Double Jeopardy |
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In a noncapital case, the state and federal prohibitions against double
jeopardy do not apply to the trial of the allegations of prior convictions, with
the result that even if the prosecutor fails to present adequate proof of the prior
strikes, he can have another chance to prove them, according to the California
and United States Supreme Courts. (Monge v. California
(1998) 524 U.S. 721; People v. Monge (1997) 16 Cal.4th 826.)
Even though
the double jeopardy clause "protects against a second prosecution for the same
offense after acquittal[,] protects against a second prosecution for the same
offense after conviction [and] protects against multiple punishments for the
same offense" (North Carolina v. Pearce (1969) 395 U.S. 711, 717), it has
no application to mere sentencing procedures in non-capital cases, the
supreme courts ruled. "[T]hough the effect on a defendant's
sentence may be significant, the embarrassment, expense, and anxiety of trying
a prior conviction allegation are relatively minor, and the risk of an
erroneous result is slight." (People v. Monge, supra, 16 Cal.4th at pp.
844-845.)
In People v. Monge and in People v.
Ramirez (1999) 75 Cal.App.4th 1011, the District Attorney failed to prove that the
prior conviction was for the strike felony of personal assault with a deadly
weapon. The cases were remanded so that the prosecutor could have a second
chance to make the case that there was a prior conviction that qualifies as a
strike.
Some defendants have tried to use the United States Supreme Court's more
recent decision Apprendi v. New Jersey (2000) 530 U.S. 466, to preclude
retrial of prior convictions such as those in Monge and Ramirez.
Apprendi held that any fact that increases
a defendant's sentence beyond the maximum otherwise applicable cannot be viewed
as a mere sentencing factor, to be decided by a judge upon a preponderance of the
evidence, but instead must be recognized as an element of the crime, to be
decided by the jury under the reasonable doubt standard. It follows that such
facts are determined in trials, not sentencing proceedings, and therefore the double
jeopardy clause, which protects defendants from successive trials for a single crime,
must also apply. Unfortunately, the Court in Apprendi made an exception
for the fact of a prior conviction. Relying on that exception, Division 4 of
the Second District held that the Monge decisions remain good law. The case was Cherry
v. Superior Court, 86 Cal.App.4th 1296, decided February 7, 2001. Despite the Cherry
decision, defense counsel should still argue that where the prior conviction's status as a
strike depends on facts not explicit in the verdict itself, such facts are within
the Apprendi rule that trial by jury is
required, rather than within the exception for the mere "fact" of the prior conviction
itself, and that consequently the double jeopardy clause applies to the trial of such
facts. The Supreme Court in People v. Epps (2001) 25 Cal.4th 19,
recognized that, although the Apprendi requirement of trial by jury does not
extend to "the bare fact of the prior conviction" ( id. at p. 28), the
question of whether a jury is needed to determine additional facts relating to the prior conviction remains open. Of course, if additional facts must be determined
by jury trial, then they may not be re-adjudicated upon the theory that they are
mere "sentencing factors" outside the reach of the double jeopardy clause.
Please send questions or comments to factsla@sbcglobal.net.
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3-Strikes.
Date last modified: 8/28/01.
