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People v. Davis

California Court of Appeals, Second District, Eighth Division
Feb 9, 2011
No. B222593 (Cal. Ct. App. Feb. 9, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA 108880, John J. Cheroske, Judge.

Mona D. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.


FLIER, J.

Appellant Earl Davis entered into a conditional plea bargain in which he pled guilty to driving under the influence causing injury. Over appellant’s objection, the trial court deemed his prior conviction for gross vehicular manslaughter while intoxicated to be a “strike” conviction, resulting in a sentence of four years rather than three years. Appellant contends the trial court committed reversible error in concluding the prosecution had proved a prior “strike.” Respondent concedes that the prior “strike” finding is not supported by substantial evidence and requests that the matter be remanded for a retrial on that issue. We reverse the conviction insofar as it imposes a sentence of four years and remand to the trial court for appropriate proceedings to resolve whether appellant’s prior conviction constitutes a “serious felony” or “strike” and sentencing in accordance with the plea agreement.

FACTS

The facts are taken from appellant’s preliminary hearing.

On the evening of October 11, 2009, appellant rear-ended another car driven by Mr. Romo. California Highway Patrol Officer Andrew Alford responded to the scene and observed appellant sitting in the driver’s seat of his car. Appellant had a large gash on his head and seemed confused; his car exuded the smell of alcohol. Appellant could not recall his name, his speech was slurred and his eyes were red and watery.

Later, when Officer Alford attempted to interview appellant again at the hospital, the officer noticed a very strong odor of alcohol on appellant’s breath. Based on Officer Alford’s training and experience, he formed the opinion that appellant had been driving under the influence of alcohol.

Mr. Romo sustained a black eye and a bump on the head as a result of the collision. He was seeing a chiropractor a month after the accident.

It was stipulated that appellant had a blood alcohol level of 0.22 percent.

PROCEDURAL HISTORY

Appellant was charged with (1) driving under the influence and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)); and (2) driving under the influence with a blood alcohol level of 0.08 percent or more and causing bodily injury to another person (Veh. Code, § 23153, subd. (b)). It was further alleged as to both counts that appellant had served one prior prison term (Veh. Code, § 23560) and had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

All further statutory references are to the Penal Code unless otherwise noted.

Under a negotiated plea agreement with the prosecution, the trial court dismissed count two. Appellant withdrew his not guilty plea as to count one, and he pleaded no contest and admitted the truth of the special allegations.

Appellant admitted he was convicted in 1993 of gross vehicular manslaughter. (§ 191.5, subd. (a).) Section 191.5, subdivision (a) provides: “Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section... 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.”

The parties did not agree on whether appellant’s prior conviction constituted a strike, but they agreed that appellant would receive three years if the court concluded his prior conviction was not a strike and four years if it was.

The prosecution presented no evidence regarding appellant’s conduct as to the prior offense. The prosecutor simply argued to the court that any conviction under section 191.5, subdivision (a) constituted a “strike.” He argued that appellant “pled to an act” and that “[t]he count itself includes an act of which [appellant] pled to.” The trial court sentenced appellant to state prison for four years.

The probation report submitted to the court indicated appellant was sentenced to 36 months of probation for that conviction.

The court further imposed various fines and awarded appellant 256 days of presentence custody credit.

Appellant timely appealed from the judgment of conviction. He obtained from the court a certificate of probable cause to appeal on the issue whether the prior conviction constituted a strike.

CONTENTIONS

Appellant contends the trial court erred as a matter of law because “gross vehicular manslaughter” as defined by section 191.5 does not automatically constitute a “serious felony” or “strike” under sections 1192.7 and 1192.8. Alternatively, appellant argues there was no substantial evidence that appellant committed a prior “serious felony” under section 1192.8. Appellant argues that “there is no evidence that appellant personally inflicted great bodily injury or personally used a dangerous or deadly weapon.”

Respondent concedes the prior strike finding is not supported by substantial evidence.

DISCUSSION

For purposes of the Three Strikes law, a qualifying conviction includes a “serious felony” listed in section 1192.7, subdivision (c). The list of offenses under section 1192.7, subdivision (c) does not include a violation of section 191.5. However, subdivision (a) of section 1192.8 further defines a “serious felony” as also meaning any violation of section 191.5 in which the defendant personally inflicts great bodily injury on any person other than an accomplice or personally uses a dangerous or deadly weapon. (People v. Gonzales (1994) 29 Cal.App.4th 1684, 1688, 1694.)

In the present case, the record before the trial court contained no indication whether appellant personally inflicted great bodily injury or personally used a dangerous or deadly weapon in the prior offense. For an offense to qualify as a “serious felony” under section 191.5, subdivision (a), the unlawful killing only must be “the proximate result” of the commission of either “an unlawful act, not amounting to a felony, and with gross negligence, ” or “a lawful act that might produce death, in an unlawful manner, and with gross negligence.” The offense of gross vehicular manslaughter, therefore, requires only proximate causation, not personal infliction. Our Supreme Court has made clear that “[p]roximately causing and personally inflicting harm are two different things.” (People v. Bland (2002) 28 Cal.4th 313, 336.)

The information alleged appellant was previously convicted of gross vehicular manslaughter in 1993, and under the plea agreement appellant admitted to the fact of the conviction. The prosecution presented no evidence regarding the 1993 conviction beyond the fact of appellant’s conviction. In fact, defense counsel argued that although appellant “might have aided and abetted by causing the car behind him to go around him and hit a different car, ” appellant “was not the one that personally inflicted the great bodily injury” in the prior offense.

Respondent concedes that there is insufficient evidence in the record to show that appellant either personally inflicted great bodily injury or personally used a dangerous or deadly weapon in the prior offense. However, respondent requests that the matter be remanded for a retrial on that issue. Appellant seeks, in the first instance, reduction of his sentence by one year and, alternatively, a remand to the trial court to resolve whether his prior conviction constitutes a “serious felony” or strike and sentencing in accordance with the plea agreement. We find the alternative relief appropriate.

A retrial is permissible under both state and federal law. (Monge v. California (1998) 524 U.S. 721, 734; People v. Barragan (2004) 32 Cal.4th 236, 239.) At a retrial, the trier of fact may look to the entire record of the prior conviction to determine the truth of the prior conviction allegation. (People v. Guerrero (1988) 44 Cal.3d 343, 355.)

DISPOSITION

The judgment is reversed insofar as it imposes a sentence of four years rather than three years and is remanded with directions for the trial court to determine whether appellant’s prior conviction constitutes a “serious felony” or “strike” and for sentencing in accordance with the plea agreement. In all other respects, the judgment is affirmed.

We concur: RUBIN, Acting P. J. GRIMES, J.


Summaries of

People v. Davis

California Court of Appeals, Second District, Eighth Division
Feb 9, 2011
No. B222593 (Cal. Ct. App. Feb. 9, 2011)
Case details for

People v. Davis

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EARL DAVIS, Defendant and…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Feb 9, 2011

Citations

No. B222593 (Cal. Ct. App. Feb. 9, 2011)