Opinion
A142881
11-26-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIO ESLAVA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 216995)
MEMORANDUM OPINION
We previously published an opinion in this appeal at People v. Eslava (2016) 5 Cal.App.5th 498 (Eslava). In that opinion, we remanded to the trial court to grant Eslava a limited jury trial on whether he personally inflicted serious bodily injury in committing the 2009 battery, which was alleged as a strike prior in the charging document for the 2011 homicide, for which Eslava was convicted of voluntary manslaughter. (Id. at pp. 502-503.) We envisioned a trial based on paper only; "[t]he evidentiary scope of any trial on remand shall be limited to the record of conviction." (Id. at p. 521.)
Before the remand was effectuated, the Supreme Court granted review in Eslava, and, after issuing its opinion in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), ordered us to vacate our prior decision and transferred the case back to us for reconsideration in light of Gallardo. Neither party filed a supplemental brief after transfer, as they were entitled to do. (Cal. Rules of Court, rule 8.200(b).)
We now issue our reconsidered opinion in which we will remand the case to the superior court with directions to the trial judge to conduct an inquiry " 'confined to the record of the prior plea proceedings' " to " 'mak[e] a determination about what facts [Eslava] necessarily admitted in entering [his] plea,' without 'relitigat[ing] the prior offense.' " (Gallardo, supra, 4 Cal.5th at p. 137.)
We will not recite the factual and procedural background of the case nor the history of the development of the United States Supreme Court's jurisprudence related to proof of prior convictions in light of the Sixth Amendment, all of which was discussed in our prior published opinion. (Eslava, supra, 5 Cal.App.5th at pp. 502-505, 508-516.) A similar legal discussion appears in Gallardo itself. (Gallardo, supra, 4 Cal.5th at pp. 128-136.)
Gallardo involved a defendant who entered a guilty plea to a violation of Penal Code, former section 245, subdivision (a)(1), which could be violated either by use of a " 'deadly weapon' " (which would make it a strike offense) or " 'by any means of force likely to produce great bodily injury' " (which would not). (Gallardo, supra, 4 Cal.5th at p. 136.) "The trial court's sole basis for concluding that defendant used a deadly weapon was a transcript from a preliminary hearing at which the victim testified that defendant had used a knife during their altercation." (Ibid.) The court in Gallardo held: "While a trial court can determine the fact of a prior conviction without infringing on the defendant's Sixth Amendment rights, it cannot determine disputed facts about what conduct likely gave rise to the conviction." (Gallardo, at p. 138.) Rejecting its earlier holding in People v. McGee (2006) 38 Cal.4th 682, Gallardo held "a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the 'nature or basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction." (Gallardo, at p. 136.)
In reaching its conclusion, Gallardo recognized that the United States Supreme Court in Descamps v. United States (2013) 570 U.S. 254 did permit trial "courts to rely on certain documents to identify the precise statutory basis for a prior conviction" (Gallardo, supra, 4 Cal.5th at p. 137), while disallowing "court[s] to make findings about the real conduct underlying the conviction based on police reports or complaint applications" (id. at p. 131). Specifically, Descamps identified " 'indictments and jury instructions' " as proper bases for determining "what facts a jury necessarily found in the prior proceeding." (Gallardo, at p. 137.) The court noted, however, such documents "differ from the preliminary hearing transcript here in a meaningful way. An indictment or jury instructions might help identify what facts a jury necessarily found in the prior proceeding. [Citation.] But defendant's preliminary hearing transcript can reveal no such thing." (Ibid.) Thus, the preliminary hearing transcript was not open to the trial court's analysis of what conduct actually underlay the prior conviction, for that would invade the province of the jury. (Id. at pp. 124-125.) "[A]t least in the absence of any pertinent admissions, the sentencing court can only guess at whether, by pleading guilty to a violation of Penal Code section 245, subdivision (a)(1), defendant was also acknowledging the truth of the testimony indicating that she had committed the assault with a knife." (Id. at p. 137.) Instead, the remand order allowed the trial judge only to determine what acts the defendant admitted she had committed. (Id. at pp. 137-140.)
Similarly, the question for the trial court in this case is whether the plea colloquy contains an admission by Eslava that he personally inflicted serious bodily injury on the battery victim or an adoption by him of the factual allegations contained in the police report. We held in our previous opinion that Eslava's "stipulation through counsel that there was a factual basis for the plea established no more than the elements of a section 243, subdivision (d) violation." (Eslava, supra, 5 Cal.App.5th at p. 515.) We see nothing in Gallardo to change our minds about that. That leaves for the trial judge's determination only whether there is evidence in the plea colloquy showing that Eslava admitted he personally inflicted serious bodily injury. The question the judge may answer is not whether the defendant actually personally inflicted serious bodily injury (for that would have to be determined by a jury), but only whether he admitted doing so.
No jury was ever empaneled to determine Eslava's actual conduct during the 2009 battery.
In our previous opinion, we remanded for a jury trial on a paper record. (Eslava, supra, 5 Cal.App.5th at pp. 519-521.) This resolution was favored by Justice Chin in his dissenting opinion. (Gallardo, supra, 4 Cal.5th at p. 143 (dis. opn. of Chin, J.).) The majority, however, found such an approach would "not be much of a trial." (Id. at p. 139.) Instead, the majority ordered what could arguably be considered even less of a trial. As we understand Gallardo, the trial judge in that case, on remand, was to determine only whether the defendant admitted as part of her plea that she used a deadly weapon. (Id. at pp. 137-139.) In accordance with the Supreme Court's transfer order, we remand this case to the superior court, in accord with the remand in Gallardo, "to permit the People to demonstrate to the trial court, based on the record of the prior plea proceedings, that defendant's guilty plea encompassed a relevant admission about the nature of [Eslava's] crime." (Gallardo, supra, 4 Cal.5th at p. 139; see also People v. Hudson (2018) 28 Cal.App.5th 196, 205-211.)
DISPOSITION
Our previous decision published at People v. Eslava (2016) 5 Cal.App.5th 498 is hereby ordered vacated. The matter is remanded to the superior court for further proceedings consistent with this opinion and with the Supreme Court's opinion in People v. Gallardo (2017) 4 Cal.5th 120, 137-140.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Tucher, J. /s/_________
Reardon, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------