Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. BF125096A, Lee P. Felice, Judge.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, A.P.J., Hill, J., and Poochigian, J.
On December 3, 2008, appellant Jason Edward Jeffers pled no contest to possession of heroin (Health & Saf. Code, § 11350, subd. (a)) and admitted a “strike” allegation. He entered his plea on the condition that he receive a sentence of four years in prison. On December 5, 2008, the court imposed a prison term of four years, consisting of the two-year middle term on the substantive offense, doubled pursuant to the three strikes law (Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. (c)(1)).
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On January 27, 2009, appellant filed a timely notice of appeal in which he requested that the court issue a certificate of probable cause (Pen. Code, § 1237.5). On January 30, 2009, the court granted that request.
On appeal, appellant argues that (1) imposition of sentence under the three strikes law violated his rights under the double jeopardy clause of the Fifth Amendment to the United States Constitution and was contrary to the principles of res judicata and collateral estoppel, and (2) the court erred in failing to grant appellant what is commonly referred to as Proposition 36 probation, i.e., probation under the Substance Abuse and Crime Prevention Act of 2000, enacted by the voters as Proposition 36 (Pen. Code, § 1210 et seq.). We will affirm.
DISCUSSION
Validity of Appellant’s Strike
In the instant case, appellant admitted an allegation that on March 5, 1991, in Kern County Superior Court case No. SCO44049A, he was convicted of gross vehicular voluntary manslaughter while intoxicated, and that this conviction constituted a strike. The same prior conviction was alleged as a strike in another case, viz. Kern County Superior Court case No. BF105365A, and in that case, in April 2004, the allegation was found not true following a court trial.
That case is currently on appeal in this court in case No. F056971. Appellant has made, and the People do not oppose, a request that we take judicial notice of the record on appeal in that case. The request for judicial notice is granted. (Evid. Code, §§ 452, subd. (d), 459.)
Based on the forgoing, appellant contends, “The strike... allegation and finding in this case were invalid, or ineffectual, under the principles of collateral estoppel and res judicata, which in this situation rest on the constitutional protection against double jeopardy.” There is no merit to this contention.
The People argue that notwithstanding the court’s issuance of a certificate of probable cause, this contention is not cognizable on appeal. We assume without deciding the issue is properly before us.
We find instructive this court’s decision in People v. Sotello (2002) 94 Cal.App.4th 1349 (Sotello). In that case, the defendant was convicted of a felony, and a strike allegation was found true. On appeal, this court reversed the true finding on the strike allegation, and then considered the issue of whether remand for retrial on the strike allegation was barred by federal constitutional protections against double jeopardy, the doctrine of collateral estoppel and/or the doctrine of res judicata.
Addressing the constitutional issue first, this court stated that “[t]he issue of whether considerations of double jeopardy prevent retrial when a finding of true on a strike prior is reversed for insufficient evidence has been definitively answered” by the California Supreme Court in People v. Monge (1997) 16 Cal.4th 826 (Monge I), in which the court “held that state and federal constitutional protections against double jeopardy do not prevent retrial on sentencing issues.” (Sotello, supra, 94 Cal.App.4th at p. 1355.) Subsequently, the United States Supreme Court, in Monge v. California (1998) 524 U.S. 721 (Monge II), “upheld the California Supreme Court decision in Monge I....” (Sotello, at p. 1355.) However, this court noted, “while both Monge I and Monge II prevent the application of double jeopardy principles to the determination of whether a retrial may be had on the issue of a sentencing enhancement, neither case expressly prevents the application of other statutory, judicial or equitable principles to decide the same question.” (Ibid.)
This court next considered the applicability of collateral estoppel and res judicata. This court noted that there was “a split of authority on the issue of whether a case should be remanded for retrial where the trial court’s finding of true on an allegation of the existence of a prior strike is found to be unsupported by substantial evidence on appeal.” (Sotello, supra, 94 Cal.App.4th at p. 1354.) “In People v. Mitchell (2000) 81 Cal.App.4th 132 (Mitchell III), the Fourth District Court of Appeal determined that consideration of res judicata, collateral estoppel, law of the case and statutory law may prohibit retrial where there has been an appellate determination of insufficient evidence to sustain a true finding on an allegation of a strike prior. [Citation.] Division Three of the Second District Court of Appeal in People v. Scott (2000) 85 Cal.App.4th 905 (Scott), addressed the identical issue and came to the opposite conclusion that, where there was an appellate finding of insufficient evidence to sustain an allegation of a prior strike, the proper remedy is to remand the case for retrial on the issue of the allegation, affording the People an opportunity to present evidence not presented during the first trial.” (Sotello, supra, at p. 1354.)
In the latter case, “The... court... determined that, contrary to the conclusion in Mitchell III, considerations of res judicata and collateral estoppel did not bar retrial because the determination of the trial court with respect to the allegations of prior strikes is not a ‘final judgment’ for purposes of those doctrines. [Citation.] In so deciding, the Scott court relied on the United States Supreme Court decision in Monge II, which stated that the pronouncement of a sentence does not ‘“have the qualities of constitutional finality that attend an acquittal.”’ [Citation.] Further, as Scott noted, since the Legislature has specifically required that the People plead and prove an allegation of a prior conviction of a serious or violent felony (§ 667.6), ‘“it would seem anomalous to allow the defendant to raise the collateral estoppel doctrine when the prosecutor cannot....”’ [Citation.]” (Sotello, supra, 94 Cal.App.4th at p. 1356.)
The Sotello court “[found] the analysis in Scott persuasive insofar as it correctly rejects the applicability of res judicata and collateral estoppel as a bar to retrial on a strike prior where the initial finding of true was not supported by substantial evidence. [Citation.].” (Sotello, supra, 94 Cal.App.4th at p. 1356.) This court stated further: “We also agree with the court’s conclusion in Scott that the doctrine of law of the case serves only to prevent a finding of true on the same facts as were adduced at the first trial. To secure a true finding on an allegation of a prior strike, the People must present evidence in addition to that which was presented at the first trial. [Citation.] Thus, we agree with the Scott court’s conclusion that there are no doctrinal or constitutional bars to retrial on the issue of the defendant’s strike status.” (Ibid., italics added.)
Thus, under the Sotello court’s analysis, with which we agree, neither res judicata, collateral estoppel nor double jeopardy principles bars retrial of a strike allegation where a previous true finding on that allegation was not supported by substantial evidence. By a parity of reasoning, the imposition of sentence here under the three strikes law, based on the same prior conviction underlying the strike allegation found not true in 2004 in Kern County Superior Court case No. BF105365A, neither violated federal constitutional double jeopardy protections nor ran afoul of the doctrines of collateral estoppel and res judicata.
Proposition 36 Probation
Appellant contends the court erred in failing to grant him Proposition 36 probation. This contention too is without merit. The three strikes law specifically provides that if a defendant is subject to sentencing under it, “[p]robation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.” (§§ 667, subd. (c)(2), 1170.12, subd. (a)(2).) Therefore, because appellant was sentenced under the three strikes law, he could not be granted Proposition 36 probation.
DISPOSITION
The judgment is affirmed.