People v. Superior Court

Harris, supra, 36 Cal.3d at pp. 45-59.) On retrial, the jury again found him guilty as charged but determined he should be sentenced to life imprisonment without parole. Harris obtained a second reversal, this time because the trial court erroneously prevented him from testifying. (People v. Harris (1987) 191 Cal.App.3d 819 , 824-826 [ 236 Cal.Rptr. 680 ].)

Following remand, the People announced their intention to again seek the death penalty. Harris objected, claiming a violation of both the state and federal constitutional proscriptions against double jeopardy. Finding that the penalty phase of the prosecution constituted a trial, respondent superior court denied the request to reinstate the death penalty as a possible sentencing alternative.

The People petitioned the California Supreme Court for a writ of mandate to reverse the trial court’s ruling. The Supreme Court transferred the matter to this court without comment. We issued an alternative writ soliciting a response from Harris as real party in interest.

Discussion

In People v. Henderson (1963) 60 Cal.2d 482 , 497 [ 35 Cal.Rptr. 77 , 386 P.2d 677 ], the California Supreme Court determined that “[a] defendant’s right of appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right. Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals therefrom by imposing unreasonable conditions on the right to appeal.”

In Henderson, the defendant was originally tried for first degree murder and sentenced to life imprisonment. The Court of Appeal reversed the conviction; and on retrial the jury found him guilty of the same offense and fixed the penalty at death. (60 Cal.2d at p. 484.) On automatic review, the Supreme Court reversed the judgment for errors during the trial but also agreed with the defendant’s contention that principles of double jeopardy prohibited the more severe sentence.

In reaching this conclusion, the court reasoned that the same rationale that “precluded convicting a defendant of a higher degree of a crime after he had secured reversal of his conviction of the lower degree” (60 Cal.2d at p. 496) also .obtained with respect to an increased penalty after reversal: “[A] defendant is not required to elect between suffering an erroneous conviction to stand unchallenged and appealing therefrom at the cost of forfeiting a valid defense to the greater offense ...[;] ‘ “a defendant faced with such a ‘choice’ takes a ‘desperate chance’ in securing the reversal of the

erroneous conviction. The law should not, and in our judgment does not, place the defendant in such an incredible dilemma.” ’ [Citation.] This reasoning applies with equal force to the present case.” (Ibid.; see Green v. United States (1957) 355 U.S. 184 , 191-195 [ 2 L.Ed.2d 199 , 206-209, 78 S.Ct. 221 , 61 A.L.R.2d 1119 ]; Gomez v. Superior Court (1958) 50 Cal.2d 640 , 651-652 [ 328 P.2d 976 ].)

The holding in Henderson expressly derived from the state constitutional bar against double jeopardy. (People v. Henderson, supra, 60 Cal.2d at pp. 496-497; see former Cal. Const., art. I, § 13, now art. I, § 15; see also Palko v. Connecticut (1937) 302 U.S. 319 [ 82 L.Ed. 288 , 58 S.Ct. 149 ], overruled in Benton v. Maryland (1969) 395 U.S. 784 , 794 [ 23 L.Ed.2d 707 , 715-716, 89 S.Ct. 2056 ].) Nevertheless, the People argue the holding is no longer viable or persuasive because its federal underpinnings have not developed as the Supreme Court’s analysis anticipated; hence, its rule no longer comports with the trend in federal law the court intended as its guide. Since “[t]he guarantee against double jeopardy in the California Constitution is almost precisely the same as that found in the federal Constitution” (Gomez v. Superior Court, supra, 50 Cal.2d at p. 649), we are now urged to apply it consistent with subsequent United States Supreme Court decisions resolving the salient issues against criminal defendants. (See, e.g., North Carolina v. Pearce (1969) 395 U.S. 711 [ 23 L.Ed.2d 656 , 89 S.Ct. 2072 ].)

We find these contentions without merit in several respects. First, when Henderson and Gomez were decided, federal double jeopardy law did not apply to the states. (See Palko v. Connecticut, supra, 302 U.S. 319 .) Thus, the most logical implication of these earlier decisions is that the state right should be construed as expansively as the federal right. In other words, the state protection should extend at least as far as the similarly worded federal protection. As the court further observed in Gomez-. “It appears to us that if the spurious distinction made by the California cases is perpetuated in the case at bar we would be giving our constitutional prohibition against twice in jeopardy a ‘narrow, grudging application’ unsupported by either logic or reason.” (Gomez v. Superior Court, supra, 50 Cal.2d at p. 649.)

Second, even after Benton v. Maryland, supra, 395 U.S. 784 , made the federal guarantee applicable to the states, the California Supreme Court continued to explicate the state double jeopardy provision independently. “Benton requires only that the states accord their citizens at least as much protection against double jeopardy as is provided under the Fifth Amendment of the United States Constitution; it does not forbid a state from according a greater degree of such protection. [Citation; fn. omitted.]” (Curry v. Superior Court (1970) 2 Cal.3d 707 , 716 [ 87 Cal.Rptr. 361 , 470 P.2d 345 ]; see Bunnell v. Superior Court (1975) 13 Cal.3d 592 , 601 [ 119

Cal.Rptr. 302 , 531 P.2d 1086 ]; People v. Belcher (1974) 11 Cal.3d 91 , 97 [ 113 Cal.Rptr. 1 , 520 P.2d 385 ].) In support of this conclusion, the court has cited specifically to People v. Henderson, supra, as an instance of the broader protection afforded under the state Constitution. (See Curry v. Superior Court, supra, 2 Cal.3d at p. 716; see also Diamond v. Bland (1974) 11 Cal.3d 331 , 339 [ 113 Cal.Rptr. 468 , 521 P.2d 460 ], overruled on other grounds in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 , 910 [ 153 Cal.Rptr. 854 , 592 P.2d 341 ].)

Third, our Supreme Court continues to reiterate its concern that a defendant not be placed in the “ ‘ “incredible dilemma” ’ ” of suffering an erroneous conviction to stand unchallenged or risking a more severe sentence (P eople v. Henderson, supra, 60 Cal.2d at pp. 496-497) even though the United States Supreme Court has since determined that in general “the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction.” (North Carolina v. Pearce, supra, 395 U.S. at p. 719 [23 L.Ed.2d at p. 666].) Although presented with both the opportunity to do so and subsequent clarification of federal constitutional law, the court has never retreated from the rationale or holding of Henderson. (See, e.g., People v. Collins (1978) 21 Cal.3d 208 , 216-217 [ 145 Cal.Rptr. 686 , 577 P.2d 1026 ]; People v. White (1976) 16 Cal.3d 791 , 802 [ 129 Cal.Rptr. 769 , 549 P.2d 537 ]; People v. Serrato (1973) 9 Cal.3d 753 , 763-764 [ 109 Cal.Rptr. 65 , 512 P.2d 289 ], disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572 , 583, fn. 1 [ 189 Cal.Rptr. 855 , 659 P.2d 1144 ]; Curry v. Superior Court, supra, 2 Cal.3d at pp. 716-717; People v. Hood (1969) 1 Cal.3d 444 , 459 [ 82 Cal Rptr. 618 , 462 P.2d 370 ]; see also People v. Ali (1967) 66 Cal.2d 277 , 281 [ 57 Cal.Rptr. 348 , 424 P.2d 932 ]; People v. Foley (1985) 170 Cal.App.3d 1039 , 1047-1048 [ 216 Cal.Rptr. 865 ]; People v. Savala (1983) 147 Cal.App.3d 63 , 67 [ 195 Cal.Rptr. 193 ], disapproved on other grounds in People v. Foley, supra, 170 Cal.App.3d at p. 1044; People v. Harvey (1978) 76 Cal.App.3d 441 , 447-448 [ 142 Cal.Rptr. 887 ].)

Moreover, although the People contend North Carolina v. Pearce, supra, 395 U.S. 711 , seriously impaired Henderson's federal underpinnings, that decision recognized “an important exception” grounded in sufficiency of the evidence review. (Bullington v. Missouri (1981) 451 U.S. 430 , 442-446 [ 68 L.Ed.2d 270 , 280-284, 101 S.Ct. 1852 ].) If the defendant’s “sentencing proceeding . . . was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury also is available to him, with respect to the death penalty, at his retrial.” (Id., at p. 446 [68 L.Ed.2d at p. 284], fn. omitted; see also Arizona v. Rumsey (1984) 467 U.S. 203 , 209-212 [ 81 L.Ed.2d 164 , 170-172, 104 S.Ct. 2305 ].)

In Bullington v. Missouri, supra, 451 U.S. 430 , the Supreme Court addressed the question of whether the prosecution could seek the death penalty on retrial of a defendant originally sentenced to life imprisonment without parole. The court first acknowledged its prior resistence to extending the protections of the double jeopardy clause to resentencing. (Id., at pp. 437-438 [68 L.Ed.2d at pp. 277-279].) Nevertheless, the procedure detailed in the Missouri death penalty law “differ[ed] significantly” from those in earlier cases. “The jury in [Bullington] was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice. Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts. The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes. [Fn. omitted.]” (Id., at p. 438 [68 L.Ed.2d at pp. 278-279].)

To this end, “counsel make opening statements, testimony is taken, evidence is introduced, the jury is instructed, and final arguments are made. The jury then deliberates and returns its formal punishment verdict.” (451 U. S. at p. 438, fn. 10 [68 L.Ed.2d at p. 279].) “In constrast, the sentencing procedures considered in the Court’s previous cases did not have the hallmarks of the trial on guilt or innocence. In [North Carolina v. Pearce, supra, 395 U.S. 711 , Chaffin v. Stynchcombe (1973) 412 U.S. 17 ( 36 L.Ed.2d 714 , 93 S.Ct. 1977 ), and Stroud v. United States (1919) 251 U.S. 15 ( 64 L.Ed. 103 , 40 S.Ct. 50 )], there was no separate sentencing proceeding at which the prosecution was required to prove—beyond a reasonable doubt or otherwise—additional facts in order to justify the particular sentence. In each of those cases, moreover, the sentencer’s discretion was essentially unfettered. In Stroud, no standards had been enacted to guide the jury’s discretion. In Pearce, the judge had a wide range of punishments from which to choose with no explicit standards imposed to guide him. And in Chaffin, the discretion given to the jury was extremely broad. [Fns. omitted.]” (Id., at p. 439 [68 L.Ed.2d at p. 279].)

Adverting to its decisions holding “that a retrial on . . . first-degree murder charge [following reversal of a second degree murder conviction] was barred by the Double Jeopardy Clause, because the defendant ‘was forced to run the gantlet once on that charge and the jury refused to convict him’ [citations],” the Supreme Court concluded that “the ‘clean slate’ rationale recognized in Pearce is inapplicable whenever a jury agrees or an

tion.]” {North Carolina v. Pearce, supra, 395 U.S. 711 , 727 [ 23 L.Ed.2d 656 , 670] (cone. opn. of Douglas, J.).)

Disposition

The petition is denied. The alternative writ is discharged, and the stay of trial proceedings ordered September 6, 1989, is vacated.

Klein, P. J., and Danielson, J., concurred.

Petitioner’s application for review by the Supreme Court was denied May 17, 1990. Arabian, J., did not participate therein.