Opinion
F070063
03-17-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS ESTRADA, Defendant and Appellant.
Charles M. Bonneau III, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Charity S. Whitney, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF017647A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge. Charles M. Bonneau III, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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Juan Carlos Estrada appeals from his conviction and sentence for possessing a sharp instrument in prison. He argues his conviction must be reversed because of (1) an improperly admitted expert opinion to the effect that the object underlying the charge was a sharp inmate-manufactured weapon, and (2) improperly admitted impeachment evidence of his prior conviction for assault with a deadly weapon. We reject these contentions. Estrada further argues that there was insufficient evidence to support the trial court's true findings on a prior strike sentence enhancement allegation included in the information. We agree with Estrada that the trial court's true finding on the prior strike enhancement allegation was not supported by sufficient evidence. Accordingly, we strike the true finding on the allegation, vacate Estrada's sentence, and remand the matter for retrial of the allegation and/or resentencing. The judgment is affirmed in all other respects.
FACTS AND PROCEDURAL HISTORY
A one-count information filed in the Kern County Superior Court charged Estrada with possession of a sharp instrument in prison. (Pen. Code, § 4502, subd. (a).) The information further alleged that Estrada had a prior felony conviction pursuant to section 245, subdivision (a)(1), which qualified as a strike for sentencing purposes. (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e).) The case proceeded to jury trial.
Subsequent statutory references are to the Penal Code unless otherwise specified.
Estrada was a prisoner at Wasco State Prison in Kern County on November 10, 2013, the date of commission of the instant offense. In conducting a search of Estrada's person that day, Correctional Officer Robert Branson recovered an object from the waistband of Estrada's boxers. The object was made of two pieces of sharpened plastic wrapped together with a cloth strip. The cloth strip appeared to form a handle, from which the tips of the plastic pieces protruded out; the tips extended approximately three-quarters of an inch beyond the edge of the cloth wrapping.
Branson testified as an expert witness for the prosecution based on his training and experience as a correctional officer. He was specifically trained in identifying inmate-made weapons, as well as in determining how such weapons were made and used. Branson described the object recovered from Estrada's person as being "sharpened to a point on one end, fashioned to a handle on the other end." He opined the object was an inmate-made weapon that could gash the skin and cause serious injury to a person's neck or eye.
On cross-examination, Branson admitted he did not know whether the object would collapse upon being pressed against something. Branson further admitted that at Estrada's preliminary hearing, Branson had testified both that he did not know whether the object would collapse if pressed against something and also that the object "could support a stabbing." Defense counsel questioned Branson about "fishing lines" that are commonly used by inmates to pass messages and small items from cell to cell on a prison tier. Branson explained how the process worked: an inmate would cast a line out of his cell for another inmate to hook with his own line and pull into his cell. Branson said a fishing line usually had weights such as hardened soap attached to it, which supplied "the heaviness to move it down the tier." However, Branson had not seen fishing lines with "little plastic pieces at the end." Branson opined that the object found on Estrada's person was not a fishing line.
Estrada testified on his own behalf. He said the object in question was indeed a "fishing line," not a weapon. Estrada explained that the wound-up cloth strip that Branson characterized as a handle was just the fishing line wrapped up and the plastic pieces were there "to push the line away from the cell" during use. Estrada further testified the object was too flimsy to be used as a weapon and he believed the plastic pieces were not sharp enough to even pierce his thumb.
On cross-examination, the prosecutor impeached Estrada with his prior felony conviction. Specifically, he asked Estrada whether Estrada had suffered a prior conviction for "assault with a deadly weapon" on August 22, 2013. Estrada responded in the affirmative. The prosecutor next asked whether Estrada had on him, on November 10, 2013, the "sharp instrument" at issue in the instant case. Estrada again responded in the affirmative.
The jury found Estrada guilty of possession of a sharp instrument in prison. A bifurcated bench trial on the truth of the prior strike allegation followed. The trial judge found Estrada had suffered a prior conviction for assault with a deadly weapon. He also found that the prior conviction qualified as a strike for sentencing purposes. (See §§ 245, subd. (a)(1), 1192.7, subd. (c)(31), 667, subd. (e)(1), 1170.12, subd. (c)(1).)
At sentencing, the court denied probation and imposed the low term of two years (with no pre-sentence custody credits). The term was doubled to four years on account of the court's finding that Estrada had suffered a prior strike conviction.
DISCUSSION
I. Branson's expert testimony
Estrada contends that "Branson's expert opinion testimony that the object possessed by [Estrada] was a sharp weapon should have been excluded because he was not qualified as an expert, and his testimony was merely speculation." Estrada further argues that Branson's "improper opinion testimony" was prejudicial and requires reversal of the judgment. We disagree.
"The qualification of expert witnesses, including foundational requirements, rests in the sound discretion of the trial court. [Citations.] That discretion is necessarily broad: 'The competency of an expert "is in every case a relative one, i.e. relative to the topic about which the person is asked to make his statement." [Citation.]' [Citation.] Absent a manifest abuse, the court's determination will not be disturbed on appeal." (People v. Ramos (1997) 15 Cal.4th 1133, 1175.)
Further, People v. Olguin (1994) 31 Cal.App.4th 1355, 1371, explained that "[t]he requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.] Such evidence is admissible even though it encompasses the ultimate issue in the case." (See Evid. Code, §§ 801, 805; People v. Torres (1995) 33 Cal.App.4th 37, 45.) Conversely, "[e]xpert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (People v. Torres, supra, at p. 45.) "As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused." (People v. Page (1991) 2 Cal.App.4th 161, 187.)
Here, Branson testified that, as a correctional officer for 11 years, he had annually been trained in identifying inmate-made weapons as well as in how such weapons were made, used, and concealed by inmates. Branson further testified that he had specifically been trained to identify "sharp instruments ... in the possession of inmates" and also received training regarding the methods used by inmates to fashion such objects and the ways in which inmates typically deployed such objects. Branson said that he had "seen within training probably 50, 60 weapons" and had personally "found probably close to ten weapons that would be stabbing-type weapons." As a correctional officer, he had dealt with three to five incidents in which inmates sustained serious injuries after being attacked by other inmates using self-made weapons.
Branson described the object recovered from Estrada's boxers as follows: "the tip of it is made from two pieces of plastic sharpened down to a point connected to a handle that is wrapped by a sheet." Branson testified that the cloth was tightly wrapped so as to keep the entire contraption firm. Branson had actually held the object in his hands: "[i]t felt firm, consistent, good grip" and was stable. Based on his training and experience, Branson testified that the contraption would be considered a sharp instrument by correctional staff; he also said the object could potentially be used to stab correctional officers or other inmates and cause lethal injury.
Branson testified that the object in question was not a prison "fishing line." He was familiar with fishing lines used by inmates to pass "kites" or messages on a prison tier. He believed the object was "not a fishing line" because the cloth strip wrapped around the plastic bits was "tightened into a handle." He explained that fishing lines were usually fashioned from thread or string as these materials were "harder to see [and] easier to conceal" on a prison tier. In contrast, a line made of cloth strips "would be too noticeable on the tier." Indeed, Branson had never seen a fishing line made of actual cloth.
Estrada argues that Branson's testimony was improper because he was not qualified as an expert with "medical or biological training" and because "there was no reason to believe that [his] opinion could have aided the jurors in making their decision." We are not persuaded. It is clear that the crafting and use of inmate-made weapons in prison are matters beyond an average juror's experience. Furthermore, Branson had been a correctional officer for 11 years and had attended annual trainings as to how inmates put together and used self-made weapons. He was also trained in, and had experience in, detecting and identifying such weapons; indeed he had found approximately 10 "stabbing-type weapons" on inmates. In addition, he had personally dealt with a number of incidents in which inmates had attacked other inmates with self-made weapons, causing serious injuries. Finally, although the jurors saw the object in question at trial and during deliberations, they were unable to handle it so as to assess its sharpness and stability because it was encased in a sealed plastic tube.
We conclude the trial court did not abuse its considerable discretion in determining that Branson was qualified to provide expert testimony about inmate-made weapons, including the one underlying the instant charges. Similarly, admission of Branson's specific testimony that the object at issue would be considered a sharp instrument or weapon in prison, one that potentially could cause lethal injuries to correctional officers or other prisoners, was also within the range of the court's discretion. Accordingly, there was no error.
II. Impeachment of defendant with prior felony conviction
At trial, Estrada testified on his own behalf. The prosecutor impeached him with his prior felony conviction. Estrada argues that the trial court's decision to admit evidence of the prior felony conviction, especially without sanitizing it, constitutes an abuse of discretion under Evidence Code section 352 and requires reversal of his instant conviction. We disagree.
A. Background
Defendant had a prior conviction pursuant to section 245, subdivision (a)(1). Defense counsel moved in limine to exclude "any reference to and any evidence of" defendant's prior felony conviction on the basis of Evidence Code section 352. At the hearing on the in limine motions, counsel asked the court, pursuant to section 352, to sanitize the conviction for impeachment purposes, such that it would be referred to only as a crime of moral turpitude. The court ruled, "if [Estrada] testifies in his own defense, then the People will be able to ask about the conviction noted as a Penal Code [section] 245, and the People may phrase the question using the date and nature of the conviction, in other words, assault with a deadly weapon."
Subsequently, defense counsel again asked the court to sanitize the conviction so it would be referred to, in the presence of the jury, simply as a prior "felony conviction." Counsel argued that characterizing the prior as a conviction for assault with a deadly weapon would hinder Estrada's ability to testify in his own defense because his prior conviction was also alleged as the basis for a sentence enhancement in the instant case. Counsel argued that describing the prior as a conviction for assault with a deadly weapon would also be prejudicial on account of the similarity between that description of the prior offense and the charged offense. Counsel further argued, quoting People v. Castro (1985) 38 Cal.3d 301, 315, that "convictions which are assaultive in nature do not weigh as heavily in the balance favoring admissibility [as] those convictions which are based on dishonesty or some other lack of integrity." Counsel concluded, "[s]o there are just too many factors that are highly prejudicial to [Estrada], and I think the Court should consider those and find that there is a better way to present it if the Court is inclined to present the felony."
There was no dispute that the prior conviction involved moral turpitude. The court thus found the prior admissible as a crime of moral turpitude and next analyzed its admissibility under Evidence Code section 352. The court stated, "one of the first questions is whether that particular prior conviction does reflect adversely on honesty or veracity, and as [defense counsel] states ... assault with a deadly weapon is a moral turpitude crime, so it does meet that particular criter[ion]." The court continued, "[a]nother question to look at is whether that prior conviction is near or remote in time, and it would appear that this prior conviction was from August 22nd of 2013, so it is not too remote in time, and time has not elapsed, and he has been in prison custody since the time of the conviction." Next the court considered "whether the prior has conduct that is substantially similar to that of which [Estrada] is standing trial." With regard to this factor, the court noted, "I appreciate the argument that it is an assault with a deadly weapon. In this case he is accused of having a sharp instrument or a weapon, but I don't think that is sufficiently similar to the current case to cause any confusion or prejudice for the jury, and there are instructions that I would be giving to the jury about how they are to consider the evidence of a prior conviction when a witness is impeached with that evidence." Finally, the court acknowledged that admission of the conviction would bear on Estrada's decision to testify but concluded that the numerous disputed issues militated in favor of admission. Specifically, the court commented, "[in light of the] facts that appear to be in dispute ... I think to not have [Estrada] impeached with clearly a moral turpitude crime is not fair ... and I understand it is something [Estrada] will then have to consider in his decision whether to testify or not."
The court concluded that the prior conviction was admissible under Evidence Code section 352. Specifically, the court stated, "[u]nder Evidence Code [section] 352, then, I do find that it is very probative evidence, particularly for the reasons that I just stated, that there does appear to be some factual dispute that the jury will hear during the testimony between the witnesses, so it is highly probative. It is not going to create an undue consumption of time, and the prejudice is clearly outweighed by that probative value, and with the jury instructions, it will not confuse or mislead them." The court then declined to sanitize the conviction as requested by defense counsel, stating, "[w]ith respect to what can be said, I have also taken a quick look at case law, and I believe the People are entitled to ask the nature of the conviction and the date of the conviction and may not go any further unless a door is opened or a denial is made." The court iterated its ruling in wrapping up the hearing: "So the ruling is that even with the [Evidence Code section] 352 analysis, [Estrada] will be—the People will be allowed to impeach [Estrada] with his prior felony conviction by stating only the name of the conviction, assault with a deadly weapon, and the date."
Prior to deliberations, the court instructed the jury: "If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness['s] testimony."
B. Analysis
In order for a prior felony conviction to be used for impeachment purposes, the court must first find that the conviction involves moral turpitude and then must exercise its discretion under Evidence Code section 352. (People v. Castro, supra, 38 Cal.3d at p. 316; People v. Coad (1986) 181 Cal.App.3d 1094, 1109.) Estrada does not dispute that the evidence at issue here involved moral turpitude. Rather, Estrada argues the court's subsequent analysis under Evidence Code, section 352 was an abuse of discretion. Specifically, he contends the court did not adequately consider the "especially prejudicial" nature of the prior conviction based on its similarity to the charged offense. We are not persuaded that the trial court's ruling to admit the prior conviction was an abuse of discretion.
Evidence Code section 352 provides that the trial court "in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The "undue prejudice" to be avoided is not the prejudice or damage to a defendant that naturally flows from relevant, highly probative evidence; stated otherwise, "'prejudicial'" is not synonymous with 'damaging.'" (People v. Yu (1983) 143 Cal.App.3d 358, 377.) Evidence Code section 352 is, rather, concerned with "evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues." (People v. Yu, supra, at p. 377.) "'Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome."'" (People v. Clark (2011) 52 Cal.4th 856, 893.)
A trial court's decision to admit or exclude evidence under Evidence Code, section 352 is reviewed for abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 654-655.) Further, the "'balancing test [under Evidence Code section 352] is necessarily particularistic, depending not upon mechanically automatic rules, but upon the trial court's consideration of the unique facts and issues of each case.'" (People v. Scott (1980) 113 Cal.App.3d 190, 198.) "When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify." (People v. Clark, supra, 52 Cal.4th at p. 931.) Prior convictions for identical or similar offenses are not automatically excluded as unduly prejudicial under Evidence Code section 352. (People v. Green (1995) 34 Cal.App.4th, 165, 183 ["'The identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion.'"]
Here, the court conducted a detailed analysis that took into account the applicable factors bearing on the probity of the evidence as well as its potential for unduly prejudicing the jury. The court found defendant's prior conviction, which occurred very close in time to the charged offense and following which the defendant had remained in custody, to be highly probative on the issue of defendant's credibility. The court also weighed the prejudicial impact that admission of the assault with a deadly weapon conviction might have on the jury's consideration of the charged offense of possession of a sharp instrument in prison. In addition, the court said it would give, and did in fact give, an instruction informing the jury that it could consider the prior conviction evidence solely for assessing the defendant's credibility. In light of the circumstances of the instant case, the court determined that the potential for prejudice resulting from admission of the prior-conviction evidence did not outweigh its probative value. The court then ruled the People could impeach the defendant, if he were to testify, with the nature of the prior crime and the date of conviction. (See People v. Allen (1986) 42 Cal.3d 1222, 1268; People v. Hall (1970) 5 Cal.App.3d 116, 126 ["the name or nature of the crime may be asked as well as the date and place of conviction"].) Although the question is certainly a close one, we cannot say that the court's decision to admit the prior-conviction evidence without sanitizing it, was outside the bounds of the court's discretion.
As to the limiting instruction relevant here, the court instructed the jury, pursuant to CALCRIM 316, as follows: "If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness['s] testimony." Defendant argues that this limiting instruction was inadequate because it did not actually inform the jury that it could not consider the prior conviction as evidence of bad character or a predisposition to commit the charged crimes. However, if defendant believed the jury needed additional guidance, it was incumbent on him to request the desired modification. (People v. Hinton (2006) 37 Cal.4th 839, 875 [trial court under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct].) In any event, we presume the jury followed the court's instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
III. Sufficiency of the evidence as to prior strike enhancement allegation
The instant information alleged that Estrada was convicted "on or about August 22, 2013 ... of a prior felony offense, to wit: Penal Code [section] 245[, subdivision] (a)(1), within the meaning of subdivisions (c) through (j) of Penal Code section 667 and subdivisions (a) through (e) of Penal Code section 1170.12." (Unnecessary capitalization omitted.) In other words, the information alleged that Estrada had a prior strike conviction under California's Three Strikes Law, requiring the doubling of the sentence on his instant conviction for possession of a sharp instrument in prison. (§ 667, subd. (e)(1).)
Estrada waived his right to a jury trial on the truth of the prior conviction. Accordingly, after the jury convicted Estrada of possessing a sharp instrument in prison, the trial court conducted a bifurcated bench trial on the prior strike allegation. The court found Estrada had a prior conviction under section 245, subdivision (a)(1) that qualified as a serious or violent felony and strike under the Three Strikes Law. Therefore, the court found the prior strike allegation in the information to be true and doubled Estrada's sentence for the instant offense. While Estrada does not dispute that he has a prior conviction under section 245, subdivision (a)(1), he challenges, for insufficiency of the evidence, the trial court's finding that this conviction qualified as a strike for sentencing purposes. We agree with Estrada that the trial court's true finding on the prior strike enhancement allegation is not supported by sufficient evidence.
Under California law, a defendant has a right to a jury trial on the truth of a prior, i.e., whether he in fact suffered the prior alleged as the basis of the sentence enhancement. The question whether the prior qualifies as a "strike" for sentencing purposes is, however, reserved for the sentencing judge to resolve. (See § 1025; People v. Epps (2001) 25 Cal.4th 19, 23.) Thus, although Estrada waived his right to have a jury determine the truth of the prior, he did not have, in the first instance, an option for a jury trial on the issue of whether the prior qualified as a strike.
"The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt." (People v. Miles (2008) 43 Cal.4th 1074, 1082.) "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." (People v. Delgado (2008) 43 Cal.4th 1059, 1067 (Delgado).)
Here, the People presented the abstract of judgment of Estrada's prior conviction as proof of the prior strike enhancement allegation. The abstract indicates that on August 22, 2013, a jury found Estrada guilty of an offense under section 245, subdivision (a)(1). In 2011, when Estrada was charged in the prior case, section 245, subdivision (a)(1) provided: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years." Under section 1192.7, subdivision (c)(31), assault with a deadly weapon qualifies as a serious felony and is, in turn, a strike under section 667, subds. (d)(1) and (e)(1). Assault with force likely to cause great bodily injury is not a serious felony, and, in turn, is not a strike. (See section 1192.7, subd. (c).) Therefore, the application of the prior strike enhancement alleged in the instant information hinged on whether Estrada's prior conviction under section 245, subdivision (a)(1) was for assault with a deadly weapon or assault with force likely to cause great bodily injury.
The People also presented other documents that were dated after the date of issuance of the abstract of judgment and reasonably appear to be derived from the abstract of judgment. (See People's Exhibits 7, 8, 9.)
Estrada was sentenced to the low term of two years in prison.
Subsequently, effective January 2012, the Legislature amended section 245 by deleting the phrase "or by any means of force likely to produce great bodily injury" from subdivision (a)(1) and placing it in newly enacted subdivision (a)(4). (Stats. 2011, ch. 183, § 1.)
Neither assault with a deadly weapon nor assault with force likely to cause great bodily injury is a violent felony as defined in section 667.5.
The abstract of judgment at issue is a preprinted form with boxes that were filled in by the trial court. The abstract contains a box specifying the statute of conviction (i.e., section 245, subdivision (a)(1)) and another specifying the statutory definition of the crime committed. The box denoting the definition of the crime committed, states: "Assault with deadly weapon other th." We agree with Estrada that the truncated definition included in the box is ambiguous as to whether, in the court's assessment, the offense of conviction was assault with a deadly weapon or assault with force likely to cause great bodily injury. The abstract further specifies that the offense of conviction constituted a serious felony. Specifically, the abstract depicts an "X" in a box entitled "Serious Felony." This notation is not ambiguous and reflects the court's underlying determination that Estrada's offense under section 245, subdivision (a)(1) was assault with a deadly weapon (since assault with force likely to cause great bodily injury is not a serious felony). However, the abstract, by itself, does not reveal how the court reached this conclusion, a deficiency that, as explained below, is pivotal for purposes of resolving the instant claim.
As recently clarified by the United States Supreme Court in Descamps v. United States (2013) ___ U.S. ___ (Descamps), under the Sixth Amendment to the federal Constitution, courts must employ a "categorical" or elements based approach in applying recidivist sentence enhancements, i.e., sentence enhancements based on a defendant's prior convictions. Under the categorical approach mandated by the Sixth Amendment, courts compare the elements of the statute underlying the prior conviction to the elements of the applicable, triggering offense enumerated in the recidivist enhancement statute at issue, here California's Three Strikes Law. (See People v. Navarette (2016) 4 Cal.App.5th 829, 851-852.) The prior conviction can be used to enhance the defendant's sentence only if its elements are the same as, or narrower than, those of the triggering offense enumerated in the recidivist punishment statute. (Id. at p. 851.)
Descamps explains this approach is necessary because, consistent with the right to jury trial guaranteed by the Sixth Amendment, sentencing courts may only enhance a defendant's sentence above the statutory maximum applicable to his current offense based on facts proven to a jury beyond a reasonable doubt, i.e., facts necessarily implied by the elements of a prior conviction. Conversely, a sentencing court cannot enhance a defendant's sentence above the applicable statutory maximum based on "non-elemental fact[s]," i.e., facts not necessarily and unanimously found beyond a reasonable doubt by a jury but, rather, gleaned from the record by the sentencing court itself. (Descamps, supra, 133 S.Ct. at pp. 2288-2289 [under federal Constitution's Sixth Amendment right to jury trial, the only facts related to a prior conviction that a sentencing court can rely on in imposing recidivist punishment are the facts necessarily implied by the elements of the relevant prior offense]; People v. Navarette, supra, 4 Cal.App.5th at p. 852 ["Descamps makes clear that ... Sixth Amendment principles ... foreclose any factfinding by the sentencing court beyond the facts necessarily implied by the elements of the prior offense"]; People v. Marin, supra, 240 Cal.App.4th at p. 1363 [in imposing a recidivist enhancement, "judicial factfinding beyond the elements of the [prior] offense, is incompatible with the United States Supreme Court's view of the Sixth Amendment right to a jury trial"].)
Although our Supreme Court has yet to weigh in regarding the implications of Descamps for the California procedure for applying recidivist sentence enhancements delineated in People v. McGee (2006) 38 Cal.4th 682, several Courts of Appeal that have addressed the issue in published opinions (including this Court), have concluded that the Sixth Amendment, as interpreted in Descamps, limits courts to an elements-based approach in applying recidivist sentence enhancments. (See, e.g., People v. Navarette, supra, 4 Cal.App.5th at pp. 854-855; People v. Marin (2015) 240 Cal.App.4th 1344, 1348, 1362-1363; People v. Eslava (2016) 5 Cal.App.5th 498, 508-515.)
Descamps further explains that when the statute underlying a defendant's prior conviction contains alternative elements, such that the specific elements forming the basis of the defendant's prior conviction cannot be discerned based on the statute of conviction alone, courts must employ a "modified categorical" approach. (Descamps, supra, 133 S.Ct. at pp. 2284-2285.) Under the modified categorical approach, courts can consult a limited range of approved record-based documents (i.e., charging documents and jury instructions) to identify the elements that formed the basis of a defendants prior conviction. (Id. at p. 2285 [noting that the modified categorical approach "retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime"].) Descamps acknowledged that sentencing courts would, at times, be faced with statutes of conviction that set forth "alternative means" of committing a particular offense (i.e., various means under a single overarching element), rather than actual "alternative elements." (Ibid., fn. 2.) However, Descamps explained that this was not a "real-world reason to worry" because courts could nonetheless consult the charging document and jury instructions utilized in the case, as permitted under the modified categorical approach, to ascertain the actual elements, as opposed to any constituent "means," that formed the basis of the prior conviction. (Ibid.)
Under Descamps, Estrada's prior offense can be used to enhance his sentence under the Three Strikes Law only if the elements of the prior offense render it a serious felony and strike offense. Here, the abstract of judgment of Estrada's prior offense noted that Estrada was convicted under section 245, subdivision (a)(1) and that his offense was a serious felony. However, the abstract of judgment alone does not reveal whether the court's conclusion that the offense was a serious felony was based on the elements of the prior offense or, instead, reflected the court's own interpretation of the evidence presented at defendant's trial for that offense. As explained above, under Descamps, this is a critical distinction.
California cases clarify that the version of section 245, subdivision (a)(1) that was in effect in 2011, when Estrada was charged with his prior offense, defined only one crime, i.e., the crime of aggravated assault, and set forth two alternative ways of committing that offense, i.e., with a deadly weapon and with any force likely to cause great bodily injury. (See, e.g., In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5 ["Section 245 ... defines only one offense, to wit, 'assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury,'" such that the two alternative definitions encompassed by the statute are not distinct offenses]; People v. Martinez (2005) 125 Cal.App.4th 1035, 1043 ["As is readily apparent, [section 245, subdivision (a)(1)] describes two different ways of committing a prohibited assault: (1) by use of a deadly weapon or instrument other than a firearm or (2) by means of force likely to produce great bodily injury."]; People v. Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar) [same].) Accordingly, in cases involving offenses under section 245, subdivision (a)(1), the information as well as the jury instructions properly referenced both ways of committing the offense. (See, e.g., People v. Golde (2008) 163 Cal.App.4th 101, 121 [showing that prior to 2012, CALCRIM No. 875, the instruction applicable to section 245, subd. (a)(1) offenses, listed, in the disjunctive, both ways of committing the prohibited assault]; CALJIC No. 9.02 [clarifying in Comment that prior to 2012 revision, the instruction applicable to section 245, subdivision (a)(1) offenses included, in the disjunctive, both ways of committing aggravated assault].)
Indeed, the two prongs of former section 245, subdivision (a)(1), overlap to the extent the scope of the term "deadly weapon" as used in the statute was not limited to inherently deadly weapons but also encompassed ordinarily nonlethal items, such as a fingernail file, a straight pin, and even a pillow, when such items were used in a manner capable of producing great bodily injury. (See, e.g., Aguilar, supra, 16 Cal.4th at p. 1029, 1030; People v. White (1963) 212 Cal.App.2d 464, 465; People v. Nealis (1999) 232 Cal.App.3d Supp 1, 4, fn. 2.) Therefore, depending on how a specific case was charged as well as the evidence presented and how the jury interpreted it, a conviction under section 245, subdivision (a)(1) could be based on either one of the two alternative means of committing the offense of aggravated assault, or, in the absence of a unanimity instruction, possibly even on both. (See People v. Davis (1996) 42 Cal.App.4th 806, 814-815 [distinguishing between assaults with a deadly weapon and assaults by means of force is generally unnecessary "since all aggravated assaults are ultimately determined based on the force likely to be applied against a person"]; Aguilar, supra, 16 Cal.4th at p. 1035 ["Ultimately (except in those cases involving an inherently dangerous weapon) the jury's decisionmaking process in an aggravated assault case under [both prongs of] section 245, subdivision (a)(1), is functionally identical" because "in either instance, the decision turns on the nature of the force used."].)
Given that offenses arising under former section 245, subdivision (a)(1) may simultaneously be charged under both prongs of the statute and juries instructed on both ways of committing the prohibited assault, we cannot ascertain, with reference only to the abstract of judgment, how the court in Estrada's prior case determined that his conviction was for assault with a deadly weapon, a serious felony. Specifically, we cannot tell whether the abstract's designation of Estrada's prior conviction as a serious felony was based on the elements of the offense as unanimously found beyond a reasonable doubt by the jury in that case, or, on the court's own interpretation of the evidence presented at trial. Indeed, depending on how the offense was charged and the jury instructed in the prior case, the court in that case may have been unable to ascertain the basis of the jury's verdict in the first instance. It follows that the trial court in the instant case similarly could not have determined the precise elements of Estrada's prior offense without recourse to the information and jury instructions from the prior case and, even then, the elements might only reveal that Estrada's offense of conviction was aggravated assault. (See Mathis v. United States (2016) ___ U.S. ___ [136 S.Ct. 2243, 2249, 2256-2257] (Mathis) [in determining whether the statute of conviction sets forth alternative elements or simply alternative means comprising a broader element of the same crime, the trial court may look to a limited class of approved documents, including the charging document and jury instructions, to determine "what crime, with what elements, a defendant was convicted of"].)
Under Descamps, Estrada can be subject to recidivist punishment only on the basis of the actual elements of his prior offense, i.e., the elements that the jury unanimously found were proven beyond a reasonable doubt. Thus, unless the record unequivocally shows Estrada was convicted of assault with a deadly weapon in terms of the specific elements the jury unanimously found to be proven beyond a reasonable doubt, his prior conviction cannot support a recidivist enhancement under the Three Strikes Law. Here, the People failed to make the requisite showing on the basis of the abstract of judgment of Estrada's prior offense.
We conclude the trial court's true finding on the prior strike enhancement allegation is not supported by substantial evidence. We therefore strike the true finding on this allegation and remand the matter for retrial of the allegation and/or resentencing. (See People v. Barragan (2004) 32 Cal.4th 236, 239, 241-242 [permitting retrial of strike allegation after appellate finding of evidentiary insufficiency].) Should the People elect to proceed with retrial of the prior strike allegation, the trial court must determine, using the approaches outlined in Descamps and Mathis, whether Estrada's prior conviction constitutes a strike based on its elements alone.
In light of our conclusion, we need not address Estrada's argument that a rap sheet entered into evidence by the People in the bifurcated trial on the prior conviction allegation was not properly certified. --------
DISPOSITION
The trial court's true finding on the sentence enhancement alleged in the information pursuant to sections 667, subdivisions (c)-(j) and 1170.12, subdivisions (a)-(e) is stricken and defendant's sentence is vacated. The matter is remanded for retrial of this allegation and/or resentencing. The judgment is affirmed in all other respects.
/s/_________
SMITH, J WE CONCUR: /s/_________
HILL, P.J. /s/_________
GOMES, J.