PEOPLE v. HENRIQUEZ

Appellant’s Supplemental Brief

Cal.August 22, 2017

SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, CAPITAL CASE Plaintiff and Respondent, No. S089311 Vv. Contra Costa County CHRISTOPHER HENRIQUEZ, Superior Court Defendant and Appellant. No. 96 1902-4 APPELLANT’S SUPPLEMENTAL OPENING BRIEF Appeal from the Judgmentofthe Superior Court of the State of California for the County of Contra Costa ESCOURT Honorable Peter Spinetta, Judge ] L E D AUG 2 2 2017 Jorge Navarrete Clerk Depune€puty LynneS. Coffin State Bar No. 121389 548 Market St. #95752 San Francisco, CA 94104 Telephone: (415) 218-8106 Facsimile: (866) 334-5441 Email: Ilsc(@coffinlawgroup.com Attorney for Appellant CHRISTOPHER HENRIQUEZ DEATH PENALTY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, CAPITAL CASE Plaintiff and Respondent, No. 8089311 v. Contra Costa County CHRISTOPHER HENRIQUEZ, Superior Court Defendant and Appellant. No. 961902-4 APPELLANT’S SUPPLEMENTAL OPENING BRIEF Appeal from the Judgment ofthe Superior Court of the State of California for the County of Contra Costa Honorable Peter Spinetta, Judge LynneS. Coffin State Bar No. 121389 548 Market St. #95752 San Francisco, CA 94104 Telephone: (415) 218-8106 Facsimile: (866) 334-5441 Email: lsc@coffinlawgroup.com Attorney for Appellant CHRISTOPHER HENRIQUEZ TABLE OF CONTENTS TABLE OF AUTHORITIES............0cscence tence eee e ee eee ennneaes ili APPELLANT’S SUPPLEMENTAL OPENING BRIEF.................0000.. 1 XII. CALIFORNIA’S DEATH PENALTY STATUTE AND CALJIC XIV. INSTRUCTIONS, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATE THE UNITED STATES CONSTITUTION....... 000... c cece cece eee cence eee ee nee enna eee 2 A. Under Hurst, Each Fact Necessary To Impose A Death Sentence, Including The Determination That The Aggravating Circumstances Outweigh The Mitigating Circumstances, Must Be Found By A Jury Beyond A Reasonable Doubt... 0... cece cee ccc e cece eee e eee e ee ee ene ee eens ee tnee eee enaees 3 B. California’s Death Penalty Statute Violated Hurst By Not Requiring That The Jury’s Weighing Determination Be Found Beyond A Reasonable Doubt.................... eee eee6 C. This Court’s Interpretation OfThe California Death Penalty Statute In People v. Brown Supports The Conclusion That The Jury’s Weighing Determination Is A FactFinding Necessary To Impose A Sentence of Death...............00....9 D. This Court Should Reconsider Its Prior Rulings That The Weighing Determination Is Not A Factfinding Under Ring And Therefore Does Not Require Proof Beyond A Reasonable Doubt......... 0.0.0.0... cece e eee e eee e nse ee ene eteenae eee 14 THE $6,000 RESTITUTION FINE IMPOSED BY THE TRIAL COURT IS UNLAWFUL,IN VIOLATION OF APPRENDI AND ITS PROGENY, BECAUSE THE DETERMINATION OF THE AMOUNTOF THE FINE ABOVE THE STATUTORY MINIMUM SHOULD HAVE BEEN MADEBY THE JURY2ccence cence tenn ene een e nets ene e neat enna eeaae es 18 i CONCLUSION....... 2... ccc cece ence eee erence tenet ree eee eee ene erie24 CERTICATION OF WORD COUNT...........c cece cece eee eee e eee ene ee25 il TABLE OF AUTHORITIES Federal Cases Alleyne v. United States (2013)570 U.S., 133 S.Ct. 215.......002.passim Apprendi v. New Jersey (1972) 530 U.S. 466.220... cece eee eeepassim Blakely v. Washington (2004) 542 U.S. 296.........cc cece cee eee ene ee ee ee ees 20 Boyde v. California (1990) 494 U.S. 370.......0ccece eee eee ee enna eeee 11 California v. Brown (1987) 479 U.S. 538.0... ccc ccc eee eee eee eee eees 10 Hildwin v. Florida (1989) 490 U.S. 638... ......ccceecceeee eee e eee eee ence etna ens 5 Hurst v. Florida (2016) U.S.__, 136 S.Ct. 616.0000.passim Ring v. Arizona (2002) 536 U.S. 584.0000... cocceeee eeepassim Southern Union Co. v. United States (2012) 567 U.S. 343.... .19, 20, 21, 22 Spaziano v. Florida (1984) 468 US. 447.00. ccccece eee e ee ee ee neee ees3 Williams v. New York (1949) 337 U.S. 241 0... co ccecce cee cceee tence ee ne enna eee23 Woodwardv. Alabama (2013) _U.S.__, 134 S.Ct. 405.00.9,17 United States v. Gabrion (6th Cir. 2013) 719 F.3d 511.0...D7 State Cases People v. Anderson (2001) 25 Cal.4th 543 ..........ccce ccc ceeeee scence nena eens 2 People v. Banks (2015) 61 Cal.4th 788......... 00... ccccccccc cece eee eeeeee teenies 8 People v. Brown (1985) 40 Cal.3d 512......... occ eee e eens9,11, 12, 13 People v. Duncan (1991) 53 Cal.3d 955.0000... cece ce ccc cence ee eernee en eeens 11 People v. Griffin (2004) 33 Cal.4th 536.220... 00... cece ccc cc cece eee eee ee eens 14 People v. Hanson (2000) 23 Cal.4th 356.22...ecence cee eee e eee es 18 People v. Karis (1988) 46 Cal.3d 612......... 0c. cece cece eee cence ence enna 8 People v. Merriman (2014) 60 Cal.4th 1.0.2.2...cece cece eee eens 2, 6, 14 People v. McKinzie (2012) 54 Cal.4th 1302.00.00... cece cece ee cence eee 8 People v. Nunez (2013) 57 Cal4th 1... . 0...ecece ee cece erence 21 ill People v. Prieto (2003) 30 Cal4th 226..............cecceeccee ee eee ee ee enes3,15 People v. Rangel (2016) 62 Cal.4th 1192.00.00. 0...ceee cece eenees 6 People v. Souza (2012) 54 Cal.4th 80.0.0... cece cence eee ee ee ee eee eee eaes 18 People v. Villalobos (2012) 54 Cal.4th 177..........cccceeece cece cece eee e eens 18 People v. Walker (1991) 54 Cal.3d 1013.2... cece cece eee eee ee enee ed 19 Sand v. Superior Court (1983) 34 Cal.3d 567....... cee cece eee cece ee eeeee es 9 Sands v. Morongo Unified School District (1991) 53 Cal.3d 863.............6 People v. Ames (1989) 213 Cal.App.3d 1214.0...eee eee eee aee es 9 People v. Kramis (2012) 209 Cal.App.4th 346.............. ccc eceeee eens20, 21 Nunnery v. State ofNevada (Nev. 2011) 263 P.3d 235................ cece eee 17 Raufv. State ofDelaware (Del. 2016) 145 A.3d 430.......0.... eee, 16, 17 Ritchie v. State ofIndiana (Ind. 2004) 809 N.E.2d 258............ 2... ccseeee 17 State ofFlorida v. Steele (Fla. 2005) 921 S0.2d 538..........cecc cece ee eenee es 4 State ofMissouri v. Whitfield (Mo. 2003) 107 S.W.3d 253...............12, 17 Woldt v. People (Colo. 2003) 64 P.3d 256............. cece eee eee e eee es 12,17 Docketed Cases Hurst v. Florida (2015) WL 3523406.......cccccccscecc eee eee ee eee e neces eeeneens 5 Federal Statutes and Constitutions U.S. Const. amend. VI............ cece cece cece ence eeeneeeeeeeeeenenees3, 4,5, 21 U.S. Const. amend. VIII... 0...ccc cece ccc cessssssssststsseeeseeserseeeeene lO, I] State Statutes and Constitutions Cal. Pen. Code § 190, subd. (€)....... 2.0.0. cee ccc ee ee ceeeeceeee ena e ene eeneeeenenes 8 Cal. Pen. Code § 190.1... 0...ccece cette eee e ates een eee eee ennaeeeeaeeess 8 Cal. Pen. Code § 190.20... 0... ccc ccc cece ccen ec eene enna eeee teen eee a eee ee eeees 6, 8 Cal. Pen. Code § 190.2, subd. (€)............c cece cece teen ceeee cee eeeeeee etna acess 8 iv Cal. Pen. Code § 190.3....... cece cece cece ee nee en teeee eee teeee eee e ene eenspassim Cal. Pen. Code § 190.40... 0... ccc cece eee e cc cnne et etee ene eeeee nee tennessee aang anes 8 Cal. Pen. Code § 190.4, subd. (b).......... 0... cece ccc eee ee eects teen e tne e etna ee ees 6 Cal. Pen. Code § 190.5 ........ 0. ccc ccc ence eeee ee cenne ene e eee et eee eee eae nese ena e cage 8 Cal. Pen. Code § 987.9... 00...c cece cece ec nnne ence ceene een nbn ene e seen nae naes9 Cal. Pen. Code § 1202.2, subd. (d)...... 2... cece cece ee ceee cease eee e nese ee en eaes23 Cal. Pen. Code § 1202.4...... 0... ccc cece cece cee eeeeneeeeetanee ee ee eeaeeenaes 18, 19 Cal. Pen. Code § 1202.4, subd. (b).......... 00. eee ecee ec cceeeee ees 19, 20, 22 Cal. Pen. Code § 1202.4, subd. (b)(1)...... 2. cece e ce ceeeeeeee eee e ees 19, 20 Cal. Pen. Code § 1202.4, subd. (d)........ 0... ccc cece eeeeeeeceeee ee ee eseneneeenes22 Cal. Pen. Code § 1202.45.00... 0... cccc cece eeeeecceeete ee beee eee ene ee eeeee need 18 Ariz. Rev. Stat. § 13-703(G)............ cece cece cece ee ee ene tena a ee tena e eee ne ena eas7 Fla. Stat. § 782.04(1)(a)..... 0... cece cece cece e ence ee cece eee e eae e teen eee eeene eee ease4 Fla. Stat. § 775.082(1)..... 00... cece ccc ee eect eect e ee ee een e ne ene ee eee een eee ee eeeenats4 Fla. Stat. § 921.141(3).... 0...cc cece cece eee ee ee ee snes nano eee eeaeees4,7, 12 Other Authorities CALJIC No. 8.84.2 (4th ed. 1986)......... 0c cece cece eee e eee e eee ene ees 13 CALJIC No. 8.88.0... 00... c cece cece nee e nee eee recente eee ne ene een nt et eee senate eed 13 CALCRIM No. 766.........::c cece cece ee ee eee e eee neon een e nee bbe enee eee e nee en 14 Note, Victim Restitution in the Criminal Process: A Procedural Analysis (1984) 97 Harv.L.Rev. 931.0... cece cece eect ee ee eee e ease eee neeeens 19 S A R A a t ag at e a : IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. CHRISTOPHER HENRIQUEZ, Defendant and Appellant. CAPITAL CASE No. 8089311 Contra Costa County Superior Court No. 961902-4 APPELLANT’S SUPPLEMENTAL OPENING BRIEF INTRODUCTION In this supplemental brief, appellant provides new support for appellant’s claims in Argument XIII As argued below,appellant asserts that California’s capital-sentence schemeviolates Hurst v. Florida (2016) ___US.__, 136 S.Ct. 616. This argument is numbered to correspond to the argument numberin appellant’s openingbrief. In addition, this supplemental brief presents a new argumentthat the $6,000 restitution fine imposed bythe trial court was unlawful in violation of Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny. Becausethis third argumentis new,it is numbered XV, whichis sequential to the last numbered argumentin appellant’s openingbrief. ARGUMENT XIII. CALIFORNIA’S DEATH PENALTY STATUTE AND CALJIC INSTRUCTIONS, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATE THE. UNITED STATES CONSTITUTION. In his opening brief, appellant challenged the California death penalty scheme on groundsthat this Court has rejected in previous decisions holding that the California law does not violate the federal Constitution. (AOB Argument XIII, pages 160-172.) After appellant filed his reply brief on May19, 2011, the United States Supreme Court held Florida's death penalty statute unconstitutional under Apprendi v. New Jersey, supra, 530 U.S. 466 and Ring v. Arizona (2002) 536 U.S. 584, because the sentencing judge, not the jury, made a factual finding, the existence of an aggravating circumstance, that is required before the death penalty can be imposed. (Hurst v. Florida, supra, 136 S.Ct. at p. 624 [hereafter “Hurst’].) Hurst provides new support to appellant’s claims in Argument XIII.D ofhis opening brief. (AOB 160-170.) In light of Hurst, this Court should reconsiderits rulings that imposition ofthe death penalty does not constitute an increased sentence within the meaning ofApprendi (People v. Anderson (2001) 25 Cal.4th 543, 589, fn. 14); does not require factual findings within the meaning ofRing (People v. Merriman (2014) 60 Cal.4th 1, 106); and does not require the jury to find unanimously and beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances before the jury can imposea sentence of death (People v. Prieto (2003) 30 Cal.4th 226, 275). A. Under Hurst, Each Fact Necessary To Impose A Death Sentence, Including The Determination That The Aggravating Circumstances Outweigh The Mitigating Circumstances, Must Be Found By A Jury Beyond A Reasonable Doubt. In Apprendi, a noncapital sentencing case, and Ring,a capital sentencing case, the United States Supreme Court established a bright-line rule: if a factual finding is required to subject the defendantto a greater punishmentthan that authorized by the jury’s verdict, it must be found by the jury beyond a reasonable doubt. (Ring v. Arizona, supra, 536 U.S.at p. 589 [hereafter “Ring”; Apprendi v. New Jersey, supra, 530 U.S. at p. 483 [hereafter “Apprendi’|.) As the Court explained in Ring: The dispositive question, we said, “is one not of form,but of effect.” [Citation]. Ifa State makes an increase in a defendant’s authorized punishment contingent on the finding ofa fact, that fact — no matter how the State labels it —- must be found, by a jury beyond a reasonable doubt. [Citation]. (Ring, supra, 536 U.S.at p. 602, quoting Apprendi, supra, 530 U.S.at pp. 494, 482-483.) Applying this mandate, the high court invalidated Florida’s death penalty statute in Hurst. (Hurst, supra, 136 S.Ct. at pp. 621-624.) The Court restated the core Sixth Amendmentprinciple as it applies to capital sentencing statutes: “The Sixth AmendmentrequiresaJury, not a judge, to find eachfact necessary to impose a sentence ofdeath.” (Hurst, supra, 136 S.Ct. at p. 619,italics added.) Further, as explained below,in 3 applying this Sixth Amendmentprinciple, Hurst madeclear that the weighing determination required under the Florida statute was an essential part of the sentencer’s factfinding within the ambit ofRing. (See Hurst, supra, 136 §.Ct. at p. 622.) In Florida, a defendant convicted of capital murder is punished by either life imprisonment or death. (Hurst, supra, 136 S.Ct. at p. 620, citing Fla. Stat. §§ 782.04(1)(a), 775.082(1).) Underthe statute at issue in Hurst, after returning its verdict of conviction, the jury rendered an advisory verdict at the sentencing proceeding, but the judge madethe ultimate sentencing determinations. (Hurst, supra, at p.620.) The judge was responsible for finding that “sufficient aggravating circumstances exist” and “that there are insufficient mitigating circumstances to outweigh aggravating circumstances,” which were prerequisites for imposing a death sentence. (Hurst, supra, at p. 622, citing Fla. Stat.§ 921.141(3).) The Court foundthat these determinations were part of the “necessary factual finding that Ring requires.” (Ibid.)* The questions decided in Ring and Hurst were narrow. As the Supreme Court explained, “Ring’s claim is tightly delineated: He contends * The Court in Hurst explained: [T]he Florida sentencing statute does not make a defendanteligible for death until “findings by the court that such person shall be punished by death.” Fla.Stat. § 775.082(1) (emphasis added). The trial court alone mustfind “the facts ... [t]hat sufficient aggravating circumstancesexist” and “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” § 921.141(3); see [State v.] Steele, 921 So.2d [538,] 546 [(Fla. 2005)]. (Hurst, supra, 136 S.Ct. at p. 622.) 4 only that the Sixth Amendmentrequired jury findings on the aggravating circumstancesasserted against him.” (Ring, supra, 536 U.S.at p. 597, fn. 4.) Hurst raised the same claim. (See Petitioner’s Brief on the Merits, Hurst v. Florida, 2015 WL 3523406 at *18 [“Florida’s capital sentencing schemeviolates this [Sixth Amendment] principle becauseit entrusts to the trial court instead of the jury the task of ‘find[ing] an aggravating circumstance necessary for imposition of the death penalty’”].) In each case, the Court decided only the constitutionality of a judge, rather than a jury, finding the existence of an aggravating circumstance. (See Ring, supra, 536 U.S. at p. 588; Hurst, supra, 136 §.Ct. at p. 624.) Nevertheless, the seven-justice majority opinion in Hurst showsthat its holding, like that in Ring, is a specific application of a broader Sixth Amendmentprinciple: any fact that is required for a death sentence, but not for the lesser punishmentof life imprisonment, must be found by the jury. (Hurst, supra, 136 S.Ct. at pp. 619, 622.) At the outset ofthe opinion,the Court refers not simply to the finding of an aggravating circumstance, but, as noted above,to findings of “each fact necessary to impose a sentence of death.” (Hurst, supra, 136 S.Ct. at p. 619, italics added.) The Court reiterated this fundamental principle throughout the opinion.” The Court’s 2 See id. at p. 621 [“In Ring, we concluded that Arizona’s capital sentencing schemeviolated Apprendi’s rule because the State allowed a judgeto find the facts necessary to sentence a defendantto death,”italics added]; id. at p. 622 [“Like Arizonaat the time ofRing, Florida does not require the jury to make the criticalfindings necessary to impose the death penalty,”italics added]; id. at p. 624 [Time and subsequent cases have washed awaythe logic of Spaziano and Hildwin. The decisionsare overruled to the extent they allow a sentencing judgeto find an aggravating circumstance, independent of a jury’s factfinding, that is necessaryfor imposition ofthe death penalty,” italics added]. languageis clear and unqualified. It also is consistent with the established understanding that Apprendi and Ring apply to each fact essential to imposition of the level of punishmentthe defendant receives. (See king, supra, 536 U.S.at p. 610 (cone. opn.of Scalia, J.); Apprendi, supra, 530 U.S. at p. 494.) The high court is assumed to understand the implications of the words it chooses and to mean what it says. (See Sands v. Morongo Unified School District (1991) 53 Cal.3d 863, 881-882, fn. 10.) B. California’s Death Penalty Statute Violates Hurst By Not Requiring That The Jury’s Weighing Determination Be Found Beyond A Reasonable Doubt. California’s death penalty statute violates Apprendi, Ring and Hurst, althoughthe specific defect is different than those in Arizona’s and Florida’s laws: in California, although the jury’s sentencing verdict must be unanimous (Pen. Code, § 190.4, subd. (b)), California applies no standard of proof to the weighing determination,let alone the constitutional requirement that the finding be made beyond a reasonable doubt. (See People v. Merriman, supra, 60 Cal.4th at p. 106.) Unlike Arizona and Florida, California requires that the jury, not the judge, make the findings necessary to sentence the defendant to death. (See People v. Rangel (2016) 62 Cal.4th 1192, 1235, fn. 16 [distinguishing California’s law from that invalidated in Hurst on the groundsthat, unlike Florida, the jury’s “verdict is not merely advisory”].) California’s law, however,is similar to the statutes invalidated in Arizona and Florida in ways that are crucial for applying the Apprendi/Ring/Hurst principle. In all three states, a death sentence may be imposedonly if, after the defendant is convicted offirst degree murder, the sentencer makes twoadditional findings. In each jurisdiction, the sentencer must find the existence of at least one statutorily-delineated circumstance — in California, a special circumstance (Pen. Code, § 190.2) and in Arizona and 6 Florida, an aggravating circumstance (Ariz. Rev. Stat. § 13-703(G);Fla. Stat. § 921.141(3)). This finding alone, however, does not permit the sentencer to impose a death sentence. The sentencer must make another factual finding: in California, that “the aggravating circumstances outweigh the mitigating circumstances’” (Pen. Code, § 190.3); in Arizona,that “‘there are no mitigating circumstancessufficiently substantial to call for leniency’” (Ring, supra, 536 U.S.at p. 593, quoting Ariz. Rev.Stat. § 13-703(F)); and in Florida, as stated above,“that there are insufficient mitigating circumstances to outweigh aggravating circumstances” (Hurst, supra, 136 S.Ct. at p. 622, quoting Fla. Stat. § 921.141(3)).° Although Hurst did not decide the standard ofproof issue, the Court madeclear that the weighing determination was an essential part of the sentencer’s factfinding within the ambit ofRing. (See Hurst, supra, 136 S.Ct. at p. 622 [in Florida the judge, not the jury, makesthe “critical findings necessary to impose the death penalty,” including the weighing determination amongthe facts the sentencer must find “to make a defendant eligible for death”].) The pertinent question is not what the weighing determination is called, but what is its consequence. Apprendi madethis clear: “the relevant inquiry is one not of form, but of effect — does the 3 As Hurst madeclear, “the Florida sentencing statute does not make a defendanteligible for death until ‘findings by the court that such person shall be punished by death.’” (Hurst, supra, 136 S.Ct. at p. 622, citation and italics omitted.) In Hurst, the Court uses the concept of death penalty eligibility in the sense thatthere are findings which actually authorize the imposition ofthe death penalty in the sentencing hearing, andnotin the sense that an accusedis only potentially facing a death sentence, which is what the special circumstance finding establishes under the California statute. For Hurst purposes, under California law,it is the jury’s determination that the aggravating factors outweigh the mitigating factors that finally authorizes imposition of the death penalty. 7 required finding expose the defendant to a greater punishmentthan that authorized by the jury’s guilty verdict?” (Apprendi, supra, 530 U.S.at p. 494.) So did Justice Scalia in Ring: [T]he fundamental meaning ofthe jury-trial guarantee of the Sixth Amendmentis that all facts essential to imposition of the level of punishmentthat the defendant receives — whetherthe statutecalls them elements ofthe offense, sentencing factors, or Mary Jane — must be found by the jury beyond a reasonable doubt. (Ring, supra, 536 U.S.at p. 610 (conc. opn. of Scalia, J.).) The constitutional question cannot be answered, as this Court has done, by collapsing the weighing finding and the sentence-selection decision into one determination and labeling it “normative” rather than factfinding. (See, e.g., People v. Karis (1988) 46 Cal.3d 612, 639-640; People v. McKinzie (2012) 54 Cal.4th 1302, 1366.) At bottom, the Ring inquiry is one of function. In California, when ajury convicts a defendantoffirst degree murder, the maximum punishmentis imprisonment for a term of 25 yearstolife. (Pen. Code, § 190, subd.(a) [cross-referencing §§ 190.1, 190.2, 190.3, 190.4 and 190.5].) When the jury returns a verdict offirst degree murder with a true finding of a special circumstance listed in Penal Code section 190.2, the penalty range increasesto either life imprisonment without the possibility of parole or death. (Pen. Code, § 190.2, subd. (a).) Without any further jury findings, the maximum punishmentthe defendant can receiveislife imprisonment withoutthe possibility of parole. (See, e.g., People v. Banks (2015) 61 Cal.4th 788, 794 [where jury found defendant guilty offirst degree murder and found special circumstance true and prosecutor did not seek the death penalty, defendant received “the mandatory lesser sentencefor special circumstance murder,life imprisonment without parole”]; Sand v. Superior 8 Court (1983) 34 Cal.3d 567, 572 [where defendant is charged with special-circumstance murder, and the prosecutor announced he would not seek death penalty, defendant, if convicted, will be sentencedto life imprisonment without parole, and therefore prosecution is not a “capital case” within the meaning of Penal Code section 987.9]; People v. Ames (1989) 213 Cal.App.3d 1214, 1217 [life in prison without possibility of parole is the sentence for pleading guilty and admitting the special circumstance where death penalty is eliminated by plea bargain].) Under the statute, a death sentence can be imposedonlyifthe jury, in a separate proceeding, “concludesthat the aggravating circumstances outweigh the mitigating circumstances.” (Pen. Code, § 190.3.) Thus, under Penal Code section 190.3, the weighing finding exposes a defendant to a greater punishment(death) than that authorized by the jury's verdict of first degree murder with true finding of a special circumstance(life in prison without parole). The weighing determination is therefore a factfinding.* C. ‘This Court’s Interpretation Of The California Death Penalty Statute In People v. Brown Supports The Conclusion That The Jury’s Weighing Determination Is A Factfinding Necessary To Impose A Sentence of Death. This Court’s interpretation of Penal Code section 190.3’s weighing directive in People v. Brown (1985) 40 Cal.3d 512 (revd. on other grounds * Justice Sotomayor, the author of the majority opinion in Hurst, previously found that Apprendi and Ring are applicable to a sentencing schemethat requires a finding that the aggravating factors outweigh the mitigating factors before a death sentence may be imposed. More importantly here, she has goneonto findthatit “is clear, then, that this factual finding exposes the defendant to a greater punishment than he would otherwisereceive: death, as opposedto life without parole.” (Woodward v. Alabama (2013) US.__, 134 S.Ct. 405, 410-411 (dis. opn. from denial ofcertiorari, Sotomayor, J.).) 9 sub nom. California v. Brown (1987) 479 U.S. 538) does not require a different conclusion. In Brown, the Court was confronted with a claim that the language “shall impose a sentence of death” violated the Eighth Amendmentrequirement of individualized sentencing. (/d. at pp. 538-539.) Asthe Court explained: Defendant argues, by its use of the term “outweigh”and the mandatory “shall,” the statute impermissibly confines the jury to a mechanical balancing of aggravating and mitigating factors.... Defendant urges that because the statute requires a death judgment if the former “outweigh”the latter under this mechanical formula, the statutestrips the jury of its constitutional power to concludethat the totality of constitutionally relevant circumstances does not warrant the death penalty. (id. at p. 538.) The Court recognized that the “the languageofthe statute, and in particular the words‘shall impose a sentence of death,’ leave room for some confusionas to the jury’s role” (id. at p. 545, fn. 17) and construedthis language to avoid violating the federal Constitution (id. at p. 540). To that end, the Court explained the weighing provision in Penal Code section 190.3 as follows: [T]he reference to “weighing” and the use of the word “shall”in the 1978 law need notbe interpreted to limit impermissibly the scope of the jury’s ultimate discretion. In this context, the word “weighing”is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one whichcalls for a mere mechanical counting of factors on each side of the imaginary “scale,” or the arbitrary assignmentof “weights” to any of them. Each juroris free to assign whatever moral or sympathetic value he deems appropriate to each andall ofthe various factors he is permitted to consider, including factor “k” as we have interpreted it. By directing that the jury “shall” imposethe death penalty if it finds that aggravating factors “outweigh”mitigating, the statute should not be understood to require 10 any juror to vote for the death penalty unless, upon completion ofthe “weighing” process, he decides that death is the appropriate penalty underall the circumstances. Thus the jury, by weighing the various factors, simply determines underthe relevant evidence which penalty is appropriate in the particular case. (People v. Brown, supra, at p. 541, [hereafter “Brown’’], footnotes omitted.)° Under Brown, the weighing requirement provides for jury discretion in both the assignmentofthe weightto be givento the sentencing factors and the ultimate choice ofpunishment. Despite the “shall impose death” language, Penal Code section 190.3, as construed in Brown, providesforjury discretion in deciding whether to impose death orlife without possibility of parole, i.e. in deciding which punishmentis appropriate. The weighing decision mayassist the jury in reachingits ultimate determination ofwhether death is appropriate, but it is a separate, statutorily-mandated finding that precedesthe final sentence selection. Thus, oncethe jury finds that the aggravation outweighs the mitigation,it still retains the discretion to reject a death sentence. (See People v. Duncan (1991) 53 Cal.3d 955, 979 [“[t]he jury may decide, even in the absence of mitigating evidence, that the aggravating evidence is not comparatively substantial enough to warrant death’’].) In this way, Penal Codesection 190.3 requires the jury to make two determinations. Thejury must weigh the aggravating circumstances and the mitigating circumstances. To impose death, the jury must find that the aggravating circumstances outweigh the mitigating circumstances. This isa > In Boyde v. California (1990) 494 U.S. 370, 377, the Supreme Court held that the mandatory “shall impose” language of the pre-Brown jury instruction implementing Penal Code section 190.3 did not violate the Eighth Amendment requirement of individualized sentencing in capital cases. Post-Boyde, California has continued to use Brown’s gloss on the sentencing instruction. a factfinding under Ring and Hurst. (See State v. Whitfield (Mo. 2003) 107 S.W.3d 253, 257-258 [finding weighing is Ring factfinding]; Woldt v. People (Colo. 2003) 64 P.3d 256, 265-266 [same].) The sentencing process, however, does not end there. Thereis the final step in the sentencing process:the jury selects the sentence it deems appropriate. (See Brown, supra, 40 Cal.3d at p. 544 [“Nothing in the amended languagelimits the jury’s powerto apply those factors as it chooses in deciding whether, under all the relevant circumstances, defendant deserves the punishment of death or life without parole”].) Thus, the jury may reject a death sentence even after it has found that the aggravating circumstances outweighs the mitigation. (Brown, supra, 40 Cal.3d at p. 540.) This is the “normative” part of the jury’s decision. (Brown, supra, 40 Cal.3d at p. 540.) This understanding of Penal Code section 190.3 is supported by Brownitself. In construing the “shall impose death” language in the weighing requirement of section 190.3, this Court cited to Florida’s death penalty law as a similar “weighing”statute: [O]nce a defendant is convicted of capital murder, a sentencing hearing proceeds before judge and jury at which evidence bearing on statutory aggravating, and all mitigating, circumstances is adduced. The jury then renders an advisory verdict “[w]hether sufficient mitigating circumstancesexist...which outweigh the aggravating circumstances foundto exist; and ... [b]ased on these considerations, whether the defendant should be sentencedto life [imprisonment] or death.” (Fla. Stat. (1976-1977 Supp.) § 921.141, subd. (2)(b), (c).) Thetrial judge decides the actual sentence. He may impose death if satisfied in writing “(a) [t]hat sufficient [statutory] aggravating circumstancesexist ... and (b) [t]hat there are insufficient mitigating circumstances... to outweigh the aggravating circumstances.” (d., subd.(3).) 12 (Brown, supra, 40 Cal.3d at p. 542, italics added.) In Brown, the Court construed Penal Code section 190.3’s sentencing directive as comparable to that of Florida — if the sentencer finds the aggravating circumstances outweigh the mitigating circumstances, it is authorized, but not mandated,to impose death. The standard jury instructions were modified, first in CALJIC No. 8.84.2 and later in CALJIC No. 8.88, to reflect Brown’s interpretation of section 190.3. The requirementthat the jury mustfind that the aggravating circumstances outweigh the mitigating circumstances remained a ® CALJIC No.8.84.2 (4th ed. 1986 revision) provided: In weighing the various circumstances you simply determine under the relevant evidence which penaltyis justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. To return a judgment of death, each of you must be persuadedthat the aggravating evidence (circumstances) is (are) so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole. From 1988to the present, CALJIC No. 8.88, closely tracking the language of Brown, has providedin relevant part: The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. Youare free to assign whatever moral or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider. In weighing the various circumstances you determine underthe relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. To return a judgment of death, each of you must be persuadedthat the aggravating circumstances are so substantial in comparison with the mitigating circumstancesthat it warrants death instead oflife without parole. 13 precondition for imposing a death sentence. Nevertheless, once this prerequisite finding was made,the jury had discretion to imposeeitherlife or death as the punishmentit deemed appropriate underall the relevant circumstances. The revised standard jury instructions, CALCRIM,“written in plain English” to “be both legally accurate and understandableto the average juror” (CALCRIM (2006), Vol. 1, Preface, p. v.), make clear this two-step process for imposing a death sentence: To return a judgment of death, each ofyou must be persuadedthat the aggravating circumstances both outweigh the mitigating circumstancesandare also so substantial in comparison to the mitigating circumstances that a sentence of death is appropriate and justified. (CALCRIM No.766,italics added.) As discussed above, Hurst, supra, 136 S.Ct. at p. 622, which addressed Florida’s statute with its comparable - weighing requirement, indicates that the finding that aggravating circumstances outweigh mitigating circumstancesis a factfinding for purposesofApprendi and Ring. D. This Court Should Reconsider Its Prior Rulings That The Weighing Determination Is Not A Factfinding Under Ring And Therefore Does Not Require Proof Beyond A Reasonable Doubt. This Court has held that the weighing determination — whether aggravating circumstances outweigh the mitigating circumstances — is not a finding offact, but ratheris a “‘fundamentally normative assessment...that is 399outside the scope ofRing and Apprendi.’” (People v. Merriman, supra, 60 Cal.4th at p. 106, quoting People v. Griffin (2004) 33 Cal.4th 536, 14 595, citations omitted; accord, People v. Prieto, supra, 30 Cal.4th atpp. 262-263.) Appellant asks the Court to reconsiderthis ruling because, as shown above,its premise is mistaken. The weighing determination and the ultimate sentence-selection decision are not one unitary decision. They are two distinct determinations. The weighing question asks the jury a “yes”or “no” factual question: do the aggravating circumstances outweigh the mitigating circumstances? An affirmative answer is a necessary precondition — beyond the jury’s guilt-phase verdict finding a special circumstance — for imposing a death sentence. The jury’s finding that the aggravating circumstances outweigh the mitigating circumstances opensthe gate to the jury’s final normative decision: is death the appropriate punishment consideringall the circumstances? However, the weighing determination maybe described,it is an “element”or “fact” under Apprendi, Ring and Hurst and must be found by a jury beyond a reasonable doubt. (Hurst, supra, 136 S.Ct. at pp. 619, 622.) Asdiscussed above, Ring requires that any finding of fact required to increase a defendant’s authorized punishment “must be found by a jury beyond a reasonable doubt.” (Ring, supra, 536 US.at p. 602; see Hurst, supra, 136 S.Ct. at p. 621 [the facts required by Ring must be found beyond a reasonable doubt under the due process clause].)’ Because California applies no standard of proof to the weighing determination, a factfinding by ’ The Apprendi/Ring rule addresses only facts necessary to increasethe level of punishment. Once those threshold facts are found by a jury, the sentencing statute may give the sentencer, whether judge or jury, the discretion to imposeeither the greater or lesser sentence. Thus, once the jury finds a fact required for a death sentence,it still may be authorized to return the lesser sentence oflife imprisonment without the possibility of parole. 15 the jury, the California death penalty statute violates this beyond-a-reasonable-doubt mandate at the weighing step of the sentencing process. The recent decision of the Delaware Supreme Court in Raufv. State (2016) 145 A.3d 430 [hereafter “Rauf’] supports Henriquez’s request that this Court revisit its holdings that the Apprendi and Ring rule do not apply to California’s death penalty statute. Raufheld that Delaware’s death penalty statute violates the Sixth Amendment under Hurst. (Rauf, supra, 145 A.3d at p. 433 (per curiam opn.of Strine, C.J., Holland, J. and Steitz, J.).) In Delaware, unlike in Florida, the jury’s finding ofa statutory aggravating circumstance is determinative, not simply advisory. (/d. at p. 456.) Nonetheless, in a 3-to-2 decision, the Delaware Supreme Court, upon answering five certified questions from the superior court, found that the state’s death penalty statute violates Hurst.* Onereason for the court’s invalidation ofDelaware’s law is relevant here: the jury in Delaware,like the jury in California, is not required to find that the aggravating circumstances outweigh the mitigating circumstances unanimously and beyond a reasonable doubt. (/d. at p. 433-434; see id. at p. 486 (conc. opn. of * In addition to the ruling discussed in this brief, the court in Raufalso held that the Delaware statute violated Hurst because: (1) after the jury finds at least one statutory aggravating circumstance, the “judge alone can increase a defendant’s jury authorized punishmentoflife to a death sentence, based on her own additional factfinding of non-statutory aggravating circumstances” (Rauf, supra, at *1-2 (per curiam opn.) [addressing Questions 1-2] andat *37-38 (conc. opn. ofHolland,J.)); and (2) the jury is not requiredto find the existence of any aggravating circumstance, statutory or non-statutory, unanimously and beyonda reasonable doubt(id. at *2 (per curiam opn.) [addressing Question 3] and at *39 (conc. opn. of Holland, J.)). 16 Holland, J.).) With regard to this defect, the Delaware Supreme Court explained: This Court has recognized that the weighing determination in Delaware’s statutory sentencing schemeis a factual finding necessary to impose a death sentence. “[A] judge cannot sentence a defendant to death without finding that the aggravating factors outweigh the mitigating factors....” The relevant “maximum”sentence, for Sixth Amendmentpurposes, that can be imposed under Delaware law, in the absence of any judge-madefindings onthe relative weights of the aggravating and mitigating factors, is life imprisonment. (Ibid. ) The Delaware court is not alone in reaching this conclusion. Other state supreme courts have recognized that the determination that the aggravating circumstances outweigh the mitigating circumstance,like the finding that an aggravating circumstance exists, comes within the Apprendi/Ring rule. (See e.g., State v. Whitfield, supra, 107 S.W.3d at pp. 257-258; Woldt v. People, supra, 64 P.3d at pp. 265-266; see also Woodward v. Alabama, supra, 134 S.Ct. at pp. 410-411 (Sotomayor, J., dissenting from denial of cert.) [“The statutorily required finding that the aggravating factors of a defendant’s crime outweigh the mitigating factors is ... [a] factual finding” under Alabama’s capital sentencing scheme]; contra, United States v. Gabrion (6th Cir. 2013) 719 F.3d 511, 533 (en banc) [concluding that — under Apprendi — the determination that the aggravators outweigh the mitigators “is not a finding of fact in support of a particular sentence”); Ritchie v. State Ind. 2004) 809 N.E.2d 258, 265 [reasoning that the finding that the aggravators outweigh the mitigators is not a finding of fact under Apprendi and Ring]; Nunnery v. State (Nev. 2011) 263 P.3d 235, 251-253 [finding that “the weighing of aggravating and mitigating circumstancesis not a fact-finding endeavor” under Apprendi and Ring].) 17 Because in California the factfinding that aggravating circumstances outweigh mitigating circumstances is a necessary predicate for the imposition of the death penalty, Apprendi, Ring and Hurst require that this finding be made, by a jury and beyond a reasonable doubt. XV. THE $6,000 RESTITUTION FINE IMPOSED BY THE TRIAL COURTIS UNLAWFUL, IN VIOLATION OFAPPRENDIAND ITS PROGENY, BECAUSE THE DETERMINATION OF THE AMOUNTOF THE FINE ABOVE THE STATUTORY MINIMUM SHOULD HAVE BEEN MADEBY THE JURY. On June 2, 2000, the Superior Court for the County of Contra Costa issued its judgment confirming a sentence of death for Mr. Henriquez. (4 CT 1423-1427.) At that sentencing hearing,the trial court also imposed a restitution fine in the amount of $6,000 pursuant to Penal Code section 1202.4." (4 CT 1424; 18 RT 4698.) Appellant submits that the imposition ofthis fine violates Apprendi v. New Jersey, supra, 530 U.S. 466 andits progeny because the determination of the amountofthe fine above the statutory minimum should have been madebythe jury, not the judge. A restitution fine under section 1202.4 is a penalty. (See People v. Villalobos (2012) 54 Cal.4" 177, 185.) It is also punishment. “Itis well established that the imposition ofrestitution fines constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause and other constitutional provisions. (People v. Souza (2012) 54 Cal.4™ 80, 143; see also People v. Hanson (2000) 23 Cal.4" 356, 361 [Legislature intended restitution fines as a criminal penalty]; People v. Walker (1991) 54 Cal.3d ° The court also imposed,but stayed, a parole fine of $6,000 pursuant to Penal Code section 1202.45. (CT 1424; RT 4698.) 18 1013, 1024 [“[a]lthough the purposeofa restitution fine is not punitive, we believe its consequences to the defendant are severe enoughthatit qualifies as punishment”’]; Note, Victim Restitution in the Criminal Process: A Procedural Analysis (1984) 97 Harv. L.Rev. 931, 933-934 [restitution has historically been understood as punishment].) In Apprendi v. New Jersey, supra, 530 U.S. 466, the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond theproscribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (/d. at p. 490.) Twelve yearslater, the high court held “that the rule of Apprendi applies to the imposition of criminal fines.” (Southern Union Co. v. United States (2012) 567 U.S. 343, 360.) In this case, the trial court, not the jury, decided that Mr. Henriquez should pay a restitution fine in the amount of $6,000 — well above the mandatory minimum of $200 allowed by section 1202.4. (4 CT 1424; 18 RT 4698; § 1202.4, subd. (b) [“In every case where a person is convicted of a crime, the court shall impose a separate and additionalrestitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record”’].) A restitution fine, being punishment, is part of the penalty for a crime. Because Apprendi requires that the jury decide any fact that increases the amountofthe fine above the mandatory minimum -- $200 under section 1202.4, subdivision (b)(1) — thetrial court committed reversible error by failing to submit the matter to the jury for decision beyond a reasonable doubt. (Alleyne v. United States (2013) 570 US. [133 S.Ct. 2151, 2158].) This Court has not decided whetherfines imposed under Apprendi and its progeny require that a jury determine the amountofa restitution fine 19 imposed undersection 1202.4, subdivision (b) that is above the statutory minimum. In People v. Kramis (2012) 209 Cal.App.4" 346, however, the court of appeal held that Apprendi and Southern Union do not apply to restitution fines imposed undersection 1202.4, subdivision (b). (dd. at pp. 349-352.) Nevertheless, in light of the United States Supreme Court’s decision one year after Kramis in Alleyne v. United States, supra, 133 S.Ct. 2151, Kramis was mistaken. Apprendi and Southern Union do apply to these fines and require that a jury decide the factual bases for imposing a fine greater than the statutory mandatory minimum of $200. Kramis observed that under section 1202.4, subdivision (b), the minimumfine for a felony conviction was $200, and the maximum fine was $10,000. The court concludedthat “[i]t is the fact of the conviction that triggers imposition of a section 1202.4, subdivision (b)(1) restitution fine.” (People v. Kramis, supra, 209 Cal.App.4™ at pp. 349-350.) Kramis then quoted the following from Blakely v. Washington (2004) 542 US. 296: “(T]he ‘statutory maximum’ for Apprendi purposesis the maximum sentence a judge may imposesolely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Stated differently, “[T]he relevant ‘statutory maximum’is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Therefore, in sentencing a defendant, a judgment may not “inflic[t] punishment that the jury’s verdict alone does not allow.” (People v. Kramis, supra, 209 Cal.App.4" at pp. 350-351, quoting Blakely, 542 U.S.at pp. 303-304,citations omitted, brackets by Kramis.) Kramis next noted that because thetrial court in Southern Union, and notthe jury, madea factual finding as to the numberof days the defendant violated the Bs applicable statute, and the amountofthe fine wastied to the number of 20 days, Apprendi wasviolated. (dd. at 351.) Thus, Kramis concluded, Apprendi and Southern Union did not pertain to the case before it because, in imposing a fine of $10,000 under section 1202.4, subdivision (b), which establishes a minimum fine of $200 and a maximum of $10,000, “the trial court exercises its discretion within a statutory range.” (People v. Kramis, supra, 209 Cal.App.4” at p. 351.) Kramis addedthat “[t]he trial court did not make any factual findingsthat increased the potential fine beyond what the jury’s verdict — the fact of the conviction — allowed.” (dd. at p. 352.) Asindicated, Kramis was decided before Alleyne v. United States, supra, 133 8.Ct. 2151, which explains where Kramis went awry in applying Apprendi. Alleyne stated: The touchstone for determining whether a fact must be found by a jury beyonda reasonable doubt is whether the fact constitutes an “element”or “ingredient” of the charged offense. In Apprendi, we held that a fact is by definition an elementofthe offense and must be submitted to the jury if it increases the punishment above whatis otherwise legally prescribed. While Harris [v. United States (2002) 536 U.S. 545] declined to extend this principle to facts increasing mandatory minimum sentences, Apprendi’s definition of “elements” necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment. Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury andfound beyond a reasonable doubt. (Alleyne v. United States, supra, 133 §.Ct. at p. 2158,italics added, citations omitted; see also People v. Nunez (2013) 57 Cal.4" 1, 39, fn. 6 [Alleyne “held that the federal Constitution’s Sixth Amendmententitles a defendant to a jury trial, with a beyond-a-reasonable-doubt standard ofproof, as to ‘any fact that increases the mandatory minimum’sentence for a crime”].) Kramis 21 erred in concludingthata trial court’s exercise of sentencing discretion within a statutory range in imposinga restitution fine immunizes that determination from the strictures ofApprendiandits progeny, including Southern Union. Moreover,a trial court does makethe equivalent of factual findings whenit considers the enumerated statutory factors, including an ability to pay, in determining the amountofa restitution fine above the statutory minimum. Here, absent compelling and extraordinary circumstances, section 1202.4, subdivision (b) established a mandatory minimum fine of $200. And under section 1202.4, subdivision (d), various factors may increase that minimum:“(d) In setting the amountofthe fine pursuant to subdivision (b) in excess of the two hundred dollar ($200) ... minimum,the court shall consider any relevant factors including, but not limited to, the defendant’s inability to pay, the seriousness and gravity ofthe offense and the circumstances ofits commission, any economic gain derived by the defendantas a result of the crime, the extent to which any other person suffered any lossesas a result of the crime, and the numberofvictims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm causedbythe crime.” Under Apprendias explicated by Alleyne: “Juries must find any facts that increase either the statutory maximum or minimum becausethe Sixth Amendmentapplies where a finding of fact both alters the legally prescribed range and doesso in a waythat aggravates the penalty.” (Alleyne v. United States, supra, 133 S.Ct. at p. 2158.) Thus, becausethe jury in this case did not decide the factors described in subdivision (d), the trial court violated Apprendi and Alleyne. 22 To clarify its holding, Alleyne quoted Williams v. New York (1949) 337 U.S. 241, 246, and acknowledgedthat the factfinding by a jury required by the Sixth Amendment“is distinct from factfinding used to guide judicial discretion in selecting a punishment ‘within limits fixed by law.’” (Alleyne v. United States, supra, 133 S.Ct. at p. 2161, fn. 2.) In Williams, the Court expounded onthesort of facts a trial court relies on to sentence a defendant: “information about the convicted person’spast life, health, habits, conduct, and mental and moral propensities.” (Williams v. New York, supra, 337 U.S. at p. 246; see also Alleyne, supra, 133 S.Ct. at p. 2163 [““[N]othing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute,’” quoting Apprendi, 530 U.S. at p. 481].) Thus, traditional sentencing facts relating to the offense and the offender remain within the domain of a sentencing judge under Alleyne. But these were not the sort of factors that must be decided under section 1202, subdivision (d). In sentencing a defendant,a trial court has not historically considered such factors as those set forth in subdivision (d), especially “any economic gain derived by the defendantas a result of the crime, [and] the extent to which any other person suffered any losses as a result of the crime.” Nor does a court consider pecuniary losses to the victim’s dependents, as required by subdivision (d). Under Alleyne and Apprendi, these factors are for the jury to decide because they increase the statutory mandatory minimum of $200 and do notfall within the traditional ambit of a sentencing judge. For the reasonsstated, the trial court’s imposition of a $6,000 restitution, a fine that well exceeded the statutory minimum, was unlawful 23 CONCLUSION For the reasonsset forth above in ArgumentXIII, the judgment must be reversed. For the reasons set forth above in Argument XV,the $6,000 restitution fine imposed bythetrial court must be reducedto the statutory minimum of $200. Dated: August 16, 2017 Respectfully submitted, ha LYNNES. COFFIN State Bar No. 121389 Attorney for Defendant and Appellant CHRISTOPHER HENRIQUEZ CERTIFICATION OF WORD COUNT (CAL. RULES OF COURT, RULE8.630(b)(2) I, Lynne Coffin, herebycertify in accordance with California Rules of Court, rule 8.630(b)(2), that this brief contains 6,534 wordsas calculated by the Microsoft WORD softwarein which it was written. I declare under penalty of perjury underthe laws of California that the foregoingis true and correct. Dated: August 16, 2017 Respectfully submitted, Zi Leaf LYNNES. COFFIN State Bar No. 121389 26 PROOF OF SERVICE Re: People v. Christopher Henriquez, No. S089311 ATTORNEY’S CERTIFICATE OF ELECTRONIC SERVICE AND/OR SERVICE BY MAIL (Code Civ. Proc., § 1013a, subd. (2); Cal. Rules of Court, rules 8.71(f) and 8.77) I, Ellon Gipeke Vrapirer , declare: I am a citizen of the United States, employed in the City and County of San Francisco, I am over the age of 18 years and not a party to this action or cause, my current business address is 101 Second Street, Suite 600, San Francisco, California 94105. My electronic service addressis flei@capsf.org and my business address is 101 SecondStreet, Suite 600, San Francisco, California 94105. On __€-\8. 3014 ___, I served the persons and/orentities listed below by the method checked. For those marked “Served Electronically,”I transmitted a PDF version ofAppellant’s Supplemental Opening Brief by TrueFiling electronic service or by e-mail to the e-mail service address(es) provided below. Transmission occurred at approximately — --For those marked “Served by Mail,” I deposited in a mailbox regularly maintained by the United States Postal Service, a copy ofthe above documentin a sealed envelope with postage fully prepaid, addressed as provided below. Sarah J. Farhat California Appellate Project Deputy Attorney General 101 Second Street., Ste. 600 Office ofthe Attorney General San Francisco, CA 94105 455 Golden Gate Avenue, Suite 11000 filinge@capsf.or San Francisco, CA 94102 . . Served ElectronicallySFAG.Docket doj.ca. — ocketing@ dol.ca.g0v Served by Mail >< HandDelivered Served Electronically x Served by Mail Office of the Clerk Contra Costa County Superior Court 725 Court Street Martinez, CA 94553 Served Electronically x Served by Mail Office ofthe District Attorney Contra Costa County 900 WardStreet Martinez, CA 94553 Served Electronically x Served by Mail Christopher Henriquez, P-81961 CSP-San Quentin 3-EY-56 San Quentin, CA 94974 Served Electronically Xx Served by Mail Oscar Bobrow .- Chief Public Defender Office of the Public Defender Solano County 355 TuolumneStreet, Suite 2200 Vallejo, CA 94590 Served Electronically x _Served by Mail I declare under penalty ofperjury under the lawsofthe State of California that the foregoing is true and correct. Executed on %-\%. 9@\3 __, at San Francisco, California. AigoP