People v. Trujeque (61 Cal. 4th 227, 2015)

Opinion

CHIN, J.

In 1999, a jury convicted defendant Tommy Adrian Trujeque of first degree murder of Max Facundo (Pen. Code, § 187, subd. (a)), second degree murder of Raul Luis Apodaca (§ 187, subd. (a)), and second degree robbery of Ronni Mandujano and Spartan Burgers restaurant (§ 211). As to all three counts, it found that defendant personally used a deadly and dangerous weapon, respectively, a knife, a screwdriver, and a handgun. (Former §§ 12022, 12022.5, subd. (a)(1), 12022.53, subd. (b).) Waiving a jury trial, defendant stipulated to a 1971 prior second degree murder conviction alleged as a special circumstance, and admitted other prior convictions alleged in the information. As to both murder counts, the jury found true the special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)), while the trial court found true the prior murder special-circumstance allegation (§ 190.2, subd. (a)(2)). After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4), and imposed a sentence of death, along with an additional consecutive term of 25 years to life in prison for the robbery count. The trial court also sentenced defendant to various consecutive sentence enhancements, all of which were stayed pending imposition of the death judgment. This appeal is automatic. (§ 1239, subd. (b).)

Defendant’s 1999 trial took place more than a decade after the murders of Facundo and Apodaca, and the delay in prosecution is the subject of various claims defendant raises on appeal. For reasons that follow, we reverse the judgment of conviction for the second degree murder of Apodaca, and reverse the penalty judgment based on our setting aside both the prior murder and multiple-murder special-circumstance findings. (See post, at p. 281.) Although we must reverse the penalty judgment, we have included additional factual background as necessary to provide context.

I. Factual and Procedural Background

A. Guilt Phase

1. Prosecution evidence

a. Murder of Max Facundo

The prosecution presented evidence that on June 21, 1986, defendant stabbed and killed Max Facundo, the abusive boyfriend of defendant’s cousin, Charlene Trujeque.

When Charlene was 16 or 17 years old, defendant began writing letters to her while he was incarcerated. In the letters, defendant asked about his family and told Charlene to stay out of trouble. Charlene’s mother, Elena Trujeque, read the letters defendant had sent and became concerned. In particular, Elena thought one of the letters read more like a “love letter” than a “cousinly” letter because defendant said he would protect Charlene if anybody hurt her, and that she “mean[t] the world to” him. He also wrote “you’ll always be mine and you’ll always be close to my heart.” Elena also discovered that Charlene was accepting collect telephone calls from defendant, who was still incarcerated. Elena and Charlene’s father, Charlie Trujeque, tried to stop Charlene from getting “too friendly” with defendant, but Charlene continued to write to him.

In 1984, when Charlene was about 20 years old, she began dating Facundo and often stayed at his house. Though their relationship appeared fine at first, during the final months of their relationship, Facundo began to beat up Charlene when she refused to do drugs with him. She did not tell her parents (defendant’s uncle and aunt) about the beatings, but they would see her bruised face when she came home. Elena recalled seeing injuries on Charlene, including black eyes and bruises, on 15 to 20 separate occasions. Though Charlene lied to her parents about how she got her injuries, Elena said “everybody knew” that Facundo beat up their daughter. While Charlene’s parents were upset and afraid for her life, they voiced their concerns only to Charlene, and repeatedly asked Charlene to end her relationship with Facundo. Although Charlie did not verbally threaten Facundo, he told Elena that he was going to beat up Facundo and once ran after him with a baseball bat. On one visit, after Facundo refused to let them see their daughter, Charlie and Elena went to the police to report the domestic violence. However, the parents were told that the police could not do anything unless Charlene reported it herself.

After defendant was released from prison in May 1986, he and Charlene met for the first time at her parents’ house. Charlene did not mention Facundo to defendant and she did not have any visible injuries. According to Elena, the two talked all night.

On the evening of June 21, 1986, the day Facundo was killed, Charlene was at her parents’ house and sported a black eye. Defendant came over with another cousin, Raymond Guzman. Almost as soon as they got there, defendant and Raymond called Charlie outside to talk. They spoke for about five minutes. When Elena asked Charlie what they had talked about, Charlie would not respond; he seemed nervous and afraid. However, sometime earlier, Charlie had asked defendant to break Facundo’s leg or arm to teach him a lesson, but not to hurt him too badly.

When defendant asked Charlene how she got her black eye and if her boyfriend did it, she would not say. Defendant repeatedly asked Charlene whether Facundo would be coming by later because defendant wanted to “meet him and talk to him.” Charlene could tell defendant was angry about her black eye, so she asked him to promise not to hurt Facundo. He replied that promises were made to be broken, but that she need not worry because nothing would happen.

When Facundo came to Charlie and Elena’s house to pick up Charlene, defendant asked Charlene if they would drop off both defendant and Raymond at the home of Raymond’s sister, Pat Perez, in South Gate. Facundo agreed to do so, and the four left in Facundo’s car. Defendant and Raymond were seated in the back, Charlene was in the front passenger seat, and Facundo was driving. Facundo pulled out a cigarette dipped in PCP, began smoking it, and shared it with Charlene and Raymond. At some point, Facundo pulled over to let Charlene drive. They arrived at Pat’s house around 10:45 p.m. Charlene exited the car to let Raymond out of the backseat. She and Raymond walked towards Pat’s home, and waited for Facundo and defendant to follow. When she heard yelling, Charlene turned around and saw Facundo and defendant struggling. She ran towards them and screamed for them to stop. Charlene held Facundo, who was covered in blood, and they fell onto the ground. Defendant fled the scene. Facundo died of multiple stab wounds to the chest.

When the police arrived at the scene of the stabbing, Charlene was still screaming. The police put restraints on her hands and feet and placed her on her stomach in a patrol car. They eventually transported her to the police station. Charlene’s blouse was ripped and she had cuts on her chest and right forearm. Detective Terry McWeeney of the South Gate Police Department interviewed both Charlene and Raymond while they were in custody. Charlene told the detective she saw Facundo lying in the street, but did not see defendant or Raymond. She never told the police that defendant had killed Facundo.

Pat called Charlie and Elena and told them that defendant had killed Facundo and that the police had already taken Charlene and Raymond to the station. They tried calling the police station, but could not get any information. They returned home. Defendant later called Charlie and Elena’s house and asked for a ride. According to Elena, they picked defendant up at a 7-Eleven convenience store on the corner of Firestone and Atlantic in South Gate. He asked to be dropped off at his mother’s house in El Sereno. During the drive, defendant told Charlie and Elena that he killed Facundo. Charlie yelled at him, “ ‘[W]hy did you do it?’ ” and told defendant he never wanted him to kill Facundo. Elena testified defendant told her, “ ‘Tia [(meaning “aunt” in Spanish)], you don’t have to worry anything more about this anymore.’ ” Elena also testified defendant told her he “had no remorse. He did it like — like it was nothing. He didn’t know the guy, like I didn’t know him. He had no feelings for him, so he just done [sic] him away.”

Hours after the murder, around 2:00 or 3:00 a.m., Sergeant Russell Beecher of the South Gate Police Department received a call from a man identifying himself as defendant. The caller said that he was the one who murdered Facundo and that Charlene and Raymond, who were in custody, should be released. On June 26, 1986, defendant was arrested at his mother’s house in El Sereno for the murder of Facundo. The charges, however, were dropped on July 2, 1986, for lack of probable cause.

For over a decade, the case remained dormant until 1998 when defendant — who at the time was serving a life sentence for an unrelated armed robbery — contacted the Los Angeles County Sheriff’s Department and confessed to Facundo’s murder, along with the murder of Raul Apodaca and another armed robbery, in order to receive the death penalty. In June 1998, he was charged with the 1986 murder of Facundo in a three-count complaint.

b. Murder of Raul Apodaca

At trial, the prosecution also presented evidence that on January 23, 1987, defendant and Jesse Salazar killed Raul Luis Apodaca at an East Los Angeles upholstery shop owned by Richard “Conejo” Rivera. Rivera dealt drugs from the shop, which also served as a hangout for White Fence gang members.

During the 1999 trial, Robert De Alva testified that he was at the upholstery shop drinking and doing drugs the evening of January 23, 1987. Given his admitted drug use, De Alva explained he had a poor memory and could not recall many details from that night except that he and six to eight other individuals had walked to the upholstery shop from a nearby bar, the Quiet Cannon. At the shop, De Alva had injected heroin and had passed out on a table. When the prosecution asked about Apodaca being killed, he said: “All I remember is a guy laid on the floor and taking him to the hospital and some guys around him and some guys leaving, and that’s all I remember.” Though he did see some “scuffling,” De Alva was “not aware there was a fight” and did not know who was involved. De Alva also did not recall much of the previous statement he had given to Detective Birl Adams several days after the murder. When the prosecution pointed to defendant at the defense table and asked if De Alva had seen him that night, De Alva replied: “He don’t look familiar.”

Responding to De Alva’s prior inconsistent statements, Detective Adams testified that when he interviewed De Alva on January 26, 1987, three days after the killing, De Alva recounted many details about the night Apodaca was killed. De Alva told Detective Adams that he was at the upholstery shop with Rivera, Salazar, Apodaca, defendant, and several other individuals. They were playing poker when a fight broke out. After the fight was broken up, two individuals left the shop and De Alva lay down on top of a table in the middle of the shop to sleep. Remaining at the shop with Rivera and De Alva were defendant, Salazar, and Apodaca. De Alva woke up when he heard and saw defendant, Salazar, and Apodaca fighting. Suddenly, Apodaca fell to the floor, and defendant and Salazar ran out of the shop. After checking on Apodaca, Rivera told De Alva that Apodaca had been stabbed. They tried to resuscitate Apodaca, and then took him to East Los Angeles Doctors Hospital in a van. De Alva stayed at the hospital about 15 minutes and then left. Apodaca later died from a stab wound to the chest. De Alva first found out that Apodaca had died during the January 26 interview with Detective Adams; he appeared upset. De Alva had no trouble describing either defendant or Salazar to Detective Adams. Two days later, on January 28, 1987, De Alva identified defendant and Salazar from a 13-photo array Detective Adams showed him.

The upholstery shop’s owner, Richard Rivera (whose testimony from defendant’s Apr. 8, 1987 preliminary hearing was read into the trial record), gave a similar account of the events. (See ante, at p. 239, fn. 4.) He testified that during the poker game, Salazar and Frank Contreras got into a fistfight. In breaking up the fight, Apodaca grabbed and restrained Salazar, and Luis Villalobos grabbed Contreras. After the fight, everyone starting leaving one by one, except for Rivera, defendant, Salazar, Apodaca, and De Alva. Except for De Alva, all had been staying at the shop for the past few days. Rivera went to the bathroom. When he came out “a couple minutes” later, Apodaca was lying on his back and not breathing. Rivera and De Alva opened up his shirt and saw that he had a puncture wound in his chest. Rivera did not see either defendant or Salazar in the shop, but when he went outside, he saw them walking away quickly. After Rivera and De Alva both tried to give Apodaca mouth-to-mouth resuscitation, they dragged him into a van and drove him to a hospital. Rivera did not call the police because he “figured Raul [Apodaca] was going to live, and he could deal with it if they questioned him. I didn’t think that Raul was going to die.” He lied to both the nurse and Apodaca’s stepfather, telling them that Apodaca had been stabbed at the Quiet Cannon bar and not at his upholstery shop because “I just didn’t want it to go down at the shop, I guess.”

On February 5, 1987, defendant and Salazar were charged with the murder of Apodaca. The case was dismissed a month later. The prosecution eventually entered into a plea agreement with Salazar, who pleaded guilty to voluntary manslaughter. On March 25, 1987, the prosecution refiled the first degree murder charge against defendant, but after the preliminary hearing, he was held to answer for only the lesser offense of manslaughter. On April 24, 1987, the prosecution filed an information again charging defendant with the first degree murder of Apodaca. After the prosecution informed the court that they could not find the material witness, De Alva, the murder charge was dismissed on June 23, 1987. The case lay dormant until 1998, when defendant confessed to the murder.

c. Robbery of Spartan Burgers restaurant

The prosecution presented evidence that on January 21, 1998, defendant robbed Spartan Burgers restaurant in Huntington Park. According to the restaurant’s cashier, Ronni Mandujano, defendant came in around 8:00 p.m. and first ordered food. When it came time to pay, defendant pulled out a small black handgun and demanded money. The restaurant’s owner (who was not identified by name) approached Mandujano and defendant, opened the register, and placed the cashbox on the counter. Pointing the gun at Mandujano the entire time, defendant asked the owner if he had any other money in the restaurant. The owner said there was additional money in the back. Defendant ordered Mandujano and the owner to the back. Defendant pushed Mandujano, who could feel defendant pressing the gun on her back and head. After the owner gave him more money, defendant left. Mandujano called the police. A few months later, on April 29, 1998, Mandujano identified defendant from a six-pack photo array. She testified that she was “positive” it was defendant and also identified him in the courtroom.

2. Defense evidence

a. Murder of Max Facundo

Against the advice of counsel, defendant testified on his own behalf. His account of Facundo’s killing and events surrounding it largely tracked the evidence adduced at trial. (See ante, at pp. 236-238.) However, defendant’s version differed in these material respects: Defendant testified that Charlie had asked him to kill Facundo not just hurt him, and that Elena was lying about Charlie asking him only to break Facundo’s arms and legs. On cross-examination, however, defendant admitted Charlie never used the words “go kill him” but said to “take care of it,” which defendant took to mean “killing Max and getting away with it.” Though Charlie never told defendant why he wanted him to kill Facundo, defendant thought it was “because he was beating up on my cousin.” Though Elena sent him money while he was incarcerated, defendant did not kill Facundo for the money. Elena also told defendant that Facundo beats up Charlene “just about every day.” Elena also gave him $300 to buy a gun.

Defendant testified he intended to inflict a lethal wound on Facundo by using a method of stabbing he learned in prison; he also hoped to inflict at least 100 stab wounds. He also admitted he “couldn’t wait to kill him. I didn’t want to wait,” and that he “could have done it later if I wanted to.” Defendant stated he had been thinking about killing Facundo since he was released from prison. When Charlie and Elena picked defendant up after the killing, defendant said their “troubles are over,” meaning “I don’t have to watch my back for anyone coming after me, and Charlene doesn’t have to worry about getting any black eyes, so it’s over.”

b. Murder of Raul Apodaca

Defendant testified that both he and Rivera were members of the White Fence gang, and that he and others used to frequent Rivera’s upholstery shop. Defendant’s gang moniker was “Killer”; a piece of wood bearing that name was found at the shop.

His account of the events leading up to the killing of Apodaca largely tracked eyewitness De Alva’s trial testimony and Rivera’s testimony from the preliminary hearing. As to the fight between Salazar and Apodaca, defendant testified that he thought that Salazar was getting the worse of the fight, so defendant stepped in to help his friend. Apodaca, who was on top of Salazar, struck defendant in the face. Defendant picked up a screwdriver and stabbed Apodaca two or three times. He saw Salazar stab Apodaca in the chest with another screwdriver. Defendant recalled stabbing Apodaca on the left side, but did not remember the exact location or number of stabbings. Defendant did not know who was responsible for the lethal wound.

c. Robbery of Spartan Burgers restaurant

On cross-examination, defendant denied robbing Spartan Burgers and claimed the main witness, Ronni Mandujano, was “wrong.” Defense counsel did not cross-examine Mandujano.

3. Defendant’s confession to the murders and desire to be prosecuted

a. 1998 confession to Los Angeles County Sheriff’s deputies

The Facundo and Apodaca murder cases lay dormant for over 10 years. In February 1998, Los Angeles County Sheriff’s Deputy Frank Durazo received a telephone call from another deputy regarding an inmate, defendant. Defendant was in custody in the San Diego County jail and claimed to have information about two homicides and a robbery. Deputy Durazo and his partner, Los Angeles County Sheriff’s Deputy Jose Romero, drove to San Diego to interview defendant. The February 20, 1998 tape-recorded interview, a transcript of which was admitted as an exhibit, was played for the jury but was not simultaneously transcribed into the record. Defendant’s statement to the deputies about the Facundo and Apodaca murders and the Spartan Burgers robbery was generally consistent with his testimony at trial.

As to the Apodaca murder, however, defendant provided further context. According to defendant, before heading to Rivera’s upholstery shop from the Quiet Cannon bar, Salazar had told defendant that he hated Apodaca and wanted to kill him. Salazar said he was going to stab Apodaca and that he wanted defendant “ ‘to have my back, and if — and if — if he starts getting the best of me and everything just, you know, just back my play.’ ” Later, when Apodaca and Salazar started fighting at the upholstery shop and defendant intervened, Apodaca hit defendant in the face. That is when, according to defendant, “automatically my — the red light goes on and the alarm goes off and I get, you know, that did it, and I said now fuck this mother fucker, I don’t even know him, he ain’t done nothing to me, but I just don’t like him, because of the way he is, you know.” As defendant reached for a screwdriver, he saw Salazar on top of Apodaca, stabbing him. Defendant then stabbed Apodaca two or three times on the left side of his body. After defendant was arrested, he “gave [Salazar] up.”

Regarding the Spartan Burgers robbery, which at trial defendant denied committing, defendant initially told the deputies that he had robbed the restaurant with his cousin, Theodore “Teddy” Trujeque (Charlene’s brother and Elena and Charlie’s son), because Teddy needed money. Defendant thought he “got about close to $400,” of which he gave Teddy $150 and kept the rest. Defendant did not tell authorities about Teddy’s involvement for “personal reasons.”

b. Letter to Los Angeles County District Attorney

Over defense counsel’s objection, the prosecution introduced a letter defendant had written to then Los Angeles County District Attorney Gil Garcetti (Garcetti letter). In the over 600-word letter, written shortly before his September 1998 preliminary hearing and while he was representing himself, defendant admitted he murdered both Apodaca and Facundo while “fully aware of all of my mental faculties” and urged Garcetti to seek the death penalty against him. The Garcetti letter also stated that “both of those cowards deserved what they got: death and an early expiration in life, to say the least!”; that if he “had the opportunity to do it over I would cut off their heads and send ’em both to their family!”

B. Penalty Phase

1. Aggravating evidence

a. Murder of Allen Rothenberg

At trial, the prosecution presented evidence that on February 7, 1969, less than a month after he turned 16 years old, defendant robbed and fatally stabbed Allen Rothenberg. Rothenberg was delivering beer for Nate’s Liquor Store to defendant’s home at 3302 Paola Avenue in Los Angeles. In a 1969 statement to detectives, which was read to the jury, defendant said he called up Nate’s Liquor Store as “Mr. Martinez” and ordered a case of Colt 45 beer. Defendant stated he was talking to a girl in the bedroom when his friend, Bert Gonzalez, told him someone was at the door. Defendant told detectives: “I already had a knife with me because I already had it planned that I was going to rob the guy when he got there.” Defendant “got a knife and put it around [Rothenberg’s] neck and threw him on the floor and told him this was a holdup. ... [¶] ... [¶] I just — I kept — I just kept stabbing him.” He stated he did not remember how many times he stabbed Rothenberg, but that Rothenberg “kept on giving me a hassle and finally he settled down and he just laid there.” Defendant dragged Rothenberg’s body through the bedroom and down the stairs. Bert helped defendant throw his body into the next yard. Defendant indicated he cut his hands because his hand “kept sliding down the blade” when he was stabbing Rothenberg.

Former Los Angeles Police Officer Ruben Sanchez, who responded to a call at 3302 Paola, testified that officers found Rothenberg’s body in the yard next door. Rothenberg had been stabbed multiple times in the chest and his pants pockets were turned inside out. A trail of blood led back into the house at 3302 Paola where detectives found blood in the dining room, a bloody doorknob, and blood splatters on the wall. An investigator located a bloody 13-inch kitchen knife at the side of the house. Officer Sanchez identified numerous photographs of the Rothenberg crime scene, which were introduced into evidence. The trial court took judicial notice of defendant’s juvenile court files.

b. Other offenses

The prosecution presented evidence that defendant committed a number of assaults and robberies from 1978 to 1998.

c. Garcetti letter

Over defense counsel’s renewed objection, the trial court admitted the Garcetti letter at the penalty phase. This version, which had fewer redactions than the version admitted at the guilt phase, included defendant’s statement that he did not “regret my actions in any way, shape, or form” and his threat to kill someone in prison if he did not get the death penalty.

2. Mitigating evidence

a. Family history

Through the testimony of defendant’s half sister and several maternal aunts and uncles, defendant presented evidence of his childhood and his mother’s family history. On defendant’s behalf, his ex-wife and their daughter, along with his former juvenile probation officer and parole officer, all testified. Defense counsel also presented testimony from a psychiatrist who had evaluated defendant as a juvenile and from an expert witness on gangs.

b. Medical history

Dr. Marshall Cherkas, who examined defendant for the juvenile court in November 1966 and shortly before defendant’s 1999 trial, testified that he found defendant emotionally unstable with borderline organic brain damage and a history of treatment for psychomotor epilepsy.

II. Discussion

A. Pretrial Issues

1. The invalidity of the second degree murder conviction underlying the prior murder special-circumstance allegation

In support of the prior murder special circumstance (§ 190.2, subd. (a)(2)), the prosecution alleged defendant’s prior conviction for the second degree murder of Allen Rothenberg. In 1971, defendant pleaded guilty to second degree murder after he was deemed not fit to be tried in juvenile court and was prosecuted in adult court. (See Welf. & Inst. Code, former § 707, as amended by Stats. 1967, ch. 1357, § 1, p. 3197.) Before the 1999 trial in the instant matter, defendant moved to strike the prior murder conviction and related special-circumstance allegation based on the claim that his guilty plea was invalid under Boykin/Tahl — that is, he was not advised of, nor did he waive, his constitutional rights to a trial and to confront and cross-examine witnesses, and his right against self-incrimination. (See Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709]; In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449].) The trial court denied the motion.

On appeal, defendant raises only a double jeopardy challenge. He argues that the high court’s 1975 decision in Breed v. Jones (1975) 421 U.S. 519, 531 [44 L.Ed.2d 346, 95 S.Ct. 1779] (Breed), which held that an adult prosecution after a juvenile adjudication for the same offense violates double jeopardy, compels the conclusion that he was placed at least twice in jeopardy. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 15.) The Attorney General, however, counters that defendant has waived, or more accurately, has forfeited this double jeopardy claim because he failed to raise it below, and that in any event, he cannot collaterally challenge his prior conviction. For reasons that follow, we conclude that defendant has not forfeited the issue nor is he estopped from collaterally challenging his 1971 murder conviction.

a. Procedural background

The facts of Rothenberg’s killing are discussed above. (See ante, at pp. 243-244.) As relevant here, on February 11, 1969, a petition was filed in juvenile court alleging that defendant, a 16-year-old minor, came within the then current provisions of Welfare and Institutions Code section 602. (Section 602 petition; see Stats. 1961, ch. 1616, § 2, pp. 3459, 3472.) Paragraph I of the petition alleged that defendant “did wilfully, unlawfully, and with malice aforethought murder Allen Howard Rothenberg,” in violation of section 187, and paragraph II alleged that defendant “did wilfully and unlawfully by means of force and fear” take from Rothenberg money, in violation of section 211. At the request of the public defender who was representing defendant, the court appointed a psychiatrist to determine whether a plea of guilty by reason of insanity was appropriate or whether defendant had diminished capacity. On February 13, 1969, defendant denied all the allegations in the petition.

On March 6, 1969, a juvenile court referee conducted the adjudicatory hearing at which the deputy district attorney called eight witnesses and introduced numerous exhibits. Over codefendant Bert Gonzales’s objection, the hearing was treated as a civil rather than criminal matter, thus making the standard of beyond a reasonable doubt inapplicable. The next day, defendant’s counsel informed the referee that defendant was willing to admit to a violation of former section 192, subdivision 2 (involuntary manslaughter), in exchange for dismissal of paragraphs I and II of the petition. (See Stats. 1945, ch. 1006, § 1, p. 1942.) Opposing the dismissal of any allegations, the deputy district attorney proffered evidence that defendant had confessed to stabbing Rothenberg repeatedly, to planning the robbery in advance, and to taking money from Rothenberg. Ultimately, the referee ruled that “justice would dictate under present circumstances” deleting the malice aforethought allegation.

After defendant admitted he took part in the stabbing of Rothenberg, the referee accepted defendant’s admission, dismissed the more serious allegations of paragraphs I and II, and amended the petition to allege involuntary manslaughter as follows: “PARAGRAPH III: that said minor, on or about February 7, 1969, in the commission of an unlawful act killed Allen Howard Rothenberg, thereby violating Section 292.2 [sic — former section 192, subdivision 2, now section 192, subdivision (b)] of the Penal Code.” In his March 7, 1969 “Findings and Order,” the referee explained he relied on the probation officer’s report that defendant had a “history of mental and brain problems plus a long record of delinquent behavior not highlighted by assaultive behavior,” and the fact that defendant had only recently turned 16 when he committed the crime. In sustaining the petition, the referee recommended that defendant be recommitted to the California Youth Authority.

Another juvenile court judge, however, ordered a de novo rehearing of the referee’s adjudication. (See Welf. & Inst. Code, former § 559, added by Stats. 1961, ch. 1616, § 2, pp. 3459, 3467 and repealed by Stats. 1976, ch. 1068, § 17, p. 4781.) At the April 7, 1969 rehearing before yet another judge, the court considered the transcripts from the March 6 and March 7, 1969 hearings, and the parties presented additional evidence, including defendant’s testimony. This time around, the court found the murder and robbery allegations in the petition to be true. On May 14, 1969, defendant was found not fit for juvenile court, his section 602 petition was dismissed, and he was ordered prosecuted as an adult.

On February 1, 1971, almost two years after the section 602 petition was first filed against defendant, he pleaded guilty to second degree murder in superior court.

b. Legal principles

Welfare and Institutions Code section 602 “extends juvenile court jurisdiction to persons who are under 18 years of age when they violate any law ‘defining crime.’ ([§ 602,] subd. (a).)” (In re Eddie M. (2003) 31 Cal.4th 480, 486 [3 Cal.Rptr.3d 119, 73 P.3d 1115].) Under present law, on the People’s motion “made prior to the attachment of jeopardy,” a juvenile court may in its discretion determine that the minor is unfit for treatment in juvenile court and should be tried instead in criminal court. (Welf. & Inst. Code, § 707, subd. (a)(1) [referred to as a fitness or transfer hearing].) If a minor is found fit for juvenile court treatment, the court next determines at an adjudicatory or jurisdictional hearing whether a crime has been committed. (See In re Greg F. (2012) 55 Cal.4th 393, 403 [146 Cal.Rptr.3d 272, 283 P.3d 1160]; Welf. & Inst. Code, § 701.) Any offense alleged in the section 602 petition must be proved true “beyond a reasonable doubt” and be “supported by evidence, legally admissible in the trial of criminal cases.” (Welf. & Inst. Code, § 701; see In re Eddie M., supra, 31 Cal.4th at p. 487; In re Greg F., supra, 55 Cal.4th at p. 403.) Once the court sustains a section 602 petition and finds jurisdiction, the court conducts a dispositional hearing at which it considers the probation officer’s social study report and other evidence in determining the appropriate disposition for the minor. (Welf. & Inst. Code, § 702; see In re Greg F., supra, 55 Cal.4th at p. 404; In re Eddie M., supra, 31 Cal.4th at p. 487 [“Less exacting rules govern disposition.”].)

As relevant here, at the time of defendant’s 1969 juvenile adjudication, Welfare and Institutions Code former section 707 provided that a juvenile court could determine — “[a]t any time during” the hearing — that the minor was not fit to be treated as a juvenile and should be transferred to an adult court. (Welf. & Inst. Code, former § 707, as amended by Stats. 1967, ch. 1357, § 1, p. 3197; see Barker v. Estelle (9th Cir. 1990) 913 F.2d 1433, 1439-1440.) In 1975, the high court examined this statutory scheme and unanimously held that jeopardy attached at the adjudicatory hearing, which it described as “a proceeding whose object is to determine whether [the juvenile] has committed [criminal] acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years.” (Breed, supra, 421 U.S. at p. 529; see id. at p. 531 [“Jeopardy attached . . . when the Juvenile Court, as the trier of the facts, began to hear evidence.”].)

Although a finding of unfitness and the ensuing transfer to an adult court could occur not only after, but also before, an adjudication of guilt (see Welf. & Inst. Code, former § 707, as amended by Stats. 1967, ch. 1357, § 1, p. 3197), the risk of adjudication itself was enough for jeopardy to attach. (Breed, supra, 421 U.S. at p. 531 [analyzing an “aspect of the juvenile-court system in terms of the kind of risk to which jeopardy refers”]; see Barker v. Estelle, supra, 913 F.2d at p. 1439.) As such, the high court emphasized that any decision to transfer a juvenile to adult court must be made prior to an adjudicatory proceeding. (Breed, supra, 421 U.S. at pp. 536-538 & fn. 18.) In response, our Legislature repealed and reenacted Welfare and Institutions Code section 707 to conform to the requirements of the high court’s decision. (See Stats. 1975, ch. 1266, § 4, p. 3325; see also Barker v. Estelle, supra, 913 F.2d at pp. 1439-1440.)

c. Forfeiture

At the outset, we address whether defendant has forfeited the double jeopardy issue. As noted above, defendant’s motion to strike the 1971 conviction rested mainly on his Boykin/Tahl claim. However, at the August 10, 1999, evidentiary hearing on defendant’s motion, defense counsel asked the original deputy district attorney, John Breault, who had prosecuted defendant in adult court, whether he remembered if defendant’s previous attorney had argued in 1971 that the proceeding in adult court was in violation of double jeopardy. Breault testified that he did remember, and that he had countered that jeopardy did not attach because it was a juvenile proceeding.

Despite initiating the questions on double jeopardy himself, defense counsel did not move to strike the prior conviction on double jeopardy grounds, and we see no possible tactical reason for counsel not to have done so. (See People v. Jones (1994) 24 Cal.App.4th 1780, 1783, fn. 5 [30 Cal.Rptr.2d 238].) We have previously considered a double jeopardy issue on appeal that was technically not cognizable because a meritorious double jeopardy defense relates to a defendant’s claim of ineffective assistance of counsel. (People v. Scott (1997) 15 Cal.4th 1188, 1201 [65 Cal.Rptr.2d 240, 939 P.2d 354]; People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1 [55 Cal.Rptr.2d 347, 919 P.2d 1280].) We will therefore address the merits of this claim. Before discussing the claim’s substance, however, we must consider possible procedural hurdles relating to the retroactivity of Breed, supra, 421 U.S. 519, and the collateral challenge to a prior judgment.

d. Retroactivity

Defendant asserts that although Breed was decided after his 1971 conviction, its holding applies retroactively because he was subject to the very statute that the high court effectively invalidated. We agree. As we explain, this conclusion is compelled by two lines of cases — In re Bryan (1976) 16 Cal.3d 782 [129 Cal.Rptr. 293, 548 P.2d 693], which dealt specifically with the retroactivity of Breed, and People v. Horton (1995) 11 Cal.4th 1068, 1139-1140 [47 Cal.Rptr.2d 516, 906 P.2d 478] (Horton), which involved striking a constitutionally invalid prior conviction alleged as the basis for a special circumstance.

In In re Bryan, the issue was whether the 1975 holding in Breed applied retroactively to the defendant’s juvenile adjudicatory hearing held in 1971. In concluding that it did, we declined to apply the three-pronged analysis for retroactivity of constitutional rules of criminal procedure under Linkletter v. Walker (1965) 381 U.S. 618 [14 L.Ed.2d 601, 85 S.Ct. 1731]. We noted: “ ‘The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.’ ” (In re Bryan, supra, 16 Cal.3d at p. 786, quoting Robinson v. Neil (1973) 409 U.S. 505, 509 [35 L.Ed.2d 29, 93 S.Ct. 876] [applying new rule retroactively because old rule violated double jeopardy; court lacked authority to try defendant].) We found it unnecessary to apply the Linkletter test “in the case of a decision compelled by constitutional prohibitions against multiple jeopardy.” (In re Bryan, supra, 16 Cal.3d at p. 787.) “Breed is thus to be given retrospective application.” (Ibid.)

The Attorney General’s attempt to distinguish In re Bryan is unpersuasive. She primarily relies on Griffith v. Kentucky (1987) 479 U.S. 314, 328 [93 L.Ed.2d 649, 107 S.Ct. 708], in which the high court held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” (Italics added.) The Attorney General evidently reasons that the phrase “not yet final” embraces either an implied holding or a negative inference that such rules do not apply retroactively to decisions that are final. Based on this reading of Griffith v. Kentucky, the Attorney General argues that because defendant’s 1971 conviction was already final at the time the high court decided Breed, the “new rule” in Breed could not be applied retroactively to defendant’s case. Her reliance on Griffith v. Kentucky is misplaced.

In Griffith v. Kentucky, the high court held that new rules of criminal procedure always apply to cases that are not yet final. It “rejected as unprincipled and inequitable the Linkletter standard for cases pending on direct review at the time a new rule is announced.” (Teague v. Lane (1989) 489 U.S. 288, 304 [103 L.Ed.2d 334, 109 S.Ct. 1060].) Contrary to the Attorney General’s contention, the court expressed no view in Griffith v. Kentucky on whether such rules apply retroactively to cases that are already final. (Griffith v. Kentucky, supra, 479 U.S. at p. 329 (cone. opn. of Powell, J.) [retroactivity question regarding habeas corpus petitions is “carefully left open”].) It addressed that question of collateral review in Teague v. Lane, supra, 489 U.S. 288.

In Teague v. Lane, the high court concluded that new rules of criminal procedure do not ordinarily apply retroactively to cases “which have become final before the new rules are announced.” (Teague v. Lane, supra, 489 U.S. at p. 310.) However, a new rule may be given retroactive effect if (1) the rule is, in fact, “substantive,” or (2) it is a “ ‘ “watershed rule[] of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceeding.’ ” (Schriro v. Summerlin (2004) 542 U.S. 348, 351-352 [159 L.Ed.2d 442, 124 S.Ct. 2519], italics omitted; see Teague v. Lane, supra, 489 U.S. at p. 311.) The Attorney General did not refer to Teague v. Lane's nonretroactivity principle, and, as such, she did not address whether the rule announced in Breed falls within either exception. We conclude that Breed's double jeopardy rule is substantive in nature, and that Teague v. Lane poses no bar to applying Breed retroactively to cases on collateral review. (Schriro v. Summerlin, supra, 542 U.S. at p. 352, fn. 4 [rules falling under Teague v. Lane’s first exception “are more accurately characterized as substantive rules not subject to the bar”].)

As noted above, the “ ‘practical result’ ” of the guarantee against double jeopardy “ ‘is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.’ ” (In re Bryan, supra, 16 Cal.3d at p. 786, quoting Robinson v. Neil, supra, 409 U.S. at p. 509; see United States v. Johnson (1982) 457 U.S. 537, 550 [73 L.Ed.2d 202, 102 S.Ct. 2579] [“the Court has recognized full retroactivity as a necessary adjunct to a ruling that a trial court lacked authority to convict or punish a criminal defendant in the first place”].) Using the high court’s rationale, it seems fair to characterize Breed’s double jeopardy rule as more substantive than procedural because without the rule’s retroactive application, a defendant would otherwise “face[] a punishment that the law cannot impose upon him.” (Schriro v. Summerlin, supra, 542 U.S. at p. 352.) In short, we reject the Attorney General’s argument that the retroactivity rule set out in In re Bryan must be reconsidered in light of relevant high court decisions.

Nevertheless, the Attorney General maintains that even if In re Bryan remains good law, a violation of the constitutional double jeopardy protection may not form the basis of a motion to strike a prior murder conviction in a capital case. Such a motion, according to the Attorney General, may only be based on certain “jfundamental constitutional flaws.” (Horton, supra, 11 Cal.4th at p. 1135.) She suggests that In re Reno (2012) 55 Cal.4th 428 [146 Cal.Rptr.3d 297, 283 P.3d 1181], in which the defendant failed to show his double jeopardy challenge involved a fundamental constitutional error, compels us to conclude that a double jeopardy violation is not the type of fundamental constitutional violation that may be asserted in such a motion. Not so.

In re Reno dealt with specific procedural issues that arise when a habeas corpus petitioner collaterally attacks his final conviction and “has reraised all prior appellate claims en masse.” (In re Reno, supra, 55 Cal.4th at p. 485.) Regarding the petitioner’s double jeopardy claim, which was resolved against him on direct appeal, we concluded it was procedurally barred under In re Waltreus (1965) 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001]. The petitioner, we found, failed “to allege any facts suggesting the double jeopardy issue falls within” Waltreus’s narrow exception that the issue “involves a fundamental constitutional error.” (In re Reno, supra, 55 Cal.4th at p. 481, italics added; id. at p. 486 [“we ascribe no weight to these assertions, unadorned as they are by factual allegations or legal argument”].) We also pointed out that the petitioner failed to allege facts or present argument on why his “renewed double jeopardy claim” constituted a structural defect not susceptible to harmless error review. (Id. at p. 487.) Thus, contrary to the Attorney General’s assertion, our holding in In re Reno, which dealt specifically with the deficient allegations in that case, did not suggest that a double jeopardy violation does not qualify as a fundamental constitutional flaw as a matter of law. (See id. at pp. 486-487; see People v. Sumstine (1984) 36 Cal.3d 909, 917 [206 Cal.Rptr. 707, 687 P.2d 904] [suggesting defendant “may bring any challenge that undermines the constitutional basis of his prior conviction” (italics added)].)

We recognize that unlike In re Bryan, where the defendant sought relief by writ of habeas corpus, defendant here collaterally attacks his prior conviction by way of a pretrial motion to strike. This distinction, however, strengthens our conclusion that defendant was permitted to make such a challenge here. Unlike a writ of habeas corpus, a motion to strike does not seek to vacate or extinguish the underlying conviction, which would in turn trigger procedural bars. (Horton, supra, 11 Cal.4th at p. 1138.) “The purpose of a motion to strike is to challenge only the present effect of the prior conviction.” (People v. Sumstine, supra, 36 Cal.3d at p. 921.) Significantly, the collateral challenge here is to a prior conviction alleged as a basis for a death-qualifying special circumstance. (See Horton, supra, 11 Cal.4th at pp. 1137-1138 [procedural bars do not apply to collateral attacks on prior convictions underlying special circumstance allegations].) “In the capital context, a defendant almost invariably will face much graver consequences from the use of the prior conviction, as a predicate for a special circumstance finding, than he or she faced in the earlier criminal proceeding; it is because of those grave consequences, of course, that a defendant has been accorded special procedural protections and assistance in a capital case. In many instances, it may be unfair — and inconsistent with the special need for reliability — to deprive a defendant of the right to demonstrate the invalidity of the prior conviction in the subsequent capital prosecution simply because in the prior proceeding, when much less may have been at stake and the defendant may not have been accorded the same procedural protections, defendant did not prevail on the issue.” (Id. at p. 1138.)

For all these reasons, we conclude that defendant may collaterally challenge his 1971 second degree murder conviction.

e. Merits

Turning to the substance of this claim, it is clear that based on Breed’s retroactive application, defendant’s 1971 second degree murder conviction was obtained in violation of the double jeopardy clause. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 15.) Defendant was placed once in jeopardy at the adjudicatory juvenile hearing before the referee, and once again, when he was prosecuted for the same offense in adult court where he pleaded guilty. (Breed, supra, 421 U.S. at p. 541 [“We hold that the prosecution of respondent in Superior Court, after an adjudicatory proceeding in Juvenile Court, violated the Double Jeopardy Clause . . . .”].) Because the prior conviction’s constitutional deficiency is apparent from the record, thus making it unnecessary for us to remand for a hearing, we must set aside this special circumstance finding (§ 190.2, subd. (a)(2)). (See Horton, supra, 11 Cal.4th at pp. 1139-1140 [declining to remand for new hearing on motion to strike prior conviction].)

Nonetheless, we will not disturb the death judgment unless defendant can show prejudice. (See Horton, supra, 11 Cal.4th at p. 1140.) Although the death judgment here was also supported by the multiple-murder special-circumstance finding, we conclude below that special-circumstance-allegation finding must also be set aside. (See post, at p. 258.) Consequently, without either special circumstance finding, we must reverse the penalty judgment.

2. The prosecution’s refiling of the Apodaca murder charge

Defendant argues that the trial court erred by allowing the prosecution to refile the Apodaca murder charge, which he contends had been previously dismissed three times. (See § 1387 [two-dismissal rule for refiling charges of certain violent felonies].) He asserts that even if the murder charge had been dismissed only twice, the court retroactively applied section 1387.1 — which became effective January 1, 1988, to allow for a third filing in the case of excusable neglect — in violation of the ex post facto clauses of both the state and federal Constitutions. (See U.S. Const., art. I, § 10; Cal. Const., art. I, § 9; John L. v. Superior Court (2004) 33 Cal.4th 158, 171-172 [14 Cal.Rptr.3d 261, 91 P.3d 205] (John L.) [federal and state ex post facto clauses are similarly construed].) He further argues that the multiple-murder special circumstance should be vacated because it is based in part on the invalid second degree murder conviction for the death of Apodaca. For reasons that follow, we agree with defendant.

a. Procedural history

The facts of Apodaca’s killing are discussed above. (See ante, at pp. 238-240.) As relevant here, Apodaca was killed on January 23, 1987. On February 5, 1987, the People charged both defendant and Jesse Salazar for the first degree murder of Apodaca (case No. A795989). (§ 187, subd. (a).) As to defendant, the felony complaint alleged a prior murder special circumstance (§ 190.2, subd. (a)(2)), based on his 1971 conviction for the second degree murder of Allen Rothenberg. As to Salazar, the complaint also charged him with the September 1985 murder of another man, Ronald Eugene Diaz. In light of the prosecution’s inability to locate crucial witnesses, the warrant was recalled and the case was dismissed as to defendant on March 13, 1987.

On March 25, 1987, the People refiled the first degree murder charge with the prior murder special-circumstance allegation against defendant (case No. A798706). At the April 8, 1987 preliminary hearing, the only eyewitness to Apodaca’s stabbing death, Robert De Alva, failed to appear. He had apparently not been properly served with a subpoena necessary to procure an arrest warrant. The magistrate declined to find good cause for a continuance, but permitted the prosecution to proceed while it looked for De Alva. The prosecution next called Richard Rivera, the owner of the upholstery shop where Apodaca was killed, who testified he did not see the stabbing happen, but only saw Apodaca lying on the floor afterwards. Later at the hearing, the pathologist who performed the autopsy of Apodaca, Dr. Sara Reddy, testified that the cause of death was a stab wound to the chest. She also opined that Apodaca suffered from a superficial neck wound that was “most likely” caused by a different instrument.

The following day, April 9, the prosecution advised the court that it could not locate De Alva. After questioning whether there was a showing of malice to support the murder charge against defendant, the magistrate held defendant to answer for the lesser offense of manslaughter. On April 24, 1987, the prosecution refiled the information under section 739, charging defendant with murder under the previous case number, A798706, but the information did not include a special circumstance allegation. Ultimately, on June 23, 1987, the trial court granted defendant’s motion to dismiss the information under section 1382 after the prosecution advised that it still could not locate De Alva.

More than a decade later, on June 1, 1998, the prosecution filed a three-count felony complaint, charging defendant in count 2 with the first degree murder of Apodaca and alleging special circumstances of multiple murder and prior murder. The following year, on July 27, 1999, defendant filed a motion to dismiss the Apodaca murder charge, contending that the prosecution had exceeded the number of refilings permitted under section 1387. The prosecution conceded that there were two dismissals of the Apodaca murder charge. However, it argued that the third refiling was permissible under section 1387.1, and that there was a showing of excusable neglect. Defendant, however, countered that because section 1387.1 became effective after the Apodaca murder charge was dismissed for a second time in June 1987, section 1387’s two-dismissal rule governed and precluded any additional refiling. Otherwise, to allow the prosecution to refile the murder charge a decade later in 1998 would amount to a retroactive application of section 1387.1 in violation of the ex post facto clause.

Before ruling on these issues, the trial court held a hearing in August 1999 to determine whether the prior dismissals were due to the prosecution’s “excusable neglect.” (§ 1387.1, subd. (a).) The original prosecutor, detective, and investigator on the Apodaca murder case each testified that despite their efforts, they could not locate eyewitness De Alva in 1987. The trial court found that the prosecution had shown excusable neglect under section 1387.1. Defendant alternatively argued that section 1387.1 was not applicable in the first place because there had been three prior dismissals of the Apodaca murder charge: the dismissal of the February 5, 1987 complaint on March 13, 1987; the reduction of the murder charge to manslaughter in the March 25, 1987 complaint on April 9, 1987; and the dismissal of the April 24, 1987 complaint on June 23, 1987. The trial court, however, agreed with the prosecution that because defendant was held over on the lesser necessarily included offense of manslaughter, the magistrate’s refusal to hold defendant for murder did not count as a dismissal for purposes of section 1387. In denying defendant’s motion to dismiss, the trial court noted that its ruling included an implicit finding that section 1387.1 applied retroactively and did not violate the ex post facto clause.

Both the Court of Appeal and this court, respectively, denied defendant’s writ of prohibition and petition for review. The jury subsequently convicted defendant of second degree murder. Defendant renews these claims on appeal.

b. Legal principles

Under section 1387, felony prosecutions are generally “subject to a two-dismissal rule; two previous dismissals of charges for the same offense will bar a new felony charge.” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019 [22 Cal.Rptr.3d 876, 103 P.3d 276].) Put another way, section 1387 allows for only one previous termination or dismissal of a felony. (People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 745 [23 Cal.Rptr.2d 733].) The Attorney General does not dispute that section 1387 would have prohibited the 1998 refiling of the Apodaca murder charge, which was dismissed twice in 1987. The point of contention involves section 1387.1, which was enacted in 1987 and became effective January 1, 1988. It provides an exception to the “two-dismissal rule”: it permits the prosecution to file a violent felony charge a third time if either of the prior dismissals were due to “excusable neglect,” and the prosecution did not act in “bad faith.” (§ 1387.1, subd. (a); see Miller v. Superior Court (2002) 10.1 Cal.App.4th 728, 739 [124 Cal.Rptr.2d 591].) The question here is whether by allowing the third filing of Apodaca’s murder charge, the trial court applied section 1387.1 retroactively in violation of the ex post facto clause.

Although the Latin term “ex post facto” literally extends to any statute passed “ ‘after the fact’ ” (Collins v. Youngblood (1990) 497 U.S. 37, 41 [111 L.Ed.2d 30, 110 S.Ct. 2715]), “no statute falls within the ex post facto prohibition unless ‘two critical elements’ exist.” (John L., supra, 33 Cal.4th at p. 172.) The statute must be retroactive, and must implicate at least one of the four categories described in Colder v. Bull (1798) 3 U.S. (3 Dali.) 386, 390 [1 L.Ed. 648]. (John L., supra, 33 Cal.4th at p. 172.) To be considered retroactive, the law must “ ‘change[] the legal consequences of an act completed before [the law’s] effective date,’ namely the defendant’s criminal behavior.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288 [279 Cal.Rptr. 592, 807 P.2d 434]; accord, John L., supra, 33 Cal.4th at p. 172.) “In other words, the operative event for retroactivity purposes, and the necessary reference point for any ex post facto analysis, is criminal conduct committed before the disputed law took effect.” (John L., at p. 172.) As to the second element, the four Colder categories encompass laws that (1) criminalize conduct that was innocent when done; (2) aggravate or make greater a crime than when committed; (3) change and increase the punishment; and (4) alter the rules of evidence to reduce the legal sufficiency necessary to support a finding of guilt. (See Colder, supra, 3 U.S. (3 Dall.) at p. 390; People v. Brown (2004) 33 Cal.4th 382, 391 [15 Cal.Rptr.3d 624, 93 P.3d 244].)

c. Application

As discussed, the parties agree that after the Apodaca murder charge was dismissed a second time in June 1987, section 1387’s two-dismissal rule barred any additional refiling. The Attorney General, however, argues that the subsequent enactment of section 1387.1 permitted defendant’s prosecution for the same offense 10 years later. Defendant counters that this third refiling in 1998 would amount to a retroactive application of section 1387.1 in violation of the federal Constitution’s ex post facto clause. Relying on Stogner v. California (2003) 539 U.S. 607 [156 L.Ed.2d 544, 123 S.Ct. 2446] (Stogner), defendant argues that section 1387 “operates precisely like a statute of limitations,” and that by allowing the prosecution to refile a third time under section 1387.1, the trial court unconstitutionally revived an otherwise barred prosecution. We conclude that because a retroactive construction of section 1387.1 would violate the ex post facto clause, the statute does not apply to cases that were twice dismissed before it was enacted. (Rust v. Sullivan (1991) 500 U.S. 173, 190 [114 L.Ed.2d 233, 111 S.Ct. 1759] [a statute “ ‘ought not be construed to violate the Constitution if any other possible construction remains available’ ”].)

In Stogner, the high court majority held that a California statute extending the limitations period for previously time-barred prosecutions “falls within the literal terms” of the second Calder category, i.e., a “ ‘law that aggravates a crime, or makes it greater than it was, when committed.’ ” (Stogner, supra, 539 U.S. at pp. 615, 613, italics omitted.) First explaining that this category’s alternate description refers to a statute “that ‘inflict[s] punishments, where the party was not, by law, liable to any punishment,’ ” the high court articulated why this second category fit: “After (but not before) the original statute of limitations had expired, a party such as Stogner was not ‘liable to any punishment.’ California’s new statute therefore ‘aggravated’' Stogner’s alleged crime, or made it ‘greater than it was, when committed,’ in the sense that, and to the extent that, it ‘inflicted punishment’ for past criminal conduct that (when the new law was enacted) did not trigger any such liability.” (Id. at p. 613, italics omitted.) Likewise, because defendant here was not by law liable for the twice-dismissed murder charges when section 1387.1 became effective, any application of section 1387.1 would make his crime “ ‘greater than it was, when committed’ ” in violation of the ex post facto clause. (Stogner, supra, 539 U.S. at p. 613; id. at pp. 613-614 [second Calder category applies “where a new law inflicts a punishment upon a person not then subject to that punishment, to any degree”].)

Seeking to distinguish Stogner, the Attorney General emphasizes that there is no statute of limitations on murder and an action “may be commenced at any time.” (§ 799; see People v. Nelson (2008) 43 Cal.4th 1242, 1250 [78 Cal.Rptr.3d 69, 185 P.3d 49].) Because section 1387 cannot provide a defendant charged with murder “amnesty” or a “complete defense to prosecution” (Stogner, supra, 539 U.S. at p. 632), the passage of section 1387.1 as an exception to section 1387 would not unconstitutionally “revive a long-forbidden prosecution.” (Stogner, supra, 539 U.S. at p. 632.) The Attorney General adds that the application of section 1387.1 is not contingent on time and is thus “completely unrelated” to a statute of limitations; it merely provides a procedural remedial tool to avoid releasing dangerous felons.