Opinion
F076608
01-29-2020
THE PEOPLE, Plaintiff and Respondent, v. PRESTON THEODORE CARTWRIGHT III, Defendant and Appellant.
Linnéa M Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Kevin M. Cornwall and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. LF011245A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge. Linnéa M Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Kevin M. Cornwall and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Defendant Preston Theodore Cartwright III was convicted by plea of 14 counts, mostly drug related. On appeal, he contends (1) the trial court engaged in improper fact finding when it determined his prior felony conviction qualified as a serious felony and a "strike" under the "Three Strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and (2) the trial court was required to determine his ability to pay before imposing various fines and fees. We reverse the strike finding, vacate the sentence, and remand for a new determination on the prior conviction allegation, an ability to pay hearing upon defendant's request, and amendment of the abstract of judgment. In all other respects, we affirm the judgment of conviction.
All statutory references are to the Penal Code unless otherwise noted.
PROCEDURAL SUMMARY
On August 30, 2017, the Kern County District Attorney filed an amended information charging defendant with 14 counts, including transportation or sale of heroin (Health & Saf. Code, § 11352, subd. (a); count 11). As to counts 1, 5, 6, 10, and 11, the information further alleged defendant had suffered a prior felony strike conviction—a 2004 conviction for vehicular manslaughter under former section 192, subdivision (c)(3) in case No. BF104667A. The information also included other special allegations, including section 12022.1 and section 667.5, subdivision (b) allegations.
On August 30, 2017, defendant requested a bifurcated trial on his prior strike allegation and waived his right to a jury trial on the priors.
Defendant waived this right again on September 5, 2017.
On September 5, 2017, the trial court found the prior strike allegation true.
On September 7, 2017, defendant entered a no contest plea to all charges and admitted all allegations in return for a sentence of 18 years eight months.
On November 8, 2017, the trial court sentenced defendant to 18 years eight months, as follows: on count 11, six years (the low term of three years, doubled pursuant to the Three Strikes law), plus two years for a section 12022.1 on-bail enhancement; on count 1, a consecutive term of two years; on count 5, a consecutive term of two years eight months, plus two years for a section 12022.1 on-bail enhancement; on count 6, a consecutive term of two years; on count 10, a consecutive term of two years; and on the remaining nine counts, 180 concurrent days each. The court awarded credits and imposed various fines and fees.
We note that the abstract of judgment incorrectly reflects that one of the two on-bail enhancements is attached to count 1, rather than count 11. We will order the abstract amended.
On November 20, 2017, defendant filed a notice of appeal.
DISCUSSION
I. Trial Court's Fact Finding
As noted above, defendant suffered a 2004 vehicular manslaughter conviction for violating former section 192, subdivision (c)(3). In the present case, the trial court found the prior conviction constituted a serious felony and a strike for purposes of the Three Strikes law. As a result, the court doubled the base term imposed on count 11. The parties agree the trial court engaged in impermissible fact finding in violation of defendant's Sixth Amendment right to a jury trial when it determined that his prior offense involved personal infliction of great bodily injury on a non-accomplice.
"The Three Strikes law provides for enhanced punishment for any person convicted of a serious felony who previously has been convicted of a serious felony." (People v. Houck (1998) 66 Cal.App.4th 350, 354; see §§ 667, subds. (d)(1) & (f)(1), 1170.12, subds. (b)(1) & (d)(1).) To qualify as a strike, a prior conviction must be a " 'violent felony' " listed in section 667.5, subdivision (c), or a " 'serious felony' " listed in section 1192.7, subdivision (c). (§§ 667, subd. (d) & 1170.12, subd. (b).) The list of serious felonies does not include vehicular manslaughter, but it does include "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice ...." (§ 1192.7, subd. (c)(8); see § 1192.8.)
At the time of defendant's prior conviction, section 192, subdivision (c)(3) provided that vehicular manslaughter was "the unlawful killing of a human being without malice" proximately caused by either "[d]riving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence." The parties agree that, based on this language, the offense could be committed without proof that the perpetrator personally caused the killing, and that the victim was not an accomplice—and in those circumstances, it would not qualify as a serious felony or strike.
Former section 192 noted: "This section shall not be construed as making any homicide in the driving of a vehicle punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner."
" 'To "personally inflict" an injury is to directly cause an injury, not just to proximately cause it.' [Citation.] In construing the phrase 'personally inflicts great bodily injury' in the analogous context of section 12022.7, the California Supreme Court held it applies 'only to a person who himself inflicts the injury.' [Citation.] Citing to a dictionary definition of 'personally,' the court ... further construed it to mean ' "done in person without the intervention of another; direct from one person to another." ' [Citation.] The defendant need not be exclusively involved in inflicting the injury, but the defendant must 'do so directly rather than through an intermediary ....' " (People v. Wilson (2013) 219 Cal.App.4th 500, 512.)
In People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), the Supreme Court interpreted the Sixth Amendment as severely circumscribing a trial court's ability to determine the factual basis of a prior conviction. In doing so, Gallardo overturned case law that had allowed trial courts to consult and draw inferences from a variety of materials. Notably, after Gallardo, trial courts may no longer rely on preliminary hearing transcripts "to determine the 'nature or basis' of [a] defendant's prior conviction." (Id. at p. 137.) Gallardo held that "[w]hile a sentencing court is permitted to identify those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea, the court may not rely on its own independent review of record evidence to determine what conduct 'realistically' led to the defendant's conviction." (Id. at p. 124; see id. at pp. 134, 137.)
Here, the parties agree the trial court considered impermissible material under Gallardo, including the preliminary hearing transcript, when it determined defendant's prior conviction constituted a serious felony. The parties differ, however, on the need for remand. We agree with the People that remand is appropriate to allow the prosecution "to demonstrate to the trial court, based on the record of the prior plea proceedings, that defendant's ... plea encompassed a relevant admission about the nature of [his] crime." (Gallardo, supra, 4 Cal.5th at p. 139.) Then, the trial court can make "the relevant determinations about what facts defendant admitted in entering [his] plea." (Id. at p. 138.)
II. Ability to Pay Fines and Fees
By way of supplemental briefing, defendant argues the trial court violated his right to due process under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) by failing to determine his ability to pay fines and fees.
Here, we need not address Dueñas because, as the People concede, we are remanding to allow the trial court to make a new determination regarding the prior strike allegation and upon remand, defendant may, if he so chooses, request a hearing on his ability to pay the fines and fees.
DISPOSITION
The trial court's finding that defendant's 2004 prior conviction qualified as a strike is reversed. The sentence is vacated and the matter remanded for the trial court to (1) make a new determination on the prior strike allegation, (2) consider defendant's ability to pay fines and fees upon defendant's request for such a hearing, and (3) amend the abstract of judgment to reflect that an on-bail enhancement (§ 12022.1) is attached to count 11, not count 1. In all other respects, the judgment of conviction is affirmed.