalent of an offense and the due process protections must apply. In their absence, the statute is unconstitutional
Appellant submits, however, that it is unnecessary for this court to reach the constitutional question. The Supreme Court’s declaration of legislative intent in Wims was clearly based on a mistaken notion of the reach of the due process clause as set forth in McMillan v. Pennsylvania. (See Wims, supra, 10 Cal.4th at pp. 304-309.) Jones has now undermined that analysis of legislative intent, and this court may therefore reevaluate the question in light of controlling United States Supreme Court authority.
If the court determines, in light of Jones, that the Sixth Amendment right to jury trial applies to Penal Code section 12022.5(b), then the trial court’s failure to instruct on all elements of the offense embodied in Penal Code section 12022.5(b) was an error of federal constitutional dimension that must be evaluated under Chapman. The error was not harmless beyond a reasonable doubt and the enhancement should therefore be reversed.
If, on the other hand, the court determines that the legislature intended section 12022.5(b) to be simply a sentencing factor without due process protection, the statute should be declared unconstitutional. Again, the result would be reversal of the sentencing enhancement.
Dated: April 26,1999
LAWRENCE A. GIBBS
Attorney for Appellant