People v. GonzalesPeople v. Gonzales
Penal Code section 667 authorizes imposition of an additional five-year prison term on “any person convicted of a serious felony” for each separate prior conviction of “a serious felony in this state” the person has suffered. Section 667 defines “serious felony” by reference to subdivision (c) of Penal Code section 1192.7.
We revisit these provisions in a case in which the People have undertaken to apply them to the crimes of gross vehicular manslaughter defined in Penal Code section 191.5 and in subdivision (c)(1) of Penal Code section 192. We shall conclude:
(1) That by virtue of subdivision (c)(8) of Penal Code section 1192.7, either gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5 ) or gross vehicular manslaughter other than while intoxicated (Pen. Code, § 192 , subd. (c)(1)) will be a serious felony if in the commission of the crime the defendant personally inflicts great bodily injury on any person other than an accomplice;
(2) That subdivision (c)(8) of Penal Code section 1192.7 does not require that the defendant have specifically intended to inflict the injury;
(3) That a prior conviction of a felony in the commission of which the defendant personally inflicted such an injury may be taken into account as a serious felony, in enhancement of sentence under Penal Code section 667, even though infliction of the injury was neither explicitly charged nor explicitly found in the prior proceeding; and
(4) That relevant portions of a properly authenticated preliminary examination transcript in the prior proceedings will be admissible, over hearsay, confrontation, and due process objections, to prove that in the commission of the prior felony the defendant personally inflicted such an injury.
We shall affirm two five-year serious-felony enhancements imposed on defendant and appellant Ralph Gonzales.
In 1985 Gonzales pled guilty, in Kern County, to gross vehicular manslaughter other than while intoxicated. (
In July 1991, in Santa Clara County, Gonzales drove a vehicle into an oncoming traffic lane and struck another vehicle head on, killing the young woman who was driving the other car and injuring several other people; it is undisputed that the decedent’s sister suffered great bodily injury. On the basis of this incident Gonzales was charged with gross vehicular manslaughter while intoxicated (
Gonzales immediately pled guilty to the four felonies and admitted all enhancement allegations except a total of six allegations in two categories:
(1) That he had personally inflicted great bodily injury, within the meaning of Penal Code sections 667 and 1192.7, on
(a) The decedent, and
(b) The decedent’s sister; and
(2) That he had suffered three prior felony convictions as set forth in four enhancement allegations:
(a) That he had been convicted in Kern County of “a serious felony, to wit: Gross Vehicular Manslaughter in Which the Defendant Personally Inflicted great bodily injury on another person, on charges brought and tried separately, within the meaning of sections 667 and 1192.7 of the Penal Code.”
(b) That he had served a separate prison term, within the meaning of subdivision (b) of Penal Code section 667.5, for the Kern County conviction.
(c) That he had been convicted in Santa Clara County of a serious felony, robbery, within the meaning of Penal Code sections 667 and 1192.7.
(d) That he had served a separate prison term, within the meaning of subdivision (b) of Penal Code section 667.5, for a Santa Clara County conviction of burglary.
A jury found each of the six enhancement allegations to be true. On these verdicts the trial court concluded that both the currently charged felonies and the prior convictions for gross vehicular manslaughter and for robbery had been serious felonies. The court added two unstayed five-year enhancements, one based on each of the separate prior serious-felony convictions, to Gonzales’s prison sentence.
On appeal Gonzales first asserts that gross vehicular manslaughter cannot be a serious felony within the meaning of Penal Code section 1192.7 properly construed, and, in the alternative, that the trial court erred by refusing to instruct the jury that personal infliction of great bodily injury in the commission of a felony will bring the felony within subdivision (c)(8) of section 1192.7 only if the defendant specifically intended the injury. Either assertion, if validated, would vitiate the trial court’s conclusions that the current offenses (as well as the prior gross vehicular manslaughter) were serious felonies and would thus require that both five-year enhancements be vacated.
Alternatively Gonzales argues that the finding that the prior gross vehicular manslaughter, in Kern County, was a serious felony must be set aside, both because the question whether he had personally inflicted great bodily injury had not been adjudicated in the Kern County proceeding and because the preliminary examination transcript on which the People relied, in these proceedings, to establish personal infliction of great bodily injury in the 1985 Kern County collision was inadmissible in evidence. Gonzales does not question the conclusions the jury and the trial court reached as to the prior conviction for robbery; a determination that the Kern County prior conviction could not be deemed a serious felony would require, in and of itself, only that the five-year enhancement attributable to that prior conviction be vacated.
We shall reject all of Gonzales’s arguments and shall affirm the judgment as rendered.
1. Can Gross Vehicular Manslaughter Be a Serious Felony?
Subdivision (c) of Penal Code section 1192.7, initially enacted by the electorate in 1982 as part of Proposition 8, identifies several serious felonies by name. Gross vehicular manslaughter is not one of the named
Subdivision (c) of Penal Code
The trial court agreed with the People that gross vehicular manslaughter could be a serious felony under subdivision (c)(8) of Penal Code
Gonzales argues that because the electorate explicitly identified only two of the several forms of homicide, it must be understood to have intended to exclude those forms of homicide—such as gross vehicular manslaughter—it did not explicitly identify. Gonzales adds that this construction is supported by the perception that gross vehicular manslaughter connotes less culpability—that, in pertinent terms, it is less serious—than either murder or voluntary manslaughter.
Gonzales’s argument relies on, and essentially tracks, the analysis in
People
v.
Cook
(1984)
In
Cook
the Court of Appeal applied the maxim of statutory construction that “expression of one thing implies the exclusion of another”
{People
v.
Cook, supra,
We respectfully suggest that
Cook’s
analysis has been effectively superseded as authority by the Supreme Court’s opinion in
People
v.
Equarte
(1986)
In
Equarte
the pertinent issue was whether assault with a deadly weapon (
In part pertinent to the issues here,
Equarte
endorsed a Court of Appeal’s reading of the Supreme Court’s earlier opinion in
People
v.
Jackson
(1985)
Subdivision (c) of Penal Code
Equarte did not mention Cook, which appears heretofore to have been cited only in Brown.
In
Brown
the issue was, once again, whether involuntary manslaughter could be a serious felony. Undertaking to distinguish
Cook
on various grounds, the Court of Appeal concluded “as a matter of first impression,” citing Penal Code
We are satisfied that Equarte's precedent is authoritative (cf.
Auto Equity Sales, Inc.
v.
Superior Court
(1962)
Gonzales expresses concern that the conclusion we reach would make gross vehicular manslaughter ipso facto a serious felony “because there could never be a vehicular manslaughter without personally inflicting serious bodily injury.” This, according to Gonzales, would inappropriately disregard the perceived function of statutory enhancement provisions, which “typically focus on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves. That is one of the very purposes of an enhancement’s existence.”
(People
v.
Hernandez
(1988)
The short answer, in light of Jackson and Equarte, is that this is not the typical enhancement to which Hernandez referred. In Proposition 8 the electorate saw fit unambiguously to classify as a serious felony any felony in the commission of which the defendant inflicts great bodily injury on anyone other than an accomplice. That particular felonies, whether or not otherwise individually designated as serious felonies, might invariably fall into this category would not invalidate the electorate’s classification.
Gonzales asked the trial court to instruct the jury that to find a great bodily injury enhancement to be true the jury would be required to determine that Gonzales had acted “with the specific intent to inflict such injury . . . .”
The trial court refused the requested instruction, and instead instructed the jury in pertinent part that the great bodily injury allegations required a “general criminal intent” which exists “[wjhen a person intentionally does that which the law declares to be a crime . . . even though he may not know his act or conduct is unlawful.” The court then instructed the jury, more specifically, that “[i]n order to prove the special allegations the People have to prove the following elements: One, that the defendant personally inflicted, two, great bodily injury on a person, three, who was not an accomplice to the crime charged. HD ... . H] The People do not have to prove that the defendant intended to cause the great bodily injury, but only that the great bodily injury was inflicted as the result of the defendant’s conduct.”
In this court Gonzales renews his argument that to constitute a serious felony, a felony which would otherwise come within the great bodily injury category defined by Penal Code
Subdivision (c)(8) of Penal Code
We find Gonzales’s argument unpersuasive.
Gonzales refers us to the 1986 edition of Webster’s Third New International Dictionary, which defines “inflict” as “to lay (a blow) on : cause (something damaging or painful) to be endured : impose” or “afflict.”
(Id.
at p. 1160.) None of these
definitions
incorporates an element of intent. The
connotations
of “inflict” may be taken to include a sense that the causation or imposition is effected by the actor’s affirmative conduct, but once again
Our conclusion that the word “inflict,” by itself, does
not
necessarily mean or connote a specific intent is buttressed by the Legislature’s inferable perception that it is necessary explicitly to
say,
where necessary to express the legislative purpose, that a particular infliction of injury will be significant only if it is intentional. Perhaps the most striking example (because of its functional and rhetorical similarity in other respects to subdivision (c)(8) of Penal Code
Among the several appellate decisions Gonzales cites in support of his argument we find only one,
People
v.
Lovelace
(1929)
Lovelace has never been cited for the meaning of “inflict” in other statutory contexts. In the context of concern to us here, the question is not whether Gonzales is to be denied “the substantial rights relating to probation” but rather whether, in light of societal values which have been of increasing concern to the electorate and to the Legislature in the years since Lovelace was decided, Gonzales’s punishment should be enhanced to reflect the relative gravity of his crime.
A clear indication that courts have been unwilling, in the context of sentence enhancements, to read a specific intent connotation into the word “inflict” absent clear legislative direction, is provided by cases which have compared Penal Code section 12022.7 to section 12022.8, an enhancement provision which refers to section 12022.7’s
definition
of great bodily injury but does not incorporate section 12022.7’s requirement that there have been an “intent to inflict such injury.” Section 12022.8 provides that “[a]ny person who inflicts great bodily injury, as defined in Section 12022.7, on
To avoid the reasoning of the Penal Code section 12022.8 cases, and thus to salvage his assertion that the electorate and the Legislature should be deemed to have intended to incorporate a specific-intent requirement into subdivision (c)(8) of Penal Code
We hold that subdivision (c)(8) of
It follows that it was not error to refuse to instruct the jury that it must find specific intent.
Gonzales’s prior conviction for robbery is explicitly identified, by subdivision (c)(19) of Penal Code
But Gonzales does challenge the jury’s finding that his prior conviction for gross vehicular manslaughter was for a serious felony.
He first argues that “the use of a prior vehicular manslaughter, unaccompanied by a finding of personal infliction of great bodily injury or a finding pursuant to Penal Code section 12022.7, violates the appellant’s constitutional rights.” His position appears to be that because it had not been alleged, and proved or admitted, in the prior proceeding, in Kern County in 1985, that he had personally inflicted great bodily injury on a person other than an accomplice, the constitutional rights—primary among them the right to due process of law, including the right to confront adverse witnesses—he might have exercised had the issue been raised in 1985 were prejudicially compromised when the allegation was made and adjudicated for the first time in this proceeding.
Gonzales relies primarily on
People
v.
Hernandez, supra,
The due process requirement applied in
Hernandez
would not have been applicable, in the 1985 proceedings in Kern County, to the question whether Gonzales had inflicted great bodily injury in the collision which was the subject of those proceedings, because the question would not have related to a sentence enhancement in those proceedings. In
People
v.
Ybarra
(1988)
In short there was no justiciable issue, in the 1985 proceedings in Kern County, as to whether Gonzales had personally inflicted great bodily injury on a person other than an accomplice. Gonzales could not have asserted, and a fortiori he cannot now plausibly complain that he was denied, a right to litigate that issue in that proceeding.
4. Was the Preliminary Examination Transcript Admissible?
Under Penal Code section 667, the issue, concerning the 1985 collision, that became justiciable when the People sought serious-felony enhancements in this proceeding was whether Gonzales “ha[d] been convicted of a serious felony” arising out of that collision. (
The People acknowledge that at trial, to prove that the gross vehicular manslaughter of which Gonzales had been convicted in 1985 (although not explicitly enumerated in Penal Code
In this court Gonzales argues (1) that in light of
People
v.
Winson
(1981)
The essence of Gonzales’s arguments is not new to this court, which in
People
v.
Goodner
(1990)
Goodner
based its pertinent holdings on another Court of Appeal’s opinion in
People
v.
Castellanos
(1990)
First, the Court of Appeal reasoned, each of the transcripts was part of “the ‘entire record of conviction’ ” within the meaning of Guerrero; the Court of Appeal concluded that the entire record includes “all relevant documents in the court file of the prior conviction.”
(People
v.
Castellanos, supra,
In
Goodner
the Penal Code
Castellanos
acknowledged
Winson
(which had applied the former testimony exception more strictly where the preliminary examination transcript had been tendered as evidence against the defendant at a probation revocation hearing; cf. also
People
v.
Arreola
(1994)
Abarca,
on which Gonzales also relies, postdated both
Castellanos
and
Goodner.
The pertinent issue in
Abarca,
once again, was whether a prior burglary to which Abarca had pled guilty had been
residential.
To determine the nature of the prior burglary the trial court relied only on a transcript of proceedings on the guilty plea, in the course of which “. . . Abarca answered ‘yes’ when asked by that court if he pled guilty to burglary of a ‘residence.’ ”
(People
v.
Abarca, supra,
Gonzales asks that we reconsider this court’s decision in
Goodner.
We have done so, and are satisfied to adhere to the analysis we adopted in that
CALJIC No. 2.90
By supplemental brief Gonzales asserted that the trial court’s reasonable doubt instruction, taken directly from Penal Code section 1096 and CALJIC No. 2.90, violated the due process clause of the federal Constitution. The substance of Gonzales’s contention has been rejected in California
(People
v.
Sandoval
(1992)
The judgment of conviction, incorporating findings that all the enhancement allegations were true, is affirmed.
Premo, Acting P. J., and Elia, J., concurred.
Appellant’s petition for review by the Supreme Court was denied February 16, 1995. Mosk, J., and Arabian, J., were of the opinion that the petition should be granted.