Opinion
C081124
04-07-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL EUGENE LITTLETON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF153886)
A jury convicted defendant Michael Eugene Littleton of transporting a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 1), possession of a controlled substance for sale (Health & Saf. Code, § 11378; count 2), resisting an officer by means of force or violence (Pen. Code, § 69; count 3), and misdemeanor possession of a controlled substance (Health & Saf. Code, § 11350; count 5). In bifurcated proceedings, the trial court sustained three prior drug trafficking convictions (Health & Saf. Code, § 11370.2, subd. (c)), three prior prison terms (Pen. Code, § 667.5, subd. (b) ), and one prior strike conviction (§ 667, subds. (b)-(i)). Defendant was sentenced to state prison for an aggregate term of 17 years.
Further undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
On appeal, defendant contends there was insufficient evidence establishing that his prior conviction for section 243, subdivision (d), battery with serious bodily injury, qualified as a serious felony conviction because there was no admissible proof he personally inflicted great bodily injury or the victim was not an accomplice. He asserts that the trial court's judicial factfinding from the record of conviction violated his Sixth Amendment right to a jury trial, relying on Descamps v. United States (2013) 570 U.S. 254 (Descamps) and Mathis v. United States (2016) 579 U.S. ___ , and several decisions of the California Courts of Appeal. While this case was pending on appeal our high court decided People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), in which our high court prohibited judicial factfinding in this context and concluded that the procedure it authorized in People v. McGee (2006) 38 Cal.4th 682 (McGee) violated the Sixth Amendment.
We conclude that defendant forfeited his Sixth Amendment challenge under Descamps, Mathis and Gallardo. By the time of his bifurcated trial on his prior convictions, two of the Court of Appeal decisions he cites on appeal had already held that the judicial factfinding previously allowed under McGee, supra, 38 Cal.4th 682, violated the Sixth Amendment based on Descamps. These Court of Appeal opinions held that Descamps represented the more definitive ruling the McGee court predicted might be rendered in the future by the United States Supreme court which would effectively overturn California's practice of judicial factfinding relative to the facts underlying prior convictions. Defendant never objected to judicial factfinding on Sixth Amendment grounds in the trial court; nor did he cite Descamps or the Court of Appeal decisions we discuss post. Thus, defendant forfeited the contention for this appeal.
Reviewing the trial court's judicial factfinding as previously allowed by our high court in McGee, supra, 38 Cal.4th 682, we conclude the evidence was sufficient to sustain the court's true finding as to the strike allegation.
In supplemental briefing, defendant contends, the People concede, and we agree that, because of a change in the law, the prior drug trafficking conviction enhancements (Health & Saf. Code, § 11370.2, subd. (c)) must be stricken and the sentences imposed thereon vacated. We also note that the court's sentence on count 2 was unauthorized because the court merely stayed the sentence pursuant to section 654 without imposing a sentence. On remand, the court must select a full-term sentence, impose that sentence and then stay execution of that sentence pursuant to section 654.
We will remand for resentencing but otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
We need not discuss the facts underlying the charged offenses because they are not relevant to this appeal.
Several prior convictions were alleged: three prior drug trafficking convictions, three prior prison commitments, and one serious felony conviction. Defendant waived his right to a jury trial on all of the enhancement allegations. At the bifurcated proceeding, the prosecution introduced into evidence various documents to prove the prior conviction enhancements (exhs. 42-46). The alleged prior serious felony conviction was for a violation of section 243, subdivision (d), battery with serious bodily injury. The prosecutor represented that the reporter's transcript of the entry of plea hearing was unavailable because the prosecutor had been unable to locate the reporter, who had retired. The prosecutor introduced certified court records of the conviction, including a minute order reflecting defendant's no contest plea, the original complaint, the abstract of judgment, and the section 969b package, including defendant's fingerprints and photo.
The original complaint charged defendant with felony corporal injury to a cohabitant (§ 273.5, subd. (a)) with personal infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (d)). Notice was given that the offense was a serious and violent felony within the meaning of sections 667.5, subdivision (c)(8), and 1192.7, subdivision (c)(8). Defendant was held to answer after a preliminary hearing.
The minute order showing defendant's subsequent no contest plea to section 243, subdivision (d), battery with serious bodily injury indicated the plea was to "243(D) PC RR Ct 1." At the bifurcated hearing, the prosecutor represented, without contradiction, that "RR" stands for "reasonably related." The minute order further indicates that the plea was for a stipulated state prison sentence of the low term of two years.
On the abstract of judgment reflecting a felony conviction for violation of section 243, subdivision (d), the offense was described as "battery agains[t] person [] bodily injury." The prosecutor did not introduce the preliminary hearing transcript.
Defense counsel did not object to the admission of the exhibits and presented no evidence. Defense counsel argued that the evidence of the alleged prior strike conviction did not show beyond a reasonable doubt that defendant had personally inflicted great bodily injury. The prosecutor argued that the evidence proved that the battery offense constituted a serious felony conviction based on the fact defendant had originally been charged in the complaint with personal infliction of great bodily injury on the victim, there were no codefendants, and defendant had entered a plea to a violation of section 243, subdivision (d), as a "reasonably related" to that charge. Defense counsel responded that the evidence did not show the underlying facts and how the injury was caused. Counsel argued, "[T]here is [sic] all kinds of ways an injury can be caused. You can't just assume and that's not beyond a reasonable doubt. I think not getting the plea transcript, you know, with the way these - usually types of strikes where you have to prove not just the conviction, but the underlying facts, you got to get the plea transcript or something else not what is before the Court is not enough for beyond a reasonable doubt." (Italics added.)
Defense counsel did not argue that the exhibits failed to prove that the victim was not an accomplice.
The court sustained all enhancements, stating that it had reviewed all the exhibits. Specifically, with respect to the strike prior, the court stated:
"The Court notes that the original allegation against [defendant] was for [section] 273.5 for the inflicting corporal injury on [the victim] and a traumatic condition and was a cohabitant with the defendant at the time the plea in this case and was out of Sacramento County as alleged in [the case involving the 2006 drug trafficking prior conviction] as a strike prior. (Italics added.)
"I would note that he pled to a [section] 243 [subdivision] (d), battery against a person causing [sic] great [sic] bodily injury, and I do find that that is reasonably related.
"The Court has indicated as such and do deem for purposes of prison prior that it is a strike offense, and I do find that beyond a reasonable doubt that is the case given what the allegation was and what his plea was battery against a person causing [sic] great [sic] bodily injury."
None of the documents refer to defendant's plea as to battery "causing great" injury and the offense is battery with serious injury.
The court sentenced defendant to an aggregate term of 17 years state prison, calculated as follows: count 1 - eight years (upper term of four years, doubled for the strike prior); count 2 - stayed; count 3 - six years (upper term of three years, doubled for the strike prior), consecutive; count 5 - 90 days, concurrent. The court imposed a three-year term for each of the three prior drug trafficking convictions to run consecutive to count 1 and the stayed count 2. The court struck the one-year terms for each of the three prior prison commitments (§ 1385).
The trial court did not impose a sentence on count 2. This was an unauthorized sentence. As we discuss post, the trial court should have imposed a sentence and then stayed execution of that sentence.
DISCUSSION
I. Prior Serious Felony Conviction
A. McGee and Gallardo
In McGee, supra, 38 Cal.4th 682, the defendant had been previously convicted of robberies in Nevada, a state with a robbery statute that is broader than California's statute. (Id. at p. 688.) To determine whether defendant's Nevada convictions were strikes, the trial court reviewed, among other things, the preliminary hearing testimony of the victims of the Nevada robberies, in which they described the defendant's conduct. (Id. at pp. 689-690.) Based on this, the trial court determined that the Nevada robbery convictions were based on conduct that would also constitute robbery in California. (Id. at p. 690.) On appeal, the court in McGee rejected defendant's contention that the trial court's determinations based on the preliminary hearing transcript violated his Sixth Amendment rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) to have a jury determine all facts that increase the statutorily authorized penalty for offenses. (McGee, at p. 691.) The McGee court held that it was for the trial court to determine the nature or basis of the crime from the record of conviction and approved of the practice allowing trial courts to look to the record of conviction to determine whether the conviction realistically may have been based on conduct that would constitute a serious felony offense. (Id. at p. 706.) The court explained, "The need for such an inquiry does not contemplate that the court will make an independent determination regarding a disputed issue of fact relating to the defendant's prior conduct [citation], but instead that the court simply will examine the record of the prior proceeding to determine whether that record is sufficient to demonstrate that the conviction is of the type that subjects the defendant to increased punishment under California law. This is an inquiry that is quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court." (Ibid.)
In authorizing this procedure, the McGee court acknowledged the possibility that the procedure might need to be changed in the future, writing: "Although we recognize the possibility that the high court may extend the scope of the Apprendi decision . . . , we are reluctant, in the absence of a more definitive ruling on this point by the United States Supreme Court, to overturn the current California statutory provisions and judicial precedent that assign to the trial court the role of examining the record of a prior criminal proceeding to determine whether the ensuing conviction constitutes a qualifying prior conviction under the applicable California sentencing statute." (McGee, supra, 4 Cal.5th at p. 686, italics added.) In Gallardo, supra, 4 Cal.5th 120, our high court concluded that the high court's decisions in Descamps and Mathis provided the more definitive ruling it predicted might be forthcoming. (Id. at pp. 132-134.)
In Gallardo, the prior conviction at issue was a California conviction of former section 245, subdivision (a), assault with a deadly weapon or by means of force likely to cause great bodily injury. (Gallardo, supra, 4 Cal.5th at p. 123.) The assault would qualify as a serious felony offense if it was committed with a deadly weapon. (Id. at pp. 123, 125.) After reviewing the preliminary hearing transcript, the trial court determined that the defendant had assaulted the victim with a deadly weapon and ruled that the prior conviction qualified as a serious felony offense and thus a strike. (Id. at p. 126.) Based on Descamps and Mathis, the Gallardo court disapproved of this judicial factfinding procedure, holding: " 'The Sixth Amendment contemplates that a jury—not a sentencing court—will find' the facts giving rise to a conviction, when those facts lead to the imposition of additional punishment under a recidivist sentencing scheme. [Citation.] This means that a sentencing court may identify those facts it is 'sure the jury . . . found' in rendering its guilty verdict, or those facts as to which the defendant waived the right of jury trial in entering a guilty plea. [Citation.] But it may not 'rely on its own finding' about the defendant's underlying conduct 'to increase a defendant's maximum sentence.' [Citation.] [¶] We are persuaded that the approach sanctioned in McGee is no longer tenable insofar as it authorizes trial courts to make findings about the conduct that 'realistically' gave rise to a defendant's prior conviction. The trial court's role is limited to determining the facts that were necessarily found in the course of entering the conviction. To do more is to engage in 'judicial factfinding that goes far beyond the recognition of a prior conviction.' " (Id. at pp. 133-134.)
B. Defendant's Forfeiture of the Sixth Amendment Contention
A conviction for battery with serious bodily injury does not qualify as a serious felony unless the defendant personally inflicted great bodily injury on a person other than an accomplice. (§ 1192.7, subd. (c)(8); People v. Bueno (2006) 143 Cal.App.4th 1503, 1508 (Bueno) [the prosecution is required to prove that the victim was not an accomplice and that the defendant personally inflicted the injury rather than that he aided and abetted another].) Defendant contends the trial court's judicial factfinding concerning his conduct underlying his conviction based on the record of conviction violated his Sixth Amendment right to a jury trial.
The People contend defendant's Sixth Amendment objection is forfeited for failure to raise it in the trial court. Defendant replies that the issue is preserved because he challenged the sufficiency of the evidence to show that he personally inflicted great bodily injury. He further contends that he "objected to the court making a disputed finding that he personally inflicted great bodily injury on a person other than an accomplice, by examining the complaint."
While we agree with defendant that, based on the record before us, he challenged the sufficiency of the evidence in the trial court, we find no objection to the trial court making a finding by examining the complaint or any other portion of the record of conviction. Nor does defendant cite a page in the record where we can find this specific objection. Trial counsel's argument was that what was before the trial court was insufficient to prove personal infliction of great bodily injury. Counsel did not object to the trial court engaging in judicial factfinding by looking to the record of conviction for facts establishing personal infliction of great bodily injury and that the victim was not an accomplice. To the contrary, counsel essentially argued that the record of conviction was incomplete for that purpose because the prosecutor was unable to obtain the appropriate documentation. Counsel argued that for "these . . . types of strikes where you have to prove not just the conviction, but the underlying facts, you got to get the plea transcript or something else not what is before the Court is not enough for beyond a reasonable doubt." (Italics added.) Counsel did not argue that looking to the record of conviction to determine the underlying facts violates the Sixth Amendment or was otherwise improper. As we read counsel's comments, counsel actually implied the contrary.
Defendant points out that constitutional contentions are not forfeited when "the new arguments do not invoke facts or legal standards different from those the trial court was asked to apply, but merely assert that the trial court's act or omission, in addition to being wrong for the reasons actually presented to that court, had the legal consequence of violating the Constitution." (See People v. Gutierrez (2009) 45 Cal.4th 789, 809 [constitutional claims related to a hearsay objection were preserved].) However, the rule defendant invokes contemplates that the issue to be reviewed was actually put before the trial court. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [noting that the reviewing court's "rejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional 'gloss' . . . ."], citing People v. Partida (2006) 37 Cal.4th 428, 433-439 (Partida).) This "narrow" rule only applies when the claim on appeal " 'merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal.' " (Partida, at p. 436, italics added.) It applies when consideration of the constitutional objection belatedly made on appeal " 'entails no unfairness to the parties,' who had the full opportunity at trial to litigate whether the court should overrule or sustain the trial objection" and when the claim on appeal merely invites the reviewing court to draw an alternative legal conclusion. (Ibid.) In other words, there has to have been an objection in the trial court upon which a defendant seeks to apply constitutional gloss on appeal.
Here, defendant did not object to the evidence the trial court considered or to the trial court making factual determinations therefrom. The Sixth Amendment argument prohibiting judicial factfinding that defendant makes on appeal was not presented to the trial court and clearly invokes a different legal standard than the insufficiency of evidence argument made by defendant below, particularly when that argument asserted that the trial court could engage in judicial factfinding if it only had the right documents from the record of conviction. As we have noted, defendant agreed with the trial court looking to the record of conviction to determine whether defendant's conviction qualified as a serious felony offense, but argued that the record of conviction was insufficient. On appeal, he argues that the Sixth Amendment prohibited the trial court from looking to the record of conviction at all, an entirely different argument than presented below. As our high court has noted, "[a] party cannot argue the [trial] court erred in failing to conduct an analysis it was not asked to conduct." (Partida, supra, 38 Cal.4th at p. 435.)
Defendant further asserts that his objection was not forfeited because McGee, supra, 38 Cal.4th 682, was controlling state law and therefore any objection would have been futile. Again, we disagree. As defendant noted, the law has evolved since McGee. With that point, we agree. In fact, the law had evolved before defendant's trial.
Defendant's bifurcated trial on the enhancement allegations was held on November 9, 2015. Almost five months earlier, on June 18, 2015, Division One of the First Appellate District decided People v. Saez (2015) 237 Cal.App.4th 1177 (Saez). Following the federal constitutional principles set forth in Descamps, the Saez court held that judicial factfinding is prohibited and the trial court's determination that the Wisconsin convictions at issue involved personal use of a firearm was reversed. (Id. at p. 1181.) The Saez court reasoned that, although the trial court's determination comported with McGee, "it was incompatible with the more recent United States Supreme Court decision in Descamps [citation], which makes clear that the Sixth Amendment prohibits a court from increasing a criminal sentence based on facts related to a prior conviction when those facts were not necessarily established by the conviction." (Ibid.) The court went on to write: "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, at p. 1207, italics added.)
On October 7, 2015, Division Four of the Second Appellate District decided People v. Marin (2015) 240 Cal.App.4th 1344 (Marin), a case involving the question of whether defendant personally inflicted great bodily injury on a non-accomplice in the commission of the prior conviction at issue. (Id. at p. 1348.) The Marin court concluded that the McGee procedure was no longer viable. (Id. at pp. 1362-1363.) The court reasoned that Descamps "leaves no true room for debate" that the type of factfinding approved in McGee violates the Sixth Amendment. (Id. at p. 1362.) It went on to state: "[W]e conclude that Descamps is the extension of Apprendi that the California Supreme Court contemplated in McGee. The California procedure for determining whether prior convictions qualify as strikes, insofar as it is based on judicial factfinding beyond the elements of the offense, is incompatible with the United States Supreme Court's view of the Sixth Amendment right to a jury trial as articulated in Descamps. In short, such judicial factfinding, which looks beyond the elements of the crime to the record of conviction to determine what conduct 'realistically' underlaid the conviction, violates the Sixth Amendment right to a jury trial." (Id. at p. 1363, italics added.)
We are aware that, in addressing the People's forfeiture contention in Gallardo, our high court stated that "it was at least questionable whether defendant should be made to bear the burden of anticipating potential changes in the law based on the reasoning of a United States Supreme Court opinion," which addressed the proper interpretation of a federal statute. (Gallardo, supra, 4 Cal.5th at p. 128.) This observation was based on application of our high court's foreseeability standard for determining forfeiture. The court noted: "We have previously ' "excused [ ] failure[s] to object [on a particular ground] where to require defense counsel to raise [that] objection 'would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule . . . would be changed on appeal.' " ' " (Id. at p. 127.) However, the relevant trial court proceedings in Gallardo took place long before Saez and Marin were decided. Consequently, the defendant in Gallardo did not have Saez or Marin to rely upon.
Our high court concluded that it need not resolve whether defendant forfeited his Sixth Amendment claim on appeal, because the People forfeited that argument by not arguing forfeiture in the Court of Appeal. (Gallardo, supra, 4 Cal.5th at p. 128.)
Although the precise date of the bench trial of the defendant's prior in Gallardo is not noted in the opinion, the jury returned its verdicts in Gallardo in April of 2014. (Gallardo, supra, 4 Cal.5th at p. 125.) The Court of Appeal decision was filed on November 16, 2015. (People v. Gallardo (Nov. 16, 2015, B257357) [nonpub. opn.].)
The instant case is different. Even though Saez was decided almost five months before defendant's bifurcated trial on the prior conviction allegations, and Marin was decided a month before, neither Descamps nor Saez nor Marin was mentioned by defendant in the trial court. In this instance, because the California Supreme Court in McGee predicted the United States Supreme Court might provide a more definitive ruling on the application of the Sixth Amendment in this context, and because two Courts of Appeal held that Descamps provided the more definitive ruling our high court predicted might be handed down, the defense should have cited Saez and Marin, both of which represented a change in the law. Based on Saez and Marin, the defense should have argued the McGee procedure allowing the judicial factfinding the trial court engaged in here was no longer viable at the time of his trial.
After oral argument in the instant case, our high court decided People v. Perez (Feb. 27, 2020, S248730) ___Cal.5th___ (Perez). Perez presented a different situation than presented here. Some background is necessary for purposes of our discussion.
Perez addressed forfeiture of a confrontation clause objection related to expert basis testimony. In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), our high court "held that an expert cannot relate case-specific hearsay to explain the basis for his or her opinion unless the facts are independently proven or fall within a hearsay exception." (Perez, supra, ___Cal.5th at p. ___ [ 2020 Cal. LEXIS 1221, *1-2].) Before Sanchez, People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), disapproved in Sanchez, at page 686, footnote 13, and People v. Montiel (1993) 5 Cal.4th 877, 919, disapproved in Sanchez, at page 686, footnote 13, cases decided before Crawford v. Washington (2004) 541 U.S. 36 , "were controlling authority on expert testimony." (Perez, at p.___ [2020 Cal. LEXIS 1221, *10].) Our high court in Gardeley had held that experts may relate to the jury hearsay statements that were part of the basis of their opinion when such information was the type of information reasonably relied upon by experts in the field. (Gardeley, at pp. 618-619.)
Three cases decided before Sanchez, Williams v. Illinois (2012) 567 U.S. 50 (Williams), People v. Dungo (2012) 55 Cal.4th 608 (Dungo), and People v. Lopez (2012) 55 Cal.4th 569 (Lopez), suggested Gardeley was no longer viable. "Williams 'called into question the continuing validity of relying on a not-for-the-truth analysis in the expert witness context,' because between the concurrence and the dissent '[f]ive justices . . . specifically rejected this approach.' " (Perez, supra, ___ Cal.5th at p.___ [2020 Cal. LEXIS 1221, *15], quoting Sanchez, supra, 63 Cal.4th at p. 682.) The Dungo court discussed Williams extensively. While, the Dungo court concluded the subject evidence upon which the expert relied did not violate the confrontation clause because it was not testimonial (Dungo, at pp. 620-621), six justices, across concurring and dissenting opinions, agreed that statements admitted to explain an expert's opinion are admitted for their truth (id. at p. 627 (conc. opn. of Werdegar, J.); id. at p. 635, fn. 3 (dis. opn. of Corrigan, J.)). In Lopez, the majority concluded that the subject evidence was admitted for its truth, although the majority further concluded that the documentary notation at issue was not testimonial. (Lopez, at p. 584.)
Based on Williams, Dungo, and Lopez, the Attorney General in Perez argued that the defendant forfeited his confrontation clause contention, asserting that defense counsel had grounds to object on confrontation clause grounds before our high court decided Sanchez because a majority of the justices of our high court and of the United States Supreme Court had reasoned that, at least in certain circumstances, expert basis testimony was considered for its truth. (Perez, supra, ___ Cal.5th at pp.___ [2020 Cal. LEXIS 1221, *14-16].) The Attorney General argued that, even before Sanchez, Courts of Appeal had found that if our high court or the United States Supreme Court " 'were called upon to resolve this issue, it seems likely' that cases finding 'out-of-court statements offered as expert basis evidence are not offered for their truth for confrontation purposes will be significantly undermined.' " (Id. at p.___ [2020 Cal. LEXIS 1221, *18].)
In rejecting this argument, our high court stated that it "did not expressly hold until Sanchez that '[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay.' " (Perez, supra, ___Cal.5th at p.___ [2020 Cal. LEXIS 1221, *18], quoting Sanchez, supra, 63 Cal.4th at p. 686.) Our high court further emphasized that "Sanchez marked a 'paradigm' shift in that a limiting instruction was no longer an effective method of avoiding hearsay problems in an expert's basis testimony." (Perez, supra, ___Cal.5th at p.___ [2020 Cal. LEXIS 1221, *18].) Moreover, our high court noted that "no justice expressly disapproved Gardeley in either Dungo or Lopez, despite it being a staple of our decisional law," and that the court continued to cite Gardeley with approval after Dungo and Lopez. (Ibid.)
Thus, at the time of trial in Perez, the trial court would have been compelled to overrule a hearsay objection to the expert's basis testimony. (Perez, supra, ___ Cal.5th at p.___ [2020 Cal. LEXIS 1221, *19].) That being the case, the Perez court stated that "counsel is not obligated to object on pain of forfeiture simply because a future change in the law might be foreseeable." (Id. at pp.___ [2020 Cal. LEXIS 1221, *21-22].)
Here, the circumstances are quite different. True, at the time of defendant's bifurcated trial, McGee's judicial fact finding procedure had not been disapproved by our high court. But our high court had predicted that in the future, there might be "a more definitive ruling on this point by the United States Supreme Court . . . ." (McGee, supra, 38 Cal.4th at p. 686.) After McGee, but well before defendant's bifurcated trial, the United States Supreme Court decided Descamps, supra, 570 U.S. 254, which ultimately proved to be sufficiently definitive to prompt our high court to reconsider and disapprove of McGee. (Gallardo, supra, 4 Cal.5th 120.) Predating Gallardo were two Court of Appeal cases recognizing that Descamps was the more definitive ruling the McGee court predicted and held that judicial factfinding is prohibited based on the federal constitutional principles set forth by the Descamps court. In so doing, the court in Saez stated that, while it was "hesitant to conclude—without first hearing from our state Supreme Court—that Descamps has 'undermine[d]' McGee," it was "bound by rulings of the United States Supreme Court on matters of federal law." (Saez, supra, 237 Cal.App.4th at p. 1207.) The Marin court followed suit. (Marin, supra, 240 Cal.App.4th 1344.)
Holding defendant to the preservation requirement on this issue would not require him to anticipate unforeseen changes in the law, make a futile objection, or predict that our high court might in the future overrule its precedent. (Perez, supra, ___ Cal.5th at pp.___, [2020 Cal. LEXIS 1221, *9-10].) Thus, the circumstances here hold defendant to the requirement that he object to avoid forfeiting a federal constitutional issue concerning a change in the law that: (1) our high court had signaled could be forthcoming if suggested by a more definitive ruling from the United States Supreme Court, (2) the United States Supreme Court subsequently "ma[d]e clear" by indicating "that when the criminal law imposes added punishment based on findings about the facts underlying a defendant's prior conviction, '[t]he Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt' " (Gallardo, supra, 4 Cal.5th at p. 124, quoting Descamps, supra, 570 U.S. at p. 269), and (3) two Court of Appeal cases had affirmatively held, prior to defendant's trial, that the United States Supreme Court had provided the more definitive ruling our high court predicted and based on that, prohibited judicial factfinding. In other words, United States Supreme Court case law discussing federal constitutional principles and two Court of Appeal cases applying those principles to judicial factfinding decided before defendant's trial established that judicial factfinding in this context was unconstitutional and thus gave rise to the obligation to object to avoid a forfeiture.
We conclude defendant forfeited the Sixth Amendment contention he makes on appeal.
C. Sufficiency of the Evidence
Having concluded defendant forfeited his Sixth Amendment contention concerning the evidence the trial court considered, we now turn to the question of whether that evidence supported the trial court's finding that the defendant's prior conviction qualified as a serious felony offense. Defendant contends insufficient evidence supports the finding that he personally inflicted great bodily injury on a non-accomplice victim. We conclude there was sufficient evidence to support the strike allegation.
Battery with serious bodily injury is not expressly listed as a serious or violent felony conviction. (§§ 667, subds. (b)-(i), 667.5, subd. (c), 1170.12, 1192.7, subd. (c); Bueno, supra, 143 Cal.App.4th at p.1508; In re Jensen (2001) 92 Cal.App.4th 262, 268.) The offense is a serious felony, and thus a strike prior, where a defendant personally inflicted, rather than aided and abetted, great bodily injury on the victim who was not an accomplice. (§ 1192.7, subd. (c)(8); People v. Cole (1982) 31 Cal.3d 568, 572; Bueno, at p. 1508.) "Serious bodily injury" as used in section 243, subdivision (d), and "great bodily injury" are essentially the same element. (People v. Johnson (2016) 244 Cal.App.4th 384, 391; Bueno, at p. 1508, fn. 5; People v. Moore (1992) 10 Cal.App.4th 1868, 1871.)
Section 243, subdivision (d), provides: "When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years." Section 243, subdivision (f)(4), provides: " 'Serious bodily injury' means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement." Section 243, subdivision (f)(5), provides: " 'Injury' means any physical injury which requires professional medical treatment."
"The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt." (People v. Miles (2008) 43 Cal.4th 1074, 1082.) Under the former procedure, where the mere fact of conviction did not establish that the offense is a serious felony, certified documents from the record of conviction could be examined to resolve the issue. (Ibid.) And a trier of fact was permitted to draw reasonable inferences from the record presented. (Id. at p. 1083.) "On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (Ibid., italics added.)
Here, the prosecutor submitted the original complaint that charged defendant with felony corporal injury to a cohabitant with personal infliction of great bodily injury under circumstances involving domestic violence and alleged the offense was a serious and violent felony within the meaning of the Three Strikes law. The minute order of the plea showed defendant's no contest plea to battery with serious bodily injury. The abstract of judgment reflected a felony conviction for violation of section 243, subdivision (d), which was described on the abstract as "battery agains[t] person [] bodily injury."
The facts that defendant was charged with a domestic violence offense with personal infliction of great bodily injury upon a cohabitant, was then held to answer after a preliminary hearing, and thereafter entered a no contest plea to the "reasonably related" offense of battery with serious bodily injury constitutes substantial evidence that the victim of the battery was a non-accomplice. Those facts alone, however, are not sufficient evidence that defendant personally inflicted injury on the victim. (See People v. Bland (2002) 28 Cal.4th 313, 337 [distinction between proximately causing injury and personally inflicting injury]; People v. Valenzuela (2010) 191 Cal.App.4th 316, 321 [proof that the defendant proximately caused injury does not constitute proof he personally inflicted injury].)
Here, the trial court noted defendant's 2002 battery with serious bodily injury conviction was alleged as a strike in his 2006 narcotics trafficking conviction. As we discuss below, defendant admitted the 2002 conviction was a strike in his 2006 case. A court's prior true finding or defendant's admission may be a sufficient basis for sustaining a strike prior. (See People v. Blackburn (1999) 72 Cal.App.4th 1520, 1530.) Here, the admission was sufficient to support the trial court's finding.
The parties and the trial court did not expressly discuss the applicability of the other exhibits (admitted to prove the prior drug convictions and prison term allegations) to the strike prior. However, defense counsel did not object to the admission of the exhibits and the trial court stated that it had reviewed all exhibits before making its findings on all the prior conviction enhancements.
Exhibit 44 included an amended information filed in 2006, which charged defendant with two drug offenses and misdemeanor resisting, and alleged a prior drug conviction and the 2002 felony conviction for battery with serious injury in violation of section 243, subdivision (d), as a strike prior. In 2006, defendant entered a plea to one of the drug offenses and admitted that his 2002 felony conviction for battery with serious injury under section 243, subdivision (d), qualified as a strike prior within the meaning of section 1192.7, subdivision (c). According to the 2006 minute order, the trial court found defendant's admission of the strike prior was voluntarily made, and found a factual basis for the same. In 2006, defendant did not dispute or challenge the evidence but instead, by admitting that the offense qualified as a strike prior within the meaning of section 1192.7, subdivision (c), he admitted the now-disputed facts of personal infliction of injury on a non-accomplice victim.
Defendant was sentenced to the low term of three years for the drug offense, doubled for the 2002 strike prior.
Therefore, substantial evidence supports the trial court's finding that defendant's conviction for violating section 243, subdivision (d), constituted a serious felony under the Three Strikes law.
II. Prior Drug Trafficking Conviction Enhancement Allegations
The trial court imposed a consecutive three-year term pursuant to former Health and Safety Code section 11370.2 for each of defendant's three prior drug convictions. Former Health and Safety Code section 11370.2, subdivision (c), provided, in relevant part, as follows: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment."
Senate Bill 180, effective January 1, 2018, amended Health and Safety Code section 11370.2, by removing all prior drug convictions that support a three-year enhancement except a prior felony conviction of, or a prior felony conviction of conspiracy to violate, Health and Safety Code section 11380, using a minor to commit certain drug trafficking offenses. (Stats. 2017, ch. 677, § 1.) Under the amended version of Health and Safety Code section 11370.2, defendant's prior felony convictions for violating Health and Safety Code sections 11351.5 and 11378 would no longer support the imposition of these three-year sentence enhancements. Further, because the record of defendant's conviction from Nevada for possession of cocaine with the intent to sell does not include any allegation of defendant using a minor as an agent in the commission of the offense (Health & Saf. Code, § 11380, subd. (a)), defendant's prior Nevada drug conviction would no longer support the imposition of a three-year sentence enhancement either.
In supplemental briefing, defendant asserted that he is entitled to the ameliorative benefit of the change in the law, citing In re Estrada (1965) 63 Cal.2d 740 (Estrada), and noting his case is not yet final. The People concede. We agree.
Senate Bill 180 applies retroactively. "If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies." (Estrada, supra, 63 Cal.2d at p. 744; see People v. Woods (2018) 19 Cal.App.5th 1080, 1091 [applying Estrada to the statutory change authorizing trial courts to dismiss firearm enhancements under sections 12022.5 and 12022.53 in the interests of justice under section 1385].) Accordingly, we strike defendant's three Health and Safety Code section 11370.2 enhancements and vacate the associated three-year consecutive sentences. However, we shall remand for resentencing. We agree with the People that, on remand, the trial court is entitled to consider the entire sentencing scheme applicable in this case (People v. Buycks (2018) 5 Cal.5th 857, 893; People v. Navarro (2007) 40 Cal.4th 668, 681; People v. Burbine (2003) 106 Cal.App.4th 1250, 1259), which includes possible reconsideration of the determination to impose concurrent sentences as to counts 3 and 5.
III. Unauthorized Sentence on Count 2
We note that the trial court did not impose a sentence on count 2. Rather, the court simply stayed the sentence, stating: "Count 2 will be stayed, given Penal Code 654." As articulated by the trial court, this was an unauthorized sentence. On remand, the trial court must select a full-term sentence, impose that sentence and then stay execution of that sentence pursuant to section 654. (People v. Duff (2010) 50 Cal.4th 787, 796; People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198; People v. Alford (2010) 180 Cal.App.4th 1463, 1468; People v. Salazar (1987) 194 Cal.App.3d 634, 640; People v. Niles (1964) 227 Cal.App.2d 749, 755-756.)
DISPOSITION
The three Health and Safety Code section 11370.2 enhancements are stricken and the sentences imposed thereon are vacated. The matter is remanded for resentencing. In all other respects, the judgment is affirmed.
/s/_________
MURRAY, J. We concur: /s/_________
RAYE, P. J. /s/_________
BLEASE, J.