Opinion
A152874
05-23-2019
THE PEOPLE, Plaintiff and Respondent, v. CHARLES WILLIAM JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR163247) MEMORANDUM OPINION
We resolve this case by a memorandum opinion pursuant to the California Standards of Judicial Administration, standard 8.1(2).
Defendant Charles William Johnson was charged by information with felony driving under the influence (Veh. Code, § 23152, subd. (a)) and felony driving with a blood alcohol level above 0.08 percent (id., § 23152, subd. (b)). As to both counts, it was alleged that defendant had a prior felony conviction for driving under the influence (id., § 23550.5, subd. (a)(1)). Prior to trial, the court granted the defense's request to bifurcate trial on the alleged prior conviction. A jury convicted defendant of the Vehicle Code section 23152, subdivisions (a) and (b) counts. That jury was excused with no objection by the defense, even though they had not considered the matter of the prior conviction allegation. (See Pen. Code, §§ 1025, subd. (b), 1164, subd. (b).)
Defendant was charged with various other counts and enhancements. Our discussion of the facts will be limited to the counts and enhancements relevant to this appeal.
Unless otherwise indicated, all further section references will be to the Penal Code.
At a hearing several days later, the trial court indicated it and the parties had forgotten about the prior conviction allegation. The People sought trial on it. The People filed a brief relying heavily on People v. Saunders (1993) 5 Cal.4th 580 (Saunders), arguing defendant waived his right to have the same jury that found him guilty of the substantive counts decide the prior conviction allegation. The People also contended double jeopardy did not preclude trial of the prior conviction allegation.
At the hearing on the motion, defendant objected to trial on the prior conviction allegation. Defendant argued Saunders was distinguishable because the prior conviction allegation was an element of his Vehicle Code section 23152, subdivisions (a) and (b) offenses, so it should have been tried by the same jury pursuant to sections 1025 and 1164. Moreover, the defense claimed the "bigger issue" was that trial of the allegation at that point would run afoul of the speedy trial limits in section 1382. The trial court granted the People's motion for trial to proceed on the prior conviction allegation.
On the day of trial, defendant objected to the trial on double jeopardy grounds, and reiterated his position that it violated his rights under sections 1025 and 1164. The trial proceeded and a jury found the prior conviction allegation true. The next day, the trial court sentenced defendant to a total of two years in prison.
Defendant now appeals. He concedes that under Saunders the trial court correctly found that he forfeited his statutory right to have a single jury determine both his guilt for the substantive offenses and the truth of the prior conviction allegation. He also acknowledges that Saunders, which involved analogous circumstances, held that "because 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." (Saunders, supra, 5 Cal.4th at p. 593.) Further, he acknowledges People v. Monge (1997) 16 Cal.4th 826 (Monge I), which the People relied on below to argue that federal and state double jeopardy principles do not apply to the trial of a prior conviction allegation.
Nevertheless, defendant challenges the trial of the prior conviction allegation on double jeopardy grounds, a claim he has not forfeited despite his failure to object to the discharge of the jury that found him guilty of the substantive counts. (Saunders, supra, 5 Cal.4th at p. 592 & fn. 8.) Citing to Apprendi v. New Jersey (2000) 530 U.S. 466, particularly the concurring opinion of Justice Thomas in Apprendi, he argues: "[t]he Court's opinion and the concurrence by Justice Thomas expressly state that even though the case before it did not involve the recidivism issue, the Court's logic would encompass the issue within the rule of Apprendi. Once the recidivism issue is 'Apprendized,' the Supreme Court's own affirmance of the California Supreme Court's ruling in Monge I can no longer stand as good law." This is not persuasive.
Saunders, Monge I, and Monge v. California (1998) 524 U.S. 721 (Monge II) clearly control the outcome of this case and compel the rejection of defendant's double jeopardy argument. (Auto Equity Sales, Inc., et al v. Superior Court (1962) 57 Cal.2d 450, 455.) As indicated above, Saunders involved analogous circumstances and rejected the defendant's double jeopardy claim. (Saunders, supra, 5 Cal.4th at pp. 586-587, 596-597.) Saunders reasoned the defendant was not twice placed in jeopardy because the determination of the truth of the priors was bifurcated from trial of the charges and "the anticipated proceedings relating to the alleged prior convictions had not yet transpired at the time the trial court discharged the jury." (Id. at p. 593.) In Monge I, the California Supreme Court held that the federal and state prohibitions against double jeopardy do not apply to the retrial of a prior conviction allegation in a noncapital proceeding. (Monge I, supra, 16 Cal.4th at pp. 831-834, 845.) The United States Supreme Court in Monge II affirmed the holding in Monge I regarding the federal double jeopardy issue. (Monge II, supra, 524 U.S. at pp. 724, 734.)
True, Monge I concerned a retrial whereas this case did not. But defendant fails to present any legal authority or rationale for the proposition that Monge I's holding would not apply equally to this case. (Cf. People v. Miller (2008) 164 Cal.App.4th 653, 668 [citing Monge I and remanding for trial on a prior conviction allegation that was never tried, stating "double jeopardy protections do not apply to the trial of prior conviction allegations"].)
Defendant suggests that Monge I and Monge II are no longer good law after Apprendi, but a plain reading of Apprendi does not support that argument and neither does subsequent case law. (People v. Barragan (2004) 32 Cal.4th 236, 241-242; Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1303; People v. Marin (2015) 240 Cal.App.4th 1344, 1366.) Defendant cites to United States v. Blanton (9th Cir. 2007) 476 F.3d 767, a Ninth Circuit case that criticized Monge II, and argues we ought to no longer feel bound by Monge II after Blanton. We are not convinced. (See Marin, supra, 240 Cal.App.4th at p. 1366 [noting Blanton's criticism of Monge II, but finding Monge I, Monge II, and Barragan binding].) Nor do we accept defendant's invitation to reach a different outcome based on Justice Thomas's concurring opinion in Apprendi, which expressed a minority view that the traditional understanding of an "element" of a crime for Fifth and Sixth Amendment purposes includes a prior conviction allegation that increases punishment. (Apprendi, supra, 530 U.S. at pp. 500-501 & 518, conc. opn. of Thomas, J.)
Next, defendant urges that "in light of Apprendi, the discharge of the first jury constituted the termination of jeopardy and barred retrial on the prior." In support, he cites to People v. Seel (2004) 34 Cal.4th 535 (Seel) for the proposition that "the principles underlying the double jeopardy clause on the one hand, and the reasonable doubt burden of proof and right to jury trial on the other, are not wholly distinct." (Seel, at p. 547.) This argument fails. The aforementioned quote in Seel, by itself, offers scant assistance for defendant's position. Moreover, Seel very clearly distinguished the type of recidivism allegation involved here from the conduct-based allegation at issue there when conducting its double jeopardy analysis. (Seel, supra, 34 Cal.4th at pp. 547-549.)
Finally, recognizing the obstacle that precedent presents in this case, defendant asks us to at least agree with his position and to "weigh[] in on the development of post-Apprendi law." We decline the invitation. (In re I.A. (2011) 201 Cal.App.4th 1484, 1490.)
The judgment is affirmed.
/s/_________
Fujisaki, Acting P. J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Wiseman, J.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.