Brief Bank # B-852 (Re: PG VII(C)(32)(3) [Federal Right To Trial By Jury As To Prior Conviction]/ F 8.67 n2 [Federal Constitution Requires Treatment Of Premeditated Attempted Murder As Separate Offense Rather Than Enhancement].)
CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
NOTE: The text of the footnotes appear at the end of the document.
Date of Brief: July 2000
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, )
) NO. H0000000
Plaintiff and Respondent, ) (SANTA CLARA
) CO.SUPERIOR
vs. ) CT. NOS. 000000
) AND 00000)
JOHN DOE, )
)
Defendant and Appellant. )
___________________________________)
APPELLANT’S SECOND SUPPLEMENTAL OPENING BRIEF
___________________________________
ON APPEAL FROM THE JUDGMENT OF THE SUPERIORCOURTCOUNTY OF SANTA
CLARA, STATE OF CALIFORNIA
THE HONORABLE KEVIN J. MURPHY, JUDGE PRESIDING
___________________________________
SIXTH DISTRICT APPELLATE PROGRAM
DALLAS SACHER
Assistant Director
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA95050
(408) 241-6171
INTRODUCTION
Recently, the U.S. Supreme Court decided a seminal case which is highly relevant to this litigation. In Apprendi v. New Jersey (June 26, 2000, 99-478) ___ U.S. ___ [2000 D.A.R. 6749], the court unequivocally held that a defendant has a constitutional right to a jury trial with respect to enhancements which increase the penalty for a crime beyond the prescribed statutory maximum for the offense. This holding directly impacts on two issues in this case.
First, a primary issue in this case is whether appellant’s life sentence under Penal Code section 667.7 must be reversed since the trial court failed to instruct on an element of the Penal Code section 12022.7 enhancement. The People have contended that this error must be reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818. However, as Apprendi now makes clear, the error must be assessed under the standard of Chapman v. California (1967) 386 U.S. 18.
Second, appellant has contended that the trial court erred by substituting its own factual findings concerning a prior conviction for those previously made by the jury. Once again, Apprendi establishes that this error is violative of the federal Constitution.
In short, as is more fully discussed below, Apprendi is of great significance to the resolution of the instant case. Thus, appellant now turns to a more expansive discussion of the importance of Apprendi.
II.
APPELLANT’S LIFE SENTENCE UNDER PENAL CODE
SECTION 667.7 MUST BE REVERSED SINCE APPELLANT
WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO
A JURY TRIAL WHEN THE TRIAL COURT SUBSTITUTED
ITS OWN FACTUAL FINDING CONCERNING A PRIOR
CONVICTION FOR THAT MADE BY THE JURY.
In order to obtain a life sentence under Penal Code section 667.7, it was incumbent upon the People to prove that appellant had suffered two prior convictions for “assault with a deadly weapon” or “assault with a force likely to produce great bodily injury.” (Section 667.7, subd. (a).) Appellant admitted that he had suffered one such prior conviction. However, as to the second alleged prior conviction, appellant asserted his right to a jury trial.
At the jury trial, the jury returned a true finding on the section 667.7 allegation. (CT 915.) Subsequently, appellant filed a brief in which it was contended that the jury’s verdict demonstrated its factual finding that appellant “was convicted of Assault with a Deadly Weapon, to wit: Hands and Feet.” (CT 927.) Since such a finding would be invalid insofar as hands and feet do not qualify as a deadly weapon, appellant asked the trial court to vacate the verdict. (CT 926-928.)
The trial court refused to do so. Instead, the court made its own factual finding that the prior conviction involved the use of force likely to produce great bodily injury. (RT 1142.) Based on this new factual finding, the court imposed a life sentence under section 667.7.
Importantly, appellant registered an objection to the court’s de novo factual finding. (RT 1137-1138.) Specifically, appellant objected that the court had no authority to reject the jury’s factual finding. (RT 1137-1138.)
Previously, appellant has advanced the contention that the trial court violated his right to a jury trial by making its own factual finding. (AOB 35-38, ARB 21-28.) Although the matter is far from clear, it would appear that the U.S. Supreme Court would find a Sixth Amendment violation on the instant record. [Footnote 1]
As was noted above, the U.S. Supreme Court has definitively held that a defendant has a constitutional right to a jury trial regarding conduct enhancements. (Apprendi, supra, 2000 D.A.R. at p. 6754.) In reaching this conclusion, the court acknowledged that its earlier cases had treated prior convictions as falling outside the right to a jury trial. (See Jones v. United States (1999) 526 U.S. 277 [143 L.E.2d 311, 326, fn. 6].) Thus, the court declared in Apprendi: “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.” (Apprendi, supra, 2000 D.A.R. at p. 6754, emphasis added.)
In appellant’s view, a careful reading of Apprendi establishes that the right to a jury trial regarding a prior conviction applies where, as here, the trier of fact must adjudicate the conduct underlying the prior conviction. In this regard, Apprendi notes that the historical practice in England was to require the jury to adjudicate all of the facts requisite to punishment. (Apprendi, supra, 2000 D.A.R. at p. 6752.) Thus, whenever the defendant disputes “any fact” which will elevate his sentence beyond the statutory maximum for the offense committed, the right to a jury trial applies. (Id., at p. 6754.) The sole exception to this rule is the mere “fact of a prior conviction, . . . .” (Ibid.)
In the case at bar, the prosecution was required to prove more than the mere “fact” that appellant had a prior conviction. Under section 667.7, the prosecutor had to show appellant’s actual criminal conduct (i.e. that he had used force likely to produce great bodily injury). Indeed, this reality is incontrovertible since the judge personally reviewed the preliminary hearing transcript in order to make his factual finding. (RT 1141-1142.) Moreover, in this court, the parties have debated the sufficiency of the evidence found in the transcript. (Compare RB 31-33 and ARB 29-31.)
In short, the controlling logic of Apprendi is that a defendant is entitled to a jury trial with respect to “‘the assessment of facts’” which will lead to a longer sentence than the statutory maximum for the offense alone. (Apprendi, supra, 2000 D.A.R. at p. 6754.) Here, a factual question was presented regarding the conduct underlying appellant’s prior conviction. As a result, the trial judge erred by making his own factual finding. As a result, his finding must be disregarded. Since the jury’s finding is not supported by substantial evidence, reversal is required.
Finally, it should be noted that recent authority holds that a retrial of the prior conviction allegation is barred under the principles of res judicata and law of the case. (People v. Mitchell (2000) 81 Cal.App.4th 132, 136.) Thus, this court should direct the trial court to resentence appellant under the determinate sentencing law.
CONCLUSION
For the reasons expressed in all of appellant’s pleadings, the judgment should be reversed in case number 000000. In the alternative, the true finding on the Penal Code section 12022.7 enhancement must be reversed and a new trial ordered. At the very least, the true finding on the prior conviction from San FranciscoCounty case number 000000 must be reversed with directions that appellant be sentenced to a determinate term pursuant to Penal Code section 1170, et. seq.
Dated: July ___, 2000
Respectfully submitted,
DALLAS SACHER
Attorney for Appellant,
JOHN DOE
FOOTNOTES:
Footnote 1: The present California rule is that a defendant has no right to a jury trial with respect to the nature of a prior conviction. (People v. Kelii (1999) 21 Cal.4th 452, 454.) Obviously, Apprendi calls the validity of this holding into question. Moreover, it is possible that the California Supreme Court is itself reconsidering Kelii. (People v. Epps, S082110, rv. granted November 17, 1999; issues expanded to include the effect of the 1997 amendments to Penal Code section 1025 on a defendant’s right to a jury trial on prior convictions.)
Brief Bank # B-852 (Re: PG VII(C)(32)(3) [Federal Right To Trial By Jury As To Prior Conviction]/ F 8.67 n2 [Federal Constitution Requires Treatment Of Premeditated Attempted Murder As Separate Offense Rather Than Enhancement].)
CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
NOTE: The text of the footnotes appear at the end of the document.
Date of Brief: July 2000
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, )
) NO. H0000000
Plaintiff and Respondent, ) (SANTA CLARA
) CO.SUPERIOR
vs. ) CT. NOS. 000000
) AND 00000)
JOHN DOE, )
)
Defendant and Appellant. )
___________________________________)
APPELLANT’S SECOND SUPPLEMENTAL OPENING BRIEF
___________________________________
ON APPEAL FROM THE JUDGMENT OF THE SUPERIORCOURTCOUNTY OF SANTA
CLARA, STATE OF CALIFORNIA
THE HONORABLE KEVIN J. MURPHY, JUDGE PRESIDING
___________________________________
SIXTH DISTRICT APPELLATE PROGRAM
DALLAS SACHER
Assistant Director
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA95050
(408) 241-6171
INTRODUCTION
Recently, the U.S. Supreme Court decided a seminal case which is highly relevant to this litigation. In Apprendi v. New Jersey (June 26, 2000, 99-478) ___ U.S. ___ [2000 D.A.R. 6749], the court unequivocally held that a defendant has a constitutional right to a jury trial with respect to enhancements which increase the penalty for a crime beyond the prescribed statutory maximum for the offense. This holding directly impacts on two issues in this case.
First, a primary issue in this case is whether appellant’s life sentence under Penal Code section 667.7 must be reversed since the trial court failed to instruct on an element of the Penal Code section 12022.7 enhancement. The People have contended that this error must be reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818. However, as Apprendi now makes clear, the error must be assessed under the standard of Chapman v. California (1967) 386 U.S. 18.
Second, appellant has contended that the trial court erred by substituting its own factual findings concerning a prior conviction for those previously made by the jury. Once again, Apprendi establishes that this error is violative of the federal Constitution.
In short, as is more fully discussed below, Apprendi is of great significance to the resolution of the instant case. Thus, appellant now turns to a more expansive discussion of the importance of Apprendi.
II.
APPELLANT’S LIFE SENTENCE UNDER PENAL CODE
SECTION 667.7 MUST BE REVERSED SINCE APPELLANT
WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO
A JURY TRIAL WHEN THE TRIAL COURT SUBSTITUTED
ITS OWN FACTUAL FINDING CONCERNING A PRIOR
CONVICTION FOR THAT MADE BY THE JURY.
In order to obtain a life sentence under Penal Code section 667.7, it was incumbent upon the People to prove that appellant had suffered two prior convictions for “assault with a deadly weapon” or “assault with a force likely to produce great bodily injury.” (Section 667.7, subd. (a).) Appellant admitted that he had suffered one such prior conviction. However, as to the second alleged prior conviction, appellant asserted his right to a jury trial.
At the jury trial, the jury returned a true finding on the section 667.7 allegation. (CT 915.) Subsequently, appellant filed a brief in which it was contended that the jury’s verdict demonstrated its factual finding that appellant “was convicted of Assault with a Deadly Weapon, to wit: Hands and Feet.” (CT 927.) Since such a finding would be invalid insofar as hands and feet do not qualify as a deadly weapon, appellant asked the trial court to vacate the verdict. (CT 926-928.)
The trial court refused to do so. Instead, the court made its own factual finding that the prior conviction involved the use of force likely to produce great bodily injury. (RT 1142.) Based on this new factual finding, the court imposed a life sentence under section 667.7.
Importantly, appellant registered an objection to the court’s de novo factual finding. (RT 1137-1138.) Specifically, appellant objected that the court had no authority to reject the jury’s factual finding. (RT 1137-1138.)
Previously, appellant has advanced the contention that the trial court violated his right to a jury trial by making its own factual finding. (AOB 35-38, ARB 21-28.) Although the matter is far from clear, it would appear that the U.S. Supreme Court would find a Sixth Amendment violation on the instant record. [Footnote 1]
As was noted above, the U.S. Supreme Court has definitively held that a defendant has a constitutional right to a jury trial regarding conduct enhancements. (Apprendi, supra, 2000 D.A.R. at p. 6754.) In reaching this conclusion, the court acknowledged that its earlier cases had treated prior convictions as falling outside the right to a jury trial. (See Jones v. United States (1999) 526 U.S. 277 [143 L.E.2d 311, 326, fn. 6].) Thus, the court declared in Apprendi: “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.” (Apprendi, supra, 2000 D.A.R. at p. 6754, emphasis added.)
In appellant’s view, a careful reading of Apprendi establishes that the right to a jury trial regarding a prior conviction applies where, as here, the trier of fact must adjudicate the conduct underlying the prior conviction. In this regard, Apprendi notes that the historical practice in England was to require the jury to adjudicate all of the facts requisite to punishment. (Apprendi, supra, 2000 D.A.R. at p. 6752.) Thus, whenever the defendant disputes “any fact” which will elevate his sentence beyond the statutory maximum for the offense committed, the right to a jury trial applies. (Id., at p. 6754.) The sole exception to this rule is the mere “fact of a prior conviction, . . . .” (Ibid.)
In the case at bar, the prosecution was required to prove more than the mere “fact” that appellant had a prior conviction. Under section 667.7, the prosecutor had to show appellant’s actual criminal conduct (i.e. that he had used force likely to produce great bodily injury). Indeed, this reality is incontrovertible since the judge personally reviewed the preliminary hearing transcript in order to make his factual finding. (RT 1141-1142.) Moreover, in this court, the parties have debated the sufficiency of the evidence found in the transcript. (Compare RB 31-33 and ARB 29-31.)
In short, the controlling logic of Apprendi is that a defendant is entitled to a jury trial with respect to “‘the assessment of facts’” which will lead to a longer sentence than the statutory maximum for the offense alone. (Apprendi, supra, 2000 D.A.R. at p. 6754.) Here, a factual question was presented regarding the conduct underlying appellant’s prior conviction. As a result, the trial judge erred by making his own factual finding. As a result, his finding must be disregarded. Since the jury’s finding is not supported by substantial evidence, reversal is required.
Finally, it should be noted that recent authority holds that a retrial of the prior conviction allegation is barred under the principles of res judicata and law of the case. (People v. Mitchell (2000) 81 Cal.App.4th 132, 136.) Thus, this court should direct the trial court to resentence appellant under the determinate sentencing law.
CONCLUSION
For the reasons expressed in all of appellant’s pleadings, the judgment should be reversed in case number 000000. In the alternative, the true finding on the Penal Code section 12022.7 enhancement must be reversed and a new trial ordered. At the very least, the true finding on the prior conviction from San FranciscoCounty case number 000000 must be reversed with directions that appellant be sentenced to a determinate term pursuant to Penal Code section 1170, et. seq.
Dated: July ___, 2000
Respectfully submitted,
DALLAS SACHER
Attorney for Appellant,
JOHN DOE
FOOTNOTES:
Footnote 1: The present California rule is that a defendant has no right to a jury trial with respect to the nature of a prior conviction. (People v. Kelii (1999) 21 Cal.4th 452, 454.) Obviously, Apprendi calls the validity of this holding into question. Moreover, it is possible that the California Supreme Court is itself reconsidering Kelii. (People v. Epps, S082110, rv. granted November 17, 1999; issues expanded to include the effect of the 1997 amendments to Penal Code section 1025 on a defendant’s right to a jury trial on prior convictions.)
