Cite as: 524 U. S. 721 (1998)
Scalia, J., dissenting
several additional facts that California and the Court have chosen to label "sentence enhancement allegations." However California chooses to divide and label its criminal code, I believe that for federal constitutional purposes those extra four years are attributable to conviction of a new crime.2 Monge was functionally acquitted of that crime when the California Court of Appeal held that the evidence adduced at trial was insufficient to sustain the trial court's "enhancement" findings, see Burks v. United States, 437 U. S. 1, 18 (1978). Giving the State a second chance to prove him guilty of that same crime would violate the very core of the double jeopardy prohibition.
That disposition would contradict, of course, the Court's holding in Almendarez-Torres that "recidivism" findings do not have to be treated as elements of the offense, even if they increase the maximum punishment to which the defendant is exposed. That holding was in my view a grave constitutional error affecting the most fundamental of rights. I note, in any event, that Almendarez-Torres left open the question whether "enhancements" that increase the maximum sentence and that do not involve the defendant's prior criminal history are valid. That qualification is an implicit limitation on the Court's holding today.
I respectfully dissent.
2 The Court contends that this issue "was neither considered by the state courts nor discussed in petitioner's brief before this Court." Ante, at 728. But Monge has argued consistently that reconsideration of the enhancement issue would violate the Double Jeopardy Clause. He did not explicitly contend that the enhancement was in reality an element of the offense with which he was charged, but I believe that was fairly included within the argument he did make. "When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law." Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 99 (1991). See also United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 446 (1993).
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