THE PEOPLE, Plaintiff and Respondent, v. ANGEL JAIME MONGE, Defendant and Appellant, 16 Cal. 4th 826

Opinion CHIN, J. In this case, we consider the applicability of the state and federal prohibitions against double jeopardy to a proceeding to determine the truth of a prior conviction allegation, We conclude that, in this noncapital case, the state and federal prohibitions against double jeopardy do not apply. Accordingly, we reverse the judgment of the Court of Appeal to the extent that judgment bars retrial of the prior conviction allegation on double jeopardy grounds.

Facts and Procedural Background During the afternoon of January 25, 1995, as Pomona Police Department undercover officers were driving an unmarked car on West Ninth Street in the City of Pomona, they spotted a 13-year-old boy standing near the curb. The boy motioned the officers to pull over, but instead they pulled into an alley that led to the rear of an apartment complex where police had earlier observed narcotics activity. Once in the carport area at the rear of the complex, the officers spotted defendant Angel Jaime Monge.

Defendant approached the car, and one of the officers rolled down the window and asked where he could buy marijuana. Defendant did not answer, but walked to a carport. The officers turned their car around and then noticed the young boy who had earlier motioned them to pull over, now standing some distance behind their car. Defendant returned and gave the boy several plastic bags. The boy then approached the officers and asked how much they wanted. The officers requested two “dime bags” and exchanged two $10 bills for two plastic bags of marijuana.

After leaving the alley, the officers reported the sale to other Pomona officers, who arrested defendant and the boy. Police searched defendant and found the two $10 bills that the officers had given to the boy. The District Attorney of Los Angeles County charged defendant with using a minor to sell marijuana (Health & Saf. Code, § 11361, subd. (a)), sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), and possession of marijuana for sale (Health & Saf. Code, § 11359).

The district attorney also alleged defendant had suffered a prior serious felony conviction within the meaning of the “Three Strikes” law (Pen. Code, §§667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a prior prison term within the meaning of

section 667.5, subdivision (b). Specifically, the district attorney alleged a July 2, 1992, conviction and prison term for assault with a deadly weapon (§ 245, subd. (a)(1)). Defendant pleaded not guilty and denied all sentencing allegations. Defendant waived his right to a jury trial of the prior conviction and prior prison term allegations, and the court granted his request to bifurcate determination of those allegations. A jury found defendant guilty of the substantive charges.

When proceedings reconvened the following week, the court asked defense counsel if defendant wanted to admit the prior conviction, and defense counsel said, “That’s correct, Your Honor.” The court then asked defendant if he understood, and defendant said, “Yes.” After an off-the-record discussion, the court again asked if defendant wanted to admit the prior conviction, and defense counsel said, “No, he doesn’t. He wishes the court to try the prior without the jury.” The prosecutor asserted that the prior assault conviction was a serious felony for purposes of the Three Strikes law.

Defense counsel disagreed, arguing the weapon involved in the prior crime was not a deadly weapon. The court interrupted to point out that defendant had pleaded guilty to assault with “a deadly weapon” and thus had admitted the weapon was deadly. The court stated it would take judicial notice of the prior conviction and asked if the parties submitted the matter on that evidence alone. The prosecution then offered as additional evidence a “prison packet” (see § 969b) dated February 17, 1995, and an abstract of judgment. This additional evidence characterized defendant’s prior conviction as “PC 245(a)

(1) ADW GBI” and “ASLT W/DW (245(a)(l)PC).” Defense counsel submitted the matter after questioning whether the prosecution’s documentary evidence, which included a photograph and fingerprints, related to defendant. The court found true that defendant suffered a prior serious felony conviction, “[t]he felony being personal use of a deadly weapon in violation [of]

section 245, 245(a)(1).” The court also found true the prior prison term allegation. The court imposed an eleven-year sentence, including five years for using a minor to sell marijuana, which the court doubled to ten years under the Three Strikes law (§§667, subd. (e)(1), 1170.12, subd. (c)(1)), plus a one-year enhancement for the prior prison term (§ 667.5, subd. (b)) and two years to run concurrently for possessing marijuana for sale. Under

section 654, the court stayed the sentence for defendant’s conviction of selling marijuana. On appeal, defendant challenged the Three Strikes law as a violation of his right to due process. On its own motion, the Court of Appeal requested supplemental briefing on whether sufficient evidence supported the trial court’s finding that defendant had suffered a prior serious felony conviction within the meaning of the Three Strikes law. Under the Three Strikes law, a prior felony conviction may affect the sentence for the present offense if the conviction was of a “serious felony” as defined in

section 1192.7, subdivision (c). (§§667, subd. (d)(1), 1170.12, subd. (b)(1).) Of the felonies and categories of felonies listed in

section 1192.7, subdivision (c), defendant’s July 2, 1992, felony conviction might have qualified as a “serious felony” under either subdivision (c)(8), which refers to “any . . . felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice . . .” (italics added), or subdivision (c)(23), which refers to “any felony in which the defendant personally used a dangerous or deadly weapon.” (Italics added.) The Court of Appeal affirmed defendant’s conviction, but reversed the trial court’s true finding on the prior serious felony allegation, holding the evidence insufficient to establish that defendant had acted personally.

In addition, the Court of Appeal held that the state and federal constitutional protections against double jeopardy barred retrial of the prior serious felony allegation. Thus, the Court of Appeal remanded for resentencing. We granted review in order to consider whether the state and federal prohibitions against double jeopardy apply to a proceeding, in a noncapital case, to determine the truth of a prior serious felony allegation.

Double Jeopardy Federal Constitution The Fifth Amendment of the United States Constitution provides that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb . . . .” Among other things, this constitutional guaranty, known as the double jeopardy clause, “protects against a second prosecution for the same offense after acquittal.” (North Carolina v. Pearce (1969) 395 U.S. 711, 717 [89 S.Ct. 2072, 2076, 23 L.Ed.2d 656] (Pearce), fn. omitted.) In Benton v.

Maryland (1969) 395 U.S. 784, 796 [89 S.Ct. 2056, 2063, 23 L.Ed.2d 707], the Supreme Court held that the double jeopardy prohibition was “ ‘fundamental to the American scheme of justice’ ” and therefore enforceable against the states as an element of the due process protection embodied in the Fourteenth Amendment. Nevertheless, the Supreme Court has never held that the double jeopardy clause applies generally to proceedings, like the one in this case, to determine whether a defendant should receive a longer sentence because of prior convictions.

We have on a few occasions noted and expressly declined to decide this question. (People v. Valladoli (1996) 13 Cal.4th 590, 608 [54 Cal.Rptr.2d 695, 918 P.2d 999]; People v. Wiley (1995) 9 Cal.4th 580, 593, fn. 8 [38 Cal.Rptr.2d 347, 889 P.2d 541]; People v.

Saunders (1993) 5 Cal.4th 580, 593 [20 Cal.Rptr.2d 638, 853 P.2d 1093].) At the outset we emphasize that, in the absence of a statutory provision, a criminal defendant is not entitled as a federal constitutional matter to a trial, formal or informal, of sentencing issues, even when the sentence turns on factual determinations such as the existence of prior convictions. In Williams v.

New York (1949) 337 U.S. 241 [69 S.Ct. 1079, 93 L.Ed. 1337] (Williams), a jury convicted the defendant of first degree murder and recommended life imprisonment. (Id. at pp. 242-243 [69 S.Ct. at pp. 1080-1081].) The judge, however, sentenced the defendant to death after considering the evidence “in the light of additional information obtained through the court’s ‘Probation Department, and through other sources.’ ” (Id. at p. 242 [69 S.Ct. at p. 1081].) Among other things, the judge noted that the defendant had been involved in “ ‘thirty . . . burglaries in and about the same vicinity.’ ” (Id. at p. 244 [69 S.Ct. at p. 1081].) No court had ever convicted the defendant of these 30 burglaries, but “the judge had information that [the defendant] had confessed to some and had been identified as the perpetrator of some of the others.” (Ibid.) The judge’s rather informal factfinding procedure was consistent with applicable New York law, which permitted the sentencing court to “ ‘seek any information that will aid the court’ ” (id. at p. 243 [69 S.Ct. at p. 1081]), including information “obtained outside the courtroom from persons whom a defendant has not been permitted to confront or cross-examine” (id. at p. 245 [69 S.Ct. at p. 1082]).

The United States Supreme Court upheld the sentence.

The high court noted that the procedural protections applicable in a trial on guilt (notice of the charges, opportunity to cross-examine adverse witnesses, opportunity to offer evidence, and representation by counsel) traditionally have not applied at sentencing. (Williams, supra, 337 U.S. at pp. 245-246 [69 S.Ct. at pp. 1082-1083].) Historically, the court pointed out, sentencing judges could even rely on their personal knowledge of a defendant. (Id. at p. 246 [69 S.Ct. at pp. 1082-1083].) The court concluded, “The due process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure.” (Id. at p. 251 [69 S.Ct. at p. 1085].) The high court has broadly described Williams as holding “that the Due Process Clause of the Fourteenth Amendment [does] not require a judge to have hearings and to give a convicted person an opportunity to participate in those hearings when he [comes] to determine the sentence to be imposed.” (Specht v.

Patterson (1967) 386 U.S. 605, 606 [87 S.Ct. 1209, 1210, 18 L.Ed.2d 326], Moreover, though the high court has retreated from Williams in capital cases (Gardner v. Florida (1977) 430 U.S. 349 [97 S.Ct. 1197, 51 L.Ed.2d 393]), it has otherwise reaffirmed Williams as recently as last term. (U.S. v. Watts (1997) 519 U.S. 148, _ [117 S.Ct. 633, 635, 136 L.Ed.2d 554]; see also Witte v.

U.S. (1995) 515 U.S. 389, 398 [115 S.Ct. 2199, 2205, 132 L.Ed.2d 351] [“[T]he Due Process Clause [does] not require ‘that courts throughout the Nation abandon their age-old practice of seeking information from out-of-court sources to guide their judgment toward a more enlightened and just sentence.’ ”].) Because, in a noncapital case, a state need not provide a trial of sentencing allegations at all, a state that elects to provide a trial of these allegations can circumscribe the procedural boundaries of that trial.

So long as the state affords minimal due process of law, it need not provide all the procedural guaranties that characterize a trial on guilt or innocence. Thus, a state that provides a trial of sentencing allegations need not provide a jury trial. (People v. Vera (1997) 15 Cal.4th 269, 274, 277 [62 Cal.Rptr.2d 754, 934 P.2d 1279]; People v. Wims (1995) 10 Cal.4th 293, 304-306 [41 Cal.Rptr.2d 241, 895 P.2d 77]; People v. Wiley, supra, 9 Cal.4th at pp. 584-585, 589.) For the same reason, a state that provides a trial of sentencing allegations arguably need not provide double jeopardy protection.

Though states need not provide a trial of sentencing allegations, the California Legislature has elected to grant defendants a statutory right to a jury trial of prior conviction allegations.

Section 1025 provides: “[T]he question whether or not [a defendant] has suffered [a] previous conviction must be tried by the jury which tries the issue upon the plea of not guilty, or in case of a plea of guilty, by a jury impaneled for that purpose . ...” A survey of our decisions indicates that we have expanded

section 1025’s bare grant of a jury trial to include various procedural guaranties. For example, we have stated in dictum that the prosecution must prove a prior conviction allegation beyond a reasonable doubt (People v. Tenner (1993) 6 Cal.4th 559, 566 [24 Cal.Rptr.2d 840, 862 P.2d 840] (Tenner); In re Yurko (1974) 10 Cal.3d 857, 862 [112 Cal.Rptr. 513, 519 P.2d 561]) and that the accused enjoys the privilege against self-incrimination (In re Yurko, supra, 10 Cal.3d at p. 863, fn. 5). Similarly, we have held that the rules of evidence apply in these trials. (People v.

Reed (1996) 13 Cal.4th 217, 224 [52 Cal.Rptr.2d 106, 914 P.2d 184]; People v. Myers (1993) 5 Cal.4th 1193, 1201 [22 Cal.Rptr.2d 911, 858 P.2d 301].) Finally, we have stated that a defendant in a trial of a prior conviction allegation has a right to “ ‘be confronted with witnesses against him [and] to cross-examine’ ” those witnesses. (People v. Reed, supra, 13 Cal.4th at p. 228, fn. 6, quoting Specht v.

Patterson, supra, 386 U.S. at p. 610 [87 S.Ct. at pp. 1212-1213]; In re Yurko, supra, 10 Cal.3d at p. 863, fn. 5.) Arguably, the next step in the logical progression of these decisions is for us now to hold that the constitutional protections against double jeopardy apply. Constitutional law, however, does not grow inevitably by accretion; rather, each question rises or falls on its individual merits. With this point in mind, we turn to an analysis of the double jeopardy clause of the federal Constitution. The double jeopardy clause by its terms proscribes a second jeopardy “for the same offense.” (U.S.

Const., 5th Amend., italics added.) The clause makes no express reference to sentencing determinations. Our review of the Supreme Court’s decisions indicates that court is reluctant to apply the clause to sentencing determinations. In Stroud v.

United States (1919) 251 U.S. 15 [40 S.Ct. 50, 64 L.Ed. 103] (Stroud), a jury found the defendant guilty of first degree murder “ ‘without capital punishment,’ ” which was one of its options under the applicable statute. (Id. at pp. 17-18 [40 S.Ct. at pp. 51-52].) After the Supreme Court reversed that judgment, a jury on retrial convicted the defendant of first degree murder, but omitted the stipulation against capital punishment, and the trial court sentenced the defendant to death. (Id. at p. 17 [40 S.Ct. at p. 51].) The Supreme Court held that the defendant had not been “placed in second jeopardy” despite the change in his sentence from life imprisonment to death.

Specifically, the court did not consider the verdict of “guilty . . . ‘without capital punishment’ ” as a conviction of a lesser offense. “The fact that the jury may thus mitigate the punishment to imprisonment for life did not render the conviction less than one for first degree murder.” (Id. at p. 18 [40 S.Ct. at p. 51].) The Supreme Court reaffirmed Stroud in Pearce, supra, 395 U.S. at page 720 [89 S.Ct. at page 2078]. In Pearce, the court resolved two cases in which the defendants successfully challenged their convictions, only to receive longer overall sentences following retrials.

Moreover, neither defendant received credit for time served. (Id. at pp. 713-715 [89 S.Ct. at pp. 2074-2075].) The Supreme Court held that the double jeopardy clause entitled the defendants to credit for time served. (Id. at pp. 718-719 [89 S.Ct. at pp. 2077-2078].) Nevertheless, the double jeopardy clause did not preclude the court from imposing a longer sentence after retrial. “Long-established constitutional doctrine makes clear that [with the exception of credit for time served] the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction.” (Id. at p. 719 [89 S.Ct. at pp. 2077-2078].) In Chaffin v.

Stynchcombe (1973) 412 U.S. 17, 23-24 [93 S.Ct. 1977, 1981, 36 L.Ed.2d 714], in which the jury imposed the sentence instead of the judge, the Supreme Court, without discussion, again reaffirmed that the double jeopardy clause does not preclude a longer sentence following retrial. Finally, in United States v.

DiFrancesco (1980) 449 U.S. 117 [101 S.Ct. 426, 66 L.Ed.2d 328] (DiFrancesco), the high court considered a statutory sentencing scheme that allowed the federal court of appeals to review the sentence that the federal district court had imposed and, at the prosecution’s request, to increase that sentence “‘after considering the record’” and “ ‘after hearing.’ ” (Id. at p. 120, fn. 2 [101 S.Ct. at p. 429].) The high court determined that this scheme did not violate the double jeopardy clause, noting that “[historically, the pronouncement of sentence has never carried the finality that attaches to an acquittal.” (Id. at p. 133 [101 S.Ct. at p. 435].) Thus, in a variety of contexts, the Supreme Court has declined to extend the federal guaranty against double jeopardy to sentencing proceedings.

Bullington v. Missouri (1981) 451 U.S. 430 [101 S.Ct. 1852, 68 L.Ed.2d 270] (Bullington) marked the first departure from this consistent approach. Bullington concerned imposition of the death penalty under Missouri law. In accord with the Supreme Court’s decisions in Furman v. Georgia (1972) 408 U.S. 238 [92 S.Ct. 2726, 33 L.Ed.2d 346], Gregg v. Georgia (1976) 428 U.S. 153 [96 S.Ct. 2909, 49 L.Ed.2d 859], and the capital cases decided on the same day as Gregg, Missouri’s death penalty statute included intricate procedural safeguards.

For example, the trial court had to conduct a separate presentence hearing for a defendant convicted of capital murder. The hearing had to be held before the same jury that found the defendant guilty. At the hearing, the jury considered additional evidence and determined whether any aggravating or mitigating circumstances existed, whether the aggravating circumstances warranted the death penalty, and whether the mitigating circumstances outweighed the aggravating circumstances. The jury had to make its findings beyond a reasonable doubt.

Finally, the court had to instruct the jury that it need not impose the death penalty even if it found sufficient aggravating circumstances that mitigating circumstances did not outweigh. (Bullington, supra, 451 U.S. at pp. 433-435 [101 S.Ct. at pp. 1855-1856].) A Missouri jury convicted Robert Bullington of capital murder.

As required, the court held a presentence hearing, and the jury returned a verdict of “imprisonment for life without eligibility for probation or parole for 50 years.” (Bullington, supra, 451 U.S. at p. 436 [101 S.Ct. at p. 1856].) The trial court then granted Bullington’s motion for a new trial, finding error in jury selection.

Despite the Supreme Court’s decision in Stroud, supra, 251 U.S. 15, the court also ruled, on double jeopardy grounds, that the prosecution could not seek the death penalty on retrial. (Bullington, supra, 451 U.S. at p. 436 [101 S.Ct. at pp. 1856-1857].) The prosecution petitioned for a writ of prohibition or mandamus, and the state supreme court granted the writ, holding that double jeopardy principles did not bar the prosecution from seeking the death penalty. (Id. at pp. 436-437 [101 S.Ct. at pp. 1856-1857].) The United States Supreme Court reversed, holding that the double jeopardy clause did bar imposition of the death penalty. (Id. at pp. 446-447 [101 S.Ct. at pp. 1862-1863].) Noting that, under the applicable Missouri death penalty law, the jury determined the sentence at “a separate hearing” and did not have “unbounded discretion,” but rather chose “between two alternatives,” and that “the prosecution . . . undertook the burden of establishing certain facts beyond a reasonable doubt” (id. at p. 438 [101 S.Ct. at p. 1858]), the high court reasoned that the penalty phase of a Missouri capital trial had “the hallmarks of the trial on guilt or innocence” (id. at p. 439 [101 S.Ct. at p. 1858]) and therefore that the double jeopardy prohibition applied (id. at pp. 438, 446 [101 S.Ct. at pp. 1857-1858, 1862]).

The court reaffirmed Bullington in Arizona v. Rumsey (1984) 467 U.S. 203, 212 [104 S.Ct. 2305, 2310-2311, 81 L.Ed.2d 164], a case in which the judge, not the jury, determined the appropriate sentence. On its face, a

section 1025 trial at which a California jury determines the truth of a prior conviction allegation also has “the hallmarks of the trial on guilt or innocence.” Thus, the defendant has a right to counsel, notice, and an opportunity to be heard. (Oyler v. Boles (1962) 368 U.S. 448, 452 [82 S.Ct. 501, 503-504, 7 L.Ed.2d 446].) The prosecution must “plead and prove” the prior conviction allegation (§§ 667, subds. (

c) and (g), 1170.12, subds. (

a) and (e)) at a “trial” (§ 1025). The prosecution has the burden of proof beyond a reasonable doubt. (Tenner, supra, 6 Cal.4th at p. 566.) Finally, the trier of fact faces a choice between two alternatives. (§ 1158.) Nevertheless, for reasons we discuss below, we believe Bullington’s “hallmarks of the trial” analysis does not apply here. Significantly, the high court in subsequent cases has suggested that Bullington does not apply to noncapital cases. For example, in Pennsylvania v.

Goldhammer (1985) 474 U.S. 28 [106 S.Ct. 353, 88 L.Ed.2d 183], the court reaffirmed that its decisions “ ‘clearly establish that a sentencing in a noncapital case] does not have the qualities of constitutional finality that attend an acquittal.’ ” (Id. at p. 30 [106 S.Ct. at pp. 353-354], bracketed language in Goldhammer, italics added.) Similarly, in Caspari v. Bohlen, the court noted that Bullington “was based largely on the unique circumstances of a capital sentencing proceeding.” (Caspari v.

Bohlen (1994) 510 U.S. 383, 392 [114 S.Ct. 948, 954, 127 L.Ed.2d 236] (Caspari).) The court added: “Goldhammer and Strickland [v. Washington (1984) 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674)] strongly suggested that Bullington was limited to capital sentencing.” (Caspari, supra, 510 U.S. at p. 393 [114 S.Ct. at p. 955].) Moreover, many of the procedural protections that apply in a

section 1025 trial rest on statutory, not federal constitutional, grounds. On the other hand, many of the elaborate procedures at the penalty phase of a capital trial originate directly in the Supreme Court’s decisions interpreting the federal Constitution.

This distinction is relevant to our analysis because, when a state legislature has elected at its option to provide a trial-like proceeding to resolve a factual issue that a judge could otherwise resolve with no hearing at all, common sense suggests that the legislature need not provide all the procedural protections that apply in a constitutionally mandated trial. Furthermore, despite some common procedural protections, the sentencing proceeding here and that in Bullington are more unlike than alike.

First, the trial-like procedures that regulate imposition of the death penalty find no parallel in noncapital cases. Unlike the death penalty sentencing procedure at issue in Bullington, a trial of prior conviction allegations under

section 1025 does not require the trier of fact to determine the existence of a broad range of aggravating and mitigating circumstances relating to the defendant’s character. A

section 1025 trial does not then require a finding that the aggravating circumstances warrant a longer sentence or a weighing of aggravating circumstances against mitigating circumstances. Nor does a

section 1025 trial allow the trier of fact to reject a longer sentence even if its factual determinations support the sentence. Considering the breadth and subjectivity of the factual determinations at issue in Bullington, the failure of proof at issue in that case was more like an acquittal at the guilt phase of a criminal trial than is the failure of proof at issue here.

In deciding Bullington, the court reaffirmed the general rule that the double jeopardy clause does not apply to sentencing proceedings. (Bullington, supra, 451 U.S. at p. 438 [101 S.Ct. at pp. 1857-1858].) The court then carved out a narrow exception to this general rule. (Ibid.) The court did not overrule Stroud, supra, 251 U.S. 15, which also involved imposition of the death penalty.

Rather, it distinguished Stroud on the basis of the procedural safeguards that arise from modem death penalty jurisprudence. (Bullington, supra, 451 U.S. at p. 446 [101 S.Ct. at p. 1862].) Most of those procedural safeguards are unique to death penalty determinations and simply do not apply here. Second, the financial and emotional burden of the sentencing proceeding at issue in Bullington distinguishes Bullington from this case.

The court in Bullington stressed that “[t]he ‘embarrassment, expense and ordeal’ and the ‘anxiety and insecurity’ faced by a defendant at the penalty phase of a Missouri capital murder trial surely are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial.” (Bullington, supra, 451 U.S. at p. 445 [101 S.Ct. at p. 1861].) By comparison, though a trial of prior conviction allegations is undoubtedly important to a defendant—possibly increasing a short prison term to a life term—the level of embarrassment, expense, and anxiety involved is not “equivalent to that faced ... at the guilt phase” of the trial. (Ibid.) This lesser financial and emotional burden exists even when the prior conviction trial may substantially increase the length of the sentence.

The trial is not a prosecution of an additional criminal offense carrying the stigma associated with a criminal charge; rather it is merely a determination, for purposes of punishment, of the defendant’s status, which, like age or gender, is readily determinable from the public record. Moreover, when, as here, the court has bifurcated the prior conviction issue, the defendant begins the prior conviction trial having already suffered the embarrassment of the present conviction.

The marginal increase in embarrassment attributable to the prior conviction trial is not comparable to the embarrassment of an unproved criminal charge. Finally, a prior conviction trial is simple and straightforward as compared to the guilt phase of a criminal trial. Often it 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.

In this case, for example, the prior conviction trial, which looked more like an informal hearing than a trial, fills only a few pages of a 244-page reporter’s transcript. This abbreviated proceeding, at which the prosecution presented only documentary evidence and defendant presented no evidence, is hardly comparable to the penalty phase of a capital trial, which was the trial-like proceeding at issue in Bullington.

Even when, as here, the prior conviction trial involves some factual point relating to the prior crime, such as whether the defendant acted personally, the proceeding is not like “the trial on guilt” (Bullington, supra, 451 U.S. at p. 439 [101 S.Ct. at p. 1858]) because the prosecution may only present evidence from the record of the prior conviction (People v. Guerrero (1988) 44 Cal.3d 343, 355 [243 Cal.Rptr. 688, 748 P.2d 1150] (Guerrero)). The defendant, and any member of the public, can review that record before the prior conviction trial and accurately forecast the trial’s outcome.

When a trial, even a very important trial, is short and readily predictable in this way, the defendant suffers correspondingly less embarrassment, expense, and anxiety. Significantly, the defendant does not need to sit for weeks or months while witnesses describe in detail to a jury and the public the specifics of his alleged unlawful activities. For these reasons, we conclude the financial and emotional burden of a prior conviction trial is minor as compared to a guilt trial. (Cf.

DiFrancesco, supra, 449 U.S. at p. 136 [101 S.Ct. at p. 437] [“The defendant’s primary concern and anxiety obviously relate to the determination of innocence or guilt, and that already is behind him.”].) Third, the nature of the issues involved at the penalty phase of a capital trial distinguishes Bullington from this case. The sentence determination in a capital case necessarily depends on the specific facts of the defendant’s present crime, as well as an overall assessment of the defendant’s character. The evidence usually overlaps or supplements the evidence offered at the guilt phase of the trial.

On the other hand, in a trial of a prior conviction allegation, the factual determinations are generally divorced from the facts of the present offense, and the evidence does not overlap at all. Like a trial in which the defendant’s age or gender is at issue, the prior conviction trial merely determines a question of the defendant’s continuing status, irrespective of the present offense, and the prosecution may reallege and retry that status in as many successive cases as it is relevant (People v. Biggs (1937) 9 Cal.2d 508, 512 [71 P.2d 214, 116 A.L.R. 205]; People v.

Dutton (1937) 9 Cal.2d 505, 507 [71 P.2d 218]), even if a prior jury has rejected the allegation (People v. Rice (1988) 200 Cal.App.3d 647, 654-656 [246 Cal.Rptr. 177]). If a jury rejects the allegation, it has not acquitted the defendant of his prior conviction status. (Ibid.) “A defendant cannot be ‘acquitted’ of that status any more than he can be ‘acquitted’ of being a certain age or sex or any other inherent fact.” (Durham v.

State (Ind. 1984) 464 N.E.2d 321, 324.) Given these distinctions, we do not believe Bullington requires application of the double jeopardy clause to all sentencing proceedings that have “the hallmarks of the trial on guilt or innocence.” (Bullington, supra, 451 U.S. at p. 439 [101 S.Ct. at p. 1858].) Nevertheless, other state courts and the federal circuit courts are divided as to whether the federal double jeopardy clause applies to proceedings analogous to the one here.

Some courts conclude that, where the prior conviction determination involves a trial-like proceeding at which the prosecution has the burden of proving certain disputed facts, a negative finding is tantamount to an acquittal of the facts necessary to establish a longer sentence, and double jeopardy protections bar retrial. (See, e.g., Bohlen v. Caspari (8th Cir. 1992) 979 F.2d 109, 113, revd. on other grounds in Caspari, supra, 510 U.S. at pp. 396-397 [114 S.Ct. at pp. 956-957]; Durosko v. Lewis (9th Cir. 1989) 882 F.2d 357, 359; Briggs v. Procunier (5th Cir. 1985) 764 F.2d 368, 371; People v.

Quintana (Colo. 1981) 634 P.2d 413, 419; Cooper v. State (Tex.Crim.App. 1982) 631 S.W.2d 508, 513-514; State v. Hennings (1983) 100 Wn.2d 379, 386-390 [670 P.2d 256, 259-262].) These courts, however, do not fully appreciate the unique nature and constitutional origins of capital sentencing proceedings as compared to prior conviction proceedings. Accordingly, we find more persuasive those decisions involving noncapital sentencing proceedings in which courts found the federal double jeopardy clause did not apply. (See, e.g., Carpenter v.

Chapleau (6th Cir. 1996) 72 F.3d 1269, 1274 [“We do not believe the Double Jeopardy Clause is implicated in [a persistent felony offender] proceeding.”]; Denton v. Duckworth (7th Cir. 1989) 873 F.2d 144, 148 [“We agree . . . that the habitual offender statute, which does not create a separate offense or require consideration of the underlying facts on the substantive charge, is distinguishable from the statute at issue in Bullington, and thus double jeopardy does not attach.”]; Linam v.

Griffin (10th Cir. 1982) 685 F.2d 369, 376 [The habitual criminal proceeding “is an inquiry as to whether or not the man standing before the court is the same person who was previously convicted as charged. The jury answers yes or no in accordance with the evidence. This is not the kind of adjudication that is referred to in the fifth amendment.”]; Durham v. State, supra, 464 N.E.2d at p. 324 [“The habitual offender status . . . is a continuing status of a particular defendant ....

The state may use this status any time the defendant commits a further crime and a jury’s determination that a defendant is not a habitual offender during a particular trial is not an ‘acquittal’ of that defendant’s status as a habitual offender.”]; State v. Cobb (Mo. 1994) 875 S.W.2d 533, 536 [“The constitutional double jeopardy prohibition does not speak to sentencing except in capital cases.”]; State v.

Aragon (1993) 116 N.M. 267, 271 [861 P.2d 948, 952] [“Because our habitual criminal proceedings are not ‘prosecutions’ of an ‘offense’ and sentencing does not imply guilt or innocence of any greater crime, . . . double jeopardy does not attach.”]; cf. Wilmer v. Johnson (3d Cir. 1994) 30 F.3d 451, 456 [“[I]n Bullington, a capital case, the Court carved out an exception to the general rule that the Double Jeopardy Clause does not apply in the sentencing context.”]; U.S. v. Rodriguez-Gonzalez (2d Cir. 1990) 899 F.2d 177, 181 [“Reliance on . . .

Bullington is inapposite. . . since [that] case[] arose in the unique context of capital sentencing.”]; People v. Levin (1993) 157 Ill.2d 138 [191 Ill.Dec. 72, 623 N.E.2d 317, 325] [“We conclude that the separate hearing procedure under our [Habitual Criminal] Act bears insufficient formalities of a trial to render that factor analogous to the separate hearing procedure in Bullington and to this defendant’s trial on the issue of guilt.”]; People v.

Sailor (1985) 65 N.Y.2d 224, 231-236 [491 N.Y.S.2d 112, 480 N.E.2d 701, 708] [“[T]here is a qualitative and quantitative difference between imposition of the death penalty [at issue in Bullington] and sentencing as a persistent or second felony offender . . . .”]; but see Perkins v. State (Ind. 1989) 542 N.E.2d 549, 551-552 [overruling Durham v. State, supra, 464 N.E.2d 321, but relying on a clear misreading of Lockhart v.

Nelson (1988) 488 U.S. 33, 37-38, fn. 6 [109 S.Ct. 285, 289, 102 L.Ed.2d 265].) Our conclusion finds some support in the high court’s most recent discussion of the issue in Caspari, supra, 510 U.S. 383. In Caspari, as in this case, the state court of appeals reversed a sentence because the record contained insufficient evidence that the defendant was a “persistent offender.” (Id. at pp. 386-387 [114 S.Ct. at pp. 951-952].) On remand, the prosecution offered additional evidence, and the trial court imposed the same sentence.

The state court of appeals affirmed the sentence, concluding that the federal double jeopardy clause does not apply to sentencing proceedings and therefore did not bar retrial of the persistent offender issue. (State v. Bohlen (Mo.Ct.App. 1985) 698 S.W.2d 577, 578.) The defendant subsequently petitioned the federal district court for a writ of habeas corpus. The district court denied the writ, but the federal court of appeals reversed, holding that the double jeopardy clause does apply to noncapital sentencing proceedings.

The Supreme Court granted certiorari. (Caspari, supra, 510 U.S. at pp. 387-388 [114 S.Ct. at pp. 951-952].) In deciding Caspari, the Supreme Court applied Teague v. Lane (1989) 489 U.S. 288 [109 S.Ct. 1060, 103 L.Ed.2d 334] (Teague), which held that new rules of constitutional law do not generally apply retroactively so as to permit reopening of final convictions by way of habeas corpus petitions.

The Caspari court reasoned that, if application of the federal double jeopardy clause to noncapital sentencing proceedings would constitute a “new constitutional rule of criminal procedure” that would “break[] new ground or impose[] a new obligation on the States” (Teague, supra, 489 U.S. at pp. 299, 301 [109 S.Ct. at pp. 1069, 1070] (plur. opn. of O’Connor, J.)), then the district court correctly denied the writ of habeas corpus. (Caspari, supra, 510 U.S. at p. 390 [114 S.Ct. at p. 953].) The court noted its historic refusal to apply the double jeopardy clause to sentencing proceedings, with the only exception being capital sentencing proceedings such as the one at issue in Bullington. (Caspari, supra, 510 U.S. at pp. 391-392 [114 S.Ct. at pp. 954-955].) The court then compared sentencing proceedings in noncapital cases to those in capital cases.

Noting that sentencing in a capital case is unique and that procedural safeguards apply in capital cases that do not apply in other cases (id. at pp. 392-393 [114 S.Ct. at pp. 954-955]), the court concluded “that the [federal] Court of Appeals announced a new rule in this case” by extending Bullington to noncapital cases (Caspari, supra, 510 U.S. at p. 395 [114 S.Ct. at p. 956]).

Accordingly, the defendant’s sentence was “‘consistent with established constitutional standards’” as of the time the sentence became final (Teague, supra, 489 U.S. at p. 306 [109 S.Ct. at p. 1073] (plur. opn. of O’Connor, J.), quoting Desist v. United States (1969) 394 U.S. 244, 262-263 [89 S.Ct. 1030, 1040-1041, 22 L.Ed.2d 248] (dis. opn. of Harlan, J.)), and the federal court of appeals erred in directing the district court to grant the writ (Caspari, supra, 510 U.S. at pp. 396-397 [114 S.Ct. at pp. 956-957]).

Given this conclusion, the high court declined to decide whether the double jeopardy clause apply to noncapital sentencing proceedings. (Caspari, supra, 510 U.S. at p. 397 [114 S.Ct. at p. 957].) Nevertheless, the court confirmed that none of its decisions apply the clause in that context.

Indeed, the court asserted that “a reasonable jurist reviewing our precedents” would not conclude otherwise. (Id. at p. 393 [114 S.Ct. at p. 955].) Thus, though we do not know how the Supreme Court would resolve the issue now before us, we do know that, like the sentence imposed in Caspari, the sentence here is “ ‘consistent with established constitutional standards.’ ” (Teague, supra, 489 U.S. at p. 306 [109 S.Ct. at p. 1073] (plur. opn. of O’Connor, J.).) Furthermore, Caspari highlights the basic flaw of the dissent’s reasoning.

The premise of the dissent is that Bullington requires application of the federal double jeopardy clause whenever a sentencing proceeding, whether capital or noncapital, has “the hallmarks of the trial on guilt or innocence.” (Bullington, supra, 451 U.S. at p. 439 [101 S.Ct. at p. 1858].) The Missouri persistent offender statutes at issue in Bohlen v. Caspari, like

section 1025, created a proceeding with all these “hallmarks,” including proof beyond a reasonable doubt. (Bohlen v. Caspari, supra, 979 F.2d at pp. 112-113.) If the dissent’s articulation of Bullington’& holding were correct, then the court of appeals’ decision in Caspari, barring retrial of the persistent offender issue, would have constituted a straight application of established precedent.

The high court would not have found that retrial was “ ‘consistent with established constitutional standards’ ” (Teague, supra, 489 U.S. at p. 306 [109 S.Ct. at p. 1073] (plur. opn. of O’Connor, J.)), and the high court would not have concluded “that the Court of Appeals announced a new rule in this case.” (Caspari, supra, 510 U.S. at p. 395 [114 S.Ct. at p. 956].) In light of Caspari, Bullington simply does not dictate the result in this case.

Finally, the Caspari court suggested that, if faced with the issue, it would find the double jeopardy clause inapplicable to the sentencing determination involved here. “Persistent-offender status is a fact objectively ascertainable on the basis of readily available evidence. Either a defendant has the requisite number of prior convictions, or he does not.

Subjecting him to a second proceeding at which the State has the opportunity to show those convictions is not unfair and will enhance the accuracy of the proceeding by ensuring that the determination is made on the basis of competent evidence.” (Caspari, supra, 510 U.S. at p. 396 [114 S.Ct. at pp. 956-957].) In conclusion, we hold that the federal double jeopardy clause does not apply to the trial of the prior conviction allegation in this case. Of course, in People v.

Superior Court (Marks) (1991) 1 Cal.4th 56, 78, footnote 22 [2 Cal.Rptr.2d 389, 820 P.2d 613], we applied double jeopardy protections to bar retrial of a sentence-enhancing allegation in a noncapital case, saying: “The jury’s rejection [of the allegation] constituted an express acquittal on the enhancement and forecloses any retrial.” In Marks, we relied primarily on the Court of Appeal decision in People v. Pettaway (1988) 206 Cal.App.3d 1312, 1331-1332 [254 Cal.Rptr. 436], which in turn relied on People v. Henderson (1963) 60 Cal.2d 482 [35 Cal.Rptr. 77, 386 P.2d 677] and People v.

Collins (1978) 21 Cal.3d 208 [145 Cal.Rptr. 686, 577 P.2d 1026]. Henderson, which we reaffirmed in Collins, held that, when a defendant successfully challenges his conviction, the state double jeopardy clause prohibits imposition of a greater sentence following retrial, thus preventing an “unreasonabl[e] impairment]” of “[a] defendant’s right of appeal from an erroneous judgment.” (People v. Henderson, supra, 60 Cal.2d at p. 497; see also People v. Collins, supra, 21 Cal.3d at p. 216; People v. Hood (1969) 1 Cal.3d 444, 459 [82 Cal.Rptr. 618, 462 P.2d 370]; People v.

Ali (1967) 66 Cal.2d 277, 281 [57 Cal.Rptr. 348, 424 P.2d 932].) Our reference in Marks to “an express acquittal on the enhancement” might suggest a broader holding than mere application of Henderson and its progeny, but because Marks included no analysis of the complex issues we address in this case, we think a narrow reading of Marks is appropriate. (See People v. Santamaria (1994) 8 Cal.4th 903, 914, fn. 4 [35 Cal.Rptr.2d 624, 884 P.2d 81] [stating the policy underlying Henderson as a reason for barring retrial of enhancements].) Because we based our decision in Marks on an

interpretation of the California Constitution that is not relevant here, Marks has no bearing upon our

interpretation of the federal Constitution. California Constitution We must also determine whether the double jeopardy protection of the California Constitution bars retrial of the prior conviction allegation in this case. The state Constitution provides that “[p]ersons may not twice be put in jeopardy for the same offense.” (Cal. Const., art. I, § 15.) By comparison, the federal Constitution provides that “[n]o person shall... be subject for the same offense to be twice put in jeopardy of life or limb.” (U.S.

Const., 5th Amend.) The “California Constitution is a document of independent force and effect that may be interpreted in a manner more protective of defendants’ rights than that extended by the federal Constitution . . . .” (People v.

Fields (1996) 13 Cal.4th 289, 298 [52 Cal.Rptr.2d 282, 914 P.2d 832].) Nevertheless, when we interpret a provision of the California Constitution that is similar to a provision of the federal Constitution, “ ‘cogent reasons must exist’ ” before we will construe the Constitutions differently and “ ‘depart from the construction placed by the Supreme Court of the United States.’ ” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 353 [276 Cal.Rptr. 326, 801 P.2d 1077], quoting Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 89 [82 P.2d 391].) The purpose behind the state and federal double jeopardy provisions is the same.

Like decisions interpreting the federal double jeopardy clause, “[decisions under the double jeopardy clause of the California Constitution . . . recognize the defendant’s interest in avoiding both the stress of repeated prosecutions and the enhanced risk of erroneous conviction.” (People v. Fields, supra, 13 Cal.4th at p. 298.) In certain contexts, this court has decided that, in furthering this purpose, the state double jeopardy clause provides greater protection than its federal counterpart.

The rule, which we already discussed, protecting defendants from receiving a greater sentence if reconvicted after a successful appeal (see People v. Collins, supra, 21 Cal.3d at p. 216; People v. Hood, supra, 1 Cal.3d at p. 459; People v. Ali, supra, 66 Cal.2d at p. 281; People v. Henderson, supra, 60 Cal.2d at pp. 495-497) is one instance where we have interpreted the state double jeopardy clause more broadly than the federal clause. (Cf.

Pearce, supra, 395 U.S. at pp. 719-721 [89 S.Ct. at pp. 2077-2079] [finding no violation of the federal double jeopardy clause under similar circumstances].) A second instance is the rule prohibiting retrial after the trial court has declared a mistrial without the defendant’s consent. (Curry v. Superior Court (1970) 2 Cal.3d 707, 715-718 [87 Cal.Rptr. 361, 470 P.2d 345]; Cardenas v. Superior Court (1961) 56 Cal.2d 273, 275-276 [14 Cal.Rptr. 657, 363 P.2d 889]; cf. Gori v.

United States (1961) 367 U.S. 364, 365 [81 S.Ct. 1523, 1524, 6 L.Ed.2d 901] [finding no violation of the federal double jeopardy clause under similar circumstances].) Under the circumstances of the present case, we find no reason to construe the California Constitution to afford greater protection than the federal Constitution. As we described above, though the effect on a defendant’s sentence may be significant, the embarrassment, expense, and anxiety of trying a prior conviction allegation are relatively minor, and the risk of an erroneous result is slight.

The primary source of embarrassment is the defendant’s present offense, not an allegation of a prior conviction. The trial of a prior conviction allegation is relatively perfunctory, and the outcome is usually predictable. We see no reason, in the present context, to interpret the state Constitution differently from the federal. (Cf. People v. Saunders, supra, 5 Cal.4th at p. 596.) Accordingly, we conclude that the double jeopardy provision of the state Constitution does not apply to the trial of the prior conviction allegation in this case. (Cf. People v.

Morton (1953) 41 Cal.2d 536 [261 P.2d 523] [permitting retrial of a prior conviction allegation under facts similar to those here, but without discussing double jeopardy].) Conclusion We conclude that the state and federal double jeopardy protections do not apply to the trial of the prior conviction allegation in this case. Of course, this conclusion raises numerous secondary issues. For example, the Court of Appeal’s determination that the evidence was insufficient to prove defendant’s prior conviction was of a serious felony is, at the very least, the law of this case.

Thus, the prosecution would have to present additional evidence at a retrial of the prior conviction allegation in order to obtain a different result. What limitations might apply to this additional evidence (other than the limitations we identified in People v. Reed, supra, 13 Cal.4th 217, and Guerrero, supra, 44 Cal.3d 343) we do not decide, because the Court of Appeal did not address that issue. For the same reason, we express no opinion about whether

section 1025 (or some other applicable provision) might in some cases bar retrial of the prior conviction allegation as a statutory matter irrespective of constitutional constraints. Finally, we express no opinion about whether due process protections preclude the prosecution from retrying the prior conviction allegation. (Cf. Pearce, supra, 395 U.S. at pp. 723-724 [89 S.Ct. at pp. 2079-2080]; Blackledge v.

Perry (1974) 417 U.S. 21, 28-29 [94 S.Ct. 2098, 2102-2103, 40 L.Ed.2d 628].) Because the state and federal double jeopardy protections do not apply to the trial of the prior conviction allegation in this case, we reverse the judgment of the Court of Appeal to the extent it barred retrial of that allegation on double jeopardy grounds. George, C. J., and Baxter, J., concurred. All further statutory references are to the Penal Code. Whether Marks correctly applied the Henderson rule is not before us.