THE PEOPLE, Plaintiff and Respondent, v. DAVID HERNANDEZ, Defendant and Appellant, 19 Cal. 4th 835

Opinion CHIN, J. In this case, we consider whether either the state or federal prohibition against double jeopardy bars a trial court from changing its ruling on the applicability of a sentence enhancement. Following defendant’s conviction on various felony charges, the trial court considered whether he should receive a five-year sentence enhancement under Penal Code

section 667, former subdivision (a) (now designated subdivision (a)(1)), because he had a prior serious felony conviction. The trial court agreed with the prosecution that defendant had a prior serious felony conviction, but it found that

section 667, former subdivision (a), did not apply because, in its opinion, none of defendant’s present convictions constituted a serious felony. The trial court later reconsidered and reversed that initial decision. The Court of Appeal held that the trial court’s reconsideration of its initial decision constituted double jeopardy and was therefore unconstitutional. We conclude that the state and federal prohibitions against double jeopardy do not apply to noncapital sentencing determinations.

We also conclude that imposition of the sentence enhancement here constituted a noncapital sentencing determination, not a conviction of a new crime. Accordingly, we reverse the judgment of the Court of Appeal. Factual and Procedural Background A jury found defendant guilty of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), battery with serious bodily injury (§ 243, subd. (d)), petty theft'(§ 484), and corporal injury to a cohabitant (§ 273.5, subd. (a)).

After recording the verdict and dismissing the jury, the court held a hearing on whether defendant should receive a five-year sentence enhancement under

section 667, former subdivision (a), because he had a prior serious felony conviction. The prosecution presented certified copies of the prior conviction and of booking documents bearing defendant’s fingerprints. Defense counsel then argued that none of defendant’s present felonies qualified as a “serious felony,” and therefore

section 667, former subdivision (a), did not apply. When defendant committed his present crimes,

section 667, former subdivision (a), provided that “any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” (Stats. 1989, ch. 1043, § 1, p. 3619, italics added.) Former subdivision (

d) of

section 667 defined “serious felony” as “a serious felony listed in subdivision (

c) of

Section 1192.7.” (Stats. 1989, ch. 1043, § 1, p. 3620.) The court concluded that, of defendant’s four present crimes, only battery with serious bodily injury (§ 243, subd. (d)) might qualify as a “serious felony.”

Section 1192.7, subdivision (c), does not expressly mention battery with serious bodily injury, but subdivision (c)(8) refers to “any other felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice . . . .” This language would seem to cover defendant’s battery conviction, but the court nevertheless concluded that defendant had not committed a serious felony. The court reasoned that

section 1192.7, subdivision (c)(8), implicitly requires proof of specific intent to inflict great bodily injury. It noted that battery with serious bodily injury is a general intent crime and that, given that defendant was intoxicated at the time of his offense, the prosecution had not proved specific intent. Because the court believed that none of defendant’s present felonies was a serious felony, it agreed with defendant that

section 667, former subdivision (a), did not apply. Nevertheless, the court specifically found that defendant had in fact been convicted of a prior serious felony as alleged. Later, at sentencing, the prosecution challenged the court’s conclusion that

section 1192.7, subdivision (c)(8), required proof of specific intent, citing for the first time People v. Moore (1992) 10 Cal.App.4th 1868 [13 Cal.Rptr.2d 713] (Moore). Moore held that battery with serious bodily injury (§ 243, subd. (d)) is, as a matter of law, a “serious felony,” assuming, as is true here, that the defendant is “the sole perpetrator of the crime.” (Moore, supra, 10 Cal.App.4th at p. 1871.) Noting, in light of Moore, that proof of specific intent is not necessary under

section 1192.7, subdivision (c)(8), the court reversed its previous ruling and held that defendant’s present battery conviction constituted a “serious felony,” and therefore that

section 667, former subdivision (a), applied. The court imposed a sentence of four years in state prison for the present felony convictions plus a five-year enhancement for the prior serious felony conviction, for a total sentence of nine years. Concluding that defendant “was put in jeopardy twice” when the trial court reconsidered its initial decision, the Court of Appeal reversed the trial court’s application of

section 667, former subdivision (a), and struck the five-year sentence enhancement. We granted review to decide whether double jeopardy principles precluded the trial court from reconsidering its initial decision finding

section 667, former subdivision (a), inapplicable. Discussion The double jeopardy clause of 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., Amend. V.) In Monge v.

California (1998) 524 U.S. 721 [118 S.Ct. 2246, 141 L.Ed.2d 615] (Monge), a case similar in many ways to this one,, the United States Supreme Court held that this prohibition against double jeopardy does not apply to noncapital sentencing determinations. (Id. at p__[118 S.Ct. at p. 2248, 141 L.Ed.2d at p. 621].) At issue in Monge was the truth of a prior serious felony allegation. (Monge, supra, 524 U.S. at p. __ [118 S.Ct. at p. 2249, 141 L.Ed.2d at p. 622].) The trial court found the allegation true and doubled the defendant’s sentence in accordance with the “Three Strikes” law. (Ibid.; §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) The Court of Appeal reversed the true finding, holding that the prior felony did not qualify as a serious felony for purposes of the Three Strikes law because the record contained no evidence that defendant personally used a deadly weapon or personally inflicted great bodily injury. (Monge, supra, 524 U.S. at p. __ [118 S.Ct. at p. 2249, 141 L.Ed.2d at p. 622].) The Court of Appeal also held that double jeopardy protections barred retrial of the allegation. (Ibid.) We granted review and found the state and federal double jeopardy protections inapplicable. (People v.

Monge (1997) 16 Cal.4th 826, 845 [66 Cal.Rptr.2d 853, 941 P.2d 1121] (plur. opn. of Chin, J.); see also id. at p. 847 (conc. opn. of Brown, J.).) The United States Supreme Court affirmed.

The high court stated that the federal Constitution’s double jeopardy prohibition does not apply to non-capital sentencing determinations even if the sentencing proceeding had the “ ‘hallmarks of the trial on guilt or innocence.’ ” (Monge, supra, 524 U.S. at p. __ [118 S.Ct. at p. 2251, 141 L.Ed.2d at p. 625]; see also id. at pp. __-__ [118 S.Ct. at pp. 2252-2253, 141 L.Ed.2d at pp. 626-628].) The court stated, “Where noncapital sentencing proceedings contain trial-like protections, that is a matter of legislative grace, not constitutional command.

Many States have chosen to implement procedural safeguards to protect defendants who may face dramatic increases in their sentences as a result of recidivism enhancements. We do not believe that because the States have done so, we are compelled to extend the double jeopardy bar.

Indeed, were we to apply double jeopardy here, we might create disincentives that would diminish these important procedural protections.” (Id. at p. __ [118 S.Ct. at p. 2253, 141 L.Ed.2d at pp. 627-628].) Justice Scalia, joined by Justices Souter and Ginsburg, agreed with the majority that the federal prohibition against double jeopardy does not apply to noncapital sentencing determinations. (Monge, supra, 524 U.S. at p. __ [118 S.Ct. at p. 2255, 141 L.Ed.2d at p. 630] (dis. opn. of Scalia, J.).) He nevertheless dissented, arguing that, for federal constitutional purposes, a sentence enhancement is “conviction of a new crime,” not merely a sentencing determination. (Id. at p. __ [118 S.Ct. at p. 2256, 141 L.Ed.2d at p. 632] (dis. opn. of Scalia, J.), fn. omitted.) Justice Scalia acknowledged that the court had held otherwise in Almendarez-Torres v.

U.S. (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] (Almendarez-Torres), but he noted “that Almendarez-Torres left open the question whether ‘enhancements’ . . . that do not involve the defendant’s prior criminal history are valid.

That qualification is an implicit limitation on the Court’s holding today.” (Monge, supra, 524 U.S. at p. __ [118 S.Ct. at p. 2257, 141 L.Ed.2d at p. 632] (dis. opn. of Scalia, J.), italics added.) Presumably, Justice Scalia would conclude that an enhancement not involving the defendant’s prior criminal history is “conviction of a new crime” for purposes of the federal Constitution and therefore subject to the double jeopardy prohibition.

Though the enhancement in this case involves defendant’s prior criminal history, the specific issue that the trial court reconsidered—whether the enhancement applied—involved characterization of defendant’s present offenses. Defendant focuses on this distinction and argues on that basis that Monge is not controlling here. We disagree.

The high court spoke categorically in Monge, concluding that the federal double jeopardy clause does not apply to noncapital sentencing determinations and making no distinction between sentencing retrials that turn on the facts of the present offense and sentencing retrials that turn on the truth of the prior conviction allegation. (Monge, supra, 524 U.S. at p. __ [118 S.Ct. at p. 2248, 141 L.Ed.2d at p. 621].) The court noted that it had “[historically . . . found double jeopardy protections inapplicable to sentencing proceedings [citation] because the determinations at issue do not place a defendant in jeopardy for an ‘offense’ [citation].” (Id. at p. __ [118 S.Ct. at p. 2250, 141 L.Ed.2d at p. 623].) The court continued, “The pronouncement of sentence simply does not ‘have the qualities of constitutional finality that attend an acquittal.’ [Citations.]” (Id. at p. __ [118 S.Ct. at p. 2251, 141 L.Ed.2d at pp. 624-625].) The court noted only one exception—capital sentencing—and explained in detail why capital sentencing was qualitatively different from noncapital sentencing, even when the noncapital sentencing procedure resembled a trial. (Id. at pp. __-__ [118 S.Ct. at pp. 2251-2253, 141 L.Ed.2d at pp. 625-628].) The court also addressed Justice Scalia’s argument that a sentence enhancement is, for federal constitutional purposes, an element of the offense and therefore conviction of a new crime, not merely a sentencing determination. (Monge, supra, 524 U.S. at p. __ [118 S.Ct. at pp. 2250-2251, 141 L.Ed.2d at pp. 624-625].) The court allowed that in an extreme case “fundamental fairness” might require courts to treat an enhancement as an element of the offense, but the court rejected an absolute rule. (Id. at p. __ [118 S.Ct. at pp. 2250-2251, 141 L.Ed.2d at p. 624].) The court focused on the amount of the potential increase in the sentence and noted that in Almendarez-Torres it had upheld an enhancement authorizing a tenfold increase. (Id. at p. __ [118 S.Ct. at p. 2251, 141 L.Ed.2d at p. 624].) Here, the increase in defendant’s sentence as a result of the enhancement was from four to nine years, or just over twofold.

More importantly, the court nowhere suggested that it would find significant the distinguishing feature of this case—that is, that the application of the sentence enhancement here turned on the facts of the present offense, not the truth of the prior conviction allegation. In Almendarez-Torres, the court discussed in more detail than in Monge some of the considerations relevant to determining when an enhancement is, for federal constitutional purposes, an element of the offense. The case concerned a recidivism statute that increased the maximum applicable penalty from two years to twenty.

The court noted that “ ‘the state legislature’s definition of the elements of the offense is usually dispositive.’ ” (Almendarez-Torres, supra, 523 U.S. at p. __ [118 S.Ct. at p. 1230], quoting McMillan v.

Pennsylvania (1986) 477 U.S. 79, 85 [106 S.Ct. 2411, 2415-2416, 91 L.Ed.2d 67].) The court then focused on its prior decision in McMillan, in which it upheld a Pennsylvania statute that imposed a mandatory minimum sentence for “ ‘visibly possessing] a firearm.’ ” (McMillan, supra, 477 U.S. at p. 81 [106 S.Ct. at p. 2413].) The court enumerated five aspects of the statute at issue in McMillan (Almendarez-Torres, supra, 523 U.S. at p. __ [118 S.Ct. at p. 1230]) and found the case before it indistinguishable with respect to each aspect.

First, the court noted that recidivism enhancements are “a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence” (ibid.), and courts had historically treated them as enhancements, not as elements of the offense (id. at p. __ [118 S.Ct. at p. 1231]).

Second, the court stated that an increase in a permissible maximum sentence (which was the effect of the statute at issue in Almendarez-Torres) was indistinguishable from an increase in a mandatory minimum (which was the effect of the statute at issue in McMillan). (Almendarez-Torres, supra, 523 U.S. at p. __ [118 S.Ct. at p. 1231].) Third, expanding the permissible sentencing range, according to the high court, “does not itself create significantly greater unfairness.” (Ibid.) Fourth, the enhancement did “not change a pre-existing definition of a well-established crime.” (Id. at p. __ [118 S.Ct. at p. 1232].) And fifth, the circumstances did not suggest that “Congress intended to ‘evade’ the Constitution, ... by . . . ‘restructuring’ the elements of an offense.” (Ibid.) The high court’s analysis in Almendarez-Torres suggests that the enhancement at issue here is properly characterized as an enhancement for constitutional purposes, not as an element of the offense.

As in Almendarez-Torres, this case involves a recidivism enhancement. Similarly, a five-year increase in the sentence under

section 667, former subdivision (a), is not distinguishable in terms of fairness to defendants from increasing the permissible maximum, nor is it distinguishable from expanding the sentencing range. Rather, the increase, which is relatively modest as compared to the potential tenfold increase at issue in Almendarez-Torres, gave defendants the benefit of knowing in advance the precise consequences of their recidivist behavior.

In Monge, the court considered a similar mandatory increase in the sentence length and found it to be an enhancement for constitutional purposes, not an element of the offense. (Monge, supra, 524 U.S. at p. __ [118 S.Ct. at p. 2251, 141 L.Ed.2d at p. 624].) Finally, in enacting

section 667, former subdivision (a), the Legislature did “not change a pre-existing definition of a well-established crime” (Almendarez-Torres, supra, 523 U.S. at p. __ [118 S.Ct. at p. 1232]), and the circumstances do not suggest that the Legislature enacted that statute in order to evade the Constitution.

Accordingly, none of the considerations that the high court found relevant in Almendarez-Torres suggests that the court would reach a different conclusion here, and none of those considerations suggests that the high court would find significant the circumstance that the retrial here turned on characterization of the present offense, not the truth of the prior conviction allegation. In sum, we find no relevant distinction between this case and Monge, and therefore we conclude that Monge is controlling.

The court did not put defendant in jeopardy twice when it reconsidered whether the sentence enhancement applied, because the enhancement was a sentencing determination to which double jeopardy protections do not apply. The foregoing analysis has, of course, focused on the federal Constitution, but we see no reason to interpret the state Constitution differently from the federal Constitution in this context. Using words very similar to those in the federal Constitution, the state Constitution provides that “[p]ersons may not twice be put in jeopardy for the same offense . . . .” (Cal. Const., art.

I, § 15.) The state Constitution nowhere suggests that this double jeopardy protection applies to sentencing determinations, and, in People v. Monge, supra, 16 Cal.4th 826, we held that it did not apply to the sentencing determination at issue in that case. (Id. at p. 845 (plur. opn. of Chin, J.); see also id. at pp. 845-847 (conc. opn. of Brown, J.) [not disagreeing with, or even discussing, the plurality’s state constitutional holding].) Defendant tries to distinguish People v.

Monge from this case, arguing again that the sentencing issue here was unavoidably entangled with the facts of the present offense, making reconsideration of the issue inappropriate. We find this point insignificant for purposes of applying the state double jeopardy protection. The essence of our holding in People v.

Monge was that, with respect to retrials of sentence enhancements, the state double jeopardy protection conforms in scope to its federal counterpart. (Id. at pp. 844-845 (plur. opn. of Chin, J.); see also id. at pp. 845-847 (conc. opn. of Brown, J.) [not disagreeing with plurality on this point].) We see no reason to change this view now.

Even if the trial court had reconsidered its factual findings with respect to the present offense, which did not actually occur here, defendant would not have faced a second trial of guilt or innocence, and the prosecution would not have had a second opportunity to obtain a guilty verdict. Rather, the jury had already found defendant guilty, and the court’s reconsideration of the facts would have related only to determining the appropriate sentence.

We decline to extend the state double jeopardy protection to sentencing determinations such as this one, when state and federal due process guaranties already sufficiently protect defendants from fundamentally unfair sentencing proceedings, including vindictive reconsideration of sentencing issues. (See North Carolina v. Pearce (1969) 395 U.S. 711, 725 [89 S.Ct. 2072, 2080-2081, 23 L.Ed.2d 656]; Williams v.

New York (1949) 337 U.S. 241, 252, fn. 18 [69 S.Ct. 1079, 1085, 93 L.Ed. 1337].) With respect to Justice Scalia’s argument in Monge that a state must not be allowed to avoid “inconvenient constitutional ‘rights’ ” by using the “gimmick” of sentence enhancements (Monge, supra, 524 U.S. at p. __ [118 S.Ct. at p. 2256, 141 L.Ed.2d at p. 631] (dis. opn. of Scalia, J.)), we agree with the Monge majority that no manipulations of that kind occurred here and therefore that the state Constitution does riot require us to treat the prior conviction enhancement at issue here as a conviction of a new crime, rather than a sentencing determination.

The practice at sentencing of taking into account a defendant’s prior criminal history is long-standing, and we find nothing inconsistent with fundamental fairness in this practice; on the contrary, it ensures the fair treatment of defendants who have no prior criminal history. Conclusion We conclude that the state and federal double jeopardy protections did not preclude the trial court in this case from reconsidering the applicability of

section 667, former subdivision (a). Defendant also argued on appeal that, contrary to the court’s holding in Moore, supra, 10 Cal.App.4th at page 1871, specific intent is a necessary element of a serious felony under

section 1192.7, subdivision (c)(8), as well as

section 667, former subdivision (a). Of course, if this argument is correct, then the trial court’s determination that the prosecution failed to prove specific intent is relevant. The Court of Appeal did not address this issue and should do so on remand. Nevertheless, if the Court of Appeal concludes that proof of specific intent is necessary, the state and federal double jeopardy protections do not preclude retrial of that issue. We express no opinion as to whether other constitutional or statutory provisions preclude retrial. We reverse the judgment of the Court of Appeal. George, C.

J., Kennard, J., and Baxter, J., concurred. All further statutory references are to the Penal Code. All further references to former subdivision (

a) of

section 667 refer to the language now designated as subdivision (a)(1) of that section.