Opinion
NOT TO BE PUBLISHED
Received for posting 9/19/07.
Before Vartabedian, Acting P.J., Dawson, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kern County No. BF108078A, Gary T. Friedman, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Laura Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Santos Rodriguez, Jr., of attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664) and willfully endangering the health of a child (§ 273a). In a separate proceeding the court found true allegations that appellant had suffered two prior serious felony convictions (§ 667, subd. (a)), one in 1998, for assault with a deadly weapon or by means of force likely to cause great bodily injury (§ 245, subd. (a)), and the other in 1993, for gross vehicular manslaughter while intoxicated (hereafter gross vehicular manslaughter) (§ 191.5, subd. (a) (hereafter 191.5(a)), and that both of those convictions qualified as “strikes.” The court imposed a sentence of 35 years to life, with the determinate portion of the sentence consisting of 25 years on the attempted voluntary manslaughter conviction and 5 years on each of the two prior serious felony enhancements. The court awarded appellant 177 days of presentence credits, and, on the child endangerment conviction, the court imposed, and stayed pursuant to section 654, a term of 25 years to life.
Except as otherwise indicated, all statutory references are to the Penal Code.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
Appellant appealed, and on August 3, 2006, this court modified the judgment to provide that appellant was granted 230 days of presentence credits, and affirmed the judgment as modified. The remittitur issued on October 17, 2006.
On October 24, 2006, appellant requested that the remittitur be recalled so that he could raise on appeal the claim that the evidence was insufficient to establish that his prior conviction of gross vehicular manslaughter qualified as a serious felony, and therefore the court erred (1) in imposing a prior serious felony enhancement based on that conviction, and (2) in sentencing appellant under the three strikes law. On February 1, 2007, this court granted that request.
In the instant appeal, appellant raises the claim set forth in the preceding paragraph. Respondent concedes the point. We will reverse the true findings on the prior conviction allegations in question, vacate the sentence, and remand for further proceedings.
BACKGROUND
At the trial on appellant’s prior convictions, the evidence as to appellant’s conviction of gross vehicular manslaughter consisted of two documents: (1) a certified copy of a CLETS rap sheet, which indicated appellant’s conviction for “GROSS VEH MANSL WHILE INTOXICATED” under section 191.5(a), and (2) a 1993 abstract of judgment which indicated a single conviction, viz., a conviction of “Vehicle Manslaughter/Gross Neg” in violation of section 191.5(a).
DISCUSSION
At the outset, we set forth the statutory basis for appellant’s argument. Section 667, subdivision (a) provides for a five-year enhancement for any person convicted of a “serious felony” who has suffered a prior conviction of a “serious felony.” A “serious felony,” for purposes of section 667, subdivision (a), is any offense designated as such in section 1192.7, subdivision (c). (§ 667, subd. (a)(4).)
A prior conviction qualifies as a strike if it is for a “violent felony” within the meaning of section 667.5, subdivision (c) or a “serious felony” within the meaning of section 1102.7, subdivision (c). (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).)
Gross vehicular manslaughter is not listed, as such, as either a serious felony or a violent felony. However, the list of serious felonies in section 1192.7, subdivision (c) includes “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice” (§ 1192.7, subd. (c)(8)) and “any felony in which the defendant personally used a dangerous or deadly weapon” (§ 1192.7, subd. (c)(23)).
In addition, section 1192.8, enacted in 1989 for the purpose of “clarify[ing] that [certain specified crimes] have always been, and continue to be, serious felonies within the meaning of subdivision (c) of section 1192.7” (§ 1192.8, subd. (b)), includes among those specified crimes, any violation of section 191.5, if the offense “involve[s] the personal infliction of great bodily injury on any person other than an accomplice, or the personal use of a dangerous or deadly weapon, within the meaning of paragraph (8) or (23) of subdivision (c) of Section 1192.7” (§ 1192.8, subd. (a)).
Appellant argues as follows: “[T]he evidence introduced in this case to prove appellant’s 1993 conviction under section 191.5(a) . . . proved only that appellant was convicted of gross vehicular manslaughter while intoxicated under section 191.5, subdivision (a). The evidence did not prove beyond a reasonable doubt either that appellant personally inflicted the great bodily injury (in that case, death) or that the person killed was not an accomplice or that the person’s death resulted from appellant’s personal use of a dangerous or deadly weapon, as required by section 1192.8, subdivision (a). Absent that critical evidence, there was insufficient proof that appellant’s 1993 gross vehicular manslaughter conviction qualified as a serious felony for purposes of the three strikes law or section 667, subdivision (a).” (Original italics.) The People concede these points, and we agree.
Appellant does not challenge the sufficiency of the evidence supporting the allegation that his 1998 aggravated assault conviction qualified as a serious felony. Evidence adduced at trial on the prior conviction allegations included an abstract of judgment indicating the imposition of a section 12022.7 enhancement for the personal infliction of great bodily injury on a person other than an accomplice, thereby qualifying the underlying offense as a serious felony under section 1192.7, subdivision (c)(8).
The two documents that constitute the sum total of the evidence of the nature of appellant’s gross vehicular manslaughter conviction establish that appellant suffered a prior conviction of gross vehicular manslaughter in violation of section 191.5(a), but they do not disclose the facts of the offense actually committed. Therefore, the record establishes the least adjudicated elements of a violation of section 191.5(a), but no more. (Cf. People v. Cortez (1999) 73 Cal.App.4th 276, 280.) And the elements of section 191.5(a) do not include personal infliction of great bodily injury on any person other than an accomplice or personal use of a deadly or dangerous weapon. Therefore, the evidence was insufficient to establish that appellant’s 1993 section 191.5(a) conviction was a serious felony under section 1192.7, subdivision (c), and the imposition of a prior serious felony enhancement and the strike finding based on that conviction cannot stand.
The People request a retrial. Appellant does not oppose this request. We will so order. (§ 1262 [reversal of judgment against criminal defendant deemed an order for new trial unless appellate court otherwise directs]; Monge v. California (1998) 524 U.S. 721, 734 [118 S.Ct. 2246, 2253] [“Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context”]; People v. Barragan (2004) 32 Cal.4th 236, 239 [“retrial of a strike allegation is permissible where a trier of fact finds the allegation to be true, but an appellate court reverses for insufficient evidence”].)
DISPOSITION
The true findings on the prior serious felony enhancement and strike allegations with respect to appellant’s 1993 conviction of gross vehicular manslaughter while intoxicated are reversed; the sentence is vacated; and the matter is remanded for trial on, or admission of, those allegations, or other appropriate disposition. In all other respects, the judgment is affirmed.