Opinion
D040805.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. GEORGE W. SHUFELT, Defendant and Appellant.
A jury convicted George W. Shufelt of taking or knowingly driving a stolen vehicle (Veh. Code, § 10851, subd. (a)), receiving a stolen vehicle (Pen. Code, § 496d), four counts of residential burglary (§§ 459/460), four counts of receiving stolen property (§ 496, subd. (a)), and resisting an officer (§ 148, subd. (a)(1)). In a bifurcated hearing, the jury found he had a 1995 Utah conviction of automobile homicide that the court found was a prior serious felony conviction (§ 667, subd. (a)(1)) and a strike prior (§§ 667, subds. (b)-(i), 1170.12). The court denied a motion to dismiss the strike prior and sentenced Shufelt to prison for 19 years eight months: double the four-year middle term on one count of residential burglary with a strike prior, enhanced five years for the prior serious felony conviction, with two consecutive terms of two years eight months each for residential burglaries with a strike prior (double one-third the middle term), and one year four months for taking or knowingly driving a stolen vehicle. The court imposed a concurrent term on the fourth residential burglary conviction and stayed sentence on the receiving stolen property convictions. (§ 654.) A time served sentence was imposed on the charged misdemeanor. Shufelt contends the trial court erred in finding his prior Utah conviction is a serious felony and a strike prior.
All further statutory references are to the Penal Code unless otherwise specified.
Because the only issue Shufelt raises on appeal is whether his prior Utah conviction is a serious felony and strike prior, we need not discuss the facts underlying his convictions.
DISCUSSION
Section 667, subdivision (a)(1) provides:
"In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively."
The question Shufelt raises is whether the Utah Criminal Code section 76-5-207, subsection (1)(a) contains all of the elements of section 192, subdivision (c)(3).
Utah Criminal Code section 76-5-207, subsection (1) provides in part:
"(a) Criminal homicide is automobile homicide, a third degree felony, if the actor operates a motor vehicle while having a blood alcohol content of .08% or greater by weight, or while under the influence of alcohol, any drug, or the combined influence of alcohol and any drug, to a degree that renders the actor incapable of safely operating the vehicle, and causes the death of another by operating the vehicle in a negligent manner.
"(b) For the purpose of this subsection, `negligent means simple negligence, the failure to exercise that degree of care that reasonable and prudent persons exercise under like or similar circumstances." (Utah Code Ann. § 76-5-207 (1994) <www.lexis.com/research/ retrieve> (as of Oct. 22, 2003).)
Section 192, subdivision (c)(3) provides:
"Driving 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."
Both statutes require that the defendant committed homicide while driving under the influence of alcohol. The Utah statute requires proof that the driver drove negligently while the California statute requires proof that the defendant committed an unlawful act. Driving negligently is a sufficient unlawful act. (In re Dennis B. (1976) 18 Cal.3d 687, 697.) Shufelt argues his guilty plea to Utah Criminal Code section 76-5-207, subsection (1) does not contain all the elements of section 192, subdivision (c), because the Utah Supreme Court has interpreted the Utah Criminal Code section 76-5-207, subsection (1) to allow conviction on evidence of intoxication alone. He is mistaken. In State v. Ruben (1983) 663 P.2d 445, 448-449, the Utah Supreme Court said:
"While it is no longer appropriate to consider intoxication and negligence as a single element, it is appropriate to consider the degree and effects of intoxication as a `factor in determining whether a defendants conduct was criminally negligent. To establish criminal negligence, it is necessary to show conduct which is `a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actors standpoint. [Citation.] It is therefore a subjective element requiring consideration of all relevant circumstances surrounding the incident."
Thus, in Utah, as in California, a defendant is guilty of vehicular manslaughter if he kills another human being while driving negligently and under the influence of alcohol. Here, when the Utah trial court accepted Shufelts guilty plea, the court advised him:
"[THE COURT]: Now in this particular circumstance, Mr. Shufelt, the elements, or the basis for the States allegations are as follows, and listen carefully to these, because by pleading guilty you are telling me the following things are true.
"First, that this incident occurred at 500 South State Street, here in Salt Lake County; secondly, that it occurred on or about August 19th of 1994, that you were the person that committed the offense, and that you at that time operated a motor vehicle while you had a blood alcohol content of .08 grams or greater, and that you were, in fact, under the influence of alcohol, and that rendered you incapable of safely operating your vehicle. And in operating the vehicle, under those circumstances, you caused the death of Frank M. Huddleson, in that you operated your vehicle in a negligent manner. That means a less than safe manner."
Shufelt thereafter admitted the truth of the courts statement. In doing so, he admitted violating a Utah statute that included all the elements of a California serious felony.
In their brief, the People point out that although the trial court declined to consider a probable cause statement that was part of the information underlying Shufelts guilty plea to the Utah crime, it provided additional evidence that the Utah conviction would be vehicular manslaughter in California. In the probable cause statement, the People alleged that while driving his truck the wrong direction on a one-way street, Shufelt entered an intersection against a traffic light that was green for the victim, whom he broadsided and killed. The probable cause statement contains all the facts to show negligent conduct.
II
Relying primarily on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Shufelt contends the trial court erred in denying him a jury trial on the issue of whether his Utah conviction was a serious felony. In People v. Kelii (1999) 21 Cal.4th 452, 455-457, the California Supreme Court held that a determination whether a prior conviction is a prior serious felony conviction is primarily a legal question for the trial court, not a jury. Shufelt argues this principle was changed when the United States Supreme Court in Apprendi, held, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory minimum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) In Apprendi, the question the United States Supreme Court held to be a jury question was whether the defendants crime was a hate crime. (Id. at p. 470.) Unlike the factual determination whether a crime was committed because of the victims race, whether a conviction of a foreign statute is a serious felony under California law involves primarily a legal analysis to be resolved by the court. (See People v. Kelii, supra, 21 Cal.4th at pp. 455-457.) Here, the trial court did not err in determining that Shufelts Utah conviction was a conviction of a prior serious felony and a strike prior.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J. and OROURKE, J.