Case Information
*1 Filed 11/14/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
THE PEOPLE, Plаintiff and Respondent, A142881 v. (City & County of San Francisco
MARIO ESLAVA, Super. Ct. No. 216995) Defendant and Appellant.
This case comes to us on appeal a second time following defendant Mario Eslava‘s conviction on a jury verdict finding him guilty of voluntary manslaughter. In the first appeal, we affirmed the conviction and an accompanying weapons use enhancement, but reversed Eslava‘s 18-year prison sentence and remanded for a bench trial to determine whether a prior conviction for battery resulting in serious bodily injury qualifies as a sentence-enhancing strike and serious felony. Eslava pled guilty to the battery in 2009.
The linchpin issue on remand was whether the record of conviction proves beyond a reasonable doubt that Eslava personally inflicted serious bodily injury on the battery victim. To address that issue, the trial court examined the complaint in the 2009 battery case, the transcript of the plea colloquy, and a police report of the underlying incident. During the plea colloquy, Eslava‘s counsel stipulated that the police report—which describes Eslava hitting the victim with a wooden stick, injuring him seriously enough to require hospitalization—supplies a factual basis for the conviction. Based on this stipulation, the trial court found the requisite personal infliction of serious bodily injury, and reimposed the original sentence.
Eslava now appeals again, arguing, as he did in the first appeal, that the evidence is insufficient to support the use of his prior battery conviction as a strike. He also argues that, under the terms of his plea agreement in the battery case, the People are barred from taking the position that his conviction in that case may be used in a subsequent case for sentence enhancement purposes. We see no merit to the argument that Eslava‘s plea agreement bars the use of his battery prior for later sentence enhancement, but we agree that the evidence is insufficient to support the personal infliction of serious bodily injury finding.
At the back of Eslava‘s insufficiency of the evidence argument is a contention that it was a violation of the Sixth Amendment for the trial court to engage in any factfinding beyond what is necessarily established by the 2009 battery conviction itself. Since personal infliсtion of serious bodily injury is not inherent to the conviction, Eslava contends, it was improper for the court—rather than a jury—to make that finding. As we explain below, we must agree.
We reach this conclusion reluctantly, since we remanded specifically for a bench trial and the trial court simply followed our directions. But the law has evolved significantly since we decided the first appeal, and now requires a different disposition. Accordingly, once again we reverse and remand, this time for a jury trial on the issue of personal infliction of serious bodily injury in the 2009 battery, unless Eslava is prepared to waive his constitutional right to jury determination of that issue.
I. BACKGROUND
Eslava fatally stabbed his roommate, Troy Swann, in a single room occupancy hotel in San Francisco on January 2, 2011. [1] The evidence adduced at trial concerning *3 that homicide is not material here. At the conclusion of trial in March 2012, the jury returned a verdict finding Eslava guilty of voluntary manslaughter.
The voluntary manslaughter conviction carried various sentencing enhancement allegations, including that Eslava used a deadly or dangerous weapon in the course of the offense (Pen. Code, [2] former § 12022, subd. (b)(1)), that he had committed the offense within five years of completing a prior prison term (§ 667.5, subd. (b)), and that he had previously been convicted of a prior felony conviction which qualified as a strike and a five-year serious felony prior. (§§ 667, subds. (a), (e)(1), 1170.12, subd. (c)(1), 1192.7, subd. (c)(8), 1192.8, subd. (a)). The jury found true the only sentence enhancement allegation submitted to it, the former section 12022, subdivision (b)(1) use of a weapon allegation.
A single prior conviction, resting on Eslava‘s plea of guilty in 2009 to a felony charge of battery resulting in serious bodily injury (§ 243, subd. (d)), was the basis of the alleged strike and serious felony enhancements and the alleged prison prior. Eslava was charged in the 2009 case with four other counts in addition to battery—two separate counts for assault with a deadly weapon (§ 245, subd. (a)(1)), one count of making a criminal threat of death or great bodily injury (§ 422), and one count of brandishing a weapon (§ 417, subd. (a)(1)), together with sentence enhancement allegations that Eslava personally inflicted great bodily injury (§ 12022.7, subd. (a)) and used a deadly and dangerous weapon (former § 12022, subd. (b)(1)). He pled guilty only to count 2 of the complaint, charging a violation of section 243, subdivision (d). As part оf this negotiated plea, the ―balance of the complaint . . . and any remaining allegations‖ were dismissed.
After the jury reached a verdict in Eslava‘s trial for killing Swann but before returning to the courtroom to pronounce it, the court inquired whether it would be necessary to ―proceed before the jury for the finding of the prior.‖ Eslava‘s counsel responded, ―We‘ll waive the jury, your Honor.‖ The court then inquired directly of *4 Eslava about the jury waiver, advising him, ―[Y]ou have the right to have a jury make a determination as to whether or not the allegation in this case that you had a prior prison commitment has been proved beyond a reasonable doubt. It‘s my understanding through your attorney that you wish to waive that and have this Court decide the issue. Is that what you wish to do, sir?‖ Eslava answered ―Yes.‖
At sentencing, the parties focused their attention on whether Eslava‘s 2009 conviction for violating section 243, subdivision (b), qualified as a strike or a serious felony. The issue turned on whether a police report of the incident established that Eslava personally inflicted serious bodily injury on the battery victim. The defense argued in its sentencing brief that the poliсe report was not a part of record of conviction and was inadmissible hearsay. The People argued that Eslava had admitted the facts stated in the police report because, in the plea colloquy, his counsel stipulated to the facts in the report as the basis for the plea. The police report itself was never offered or admitted into evidence at the sentencing proceeding, but was in the court‘s file, having been attached to a previous motion by the prosecution to amend the complaint.
Based on the stipulation to the police report by Eslava‘s counsel, the court found ―it was Mr. Eslava who personally inflicted serious bodily injury‖ on the battery victim, and then proceeded to sentence Eslava on the voluntary manslaughter conviction, with that enhancement taken into account. The sentence Eslava received, in total, was for a prison term of six years on the manslaughter conviction, doubled to twelve years for a strike prior (§ 667, subd. (e)(1)), increased by another five years for a serious felony prior (§ 667, subd. (a)(1), and further increasеd by a year for the use of a deadly and dangerous weapon in Swann‘s killing (former § 12022, subd. (b)(1))—amounting to an aggregate term of 18 years.
In an unpublished opinion filed January 22, 2014, we affirmed the manslaughter
conviction and weapons use enhancement, but reversed the sentence to the extent it was
enhanced for Eslava‘s prior battery conviction. (
People v. Eslava
(Jan. 22, 2014)
A135568 [nonpub. opn.] (
Eslava I
).) We explained that, while the battery prior ―may . . .
*5
qualify as a serious felony (and thus a strike) if the record of the prior conviction
establishes that the defendant ‗personally inflicted‘ the injury [citations], the fact of
conviction alone does not establish the element of personal infliction.‖ (
Ibid.,
citing
People v. Bueno
(2006)
In reversing on this point, we were concerned with whether, procedurally, the trial
court had properly adjudicated the facts underlying its strike and serious felony
determination. What the court relied upon as the record of conviction for the 2009
battery conviction was not clear. Because the trial court‘s finding of personal infliction
of injury was not based on admitted evidence of record, and because Eslava ―never
waived his right to a proper judicial determination‖ of that issue, we remanded for a
bench trial, explaining, ―the People have the burden to establish that the prior conviction
was for a serious felony (and is thus a strike) by proving beyond a reasonable doubt that
the record of conviction shows that Eslava personally inflicted the injury upon which the
battery conviction was based.‖ (
Eslava I
, A135568, citing
People v. Delgado
(2008)
We held that ―Eslava‘s stipulation that he had a prior conviction under section
243, subdivision (d) was аn ‗ordinary evidentiary stipulation‘ that ‗was [not] the
equivalent of an admission of the truth of the enhancement allegation‘ or ‗tantamount to a
plea of guilty.‘ [Citation.] As a consequence, the trial court could accept the stipulation
*6
without advising Eslava of his constitutional rights or determining that he expressly
waived them‖ with appropriate admonitions under
In re Yurko
(1974)
Thus, we remanded for a bench trial. On remand, the People offered and the court admitted into evidence (1) the complaint by which Eslava was charged in the 2009 battery case, (2) the transcript of the plea colloquy in the 2009 battery case, and (3) the police report of the incident on which the charges in the 2009 battery case were based. The complaint and the plea colloquy were admitted without objection. Eslava objected to the police report on hearsay grounds, but his objection was overruled. After reciting for the record facts taken from the police report describing how Eslava, upset with a postal clerk named George Cousart, pulled a knife and struck Cousart with a club, causing injury serious enough to require hospitalization, the court concluded ―There was no one else there . . . Mr. Eslava and Mr. Cousart.‖ It then proceeded to find ―that the People have proved beyond a reasonable doubt that the 2009 conviction . . . is a strike prior for purposes of sentencing in this case.‖ And based on that finding, it then reimposed the 18- year sentence that it had originally imposed, again using the battery prior as a strike and a serious felony.
II. DISCUSSION
A. The Plea Agreement in the 2009 Battery Case Does Not Bar the People from Using Eslava’s Conviction in That Case for Sentence Enhancement Purposes in This Case .
We turn first to Eslava‘s contention that under the terms of his plea agreement in
his 2009 battery case, the Pеople are barred from taking the position in a subsequent
prosecution that his battery conviction may be used for sentence enhancement purposes.
Because we denied Eslava‘s habeas petition raising this issue summarily, he is free to
raise the argument here. (
Kowis v. Howard
(1992)
Second, although Eslava could have changed this default rule in the plea
*8
negotiations and obtained the protection he claims he now has, to do so he would have
had to bargain for it specifically in the process of securing dismissal of the enhancement
allegation. (See § 1170.12, subd. (d)(2).) We see no evidence that he did so. We do
have a declaration from Eslava‘s trial counsel stating that, because the guilty plea was to
a ―bare‖ section 243, subdivision (d), violation, ―it was understood‖ that the personal
infliction of bodily injury allegation would not be pursued in the future. But exactly who
was a party to this understanding is not clear from counsel‘s declaration. He does not
mention that it was discussed verbally with the prosecution or communicated to the
prosecution in written form. Plea agreements are contracts subject to the rules of contract
interpretation, but even more fundamentally they are subject to the rules of contract
formation. Mutual assent is necessary to the formation of a contract (Civ. Code, §§ 1550,
1565) and is determined under an objective standard applied to the outward
manifestations or expressions of the parties, i.e., the reasonable meaning of their words
and acts, and not their unexpressed intentions or understandings. (1 Witkin, Summary of
Cal. Law (10th ed. 2005) Contracts, § 116, p. 155.) In the absence of any objective
evidence of communicated intent, there is no contractual commitment to enforce. (
Winet
,
,
B. The Evidence Is Insufficient to Support the Court’s Finding That Eslava’s 2009 Conviction for Battery Resulting in Serious Bodily Injury Is a Serious Felony and a Strike for Sentence Enhancement Purposes .
Next, Eslava argues that ―[p]ersonal infliction of great bodily injury was not proven [in] the proceeding at which [he] entered a guilty plea to violating Penal Code section 243, subdivision (d).‖ As a result, he contends, it was improper for the trial court to have found personal infliction of serious bodily injury in this case, since the sole basis *9 for that finding was his counsel‘s stipulation to the police report as a factual basis for his plea of guilty to the battery charges, which, at most, was admission of nothing more than the minimum elements of that conviction. As explained below, we must agree.
In resolving the first appeal, we remanded for a bench trial after noting that ― Eslava concedes that he waived any right he may have had to have the jury decide the truth of the prior-conviction allegations. While he argues . . . that only a jury can determine whether he personally inflicted the injury when he committed battery . . . , he does not explain how this claim survives his jury waiver.‖ ( Eslava I , A135568.) The legal terrain has shifted at this point. Under the circumstances, we cannot now conclude that Eslava waived his right to have a jury determine the issue of personal infliction in this case. At the time of his trial, ―[t]he right, if any, to a jury trial of prior conviction allegations‖ was limited and purely statutory, ―deriv[ing] from sections 1025 and 1158, not from the state or federal Constitution.‖ ( People v. Epps (2001) 25 Cal.4th 19, 23 ( Epps ).)
Based on recently decided United States Supreme Court precedent, as uniformly
recognized in a string of published district court of appeal opinions addressing the issue
since we issued our opinion in
Eslava I
, we now hold that Eslava is entitled under the
Sixth Amendment to a jury trial on the personal infliction of serious bodily injury issue.
―When the constitutional right to jury trial is involved,‖ an affirmative, personal waiver is
required ―even in cases in which the circumstances make it apparent that all involved—
the trial court, the prosecutor, defense counsel, and the defendant—assumed that the
defendant had waived or intended to waive the right to a jury trial.‖ (
People v. French
(2008)
1. The emerging recognition that Apprendi v. New Jersey calls into question established judicial strike determination procedure in California.
In California, it has long been established that a sentencing court may make strike
and serious felony determinations based on a defendant‘s entire record of conviction.
(
People v. Guerrero
(1988)
The California Suprеme Court reconciled these potentially clashing principles in McGee . There, the Court drew a distinction between ―sentence enhancements that require factfinding related to the circumstance of the current offense…—a task identified by Apprendi as one for the jury —and the examination of court records pertaining to a defendant‘s prior conviction to determine the nature or basis of the conviction—a task to which Apprendi did not speak and ‗the type of inquiry that judges traditionally perform as part of the sentencing function.‘ ‖ ( McGee , 38 Cal.4th at. p. 709, italics in original.) The Court acknowledged ―the possibility that the United States Supreme Court, in future decisions, may extend the Apprendi rule‖ to ―the inquiry involved in examining the record of a prior conviction to determine whether that conviction constitutes a qualifying prior conviction for purposes of a recidivist sentencing statute,‖ but absent clear guidance from the high court was ―reluctant to assume, in advance of such a decision . . . , that the federal constitutional right to a jury trial will be interpreted to apply in the . . . context‖ of judicial strike determination procedure. ( Ibid .)
Although our Supreme Court has yet to weigh in,
[6]
there is a growing recognition
among the Court of Appeal panels to have addressed the issue in published opinions that
that guidance has now been given. Summing up the state of the law after canvassing
recent United States Supreme Court precedent last year, a Second District Court of
Appeal panel explained that ―judicial factfinding beyond the elements of the defendant‘s
*12
prior conviction—so called ‗superfluous facts‘ or ‗non-elemental facts‘—is generally
constitutionally impermissible,‖ unless, ―in entering a guilty plea
,
the defendant waived
his right to a jury trial as to such facts and either admitted them or they were found true
by the court with defendant‘s assent.‖ (
People v. Marin
(2015)
In
Marin
, the alleged strike conviction, entered following a no contest plea, was
vehicular manslaughter. (
Marin
,
supra
, 240 Cal.App.4th at pp. 1349–1350.) It was not
clear from the fact of the conviction alone whether the defendant personally inflicted
great bodily injury on a person other than an accomplice (§ 1192.7, subd. (c)(8)). The
trial court, following established procedure under
McGee
, examined the abstract of
judgment and determined that the conviction qualified as a strike. (
Id.
at pp. 1350–1351.)
The Court of Appeal reversed and remanded for a jury trial on the personal infliction
issue, сoncluding that, in light of
Descamps v. United States
(2013)
Descamps
, according to the
Marin
court
,
―is the extension of
Apprendi
that the
California Supreme Court contemplated in
McGee.”
(
Marin
, 240 Cal.App.4th at
p. 1363.)
Marin
is one of five published Court of Appeal opinions to have reached this
conclusion over the last 18 months. (See also
People v. Navarette
(Oct. 27, 2016,
F069534) ___ Cal.App.5th ___ [
2. Descamps v. United States bars judicial factfinding in recidivist sentencing insofar as it involves facts beyond the elements necessarily implied in a prior conviction.
Descamps arose under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a federal criminal statute exposing defendants with certain prior convictions to *14 enhanced sentences. Burglary is among the sentence-enhancing crimes specified in the ACCA. Broadly stated, the issue in Descamps was whether the prior conviction at issue there, for a California burglary, was equivalent to ―generic‖ burglary, thus qualifying it for sentencing-enhancing purposes under the ACCA. ―To determine whether a past conviction is for‖ an ACCA sentence-enhancing crime, the Court explained, federal courts use what has become known as the ― ‗categorical approach‘: They compare the elements of the statute forming the basis of the defendant‘s conviction with the elements of the ‗generic‘ crime— i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA [sentence-enhancing crime] only if the statute‘s elements are the same as, or narrower than, those of the generic offense.‖ ( Descamps , supra , 133 S.Ct. at p. 2281.)
In prior ACCA cases, the Court had ―approved a variant of this method—labeled
(not very inventively) the ‗modified categorical approach‘—when a prior conviction is
for violating a so-called ‗divisible statute.‘ That kind of statute sets out one or more
elements of the offense in the alternative—for example, stating that burglary involves
entry into a building
or
an automobile. If one alternative (say, a building) matches an
еlement in the generic offense, but the other (say, an automobile) does not, the modified
categorical approach permits sentencing courts to consult a limited class of documents,
such as indictments and jury instructions, to determine which alternative formed the basis
of the defendant‘s prior conviction.‖ (
Descamps
,
supra
,
It was undisputed in
Descamps
that the California conviction at issue was under an
―indivisible statute‖ (§ 459) and that, on its face, the elements required for conviction
under that statute are broader than those of ―generic‖ burglary because unlawful entry
into the burgled structure is not required under section 459, while it is required for
―generic‖ burglary under the ACCA. (
Descamps
, 133 S.Ct. at pp. 2281, 2288–
2289, 2293.) Because Descamps pled guilty to violating section 459, it was impossible to
determine whether the unlawful entry element was satisfied without employing the
―modified categorical‖ approach to determine exactly how he committed the crime. The
District Court did just that, consulting ―the record of the plea colloquy, to discover
whether Descamps had ‗admitted the elements of a generic burglary‘ when entering his
plea.‖ (
Descamps, supra
,
The Ninth Circuit affirmed, but the United States Supreme Court reversed. The Court explained that it was improper for the District Court to do anything more than compare the legal elements of burglary under section 459 to the legal elements of ―generic‖ burglary. ( Descamps , 133 S.Ct. at pp. 2281, 2288–2289, 2293.) Since burglary under section 459 may be committed without forcible entry into the burgled structure, it is broader than ―generic‖ burglary and thus may not be considered an ACCA trial, or the crime (and its elements) a jury determined beyond a reasonable doubt that he committed.‖ ), original italics аnd citations.
predicate crime. ( Id. at p. 2293.) Examination of the record of a prior conviction may be undertaken in very narrow circumstances, the Court explained. ( Id. at pp. 2283–2286.) Only in cases where the prior conviction at issue is charged under a statute embracing several alternative crimes (so-called ―divisible‖ statutes) may the record of conviction be consulted, and then only for the limited purpose of determining which alternative crime formed the basis of the conviction. [9] ( Id. at p. 2281.) Under no circumstances, the Court emphasized, may the record of a prior conviction be consulted to discern the underlying facts of the prior conviction offense. ( Id. at pp. 2283, 2285–2287.) Notably, the Court reached this conclusion, in part, based on the Sixth Amendment. (See id . at p. 2288 [―[T]here‘s the constitutional rub. The Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting elements of the offense—as distinct from amplifying but legally extraneous circumstances.‖]; ibid . [adopting the observation offered in Justicе Thomas‘ concurrence in Shepard, supra, 544 U.S. at p. 28, that a judicial finding of non-elemental facts ―would ‗giv[e] rise to constitutional error, not doubt‘ ‖].)
Even though, strictly speaking,
Descamps
addresses a question of federal statutory
interpretation, all five of the Court of Appeal panels to have considered its implications
*17
for sentencing enhancement in California have read its reasoning, in substance, as a Sixth
Amendment holding. As the panel in
Saez
explains, ―We recognize that the Sixth
Amendment discussion in
Descamps . . .
was not an unequivocal holding, and we are
accordingly hesitant to conclude—without first hearing from our state Supreme Court—
that
Descamps
has ‗undermine[d]‘
McGee . . .
[citations.] But we are bound by rulings of
the United States Supreme Court on matters of federal law. [Citations.] And while
Descamps
did not explicitly overrule
McGee, Descamps
‘s discussion of the Sixth
Amendment principles applicable when prior convictions are used to increase criminal
sentences is clear and unavoidable and was adopted by eight of the nine justices on the
high court. Under these unusual circumstances, we are compelled to apply those
constitutional principles here.‖ (
Saez
,
Saez
, the first of the recent Court of Appeal opinions to adopt this reading of
Descamps
, is espеcially instructive. Presiding Justice Humes, who authored our first
opinion in this case, wrote for the panel there. The
Saez
opinion addresses whether the
record of conviction pertaining to a defendant‘s guilty plea to two prior Wisconsin
offenses, one for false imprisonment while armed, and one for reckless use of a firearm,
could support a judicial determination that these offenses were sentence-enhancing
strikes and serious felonies. The facts there were quite close to what we have here. The
key issue was whether the defendant personally used a firearm committing the Wisconsin
offenses. (
Saez
,
*18 The Saez court concluded that, while a judicial strike finding based on such a stipulation is permissible under McGee , it is not permissible under Descamps . “Descamps declared that the Sixth Amendment prohibits ‗a sentencing court [frоm] ―mak[ing] a disputed‖ determination ―about what the defendant and state judge must have understood as the factual basis of the prior plea.‖ ‘ ‖ ( Saez , , 237 Cal.App.4th at p. 1206.) Applying the principle that ― ‗[a] guilty plea ―admits every element of the crime charged . . . ,‖ ‘ but no more,‖ the court concluded: ―Saez admitted to the elements of false imprisonment while armed and of reckless use of a dangerous weapon by pleading guilty to those crimes. But he did not admit, or waive his Sixth Amendment rights regarding, the additional facts on which the strike finding was contingent: that he personally used a firearm and that the reckless use of a firearm occurred in the course of the false imprisonment. Nor did his stipulation to the complaint as the factual basis of his plea constitute a waiver of Sixth Amendment rights or an admission as to those additional facts.‖ ( Ibid. )
3. The trial court‘s finding that Eslava personally inflicted serious bodily injury in committing the 2009 battery violated Eslava‘s Sixth Amendment right to jury determination of that issue.
We find
Saez Marin
,
Denard
,
McCaw
and
Navarette
to be persuasive. As those
courts point out, the reasoning of
Descamps
leads ineluctably to the conclusion that a
judicial strike and serious felony determination based on the reсord of a prior conviction
contravenes the Sixth Amendment insofar as it rests on facts beyond the elements of the
conviction, unless the defendant waives a jury as to those facts and either admits them or
assents to the court‘s finding them.
Mathis, supra
,
which applies Descamps in another ACCA case, the Court left no room for doubt that its holding in Descamps is anchored in the Sixth Amendment. ―[A] judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense,‖ the Court declared in Mathis . ( Id . at p. 2252.) ―He is prohibited from conducting such an inquiry himself; and so too he is barred from making a disputed determination about ‗what the defendant and state judge must have understood as the factual basis of the prior plea‘ or ‗what the jury in a prior trial must have accepted as the theory of the crime.‘ [Citations] He can dо no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.‖ ( Ibid .)
The prior convictions in
Mathis
were for burglary under Iowa law. (
Mathis
,
,
In this case, there is no question that the issue of personal infliction of serious
bodily injury—as but one ―means‖ of committing battery in violation of section 243,
subdivision (d)—is a ―non-elemental fact.‖ Indeed, that was the premise of our reversal
of Eslava‘s sentence in the first appeal. (See
Bueno
,
supra
,
4. The trial court‘s finding that Eslava personally inflicted serious bodily injury in committing the 2009 battery violated both federal and state law.
Citing
People v. Sample
(2011)
The United States Supreme Court‘s reasoning in
Descamps
and
Mathis
appears to
foreclose any reliance on Eslava‘s stipulation to the police report as a basis for the trial
court‘s strike determination in any event. In
Descamps
, the high court explains that
sentencing courts applying the ―modified categorical‖ approach it rejected there would
often find that, by failing to speak up, a defendant ―admitted in a plea colloquy . . . facts
that, although unnecessary to the crime of conviction, satisfy an element of the relevant
*22
generic offense.‖ (
Descamps
,
Even assuming
Sample
might apply on its own terms, as a matter of state law,
without regard to
Descamps
and
Mathis
, it is distinguishable. ― ‗Whether [a] statement
constitutes an adoptive admission [under Evidence Code section 1221] is ―determined
upon the facts and circumstances therein presented.‖ ‘ [Citation.] For a statement to be
an adoptive admission, there must be sufficient evidence to sustain a finding that (1) the
defendant heard and understood the statement under circumstances normally calling for a
response, and (2) the defendant adopted the statement as true by the defendant‘s words or
conduct.‖ (
Sample
,
In a factual context similar to the one before us, People v. Learnard (Oct. 28, 2016, B260824) ___ Cal.App.5th ___ [2016 Cal.App. LEXIS 927], recently held that a defendant‘s prior conviction by plea for a violation of former section 245, subdivision (a)(1) [11] (assault with a deadly weapon or by means of force likely to produce great bodily injury), could not be used as a strike to increase Learnard‘s sentence because the trial court‘s strike finding was not supported by substantial evidence. ( Id . at pp.*6–*12.) In that case, the evidence of the prior conviction consisted of the information, the abstract of judgment, the preliminary hearing transcript, and the preconviction probation report, which drew its facts from the police report. ( Id . at pp. *3–*4.) The information had charged Learnard with a violation of former section 245, subdivision (a)(1) in that he committed ― ‗an assault . . . with a deadly weapon, to wit, [a] baseball bat, and by means оf force likely to produce great bodily injury.‘ ‖ ( Id . at p. *4, italics omitted.) The only means of violating the statute that was statutorily defined as a strike was assault by use of a deadly weapon. (§ 1192.7, subd. (c)(31); Learnard, supra, ___ Cal.App.5th ___ [2016 Cal.App. LEXIS 927, at p. *6.) The abstract of judgment following Learnard‘s plea also listed both means of violating the statute. ( Id. at p. *4.) The preliminary hearing transcript showed there was evidence of both use of a weapon and means of force likely *24 to produce great bodily injury. [12] ( Id . at pp. *8–*9.) Because the information, preliminary hearing transcript and preconviction report all mentioned Learnard‘s use of a baseball bat in the assault ( id . at pp. *4–*5, *7–*9, & fn. 8), the trial court determined Learnard‘s conviction was, in fact, for use of a deadly weapon and imposed a strike sentence. ( Id . at p. *5.)
Relying strictly on state law, the Second Appellate District, Division One
reversed, holding the trial court ―went beyond reasonable inference‖ from the record of
conviction, ―actually weighed the evidence contained in those documents in order to
make its own factual determination about the nature of the offense,‖ and in doing so
ignored ―evidеnce that established an assault with force likely to produce great bodily
injury.‖ (
Learnard
, ___ Cal.App.5th ___ [
The same reasoning applies here. The trial court relied on information taken from a police report to determine, factually, that the allegation of use of force ―resulting in bodily injury‖ meant that Eslava had personally inflicted serious bodily injury on Cousart. Absent evidence that Eslava was aware of those specific facts in the police report when he entered his plea, ―it must be presumed that [his] conviction under [section 243, subdivision (d)] was for the least serious form of the offense.‖ ( Learnard , supra , ___ Cal.App.5th ___ [2016 Cal.App. LEXIS 927, at p. *9].)
5. A jury trial on the issue of personal infliction of serious bodily injury is warranted, should the People elect to pursue one.
― ‗Failure to submit a sentencing factor to the jury, like failure to submit an
element [of the crime] to the jury, is not structural error.‘ ‖ (
French
,
supra
, 43 Cal.4th at
p. 52.) ―Such an error does not require reversal if the reviewing court determines it was
harmless beyond a reasonable doubt, applying the test set forth in
Chapman v. California
(1967)
No double jeopardy bar prevents retrial of a sentencing enhancement after reversal
for insufficiency of the evidence, on Sixth Amendment grounds (
Marin
, 240
*26
Cal.App.4th at pp. 1364–1365), or state law grounds (
Learnard
,
supra
, ___ Cal.App.5th
___ [2016 Cal.App. LEXIS 927, at p. *10, fn. 9]). ―[O]ne is not placed ‗twice in
jeopardy for the same offense‘ when the details of misconduct which has already resulted
in . . .
dismissal pursuant to a plea bargain
. . . are presented in a later proceeding on the
separate issue of the appropriate penalty for a
subsequent
offense.‖ (
People v. Melton
(1988)
*27
While this separate sentencing enhancement charge was dismissed as part of the
plea agreement, as Eslava emphasizes throughout his briefs, one plausible reading of the
record is that Eslava nonetheless admitted the means by which he committed the crime—
personal infliction of serious injury on Cousart—because of the particular way in which
the People pleaded Count 2. Whether that was Eslava‘s intention seems debatable,
among other things for the reasons the United States Supreme Court gave in
Descamps
and
Mathis
for narrowly interpreting a defendant‘s failure to contest ―superfluous‖ facts
in a plea colloquy. (
Descamps
,
We conclude that Eslava has a Sixth Amendment right to have a jury resolve the
issue.
Descamps
and
Mathis
prevent a court from looking at the record of conviction and
drawing the factual inference that Eslava admitted inflicting serious bodily injury on
Cousart, but those cases do not prevent the People from asking a jury to draw that
inference (cf.
People v. Moenius
(1998)
III. DISPOSITION
We reverse the sentence and remand for further proceedings to determine whether Eslava personally inflicted serious bodily injury on a person other than an accomplice in committing the 2009 battery. Eslava is entitled to a jury trial on the personal infliction of serious bodily injury issue, unless he waives a jury and either admits the necessary facts or assents to the court‘s finding of them without a jury. The evidentiary scope of any trial on remand shall be limited to the record of conviction. Once the required factfinding is completed, the court shall resentence Eslava in accordance with the facts found. In the event the People elect not to proceed with a retrial of the issue of personal infliction of great bodily injury, the court shall resentence Eslava without considering the 2009 battery to be a serious felony or a strike.
_________________________ Streeter, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Rivera, J.
A142881/ People v. Eslava
People v. Eslava (A142881)
Trial Court: City & County of San Francisco Superior Court Trial Judge: Hon. Anne-Christine Massullo
Counsel:
Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Bruce M. Slavin, Deputy Attorney General for Plaintiff and Respondent.
Notes
[1] Eslava requests that we augment the record in this appeal to include the Clerk‘s Transcript and the Reporter‘s Transcript in his first appeal, No. A135568. We grаnt that request.
[2] Subsequent unspecified statutory references are to the Penal Code.
[3] Along with the first appeal, Eslava filed a companion petition for writ of habeas corpus alleging that, under the terms of his plea agreement in the 2009 case, the People should be barred from taking the position that his conviction for battery may be treated as a strike and a serious felony in any subsequent case. We summarily denied that petition on the same day we filed our opinion in the first appeal.
[4] The People have been consistent on this issue. On remand following our decision in Eslava I , they joined issue on the merits and made no waiver argument when Eslava invoked his Sixth Amendment right to jury trial.
[5] The nature of the evidence comprising the ―record of conviction‖ for purposes of
this inquiry has been worked out over time in the case law. (See
People v. Harrell
(1989)
[6] On February 17, 2016, the Court granted review in People v. Gallardo , S231260, to address the issue.
[7] In a sixth, somewhat older case,
Wilson
,
[8] See
Taylor v. United States
(1990)
[9] ― ‗The type of factfinding permitted by
McGee
is virtually indistinguishable from
the Ninth Circuit approach that the high court disapproved in
Descamps
. The Ninth
Circuit approach permitted an examination of ―reliable materials‖ to determine ― ‗what
facts‘ can ‗
confident[ly]’ be thought to underlie the defendant’s conviction
in light of the
‗prosecutorial theory of the case‘ and the ‗facts put forward by the government.‘
[Citation.]‖ (
Descamps, supra,
[
[10] ―Before accepting a guilty or no contest plea pursuant to a plea agreement in a felony case, the trial court is required to determine that a factual basis for the plea exists. [Citations.] ‗The purpose of the requirement is to protect against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in law to
[11] The ambiguity involved in convictions under section 245 were presumably alleviated to some extent by the amendments in 2011, which separated the two means described in former subdivision (a)(1) by placing the ―means of force‖ language into a new subdivision (a)(4). (Stats. 2011, ch. 183, § 1 (AB 1026), effective January 1, 2012)
[12] ―[T]he victim testified that appellant hit the victim‘s left shoulder as he struck the victim‘s car with a baseball bat. But the victim also testified that appellant grabbed him with both hands and tried ‗to tear [him] out of the car.‘ In concluding that the conduct described constituted an assault with a deadly weapon and thus a serious felony, the court again simply ignored evidence that established an assault with force likely to produce great bodily injury.‖ ( Learnard , ___ Cal.App.5th ___ [2016 Cal.App. LEXIS 927, at pp. *8–*9].)
[13] Because the People have already had two opportunities to prove up personal infliction of serious bodily injury, we have considered simply remanding for resentencing with directions not to consider the 2009 battery as a serious felony or strike, as Eslava urges us to do, and as the appellate panels in Navarette , Saez , Denard, and Wilson did. But we cannot know what may be in the record of conviction beyond the materials submitted to the trial court so far. We agree with the approach taken by the appellate panel in Marin , which, seeing no double jeopardy bar, noted that ―retrial of . . . strike allegation[s] after reversal for insufficient evidence is permissible‖ ( Marin , 240 Cal.App.4th at p. 1366), and then remanded for retrial, even though there, as here, the court was reversing a strike determination for a second time. (See Marin , 240 Cal.App.4th at pp. 1363, 1364–1367.)