People v. Funez CA4/1 ( 2023 )

Filed 1/19/23 P. v. Funez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079844
Plaintiff and Respondent,
v. (Super. Ct. No. JCF005084)
THOMAS OJEDA FUNEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Christopher J. Plourd, Judge. Judgment vacated, remanded with directions.
Matthew A. Lopas, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff
and Respondent.
Thomas Ojeda Funez appeals a judgment entered after he pleaded no
contest in 2021 to a felony offense of discharging a firearm with gross
negligence (Pen. Code, § 246.3, subd. (a)1). He contends the trial court erred
in finding that an alleged prior felony conviction in 1992 for vehicular
manslaughter while intoxicated (§ 191.5, subd. (a)) constituted a strike when
the record of conviction did not establish he “personally inflicted” great bodily
injury. The People concede, and we agree, that the record of conviction did
not support such a finding. We, therefore, vacate the judgment and remand
the matter with directions for the trial court to reverse the prior strike
finding and conduct further sentencing proceedings.
BACKGROUND
Funez pleaded no contest to one count of discharging a firearm in a
grossly negligent manner on September 11, 2021 (§ 246.3, subd. (a); count
1).2 He requested a court trial on the issue of whether an alleged strike for a
1992 conviction for gross vehicular manslaughter while intoxicated (§ 191.5,
subd. (a)) qualified as a serious felony within the meaning of the three strikes
law and thus subjected him to sentencing under that scheme. (§§ 667, subds.
(b)–(j), 1170.12, subdivision (a)–(d).)
Defense counsel submitted a sentencing brief explaining that the
offense of gross vehicular manslaughter while intoxicated may constitute a
strike as a serious felony only if the offense involves “the personal infliction of
great bodily injury on any person other than an accomplice.” (§§ 1192.7,
subd. (c)(8), 1192.8, subd. (a).) The defense contended there was insufficient
information about the 1992 conviction to determine if Funez personally
1 Further statutory references are to the Penal Code unless otherwise
stated.
2 We omit a detailed discussion of the factual background of the current
conviction because it is not relevant to the issues on appeal.
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inflicted great bodily injury in committing the offense and, therefore, the
court could not use the conviction as a strike prior for purposes of sentencing.
The People submitted a sentencing brief contending, based upon People
v. Gonzalez (1994) 29 Cal.App.4th 1684, that vehicular manslaughter cases
are serious felonies by the nature of the section 191.5 offense and, therefore,
qualify as strikes. The People contended Funez must have inflicted great
bodily injury upon the decedent because his death was the proximal result of
Funez’s actions.
The trial court heard arguments regarding whether the prior conviction
qualified as a strike at a hearing on December 10, 2021. The people
submitted an exhibit with the certified record of conviction, which contained
the 1991 complaint, the minutes from the 1992 sentencing hearing, and the
judgment. Defense counsel argued that under section 1192.8 (which codified
Gonzalez), a gross vehicular manslaughter conviction only qualified as a
serious felony for purposes of a strike offense if in committing the offense, the
defendant personally inflicted great bodily injury upon a person other than
an accomplice. Defense counsel gave examples of situations where an
individual driving under the influence sets in motion a series of events that
proximately cause a death without the defendant personally inflicting great
bodily injury or death. Defense counsel argued the record of conviction
provided by the People did not meet their burden of showing personal
infliction of great bodily injury. The court took the matter under submission.
The court thereafter determined that the prior conviction qualified as a
strike because “there was a death involved.” The court granted a defense
motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497,
528–531 to strike the strike. The court sentenced Funez to state prison for
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the middle term of two years to run concurrently with a term imposed in
another case (case No. JCF004108). Funez appealed.
DISCUSSION
Funez contends on appeal, as he did before the trial court, that there
was insufficient evidence to prove his prior vehicular manslaughter
conviction qualified as a strike because neither the elements of the crime nor
the record of conviction established that he personally inflicted great bodily
injury on a person as required by sections 1192.7, subdivision (c)(8), and
1192.8, subdivision (a). The People concede, and we agree, that the trial
court erred in determining the 1992 conviction qualified as a strike because
there was insufficient evidence in the record of conviction to support such a
finding.
“We review defendant’s challenge to the trial court’s serious felony
finding in accordance with the usual rules on appeal applicable to claims of
insufficient evidence.” (People v. Valenzuela (2010) 191 Cal.App.4th 316,
320.)
Section 1192.7, subdivision (c) enumerates specific offenses that qualify
as serious felonies for purposes of the three strikes law. Section 1192.7,
subdivision (c)(8) provides that any felony may qualify as a serious felony if
in committing the offense “the defendant personally inflicts great bodily
injury on any person, other than an accomplice.” Section 1192.8, subdivision
(a), further defines a serious felony as including “any violation of Section
191.5 [gross vehicular manslaughter while intoxicated (subd. (a)) or vehicular
manslaughter while intoxicated (subd. (b))] . . . when [the offense involves]
the personal infliction of great bodily injury on any person other than an
accomplice . . . .”
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Section 191.5, subdivision (a) defines gross vehicular manslaughter
while intoxicated as “the unlawful killing of a human being without malice
aforethought, in the driving of a vehicle, where the driving was in violation of
Section 23140, 23152, or 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.”
Personal infliction of great bodily injury is not an element of vehicular
manslaughter as defined by section 191.5, which requires only that the
defendant proximately caused another person’s death. (People v. Wilson
(2013) 219 Cal.App.4th 500, 511–512 (Wilson).) “ ‘To “personally inflict” an
injury is to directly cause an injury, not just to proximately cause it.’
[Citation.] In construing the phrase ‘personally inflicts great bodily injury’ in
the analogous context of section 12022.7, the California Supreme Court held
it applies ‘only to a person who himself inflicts the injury.’ ” (Id. at p. 512
quoting People v. Cole (1982) 31 Cal.3d 568, 572.)
In other words, “the individual accused of inflicting great bodily injury
must be the person who directly acted to cause the injury.” (Cole, supra, 31
Cal.3d at p. 572.) “The defendant need not be exclusively involved in
inflicting the injury, but the defendant must ‘do so directly rather than
through an intermediary . . . .’ [Citation.] (People v. Modiri (2006) 39 Cal.4th
481, 493.) This construction proscribes a much narrower range of conduct
than the element of proximate causation, which only requires that death be a
foreseeable ‘ “direct, natural and probable” ’ result of ‘but for’ causation.”
(Wilson, supra, 219 Cal.App.4th at p. 512.)
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People v. Ollo (2021) 11 Cal.5th 682 explained a fact-specific inquiry is
necessary to distinguish between personally inflicting an injury and
proximate causation: “To determine whether a defendant personally inflicts
an injury, fact finders and courts must examine the circumstances of the
underlying offense and the defendant’s role in causing the injury that
followed.” (Id. at p. 685.) The issue before the Supreme Court in Ollo was
whether furnishing drugs to an individual who died after ingesting them
constituted personal infliction of an injury. The Supreme Court concluded
that distinguishing between cases where the act of furnishing drugs is only a
proximate cause of injury and those “where the defendant causes injury
‘directly and not through an intermediary’ [Citation.] require a fact-specific
analysis of the circumstances of the furnishing offense, including the role of
the defendant and the victim in the events resulting in injury.” (Id. at
p. 693.) The court concluded the trial court erred as a matter of law by
precluding the defense from arguing that the facts of that case did not
support a great bodily injury enhancement because the victim voluntarily
ingested the controlled substance. (Ibid.)
The trial court’s finding here that Funez’s prior conviction qualified as
a serious felony “[b]ecause there was a death involved” was not supported by
either the elements of the crime or a factual finding by the jury. Because
Funez pleaded guilty to the charge of gross vehicular manslaughter while
intoxicated, there was no jury finding on the issue of personal infliction of
great bodily injury. The sparse record of conviction in this case did not
contain the plea form or a transcript of the plea or sentencing hearings.
There are no facts in the record about appellant’s conduct, how it contributed
to the decedent’s death, or his relationship to the decedent. Thus, the record
of conviction did not include a fact-based inquiry described in Ollo to allow a
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finding that appellant personally inflicted injury upon the victim and that the
victim was a nonaccomplice.
The trial court could not in this case go beyond the elements of the
crimes for which appellant was convicted to enhance appellant’s sentence.
(Wilson, supra, 219 Cal.App.4th at p. 509; Apprendi v. New Jersey (2000) 530
U.S. 466, 490 [“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.”].) “The
[sentencing] court’s role is . . . limited to identifying those facts that were
established by virtue of the conviction itself—that is, facts the jury was
necessarily required to find to render a guilty verdict, or that the defendant
admitted as the factual basis for a guilty plea.” (People v. Gallardo (2017) 4
Cal.5th 120, 136.)
Here, as in Wilson, Funez’s guilty plea permitted the trial court “by
examining the ‘nature or basis’ of the vehicular manslaughter offense,” to
determine “that it involved great bodily injury” to the victim. (Wilson, supra,
219 Cal.Ap.4th at p. 511.) However, it “could not determine from the record
of conviction whether the offense involved personal infliction without
resolving a factual dispute. By pleading to the vehicular manslaughter
charge, [the defendant] only admitted to the element of proximately causing
[the decedent’s] death.” (Ibid.) The trial court did not have the power to
resolve such a factual dispute at the sentencing hearing. (Id. at pp. 512–513.)
The error was not harmless because the strike finding limited the
court’s sentencing choices. Remand is necessary for resentencing. (People v.
Sengpadychith (2001) 26 Cal.4th 316, 326 [applying Chapman v. California
(1967) 386 U.S. 18, 24 standard to Apprendi error].)
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DISPOSITION
The judgment is vacated and the matter is remanded with directions
for the trial court to reverse the strike finding and to conduct further
sentencing proceedings consistent with this opinion.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DO, J.
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