Opinion
C083766
01-29-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY BRIAN MCKINNEY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE007298)
Defendant Jeffrey Brian McKinney contends the double jeopardy clause of the United States and California Constitutions barred retrial of a prior strike conviction allegation, which doubled his sentence for his conviction of felony receipt of stolen property. Defendant further contends he received ineffective assistance of counsel, because his lawyer failed to move to dismiss the strike allegation. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying offenses are not germane to the issues presented on appeal.
Defendant was charged with unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count one), unlawfully receiving stolen property (Pen. Code, § 496d, subd. (a); count two), possessing burglary tools (§ 466; count three), and possessing drug paraphernalia (Health & Saf. Code, § 11364; count four). With respect to count one, it was further alleged defendant had been convicted in October 2008 of unlawfully taking or driving a vehicle. (§ 666.5, subd. (a), Veh. Code, § 10851, subd. (a).) It was also alleged that defendant had four prior prison terms. (§ 667.5, subd. (b).) In addition, it was alleged defendant had a prior strike due to a 2002 conviction for assault with personal infliction of great bodily injury. (§§ 245, subd. (a), 667, subds. (b)-(i), 1170.12.)
Undesignated statutory references are to the Penal Code. --------
On July 29, 2016, a jury convicted defendant of felony receipt of stolen property (count two), possession of burglary tools (count three), and possession of drug paraphernalia (count four). Defendant elected bifurcated proceedings regarding the enhancement allegations.
On August 1, 2016, the information was amended to add to count two (felony receipt of stolen property) an allegation that defendant had a conviction in October 2008 for unlawfully taking or driving a vehicle. (§ 666.5, subd. (a); Veh. Code, § 10851.) Trial began the same day for the enhancement allegations, and the jury found true that defendant had a prior strike, four prior prison terms, and a prior conviction for unlawfully taking or driving a vehicle.
On September 23, 2016, the trial court granted defendant's motion for a new trial regarding the 2002 strike allegation, due to insufficient evidence. Defendant argued in his motion that, if the trial court were to grant his request, " 'there is no double jeopardy bar to retrial.' " Defendant did not subsequently move to bar retrial.
On December 22, 2016, a new trial was held for the strike allegation, and the jury found the allegation true.
On December 30, 2016, the trial court sentenced defendant to 10 years in state prison, as follows: four years for count two (§ 496d, subd. (a)), doubled to eight years due to the strike (§ 667, subd. (e)(1)), plus one year each for two of the prior prison term enhancements (totaling two years) (§ 667.5, subd. (b)). In the interest of justice, the trial court struck the additional punishment for the remaining two prior prison term enhancements. (§ 1385.)
Defendant timely appealed.
DISCUSSION
Defendant contends the retrial of the prior strike conviction allegation violated federal and state prohibitions against double jeopardy. Defendant relies on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. Defendant also argues his counsel provided ineffective assistance in failing to move to bar retrial of the prior strike allegation, based on double jeopardy protections.
As defendant acknowledges, "[t]he defense of double jeopardy is waived if not asserted by plea before the second trial has commenced." (People v. Moore (1983) 140 Cal.App.3d 508, 511; see also People v. Belcher (1974) 11 Cal.3d 91, 96.) Still, the issue may be raised on appeal since the failure to assert a meritorious plea could constitute ineffective assistance of counsel. (Moore, at p. 511.) Regardless, defendant's contentions lack merit.
"The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee that a person may not be placed twice 'in jeopardy' for the 'same offense.' [Citation.] 'The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense.' " (People v. Seel (2004) 34 Cal.4th 535, 541-542.)
Historically, double jeopardy protections have been inapplicable to noncapital sentencing proceedings, including retrials of prior strike convictions. (Monge v. California (1998) 524 U.S. 721, 728, 734 (Monge II); see also People v. Barragan (2004) 32 Cal.4th 236, 241; People v. Monge (1997) 16 Cal.4th 826 (Monge I).) The determinations at issue in a prior strike conviction allegation proceeding "do not place a defendant in jeopardy for an 'offense,' [citation]. Nor have sentence enhancements been construed as additional punishment for the previous offense; rather, they act to increase a sentence 'because of the manner in which [the defendant] committed the crime of conviction.' [Citations.] An enhanced sentence imposed on a persistent offender thus 'is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes' but as 'a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.' " (Monge II, at p. 728.)
Defendant acknowledges the United States and California Supreme Courts have each held double jeopardy protections do not bar retrial of prior strike conviction allegations, but argues Apprendi has undermined the Monge I and Monge II decisions. Apprendi addressed the imposition of a hate crime sentence enhancement based on the trial court's finding that racial animus had motivated the defendant's underlying crime. (Apprendi, supra, 530 U.S. at pp. 470-471.) The court held, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.)
Given the Apprendi court's explicit exemption of "the fact of a prior conviction" from its holding, we find defendant's contentions unpersuasive. (Apprendi, supra, 530 U.S. at p. 490; see also Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 154 ["Apprendi was absolutely clear in excepting the fact of prior convictions from its new rule"]; Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1303 ["a plain reading of Apprendi refutes [the] conclusion that Apprendi 'superseded' the Monge decisions"].) Moreover, while defendant's argument is based on double jeopardy protections, Apprendi considers the impacts to a defendant's rights to jury trial and due process when a trial court, versus a jury, determines a fact that increases the punishment for a crime beyond the statutory maximum, other than the fact of a prior conviction. (Apprendi, at p. 489, fn. 14; see also Cherry, at p. 1303.) As such, Apprendi does not support defendant's argument.
Defendant's reliance on Alleyne v. United States (2013) 570 U.S. 99 is also misplaced. In Alleyne, the court held the jury was required to find all the facts necessary to establish the defendant brandished a firearm, which would have enhanced his sentence by two years for using or carrying a firearm in relation to a crime of violence. (Id. at p. ___ [186 L.Ed.2d at pp. 321-322].) Similar to Apprendi, Alleyne did not address recidivism enhancements in its consideration of the defendant's Sixth Amendment rights, and it therefore does not support defendant's argument. (Alleyne, 570 U.S. at p. ___ .) Defendant's reliance on S. Union Co. v. United States (2012) 567 U.S. 343 , at page 346 fares no better, since S. Union Co. considered whether Apprendi applies to sentences of criminal fines, not recidivism enhancements.
Until our Supreme Court concludes otherwise, we are bound to follow Monge I and conclude the double jeopardy clause of the United States and California Constitutions did not bar retrial of defendant's prior strike conviction allegation. Given our conclusion that the trial court did not err in holding another trial on the prior strike conviction allegation, there is no merit to defendant's claim that counsel provided ineffective assistance by failing to object to the retrial.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Murray, J.