People v. Barragan

Opinion

The so-called Three Strikes law prescribes increased punishment for a person who is convicted of a felony after sustaining one or more qualifying prior felony convictions or juvenile adjudications, which are commonly known as strikes. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) The issue here is whether retrial of a strike allegation is permissible where a trier of fact finds the allegation to be true, but an appellate court reverses that finding for insufficient evidence. Defendant Antonio J. Barragan argues that retrial is barred by the constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, and relevant statutory provisions. We conclude that retrial is permissible. We reverse the Court of Appeal’s judgment insofar as it bars retrial of a strike allegation.

Facts

An information charged defendant with several crimes, including being a felon in possession of a firearm, and alleged that he had one prior strike: a juvenile adjudication on June 8, 1995, for assault with a deadly weapon and with personal infliction of great bodily injury. To prove the alleged prior juvenile adjudication, the prosecution introduced into evidence copies of the juvenile court petition alleging the assault, and a minute order showing the juvenile court’s finding that defendant committed the assault. While testifying at trial, defendant admitted that he had sustained a “true finding” in juvenile court in 1995 for striking someone with a baseball bat. During closing argument, defendant’s counsel stated: “[Defendant] has been very candid . . . about [his] priors. You’ve heard about them. There’s not an issue. . . . [Defendant] has been very candid . . . about his testimony and his prior convictions as an adult and the true finding as a juvenile.” The trial court instructed the jury that if it found defendant guilty, then it had to “determine whether the allegation of the prior ‘serious felony’ conviction is true.” The court also instructed the jury that “as a matter of law,” assault with a deadly weapon and with infliction of great bodily injury “is a ‘serious felony’

In resolving this conflict, we begin with a related principle that the United States Supreme Court has recently established: in the noncapital sentencing context, retrial of a prior conviction allegation does not violate the double jeopardy clause of the federal Constitution. (Monge v. California (1998) 524 U.S. 721 , 734 [ 141 L.Ed.2d 615 , 118 S.Ct. 2246 ] (Monge II).) In reaching this conclusion, the high court acknowledged that a finding on appeal that the evidence at trial was insufficient to sustain a “conviction” on a substantive offense “is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial. [Citation.]” (Id. at p. 729.) However, the court explained, “[w]here a similar failure of proof occurs in a sentencing proceeding, ... the analogy is inapt.” (Ibid.) “[T]he determinations at issue [in noncapital sentencing proceedings] do not place a defendant in jeopardy for an ‘offense,’ [citation].” (Id. at p. 728.) “An enhanced sentence imposed on a persistent offender” does not constitute “ ‘either a new jeopardy or additional penalty for the earlier crimes’ but [is simply] ‘a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.’ [Citations.]” (Ibid.) “The pronouncement of sentence simply does not ‘have the qualities of constitutional finality that attend an acquittal.’ [Citations.]” (Id. at p. 729.) Thus, a “[sentencing decision[] favorable to the defendant . . . cannot generally be analogized to an acquittal.” (Ibid) This rule applies even in states that, as “a matter of legislative grace,” have enacted “procedural safeguards to protect defendants who may face dramatic increases in their sentences as a result of recidivism enhancements.” (Id. at p. 734.)

The high court’s decision in Monge II reviewed and affirmed our decision in People v. Monge (1997) 16 Cal.4th 826 [ 66 Cal.Rptr.2d 853 , 941 P.2d 1121 ] (Monge I), which held that retrial of a prior conviction allegation does not violate the double jeopardy protections of either the federal Constitution or the California Constitution. Like the high court, the lead opinion in Monge I rejected the analogy between a “failure of proof’ on a prior conviction allegation and “an acquittal at the guilt phase of a criminal trial.” (Id. at p. 837 (lead opn. of Chin, J.).) The lead opinion reasoned that a trial of such an allegation “is simple and straightforward as compared to the guilt phase of

Although cognizant of Morton's holding, we agree with defendant that Morton is not dispositive. Defendant correctly notes that Morton “did not address whether retrial of the prior conviction was barred by the doctrines of collateral estoppel, res judicata, law of the case, or fundamental fairness.” Nor did any of the cases Morton discussed. “[C]ases are not authority for propositions not considered. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161 , 1176 [ 119 Cal.Rptr.2d 903 , 46 P.3d 372 ].) With this background in mind, we now turn to defendant’s specific contentions.

D

efendant argues that “[t]he doctrine of fundamental fairness, as incorporated in the due process clause of the federal and state Constitutions, suggests that it is unfair to give the prosecution a second opportunity to prove an allegation [where] it failed to carry its burden of proof during the first trial.” He asserts that a state may not regulate its own judicial procedures in a manner that “ ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ [Citations.]” He also asserts that “[t]he due process clause may be invoked ‘to insure that [a] state created right is not arbitrarily abrogated.’ [Citation.]” According to defendant, California accords him a “statutory right to a trial on the truth of’ his alleged prior conviction, and allowing a “retrial of the truth of that allegation after an appellate court reversal for insufficient evidence would

In considering defendant’s due process argument, we find instructive the high court’s rejection of a similar argument in Dowling v. United States (1990) 493 U.S. 342 [ 107 L.Ed.2d 708 , 110 S.Ct. 668 ] (Dowling). There, the defendant argued that both the double jeopardy and due process clauses of the United States Constitution barred the prosecution from introducing at his criminal trial evidence of his alleged commission of another crime of which he had previously been acquitted. (Id. at pp. 343-344.) The high court first held that the double jeopardy clause did not bar admission of the evidence, because “the prior acquittal did not determine an ultimate issue in the [subsequent] case” and the evidence’s admissibility in the subsequent prosecution was “governed by a lower standard of proof’ than the standard that governed during the prior proceeding. (Id. at p. 349.) The court next held that admission of the evidence did not “fail[] the due process test of ‘fundamental fairness’ ” or “violate[] ‘fundamental conceptions of justice.’ [Citation.]” (Id. at p. 352.) Regarding this issue, the defendant argued in part that admission of the evidence “contravene[d] a tradition that the government may not force a person acquitted in one trial to defend against the same accusation in a subsequent proceeding.” (Id. at p. 354.) The court replied: “We acknowledge the tradition, but find it amply protected by the Double Jeopardy Clause. We decline to use the Due Process Clause as a device for extending the double jeopardy protection to cases where it otherwise would not extend.” (Ibid.)

We reject defendant’s due process argument because it essentially asks us to do what the high court in Dowling said we could not do: “use the Due Process Clause as a device for extending the double jeopardy protection to cases where it otherwise would not extend.” (Dowling, supra, 493 U.S. at p. 354.) Defendant, who cannot, after Monge I and Monge II, invoke the protection of the double jeopardy clause to bar retrial, invites us to achieve the same end via the due process clause. We decline his invitation because, as the high court told us in Dowling: “Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation. . . . ‘Judges are not free, in defining “due process,” to impose on law enforcement officials [their] “personal and private notions” of fairness and to “disregard the limits that bind judges in their judicial function.” [Citation.]’ ” (Id. at pp. 352-353.)

Our rejection of defendant’s due process argument is also consistent with the high court’s decision in Caspari v. Bohlen (1994) 510 U.S. 383 [ 127 L.Ed.2d 236 , 114 S.Ct. 948 ] (Caspari). There, a lower court granted a habeas corpus petition after ruling that where trial-like procedures apply in determining persistent oflender status, the federal double jeopardy clause prohibits

Under the law of the case doctrine, when an appellate court “ ‘states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case’s] subsequent progress, both in the lower court and upon subsequent appeal ....’” (Kowis v. Howard (1992) 3 Cal.4th 888 , 893 [ 12 Cal.Rptr.2d 728 , 838 P.2d 250 ].) Absent an applicable exception, the doctrine “requires] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.” (Estate of Baird (1924) 193 Cal. 225 , 234 [ 223 R 974 ].) As its name suggests, the doctrine applies only to an appellate court’s decision on a question of law; it does not apply to questions of fact. (Id. at pp. 234-239.) Nevertheless, it is potentially relevant here because an appellate court’s determination “that the evidence is insufficient to justify a finding or a judgment is necessarily a decision upon a question of law.” (Id. at p. 238.) Such a determination “established] as the law of the case that all the evidence adduced at the previous trial was insufficient as a matter of law to establish” the finding or judgment. (Id. at p. 234; see also People v. Shuey (1975) 13 Cal.3d 835 , 842 [ 120 Cal.Rptr. 83 , 533 P.2d 211 ] [doctrine applies to finding of evidence’s “legal sufficiency”].)

As here relevant, the law of the case doctrine is subject to an important limitation: it “applie[s] only to the principles of law laid down by the court as applicable to a retrial of fact,” and “does not embrace the facts themselves ____” (Moore v. Trott (1912) 162 Cal. 268 , 273 [ 122 P. 462 ], italics added.) In other words, although an appellate court’s legal determination constitutes the law of the case, “upon a retrial . . . that law must be applied by the trial court to the evidence presented upon the second trial.” (Erlin v. National Union Fire Ins. Co. (1936) 7 Cal.2d 547 , 549 [ 61 P.2d 756 ] (Erlin).) Thus, during subsequent proceedings in the same case, an appellate court’s binding legal determination “controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based. [Citations.]” (People v. Mattson (1990) 50 Cal.3d 826 , 850 [ 268 Cal.Rptr. 802 , 789 P.2d 983 ] (Mattson).) Where, on remand, “there is a substantial difference in the evidence to which the [announced] principle of law is applied, ... the [doctrine] may not be invoked.” (Hoffman v. Southern Pac. Co. (1932) 215 Cal. 454 , 457 [ 11 P.2d 387 ].) Even where the appellate court reverses based on “the ‘sufficiency of the evidence’,

Our decisions make clear that, contrary to defendant’s assertion, nothing in the law of the case doctrine itself limits the additional evidence that a party may introduce on retrial to that which “could not have been presented at the first trial through the exercise of due diligence.” Perhaps the most relevant case in this regard is Mattson. During a prior appeal in that matter, we reversed the defendant’s convictions after concluding from “the record of the first trial” that police had illegally obtained his confessions and that the trial court had erred in' denying his suppression motion. (Mattson, supra, 50 Cal.3d at p. 848.) During retrial, which again resulted in conviction, the trial court allowed the prosecution “to relitigate' the admissibility of the confessions” and to “introduce[] evidence” on the issue that “had not been presented at the first trial . . . .” (Id. at p. 849.) On review after retrial, we affirmed the trial court’s ruling and rejected the defendant’s claim that various principles, including the law of the case, “preclude[d] relitigation” of the issue “based on facts that [were] inconsistent and irreconcilable with facts established in the initial [suppression] hearing.” (Ibid.)

In affirming the trial court’s ruling in Mattson, we first found the defendant’s attempt to limit the evidence on retrial to be contrary to statute. We explained: “A reversal of a judgment without directions is an order for a new trial. (§ 1262.) ‘An unqualified reversal remands the cause for new trial and places the parties in the trial court in the same position as if the cause had never been tried.’ [Citation.] ‘The granting of a new trial places the parties in the same position as if no trial had been had. ...’(§ 1180.) [][] That status even permits amendment of the accusatory pleading [citation], as well as renewal and reconsideration of pretrial motions and objections to the admission of evidence. [Citation.] Absent a statutory provision precluding relitigation, a stipulation by the parties, or an order by the court that prior rulings made in the prior trial will be binding at the new trial, objections must be made to the admission of evidence (Evid. Code, § 353), and the court must consider the admissibility of that evidence at the time it is offered. [Citations.]” (Mat tson, supra, 50 Cal.3d at pp. 849-850, fn. omitted.)

In this regard, Mattson is consistent with a long line of California decisions. For example, in Chandler v. People’s Sav. Bank (1884) 65 Cal. 498 , 499-500 [ 4 P. 502 ], we held that after an appellate reversal of a judgment for the plaintiff for insufficient evidence and a remand for further proceedings according to the views stated in the appellate opinion, the plaintiff “was at liberty in a new trial” (id. at p. 499) to introduce additional evidence on the unproven issue, and the trial court had erred in precluding introduction of additional evidence at trial. In Mitchell v. Davis (1863) 23 Cal. 381 , 383-384, we held that an appellate court’s finding of insufficient evidence is law of the case but “does not operate as a bar or estoppel upon the plaintiff from showing the true facts of the case,” and that after a remand for a new trial, “the plaintiff had a clear right to introduce any evidence relevant to the issues to be tried.” Finally, in Weightman v. Hadley (1956) 138 Cal.App.2d 831 [ 292 P.2d 909 ], the court held that at a retrial after an unqualified appellate reversal for insufficient evidence, the plaintiff had “the right to introduce . . . any additional and new evidence” (id. at p. 840) on issues as to which proof at the first trial was insufficient, and that because the law of the case doctrine “does not apply to new and additional evidence,”

These well-established principles were at work in Mattson. As previously discussed, we held in Mattson that, after our reversal for insufficient evidence at trial to establish the admissibility of the defendant’s confession, sections 1180 and 1262 authorized the prosecution at retrial to relitigate this issue using evidence it failed to present at the first trial, and the law of the case doctrine did not require exclusion because the prosecution had, in fact, introduced additional evidence at retrial. (Mattson, supra, 50 Cal.3d at pp. 849-853.) As we have shown, Mattson is consistent with a long line of cases applying the law of the case doctrine after reversals for insufficient evidence, none of which imposed or even mentioned a “due diligence” limitation on the introduction of new evidence at retrial. We therefore reject defendant’s argument.

In arguing for a “due diligence” requirement, defendant also relies on Mitchell. There, the court held that because “the government ha[d] had a full and fair opportunity to present its case unhampered by evidentiary error or other impediment, fundamental fairness require[d] application of equitable principles of res judicata (direct estoppel) and law of the case to preclude relitigation” of an alleged prior conviction after the court’s prior reversal of an earlier true finding for insuficient evidence. (Mitchell, supra, 81 Cal.App.4th at p. 136.) The court reasoned that “when the People on remand did not show there was newly discovered evidence which they, in due diligence, could not have presented at the first trial on the truth of the priors, that decision and its necessary resolution of the legal sufficiency of the evidence for the prior allegations became the law of the case as between these parties. [Citations.]” (Id. at p. 155.) Defendant cites this decision in arguing that the law of the case doctrine bars retrial unless the prosecution makes a “due diligence” showing as to new evidence.

We conclude that Mitchell erred in applying the law of the case doctrine based on the prosecution’s failure to show “due diligence.” In imposing this requirement, Mitchell failed to cite or discuss the statutes and cases that authorize introduction of new evidence, without limitation, on retrial after an appellate reversal for insufficient evidence. Instead, Mitchell

Bank of America also does not support Mitchell’s “due diligence” gloss on the law of the case doctrine. There, the court held that where a motion for judgment notwithstanding the verdict (JNOV) is “made and denied by the trial court, and the appellate court reverses the judgment for insufficiency of the evidence,” retrial is improper even where the reversal is “unqualified.” (Bank of America, supra, 220 Cal.App.3d at p. 626.) In reaching this conclusion, the court specifically relied on Code of Civil Procedure section 629, which mandates entry of judgment in a civil case, rather than a new trial, when an appellate court finds that the trial court erred in denying a JNOV motion. (Bank of America, supra, 220 Cal.App.3d at pp. 624—626.) Bank of America is inapposite because Code of Civil Procedure section 629 is inapplicable to a criminal sentencing proceeding, and neither Mitchell nor defendant here identifies a similar statute that governs retrial of the prior juvenile adjudication allegation at issue in this criminal case. Moreover, Mitchell incorrectly reasoned that “[i]n granting the relief requested, the court in Bank of America” relied in part on the “law of the case.” (Mitchell, supra, 81 Cal.App.4th at p. 150.) On the contrary, the court in Bank of America expressly noted that, given its conclusion based on Code of Civil Procedure section 629, it did not need “to determine whether [the plaintiffs’] claims would be barred by law of the case if the action were retried . . . .” (Bank of America, supra, 220 Cal.App.3d at p. 627.) Thus, although noting that the law of the case doctrine does not apply where the “evidence . . . produced at a subsequent trial ... is ‘materially,’ ‘essentially,’ or ‘substantially’ different from that passed upon in the first appeal,” the court declined to decide whether the new evidence the plaintiffs “proffered . . . would be sufficient to overcome the law of the case.” (Id. at p. 621, fn. 3.) Furthermore, Bank of America’s holding absolutely precludes retrial; it does not allow for an exception based on new evidence that could not have been discovered with reasonable diligence. Finally, the court in Bank of America could find “no compelling policy reason” for giving a civil litigant “another day in court” simply because an appellate court, after finding that JNOV should have been entered, fails to follow a statute requiring entry of judgment under these

McCoy, the other First District decision Mitchell cited, is factually similar to Bank of America and is similarly inapposite. In McCoy, the defendants, whose JNOV motion had been denied, moved for entry of judgment in the trial court on remand after our “unqualified reversal” of judgments against the defendants “for insufficiency of the evidence.” (McCoy, supra, 227 Cal.App.2d at pp. 1658-1659.) The trial court granted the motion and entered judgments for the defendants. (Id. at pp. 1658-1659.) The Court of Appeal affirmed the judgments for the defendants, following Bank of America and holding that, where JNOV motions are improperly denied, Code of Civil Procedure section 629 modifies the general rule that an unqualified reversal for insufficient evidence remands the case for a new trial. (McCoy, supra, 227 Cal.App.3d at p. 1662.) Because McCoy simply followed Bank of America and applied Code of Civil Procedure section 629, Mitchell’s reliance on McCoy, like its reliance on Bank of America, is erroneous.

For all of the reasons discussed above, we reject defendant’s argument that “retrial should be barred under the doctrine of the law of the case unless the prosecution can establish that it has discovered new evidence which could not have been presented at the first trial through the exercise of due diligence.”

m. RES JUDICATA/COLLATERAL ESTOPPEL

As generally understood, “[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 280, p. 820.) The doctrine “has a double aspect.” (Todhunter v. Smith (1934) 219 Cal. 690 , 695 [ 28 P.2d 916 ].) “In its primary aspect,” commonly known as claim preclusion, it “operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. [Citation.]” (Clark v. Lesher (1956) 46 Cal.2d 874 , 880 [ 299 P.2d 865 ].) “In its secondary aspect,” commonly known as collateral estoppel, “[t]he prior judgment. . . ‘operates’ ” in “a second suit. . . based on a different cause of action ... ‘as an estoppel or

Defendant’s claim raises a threshold issue that we have not yet decided: whether either aspect of the res judicata doctrine “even applies to further proceedings in the same litigation. [Citation.]” (People v. Memro (1995) 11 Cal.4th 786 , 821 [ 47 Cal.Rptr.2d 219 , 905 P.2d 1305 ].) As the court observed in Mitchell, “[t]he traditional application of such doctrines [is] to ‘successive prosecutions’ [citation] or rulings from a former action [citation].” (Mitchell, supra, 81 Cal.App.4th at pp. 147-148.) For example, as we have explained, appellate court judgments establish the law that “ ‘must be applied in the subsequent stages of the cause’ ”—i.e., the law of the case—“ ‘and they are res adjudicata in other cases as to every matter adjudicated.’ ” (Dept, of Water & Power v. Inyo Chem. Co. (1940) 16 Cal.2d 744 , 750 [ 108 P.2d 410 ], italics added.) Relying principally on U.S. v. Bailin (7th Cir. 1992) 977 F.2d 270 (Bailin), defendant asserts that “[flederal courts and courts from other states have routinely applied collateral estoppel, or direct estoppel, to bar further proceedings in the same action.” However, as defendant correctly notes, we specifically questioned Bailin'’s holding in People v. Santamaría (1994) 8 Cal.4th 903 , 915, footnote 5 [ 35 Cal.Rptr.2d 624 , 884 P.2d 81 ], There, after reviewing relevant high court authority, “we questioned] whether collateral estoppel applies to [retrial in] the same proceeding where the government won by securing a conviction of the substantive count” and the conviction was reversed on appeal. (Id. at p. 913; see also People v. Memro, supra, 11 Cal.4th at p. 821 [“[i]t is questionable whether the doctrine of collateral estoppel even applies to further proceedings in the same litigation”].) Ultimately, we did not decide the question in Santamaría because we found that the collateral estoppel claim in that case failed “on the merits” for other reasons. (People v. Santamaría, supra, 8 Cal.4th at p. 916.)

Similarly, in this case, we need not resolve this threshold question because defendant’s res judicata claim fails for other reasons. Initially, we agree with the People that neither aspect of res judicata applies because an appellate reversal, for insufficient evidence, of a true finding regarding an alleged prior conviction or juvenile adjudication does not generally constitute a final decision on the merits regarding the truth of the alleged prior

Looking at the relevant policy considerations, we conclude that application of the res judicata doctrine is inappropriate here, even if defendant could otherwise satisfy the doctrine’s technical requirements. Regarding the integrity of the criminal justice system, declining to apply res judicata principles after appellate reversal of a fact finder’s true finding on a prior conviction allegation does not create a risk of “inconsistent verdicts.” (Lucido, supra, 51 Cal.3d at p. 347.) On the other hand, applying such principles under these circumstances would “undermine public confidence in the judicial system” (ibid.), because the public has a substantial interest in the implementation of statutes imposing more severe punishment on “ ‘persisten[t]’ ” offenders who “ ‘have proved immune to lesser punishment,’ ” and in “preventing]” such offenders “from escaping the penalties imposed by those statutes through technical defects in . . . proof.” (Morton, supra, 41 Cal.2d at pp. 544-545.) As the high court has explained, where “a State adopts the policy of imposing heavier punishment for repeated offending, there is manifest propriety in

We disagree with defendant that application of res judicata principles is necessary to “prevent [him] from being harassed by multiple trials on the same allegation.” Although defendant’s approach “would eliminate repetitive litigation,” “[t]he essence of vexatiousness ... is not mere repetition. Rather, it is harassment through baseless or unjustified litigation. [Citation.] [Defendant] does not assert that the criminal proceedings in this case are intended to harass.” (Lucido, supra, 51 Cal.3d at p. 351.) As just explained, the public has a legitimate expectation that persons with prior convictions who are convicted of new offenses will not, “through technical defects in . . . proof,” “escap[e]” the increased punishment statutorily proscribed to reflect “ ‘their persistence in crime ....’” (Morton, supra, 41 Cal.2d at pp. 544—545.) “For this reason, it is neither vexatious nor unfair” (Lucido, supra, 51 Cal.3d at p. 351) to permit retrial of prior conviction allegations where a defendant is properly convicted of a new crime and an appellate court reverses the true finding on the prior convictions for insufficient evidence, at least where evidence exists to correct the defects in proof.

Finally, considerations of judicial economy do not justify application of res judicata principles in this context. Because most failures of proof like the one at issue here are inadvertent, rather than strategic or otherwise intentional, the number of retrials our conclusion permits would, no doubt, be fairly small. Moreover, a trial of a prior conviction allegation “is simple and straightforward,” and “[o]ften . . . involves only the presentation of a certified copy of the prior conviction along with the defendant’s photograph and fingerprints. In many cases, defendants offer no evidence at all, and the outcome is relatively predictable.” (Monge I, supra, 16 Cal.4th at p. 838 (lead opn. of Chin, J.).) Thus, the judicial resources saved by precluding retrials of prior conviction allegations would be minimal. Any concern about judicial