Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC463276
Duffy, J.
Defendant Kenneth Franco was previously convicted by a jury in July 2005 of three counts of robbery of an inhabited building (Pen. Code, §§ 211-212.5, subd. (a)), four counts of false imprisonment (§ 236), and theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)). He was sentenced to state prison for a total term of 41 years, 8 months. In defendant’s prior appeal decided in October 2006, we vacated the sentence and remanded the case for retrial on the question of whether a prior Texas robbery conviction constituted a prior serious felony within the meaning of section 667, subdivision (a). (See People v. Franco (Oct. 26, 2006, H030090) [nonpub. opn.].) Upon remand, a jury concluded that defendant suffered a prior conviction for aggravated robbery in Texas; the court thereafter found that defendant had committed the crime and that the conviction met all of the elements of a serious felony under California law. Defendant was sentenced again to 41 years, eight months.
Further statutory references are to the Penal Code unless otherwise stated.
Defendant filed a request for judicial notice of the prior appeal, case no. H030090. We granted that request and take judicial notice of that prior appeal pursuant to Evidence Code sections 452, subdivision (d) and 459, subdivision (a).
In this appeal, defendant argues that the retrial of the strike allegation was barred by the double jeopardy prohibition of the Fifth Amendment to the United States Constitution. We conclude that defendant’s challenge is without merit and will affirm the judgment.
Because the underlying facts are not germane to the legal issue presented in this appeal, we present only a cursory statement of the facts as recited in our opinion from the prior appeal.
The charges arose out of a home invasion robbery on August 4, 2004. Defendant and another man entered a house where four men had been sleeping, robbed them at gunpoint of money and jewelry, and demanded large quantities of drugs. The assailants threatened the family of one victim if he did not provide the drugs in the near future and then fled in the victim’s vehicle.
PROCEDURAL BACKGROUND
An information was filed April 28, 2005, charging defendant with three counts of robbery of an inhabited place (§§ 211-212.5, subd. (a); counts 1 through 3), theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a); count 4), and four counts of felony false imprisonment (§ 236; counts 5 through 8). As to each count with the exception of count 4, the information alleged that defendant personally used a handgun in the commission of the charged offenses within the meaning of section 12022.5, subdivision (a). It was also alleged that defendant had been previously convicted of a felony in Texas, which offense included all of the elements of a violent or serious felony as defined in sections 667.5, subdivision (c) and 1192.7, subdivision (c), and that defendant had suffered a prior serious felony conviction within the meaning of sections 667, subdivision (a) and 1192.7.
On July 25, 2005, the jury found defendant guilty on all eight counts and found the handgun use allegation under section 12022.5, subdivision (a) true as charged in counts 1 through 3 and 5 through 8. The trial court found the prior Texas robbery conviction allegation true and found that that conviction qualified both as a strike and a serious felony. (§§ 667, subd. (b)-(i); 1170.12; 667, subd. (a); 667.5, subd. (c).) Defendant was sentenced to state prison for a term of 41 years, 8 months.
In his prior appeal, defendant asserted, inter alia, that there was insufficient evidence to prove that his prior robbery conviction in Texas constituted a prior serious felony within the meaning of section 667, subdivision (a) and the “Three Strikes” law. We agreed, holding that remand was appropriate for a retrial on the prior serious felony allegation. We concluded: “. . . California law requires the threat or violence to be directed at the person in actual or constructive possession of the property. [Citation.] Under the Texas statutory scheme, the threat or violence may be inflicted on a third party who had no possessory interest in the property, but who was threatened or injured while the thief was taking the property of another. (See, for example, Williams v. State (1994) 886 S.W.2d 495, 497.) The abstract of judgment from Texas does not contain information from which this element of the California crime may be ascertained. Thus, the record does not contain sufficient evidence to prove that defendant’s prior Texas robbery conviction was a robbery under California law. However, the Attorney General notes that the indictment for defendant’s Texas conviction may contain information identifying the possessor of the property taken as well as the victim of the use of force or fear. (See, e.g., Blount v. State (1993) 851 S.W.2d 359, 365-366.) Thus, a retrial is appropriate.” (People v. Franco (Oct. 26, 2006, H030090 [nonpub. opn.], p. 4.)
Retrial on the prior Texas conviction issue occurred before a jury on March 19, 2007. The prosecution entered into evidence the reporter’s transcript of the “Trial on Merits” conducted in El Paso County, Texas, commencing on April 30, 1996. On March 20, 2007, the jury found true the allegation that defendant was convicted of a felony, i.e., aggravated robbery, in El Paso County, Texas. The court then found that defendant was the person who committed the Texas aggravated robbery; the offense of which defendant was convicted in Texas was one within the meaning of section 667, subdivisions (b) through (i) and section 1192.7, subdivision (c) and included all of the elements of a violent and serious felony as defined under section 667.5, subdivision (c) and 1192.7, subdivision (c); and that prior offense was also a serious felony that fell within the meaning of sections 667, subdivision (a) and 1192.7. On April 6, 2007, the court denied an oral Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) motion to strike the prior strike conviction and sentenced defendant to a total prison term of 41 years, eight months.
Defendant’s term of 41 years, 8 months was calculated as follows: a total of 22 years as to count 1 (based upon imposition of the upper term, doubled [12 years], and the addition of 10 years under section 12022.53, subdivision (b)); a consecutive six-year sentence as to count 2 (one-third of the mid term [eight years], plus one-third of a 10-year enhancement under section 12022.53, subdivision (b)); a consecutive six-year sentence as to count 3 (one-third of the mid term [eight years], plus one-third of a 10-year enhancement under section 12022.53, subdivision (b)); a consecutive sentence of two years, eight months as to count 8 (one-third of the mid term [four years], plus one-third of a four-year enhancement under section 12022.53, subdivision (b)); and a consecutive five-year sentence for the section 667, subd. (a) enhancement. The sentences on the remaining counts—four years as to count four (two years doubled), eight years as to count 5 (two years doubled, plus four years for the arming enhancement), eight years as to count 6 (two years doubled, plus four years for the arming enhancement), and eight years as to count 7 (two years doubled, plus four years for the arming enhancement)—were ordered stayed pursuant to section 654.
Defendant in pro per filed a notice of appeal that was untimely. This court granted defendant’s motion for relief from default with respect to his failure to file a timely appeal.
DISCUSSION
I. Issue on Appeal
Defendant’s sole claim on appeal is that the retrial of the “strike” prior conviction was barred by the double jeopardy prohibition of the Fifth Amendment of the United States Constitution.
II. Double Jeopardy Claim
The Attorney General argues that because defendant did not assert below that the retrial of the prior conviction allegation constituted double jeopardy, defendant forfeited this claim of error. We address the forfeiture contention before discussing the merits of defendant’s constitutional challenge.
A. Forfeiture
The Attorney General cites People v. Memro (1995) 11 Cal.4th 786, in support of his contention that the claim has been forfeited. In Memro, the high court, addressing the defendant’s claim that his retrial on charges of felony murder and premeditated murder was barred by double jeopardy principles, held: “Preliminarily, we note that among the pleas that [the] defendant might have entered are ‘[a] former judgment of conviction or acquittal of the offense charged’ [citation] and ‘[o]nce in jeopardy’ [citations]. Not only may former jeopardy be affirmatively pleaded, but it must be, or any claim on that ground is not preserved for review. [Citation.]” (Id. at p. 821; see also People v. Gurule (2002) 28 Cal.4th 557, 646 [court, citing Memro, concluded double jeopardy argument forfeited but nonetheless found it unmeritorious].)
Defendant acknowledges that he did not raise his double jeopardy claim below. But he argues that the claim was not forfeited because it would have been completely futile for him to have asserted it in the trial court, based upon the settled state of authority rejecting such a double jeopardy claim. (See People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6 [Attorney General’s argument, not raised in Court of Appeal, that People v. Geiger (1984) 35 Cal.3d 510 should be overruled, was not forfeited; Court of Appeal had no authority to overrule Geiger].) Defendant asserts further that we may consider his constitutional argument in the first instance because it is an entirely legal matter that can be decided on undisputed facts. (Hale v. Morgan (1978) 22 Cal.3d 388, 394.)
We agree that it would have been entirely futile for defendant to have asserted the constitutional challenge in the trial court. As we discuss, post, under existing law, we are—as would the trial court have been—duty bound to reject defendant’s double jeopardy claim. (See Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1 [holding challenge not forfeited despite failure to raise it in trial or appellate court, since it would have been “pointless for defendant to ask either the trial or appellate court to overrule one of our decisions”].) Accordingly, we conclude that the claim is not forfeited.
B. Merits of Double Jeopardy Claim
In People v. Monge (1997) 16 Cal.4th 826 (Monge I), the California Supreme Court considered a constitutional challenge to the retrial of a prior conviction allegation. A jury had convicted the defendant and the trial court had found true the prior-serious-felony and prior-prison-term allegations. (Id. at pp. 830-831.) The Court of Appeal reversed as to the true finding on the prior-serious-felony allegation, concluding there was insufficient evidence to support the finding and held further that principles of double jeopardy precluded a retrial. (Id. at p. 831.) The Supreme Court in Monge I concluded that “the federal double jeopardy clause does not apply to the trial of the prior conviction allegation in this case.” (Id. at p. 843.) It held further that the double jeopardy provision under article I, section 15 of the California Constitution did not bar a retrial of a prior conviction allegation that was reversed for insufficiency of the evidence. (Monge I, supra, at pp. 843-845.)
In Monge v. California (1998) 524 U.S. 721 (Monge II), the United States Supreme Court affirmed the California Supreme Court’s decision in Monge I, supra, 16 Cal.4th 826. The nation’s highest court held that retrial of a prior conviction allegation in a noncapital sentencing context does not violate the double jeopardy clause. (Monge II, supra, at pp. 728, 734.) It observed: “We have held that where an appeals court overturns a conviction on the ground that the prosecution proffered insufficient evidence of guilt, that finding is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial. [Citation.] Where a similar failure of proof occurs in a sentencing proceeding, however, the analogy is inapt. The pronouncement of sentence simply does not ‘have the qualities of constitutional finality that attend an acquittal.’ [Citations.]” (Id. at p. 729; see also People v. Barragan (2004) 32 Cal.4th 236, 241-242 [reciting Monge I’s and Monge II’s holdings that retrial of prior conviction allegation not barred by double jeopardy prohibition].)
Defendant acknowledges that the holdings in Monge I and Monge II require us to conclude that retrial of the prior conviction allegation here did not offend principles of double jeopardy. But he asserts—for purposes of preserving his contention to be raised before the United States Supreme Court—that retrial of the allegation was barred by the Fifth Amendment’s double jeopardy clause under the high court’s reasoning in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). We reject defendant’s position.
An Apprendi argument identical to the one defendant makes here was rejected in People v. Jenkins (2006) 140 Cal.App.4th 805, 813-816. There, the court concluded that “while Apprendi may indeed require a jury determination of factual issues pertaining to foreign prior convictions, where, as here, the prosecutor introduces bare-bones evidence of the fact of the foreign conviction and its general nature, the issue of whether the foreign jurisdiction’s law contains the same elements as California law is a legal one, to be decided by the judge, not the jury. Accordingly, there is no merit to appellant’s claim that Apprendi precludes application of People v. Barragan, supra, 32 Cal.4th 236, and [Monge I], supra, 16 Cal.4th 826, because additional factual determinations were required. An additional legal determination was required, but the only factual determination was that expressly excepted from the scope of Apprendi, i.e., whether appellant had suffered the [foreign] convictions alleged in the information.” (Id. at p. 816.)
In any event, defendant’s contention is at odds with existing authority of our nation’s and this state’s highest courts. (See Monge II, supra, 524 U.S. 721; People v. Barragan, supra, 32 Cal.4th at pp. 241-242; Monge I, supra, 16 Cal.4th 826.) We are bound by that precedent. (Auto Equity Sales. Inc. v. Superior Court (1962) 57 Cal.2d 450.)
For these reasons, we reject defendant’s contention that the retrial of the allegation concerning his prior Texas conviction was impermissible under the double jeopardy clause of the Fifth Amendment of the United States Constitution.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.