People v. EslavaPeople v. Eslava
STREETER, J.—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 wе 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 infliction 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 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 (
A single prior conviction, resting on Eslava’s plea of guilty in 2009 to a felony charge of battery resulting in serious bodily injury (
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 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
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 sеntence Eslava received, in total, was for a prison term of six years on the manslaughter conviction, doubled to 12 years for a strike prior (
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, supra, A135568 [nonpub. opn.] (Eslava I).) We explained that, while the battery prior “may . . . 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) 143 Cal.App.4th 1503, 1508 [50 Cal.Rptr.3d 161] (Bueno) [“[T]o establish that
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, supra, A135568, citing People v. Delgado (2008) 43 Cal.4th 1059, 1065–1066 [77 Cal.Rptr.3d 259, 183 P.3d 1226] (Delgado) [“[t]he People must prove each element of an alleged sentence enhancement beyond reasonable doubt” and can only sustain their burden of showing that a рrior offense qualified for an alleged sentencing enhancement by introducing into evidence a record of the prior conviction that meets all “ ‘threshold requirements of admissibility’ ”].)
We held that “Eslava’s stipulation that he had a prior conviction under
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 рrior 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 People 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 corpus petition raising this issue summarily, he is free to raise the argument here. (Kowis v. Howard (1992) 3 Cal.4th 888, 899 [12 Cal.Rptr.2d 728, 838 P.2d 250].) We now reject it on the merits. It is true, as Eslava argues, that “plea agreements are interpreted according to the general rule ‘that ambiguities are construed in favor of the defendant’ ” (People v. Toscano (2004) 124 Cal.App.4th 340, 345 [20 Cal.Rptr.3d 923]) and may be specifically enforced on due process grounds if the prosecution refuses to abide by a commitment it made (People v. Mancheno (1982) 32 Cal.3d 855, 860 [187 Cal.Rptr. 441, 654 P.2d 211]), but those principles do not aid Eslava here. First, it is a cardinal rule of contract interpretation that, before resorting to tie-breaking rules for resolving ambiguity, there must first be gеnuine ambiguity. (See Winet v. Price (1992) 4 Cal.App.4th 1159, 1165 [6 Cal.Rptr.2d 554] (Winet).) A contract is not ambiguous unless it is “ ‘reasonably susceptible’ ” to the interpretation urged. (Ibid.) Here, the plea agreement is not reasonably susceptible to the meaning Eslava seeks to place on it because
Second, although Eslava could have changed this default rule in the plea 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
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
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, supra, 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
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) 43 Cal.4th 36, 47 [73 Cal.Rptr.3d 605, 178 P.3d 1100] (French).) Eslava’s on-the-record jury waiver here was narrow. The court asked if he was willing to waive “a jury 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.” We cannot assume he would have given a broader waiver, had he been asked. The People concede the point. At oral argument, the Attorney General acknowledged there is not enough in the record for us to conclude that Eslava waived his Sixth Amendment right to a jury trial on whether his 2009 conviction for battery resulting in serious bodily injury constituted a strike.4
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) 44 Cal.3d 343 [243 Cal.Rptr. 688, 748 P.2d 1150] (Guerrero); People v. Myers (1993) 5 Cal.4th 1193, 1200 [22 Cal.Rptr.2d 911, 858 P.2d 301]). Where the alleged strike prior rests on a plea of guilty or no contest, the court may examine the record of conviction to determine whether the crime “realistically may have been basеd on conduct” that does not qualify as a strike and serious felony under California law. (People v. McGee (2006) 38 Cal.4th 682, 706 [42 Cal.Rptr.3d 899, 133 P.3d 1054] (McGee))5 Under the federal Constitution, however, “only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction.” (Mathis v. United States (2016) 579 U.S. ___ [195 L.Ed.2d 604, 136 S.Ct. 2243, 2252] (Mathis), citing Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi); see also Jones v. United States (1999) 526 U.S. 227, 243, fn. 6 [143 L.Ed.2d 311, 119 S.Ct. 1215].) Foundational to Apprendi is the notion that, under the Sixth Amendment, the jury is a bulwark “standing between a defendant and the power of the State.” (Shepard v. United States (2005) 544 U.S. 13, 25 [161 L.Ed.2d 205, 125 S.Ct. 1254] (Shepard).)
The California Supreme 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
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 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 the defendant’s assent.” (People v. Marin (2015) 240 Cal.App.4th 1344, 1364 [193 Cal.Rptr.3d 294] (Marin).)
In Marin, the alleged strike conviction, enterеd 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 (
Descamps, according to the Marin court, “is the extension of Apprendi that the California Supreme Court contemplated in McGee.” (Marin, supra, 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 (2016) 4 Cal.App.5th 829, 855 [208 Cal.Rptr.3d 757] (Navarette) [murder conviction from Mexico could not constitute a strike and serious felony prior because thе elements were a “mismatch” with California law (
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 of 1984 (ACCA;
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 element 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, 570 U.S. at p. ___ [133 S.Ct. at p. 2281].)8 The specific question presented in Descamps was “whether sentencing courts may . . . consult those additional documents when a defendant was convicted under an ‘indivisible’ statute—i.e., one not containing alternative elements—that criminalizes a broader swath of conduct than the relevant generic offense. That would enable a court to decide, based on information about a case’s underlying facts, that the defendant’s prior conviction qualifies as an ACCA [sentence-enhancing crime] even though the elements of the crime fail to satisfy our categorical test.” (Descamps, at p. ___ [133 S.Ct. at pp. 2281–2282].)
The Ninth Circuit affirmed, but the United States Supreme Court reversed. The cоurt explained that it was improper for the district court to do anything more than compare the legal elements of burglary under
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 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 unavoidablе 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, supra, 237 Cal.App.4th at p. 1207.)
Saez, the first of the recent Court of Appeal opinions to adopt this reading of Descamps, is especially 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, supra, 237 Cal.App.4th at p. 1192.) An affidavit of probable cause attached to the complaint in the Wisconsin case described in some detail the facts of the offense, including the defendant’s personal use of
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 [from] “mak[ing] a disputed” determination “about what the defendant and state judge must have understood as the factual basis of the prior plea.” ’ ” (Saez, supra, 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 triаl 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 record 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, 579 U.S. at page ___ [136 S.Ct. at page 2253], filed at the end of the high court’s 2015–2016 term, fortifies our conclusion on this point. In Mathis, 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
The prior convictions in Mathis were for burglary under Iowa law. (Mathis, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2250].) The Iowa statute defining burglary was “indivisible” in the sense that it defined only a single crime, but the issue raised in comparing it to generic burglary under the ACCA was that, under the generic offense, burglary requires entry into a “ ‘building or other structure,’ ” while burglary in Iowa can be committed in a broader range of places (“ ‘any building, structure, [or] land, water, or air vehicle’ ”). (Mathis, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2246].) These alternative ways of committing burglary were, as the high court put it, different “means” of committing the crime of burglary, not different, divisible elements of burglary. (Ibid.) Since it was impossible to determine from the record of conviction alone exactly what means of committing burglary Mathis had used, factfinding was necessary beyond the elements of the crime. And under the Sixth Amendment, the high court held, a jury must perform that factfinding. “Whatever the statute says, or leaves out, about diverse ways of committing a crime makes no difference to the defendant’s incentives (or lack thereof) to contest such matters,” the high court pointed out. (Mathis, at p. ___ [136 S.Ct. at p. 2253].) Thus, “the court belоw erred in applying the modified categorical approach to determine the means by which Mathis committed his prior crimes. [Citation.] ACCA . . . treats such facts as irrelevant: Find them or not, by examining the record or anything else, a court still may not use them to enhance a sentence.” (Ibid.)
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
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) 200 Cal.App.4th 1253 [133 Cal.Rptr.3d 421] (Sample), the People argue there has been no Sixth Amendment violation because the manner in which Eslava committed the 2009 battery has never been genuinely disputed. They insist that, through counsel, Eslava admitted personal infliction of serious bodily injury on Cousart in stipulating to the police report. We аgree that under Descamps and Mathis judicial strike determinations remain permissible based on facts shown to have been admitted by the defendant in the record of conviction, even if those facts go beyond those implied by the elements of a prior conviction. (See Marin, supra, 240 Cal.App.4th at p. 1364.) This has always been true under McGee as well, as illustrated by Sample. But the key difference is that, because Descamps and Mathis recognize a Sixth Amendment right to jury trial in this setting, while McGee does not, any such admission must now be accompanied by a jury waiver. (See Marin, at p. 1364 [“ ‘under our understanding of Descamps, if the prosecution seeks to prove [a non-elemental] fact by resort to documents in the record of conviction, defendant is entitled to a jury trial on the issue whether he personally inflicted great bodily injury on a person other than an accomplice, unless 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’ ” (italics added)].) As noted above, Eslava gave no such waiver. (See ante, p. 507.)
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 explained 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 generic offense.’ ” (Descamps, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2289].)
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
In a factual context similar to the one before us, People v. Learnard (2016) 4 Cal.App.5th 1117 [208 Cal.Rptr.3d 889] (Learnard), recently held that a defendant’s prior conviction by plea for a violation of former
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 “evidence that established an аssault with force likely to produce great bodily injury.” (Learnard, supra, 4 Cal.App.5th at p. 1123.) Because “the evidence presented by the prosecution established appellant’s prior conviction could have rested on use of a deadly weapon or force likely to produce great bodily injury, it was insufficient to prove appellant guilty of a prior serious felony conviction beyond a reasonable doubt.” (Id. at p. 1123.) Addressing specifically the information taken from the police report, the court explained that that report “sets forth only appellant’s assault on the victim with a baseball bat. But there is no way to determine whether the police report itself recounted other conduct that was simply omitted from the preconviction report. And there is no indication that the facts recounted in the preconviction report formed the factual basis for
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, 4 Cal.App.5th 1123.)
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) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824].” (French, supra, at pp. 52–53; accord, Neder v. United States (1999) 527 U.S. 1, 19 [144 L.Ed.2d 35, 119 S.Ct. 1827].) Under this test, harmless error may be found “if the evidence supporting [the sentencing] factor is overwhelming and uncontestеd, and there is no ‘evidence that could rationally lead to a contrary finding.’ ” (French, supra, at p. 53, quoting Neder, supra, 527 U.S. at p. 19.) Here, the trial court’s finding of personal infliction of serious bodily injury rests, ultimately, on the police report, which contains untested and inadmissible hearsay. What remains in the record of conviction—the complaint and the transcript of the plea colloquy—is uncontested, but we cannot say that it supplies overwhelming evidence for the personal infliction of serious bodily injury finding.
No double jeopardy bar prevents retrial of a sentencing enhancement after reversal for insufficiency of the evidence, on Sixth Amendment grounds (Marin, supra, 240 Cal.App.4th at pp. 1364–1365), or state law grounds (Learnard, supra, 4 Cal.App.5th at p. 1124, 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) 44 Cal.3d 713, 756, fn. 17 [244 Cal.Rptr. 867, 750 P.2d 741], first italics added.) The record
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, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2288]; accord, Mathis, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2253].) The record here is ambiguous. On the one hand, the particularly pleaded allegations in count 2 suggest that Eslava admitted personally inflicting serious bodily injury on Cousart, while, on the other hand, the dismissal of the strike enhancement together with “any remaining allegations” casts doubt on whether he intended to admit anything beyond the minimum elements of a
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
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.
Reardon, Acting P. J., and Rivera, J., concurred.
Respondent’s petition for review by the Supreme Court was granted February 15, 2017, S239061.