Basic Enhancement Requirements [§EA-4]
EA I(A) General Rules [§EA-5]: “Enhancements, i.e., punishment allegations, must be alleged and proved to a jury, unless a jury is waived.” (People v. Esquibel (92) 3 CA4th 850, 858 [5 CR2d 47]; see generally People v. Najera (72) 8 C3d 504, 509-12 [105 CR 345].) However, the defendant’s identification as the person committing the prior is now only determined by court trial. (PC 1025(c); see also People v. Valentine (99) 70 CA4th 1168, 1170 [83 CR2d 161] [PC 1025 requires jury trial on all prior conviction issues other than identity].) Otherwise, enhancements are to be tried to the same jury as the substantive counts. (See e.g. PC 969c, PC 969d, PC 1025.) For the most part, the trial (or bifurcated trial) of enhancements is subject to the same fundamental rules applicable to the principal offenses–including proof beyond a reasonable doubt (People v. Allen (85) 165 CA3d 616, 626 [211 CR 837]) and the requirement of jury unanimity (People v. Frutos (84) 158 CA3d 979, 988 [205 CR 204]).
As with substantive counts, a jury deadlock as to the truth of an enhancing allegation can result in a mistrial as to that enhancement. A mistried enhancement may be separately retried. (People v. Schulz (92) 5 CA4th 563, 568-71 [15 CR2d 340].) However, as a practical matter, a hung jury on an enhancement sometimes results in a mini-windfall for the defense. Having obtained a conviction on the principal count, the prosecutor may elect not to go through another jury trial simply on the enhancement.
One traditional trial principle which has been held to enhancements is the “corpus delicti” rule (embodied in CJ 2.72). (People v. Shoemake (93) 16 CA4th 243, 252-54 [20 CR2d 36] [commission of sex offense by person who knows he has AIDS or is HIV positive].) However, Shoemake was based on the unique characteristics of the corpus delicti rule, which refers literally to the body of the crime. Hence, its analysis should not be extended to any other rules or procedural protections.
EA I(B) Enhancements vs. “Sentencing Facts” [§EA-6]:
EA I(B)(1) Increased Maximum Punishment [§EA-7]: Enhancements are distinguished from “sentencing facts,” such as aggravating and mitigating circumstances. Sentencing facts are not subject to formal pleading and proof rules, are not tried to the jury, and ordinarily are determined by the judge at sentencing under a preponderance standard. It now appears settled that any California statute which effectively increases the maximum punishment for any offense by requiring imposition of an additional term of imprisonment is an “enhancement” subject to pleading and proof requirements. (People v. Hernandez (88) 46 C3d 194, 207 [249 CR 850].) In order to avoid potential due process problems, the Supreme Court in Hernandez construed PC 667.8 (three-year kidnap-for-rape enhancement) as requiring pleading, proof, and jury determination, even though there was no explicit statutory provision to that effect at the time of trial.
EA I(B)(2) Probation Ineligibility [§EA-8]: Numerous California statutes restrict probation eligibility. Some set forth facts which render a defendant wholly ineligible for probation, while others establish a regimen of presumptive ineligibility in which probation may only be granted upon a finding of unusual circumstances. In contrast to allegations which increase the maximum punishment, it is doubtful that the federal constitution necessarily mandates pleading and proof of facts limiting probation eligibility. (See generally McMillan v. Pennsylvania (86) 477 US 79 [91 LEd2d 67] [discussed in Hernandez].) However, such issues rarely arise since most of the relevant California statutes–both of the probation-preclusion and presumptive ineligibility varieties–contain their own, explicit pleading and proof requirements. (See e.g., PC 1203.06(b)(1), PC 1203.066(d), PC 1203.07(b), PC 1203.073(d), PC 1203.075(b); HS 11370(d).)
One significant exception is PC 1203(e), the original “unusual cases” statute, which contains no express pleading and proof provision. However, there is currently a split of authority regarding whether PC 1203(e)(4) (two prior felony convictions) is subject to pleading and proof requirements by virtue of the more general statutes concerning adjudication of prior convictions (see PC 969, PC 969a, PC 969b, PC 969c, PC § 969 1/2, PC 1025). (Compare People v. Myers (84) 157 CA3d 1162, 1167-68 [204 CR 91], with People v. Dorsch (92) 3 CA4th 1346, 1349-51 [5 CR2d 327].)
EA I(C) Sufficiency Of Pleading [§EA-9]: It is essential that the accusatory pleading contain sufficient allegations to give the defense notice of the enhancement which may be imposed. (See People v. Haskin (92) 4 CA4th 1434, 1439-40 [7 CR2d 1].) In Haskin, a judge’s determination that the defendant’s prior burglary was actually residential did not permit imposition of a five-year enhancement under PC 667, where the information’s allegations corresponded only to a one-year enhancement under PC 667.5 and did not mention either PC 667 or the residential character of the prior burglary. The Haskin opinion leaves open the possibility that a failure to allege the applicable statute may not be fatal if the pleading does contain sufficient factual allegations to bring the defendant within that enhancement. (Cf. People v. Neal (84) 159 CA3d 69, 73 [205 CR 384] [sex-offense weapon enhancement (PC 12022.3(a)) upheld even though information had only mentioned PC 12022(b)].)
Similar due process notice concerns should bar mid- or post-trial changes in the theory on which the current case is claimed to be a “serious felony.” (People v. Miller DEPUBLISHED (93) 13 CA4th 929, 940-41 [16 CR2d 779].) In Miller, the information specifically alleged the current felony assault was a “serious felony” on the basis of personal infliction of great bodily injury (PC 1192.7(c)(23)). The jury found a GBI allegation not true (PC 12022.7), but, in the bifurcated proceedings on the PC 667 enhancement, the judge nonetheless found the current crime a “serious felony” on the basis of personal use of a deadly weapon (PC 1192.7(c)(8)). Since “the information was silent regarding use of a deadly weapon” (id. at p. 941), due process barred reliance on that ground after the jury had already returned its verdict on the current charges. (See also People v. Hynson UNPUBLISHED (8/1/95, A065717) [serious prior felony (PC 667) stricken for failure to allege that the prior conviction was a serious prior felony].) [The opinion and briefing in Hynson is available to FORECITE subscribers. Ask for Opinion Bank # O-212 and Brief Bank # B-699.]
In Miller, the pleading was adequate on its face and did allege a specific basis for characterization of the current crime as a serious felony. A different problem arises where the information charges an enhancing statute (e.g., PC 667), but is defective by failing to state the basis on which the current or the prior crime is alleged to come within the enhancement. According to two of the Supreme Court’s first cases construing the “serious felony” enhancement, this is a pleading defect “of uncertainty only” and is not fatal to subsequent imposition of the enhancement. (People v. Thomas (86) 41 C3d 837, 843 [226 CR 107] [failure to allege ground on which prior burglary was serious felony]; People v. Equarte (86) 42 C3d 456, 467 [229 CR 116] [failure to allege ground on which current assault-with-a-deadly-weapon was serious felony].) The defense’s only remedy in this situation is to challenge the defective pleading through a special demurrer (PC 1012), and a failure to demur waives the issue. (See Equarte at 467.)
NOTE: The Equarte holding with respect to the current offense arguably is due for re-examination in light of the Legislature’s 1991 enactment of PC 969f. PC 969f specifically provides a mechanism for charging in the accusatory pleading “the facts that make the crime constitute a serious felony.” However, in light of the permissive character of the statutory language (“may be charged”), it remains to be seen whether PC 969f will have any effect upon the Equarte analysis.
EA I(D) Amendment Of Pleading To Charge Prior Conviction [§EA-10] . People v. Valladoli (96) 13 C4th 590 [54 CR2d 695] held that post-verdict amendments to the information are permissible before discharge of the jury to add prior conviction allegations. However, the opinion leaves open the possibility that a federal due process/double jeopardy challenge could be made if the prosecution intentionally held back the prior conviction allegations to gain some tactical advantage or the delay had a detrimental impact on the defendant’s decision to accept an offered plea or if some other prejudicial impact could be shown under the circumstances of the case.