Bifurcation, Jury Waivers And Jeopardy
EA II(A) Distinction Between Prior As An Enhancement And As A Degree Increasing Element — Bouzas: A prior can be either a substantive element of the charged offense or a punishment increasing enhancement. For example, a prior felony conviction is an element of PC 12021 (felon with a firearm) since the prior conviction is a prerequisite for any criminal liability under the statute. Such a prior must be revealed to the jury during trial. (People v. Valentine (86) 42 C3d 170, 181 [228 CR 25].)
Other priors are not a prerequisite to criminal liability, but simply increase to severity of that liability (e.g., from a misdemeanor to a felony.) For example, in People v. Bouzas (91) 53 C3d 467, 475 [279 CR 847], the court held that, in contrast to PC 12021, PC 666 [petty-theft-with-a-prior] simply established a sentencing enhancement providing for increased punishment for the underlying substantive crime of petty theft. Hence, during trial of the current offense, the defense can effectively keep the prior theft from the jury by admitting it, waiving a jury on the prior, or (assuming the survival of Bracamonte) bifurcating it.
Bouzas has been applied to two similar statutes. (People v. Young (91) 234 CA3d 111, 113 [285 CR 583] [PC 666.5, auto taking with a prior]; People v. Weathington (91) 231 CA3d 69, 85-91 [282 CR 170] [VC 23550 (former VC 23175) felony drunk driving].) It should also be applicable to other statutes under which priors trigger felony punishment for crimes which would otherwise be misdemeanors. (E.g., PC 314 [felony indecent exposure].)
EA II(B) Bifurcation As A Matter Of Discretion: For the past decade, courts have routinely bifurcated jury trial of enhancement priors so that jurors are not exposed to the priors during their consideration of the substantive offenses. (People v. Bracamonte (81) 119 CA3d 644, 649-51 [174 CR 191].) Bifurcation of priors is not mandated by federal constitutional principles (Spencer v. Texas (67) 385 US 554, 567-69 [17 LEd2d 606; 87 SCt 648]), and the Bracamonte court grounded its holding on state constitutional protections. Bracamonte survived Prop. 8 (People v. Tipton (84) 160 CA3d 853, 856 [206 CR 821]) and Prop. 115 (by virtue of the nullification of the provision which would have eliminated independent state constitutional grounds (Raven v. Deukmejian (90) 52 C3d 336, 351-55 [276 CR 326]).
However, in People v. Calderon (94) 9 C4th 69, 78 [36 CR2d 333], the Supreme Court held that bifurcation is a matter of discretion rather than an absolute right.
CAVEAT: Counsel should be careful not to “overbifurcate” recidivist enhancements, particularly if there will ultimately be a jury waiver on the enhancement. Unless counsel specifies otherwise, a bifurcation or jury waiver on an enhancement will ordinarily apply to the entire enhancement, including aspects which require findings about the current crime. (See People v. Equarte (86) 42 C3d 456, 462-65 [229 CR 116].) Ordinarily, where the current crime is being tried to a jury, the defendant wants the jury to make all the factual determinations concerning his current conduct, even if he is willing to have a judge determine the priors. Yet, unless the defense is careful, a defendant may inadvertently forfeit his right to jury determination of all the aspects of the current crime necessary for application of the recidivist enhancement. Counsel should make certain that the jury instructions require the jury to make all the necessary findings. Often the instructions on the current crimes or on other enhancements (e.g., PC 12022.5) will also be dispositive of the “serious felony” issues as well. But if those instructions do not exactly coincide with the current conduct findings required for a recidivist enhancement, counsel should request a separate instruction. (See PC 969f.) Otherwise, a jury waiver on a recidivist enhancement may permit a judge to resolve current conduct issues adversely to the defendant, despite favorable jury findings on similar but not identical enhancement issues. (See e.g., People v. Mendias (93) 17 CA4th 195, 203 [21 CR2d 159] [dictum suggesting that “not true” jury finding on PC 12022.7 GBI allegation would not bar judge from finding force likely to produce GBI for purposes of habitual offender enhancement, PC 667.7].)
EA II(C) Double Jeopardy/Collateral Estoppel:
EA II(C)(1) Current Conduct Allegations:
EA II(C)(1)(a) No Retrial Of Enhancement: The Supreme Court has confirmed that double jeopardy principles do apply to enhancements based on conduct in the current offense, such as weapon use or infliction of great bodily injury. (People v. Superior Court (Marks) (91) 1 C4th 56, 78 n 22 [2 CR2d 389; see also People v. Saunders (93) 5 C4th 580, 593 [20 CR2d 638.)
(See FORECITE F 4.007 n15.)
EA II(C)(1)(b) Retrial Of Substantive Offense When Enhancement Found Untrue: Pettaway v. Plummer (9th Cir. 1991) 943 F2d 1041, 1048 held the defendant may not be retried for murder based on his personal use of a firearm where the first jury rejected gun use enhancement and it is not “clear” that this rejection was simply an inconsistent verdict. (Id. at 1048.)
In People v. Griffin DEPUBLISHED (94) 22 CA4th 801, 810 [27 CR2d 721] reprinted at 27 CA4th 1338, the Court of Appeal relied upon People v. White (86) 185 CA3d 822, 829 [231 CR 569], Pettaway v. Plummer (9th Cir. 1991) 943 F2d 1041, 1048 and the dissent of Justice Kline in People v. Pettaway (88) 206 CA3d 1312, 1333-41 [254 CR 436] to conclude that the prosecution may not re-litigate any ultimate issue of fact which was resolved adversely to the prosecution in a prior trial by virtue of the jury’s rejection of an enhancement allegation.
However, in People v. Santamaria (94) 8 C4th 903, 923-26 [35 CR2d 624], the court disapproved White and disagreed with Pettaway while holding that neither double jeopardy nor collateral estoppel precludes retrial of the substantive offense based on use of a knife even though the jury rejected the use enhancement in the first trial. Habeas corpus relief was granted in the Santamaria case by U.S. District Judge Sandra Brown Armstrong in Santamaria v. Horsley, 95-692.
Santamaria v. Horsley RHG GTD (8/6/97, 9th Cir. 95-16991) 110 F3d 1352 held that collateral estoppel precluded retrial of the offense when based on a factual finding rejected by the jury in finding an enhancement untrue. In so doing, the Ninth Circuit relied on Pettaway v. Plummer (9th Cir. 1991) 943 F2d 1041, 1048. However, the three judge panel recommended that the matter be reviewed en banc and rehearing was granted. (Santamaria v. Horsley RHG GTD (8/6/97, 9th Cir. 95-16991) 97 DAR 10271, 97 CDOS 6260.)
On rehearing, Santamaria v. Horsley (9th Cir. 1998) 133 F3d 1242 overruled Pettaway v. Plummer (9th Cir. 1991) 943 F2d 1041 and held that double jeopardy doesn’t prevent reintroduction of weapon use despite the first jury’s finding of no weapon enhancement.
EA II(C)(2) Priors: There is greater uncertainty concerning the extent to which double jeopardy principles apply to recidivist enhancements. In Saunders, the California Supreme Court “assume[d], without deciding, that double jeopardy principles apply to allegations of prior convictions [citations],” just as they do to current conduct enhancements such as weapon use. (People v. Saunders (93) 5 C4th 580, 593 [20 CR2d 638].) Appellate cases, however, squarely hold that priors are subject to double jeopardy rules. (E.g., People v. Jones (88) 203 CA3d 456, 459 [249 CR 840] [barring retrial of prior prison term enhancement after reversal for insufficient evidence].) The U.S. Supreme Court, like the California Supreme Court, has previously assumed without deciding that the Fifth Amendment double jeopardy clause applies to recidivist enhancements. (Lockhart v. Nelson (88) 488 US 33, 37-38 n 6 [102 LEd2d 265].)
Notwithstanding the California Supreme Court’s continuing assumption that double jeopardy applies to enhancement priors, it has recently interpreted those principles in a way which denies relief in the situation in which the issue has most frequently arisen in recent years: premature discharge of a jury in a bifurcated case. Under People v. Wojahn (84) 150 CA3d 1024, 1035 [198 CR 277], and its progeny, discharge of the jury prior to personal entry of a jury waiver on the bifurcated priors would terminate jeopardy and bar trial of the priors to the court or another jury. (Accord People v. Hockersmith (90) 217 CA3d 968, 974 [266 CR 380]; People v. Dee (90) 222 CA3d 760, 765-66 [272 CR 208]; People v. West (90) 224 CA3d 1283, 1287 [274 CR 524].) However, in Saunders a divided Supreme Court disapproved Wojahn and devised an unusual theory of continuing jeopardy to permit trial of the priors to another factfinder (usually the court), notwithstanding the discharge of the jury originally sworn to try the entire case. (People v. Saunders (93) 5 C4th 580, 593-97 [20 CR2d 638].) While assuming that jeopardy attached when the original jurors was sworn, the Saunders majority opined that, where the proceedings were bifurcated at the defense’s request and the defense did not object when the jury was discharged after its verdicts on the principal counts, jeopardy continued as to the priors and the court was free to “conduct … further trial proceedings.” “[B]ecause the anticipated proceedings relating to the alleged prior convictions had not yet transpired at the time the trial court discharged the jury, jeopardy did not then terminate as to those allegations.” (Id. at p. 593.)
Notwithstanding Saunders, a formal verdict or finding is still a sine qua non to imposition of an enhancement. (PC 1158) Thus, regardless of whether the priors are tried to the jury or to the court, the fact-finder must render an express finding that the allegations are true. Notwithstanding the prosecution’s submission of proof of the priors, the absence of such a finding is deemed an implied acquittal on the allegation. (People v. Gutierrez (93) 14 CA4th 1425, 1439-40 [18 CR2d 371].)
(See FORECITE F 4.007 n15.)
EA II(C)(3) Proof Of Prior By Hearsay: EC 452.5(b) states: “an official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition of event recorded by the record.” (But see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant].)
EA II(D) Use Of Collateral Estoppel By Prosecution: In light of the California Supreme Court’s determination that the defendant may not rely upon collateral estoppel to preclude relitigation of an issue resolved by the jury under an enhancement allegation in an earlier trial (see People v. Santamaria (94) 8 C4th 903, 923-26 [35 CR2d 624]), it should also follow that the prosecution may not rely upon collateral estoppel to bar relitigation of an enhancement issue found true by the jury in the preceding trial. (See People v. Fletcher REV GTD/DISD/DEPUB (3/2/95, S044323) 30 CA4th 687 [36 CR2d 177] reprinted at 39 CA4th 836, 853-56.) [review was granted in Fletcher but the collateral estoppel issue was not addressed.] (People v. Fletcher (96) 13 C4th 451 [53 CR2d 572].)
Furthermore, relitigation of the issue may also implicate 14th Amendment due process principles. (See Gutierrez v. Superior Court (94) 24 CA4th 153 [29 CR2d 376].)
EA II(E) Bifurcation, Jury Waivers And Jeopardy: Collateral Estoppel Defined. “‘Collateral estoppel‘ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.“ (Ashe v. Swenson (70) 397 US 436, 443 [25_LEd2d 469; 90 SCt 1189]; see also U.S. v. Carbullido (9th Cir. 2002) 307 F3d 957.)