An Outline of Selected Issues [§EA-1]
Prepared by J. Bradley O’Connell
EA INTRO(A) Enhancements Defined [§EA-2]: Enhancements occupy a middle ground between crimes and mere “sentencing facts.” While enhancements have long been a feature of California sentencing, in recent years the Legislature has come to place ever greater reliance on such statutes to measure the degree of a defendant’s culpability and to provide greater punishment for crimes deemed especially grave. Rather than create new aggravated crimes or redefine old ones, the Legislature has often utilized enhancements to demonstrate its resolve to punish particular categories of crime severely (e.g., offenses involving weapons, large quantities of drugs, recidivism, etc.) The past decade has seen the demise of many of the prior limitations on the number or length of enhancements which could be applied in a single case. Today it is quite common for enhancements to comprise the bulk of the sentence imposed, dwarfing the “principal term” for the underlying crime. Consequently, an understanding of the procedures for determining enhancements is vital to the defense or appeal of criminal cases.
Enhancements are traditionally described as statutes “which do not define a crime but merely impose an additional punishment to that which accompanies the criminal offense itself.” (People v. Harvey (91) 233 CA3d 1206, 1231 [285 CR 158]; see also Cal. Rules of Court, rule 405(c).) This definition is somewhat underinclusive since some enhancements do not “add” to the usual term for the base offense, but substitute an alternative, more punitive sentencing regimen (e.g, PC 666 [petty-theft-with-a-prior], PC 667.7 [habitual offender]). (All statutory references are to the Penal Code unless otherwise indicated.) Still other statutes do not increase the maximum punishment but simply affect probation eligibility. More importantly for present purposes, enhancements are a particularly rich source of trial and appellate issues. Some of these are peculiar to particular enhancement statutes, while others could arise in the trial of almost any enhancement.
EA INTRO(B) Scope [§EA-3]: This chapter is principally intended to assist attorneys in spotting potential issues in the adjudication of enhancements. Hence, this chapter focuses on the determination of enhancement allegations — matters such as pleading, proof, waivers and admissions, and, of course, instructions — rather than on the imposition of sentence. (Consequently, this outline does not address the separate, but equally arcane, body of statutory and case law on such topics as the imposition of multiple enhancements, the staying or striking of enhancement terms, or the dual use of facts for enhancement and aggravation of the sentence.) This chapter is not designed to be a comprehensive guide to California enhancements, and it certainly does not include every recent case. Instead, this text notes several selected issues which recur frequently in enhancement litigation. The principal object is to call attention to certain themes which cut across various enhancements and to assist attorneys in identifying new enhancement issues.
Many of the most common appellate enhancement issues arise because someone or everyone — the court, the prosecutor, or even the defense attorney — simply missed the boat. The errors arise from inadvertent omissions — in advisements and waivers, in proof, or in instructions — rather than from intentional rulings. (Until the Supreme Court’s recent decision in People v. Saunders (93) 5 C4th 580 [20 CR2d 638], Wojahn-type cases were dramatic examples of such inadvertence. (See People v. Wojahn (84) 150 CA3d 1024, 1032-35 [198 CR 277], disapproved in Saunders.) Under the now-defunct Wojahn line of cases, a premature discharge of a jury in a bifurcated trial — i.e., a discharge before formal entry of a jury waiver on the priors — would set up a jeopardy bar to trial of the priors.) Often, enhancements pose appellate issues because the court and counsel below did not recognize the full range of findings required for an enhancement. Consequently, the enhancement may be subject to appellate challenge either on the ground that the People’s proof failed to meet all the elements or that the jury did not make all the requisite findings.
Much of the confusion concerning enhancements — and the resulting errors — is attributable to the statutes themselves. Naturally, the search for enhancement issues begins with a close review of the statutory language. In searching for possible enhancement issues, attorneys should be particularly attentive to any respects in which the enhancement does not exactly track the statute defining the principal offense or (in the case of recidivist enhancements) the statutory definition of the prior offense. Generally, the primary thrust of an enhancement statute is to set forth some additional fact–concerning either the commission of the current offense or the defendant’s prior record. But, in less conspicuous ways, many enhancement statutes effectively qualify or limit the applicability of the enhancement. Thus, for instance, the primary object of a statute may be establishment of an enhancement for a particular quantity of drugs or for a prior conviction of a certain offense. But closer review of the statute may reveal that the enhancement only applies if the current or prior offense was committed in a certain way — which is more narrow than the statutory definition of the substantive crime. In other words, enhancement statutes may contain “hidden elements,” easily missed by the court and parties below, and the failure to prove or instruct on such additional aspects is the source of many of the cases noted in this outline. (The commonly charged five-year enhancement for serious prior felonies (PC 667(a)) provides an easy example of a not-so-hidden element. Both the prior and the current offense must come within PC 1192.7(c)’s catalogue of serious felonies. For instance, if the currently charged crime is assault with a deadly weapon (PC 245), a conviction of that crime will not in itself be sufficient to render it a serious felony to which a five-year enhancement can be added. Unless the matter is already resolved by other enhancement findings (e.g., PC 12022.5, PC 12022.7), the jury or judge must make additional findings concerning the commission of the current offense (such as personal weapon use, personal firearm use, or infliction of GBI (PC 1192.7(c)(8) & PC 1192.7(c)(23)) before any enhancements for priors may be imposed.)
In sum, this outline is not by any means a “checklist” or compendium of all issues concerning the leading enhancement statutes. Instead, it should be viewed as a series of illustrations of how the general themes discussed above — such as inadvertence and the concept of “hidden elements” — can result in successful attacks on enhancements.