People v. Saldana CA5 ( 2021 )

Filed 1/7/21 P. v. Saldaña CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077667
Plaintiff and Respondent,
(Super. Ct. No. 18CMS0049)
v.
JULIO SALDAÑA, OPINION
Defendant and Respondent.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Robert S.
Burns, Judge.
Joel M. Murillo for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ward
A. Campbell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P.J., Peña, J. and Snauffer, J.
Defendant Julio Saldan͂a contends on appeal (1) the trial court erred in finding his
prior conviction qualified as a “serious” prior felony conviction and thus a “strike” under
the “Three Strikes” law and (2) his prior prison term enhancement should be stricken.
The People concede both issues. We reverse in part, vacate the sentence in part, and
remand.
PROCEDURAL SUMMARY
On April 5, 2018, a third amended information charged defendant with murder
(Pen. Code, § 187, subd. (a);1 count 1), gross vehicular manslaughter while intoxicated
(§ 191.5, subd. (a); count 2), driving under the combined influence of alcohol and a drug
proximately causing injury (Veh. Code, § 23153, subd. (g); count 3), and driving with a
0.08 percent or higher blood-alcohol concentration and proximately causing injury (Veh.
Code, § 23153, subd. (b); count 4).2
The information further alleged as to all counts that defendant had suffered a prior
strike conviction under the Three Strikes law (§§ 667, subds. (b)−(i), 1170.12,
subds. (a)−(d))—a 2011 conviction for reckless driving and proximately causing great
bodily injury and having previously been convicted of driving under the influence (Veh.
Code, §§ 23104, subd. (b), 23152, subd. (b)).3 The information also alleged defendant
1 All statutory references are to the Penal Code unless otherwise noted.
2 Counts 3 and 4 were lesser included offenses of count 2.
3 Vehicle Code section 23104, subdivision (b) provides: “A person convicted of
reckless driving that proximately causes great bodily injury, as defined in
Section 12022.7 of the Penal Code, to a person other than the driver, who previously has
been convicted of a violation of [Vehicle Code] Section 23103, 23104, 23105, 23109,
23109.1, 23152, or 23153, shall be punished by imprisonment pursuant to subdivision (h)
of Section 1170 of the Penal Code, by imprisonment in the county jail for not less than
30 days nor more than six months or by a fine of not less than two hundred twenty dollars
($220) nor more than one thousand dollars ($1,000) or by both the fine and
imprisonment.”
2.
had served two prior prison terms (§ 667.5, subd. (b)), based on the 2011 conviction and
a 2013 conviction for second degree burglary (§ 459).
On April 6, 2018, the jury convicted defendant of count 2, gross vehicular
manslaughter while intoxicated, and acquitted him of count 1.
In a bifurcated proceeding on the prior strike allegation, the trial court considered
the prosecution’s evidence of the 2011 prior conviction for Vehicle Code section 23104,
subdivision (b) and whether it qualified as a serious felony conviction under
sections 1192.7 and 1192.8. In the 2011 case, the information charged count 2 as
“unlawfully driv[ing] a vehicle upon a highway in willful and wanton disregard for the
safety of persons and property and … proximately caus[ing] great bodily injury, within
the meaning of Penal Code Section 12022.7,” and having a prior conviction for driving
under the influence, in violation of Vehicle Code section 23104, subdivision (b). The
minute order from 2011 reflects that defendant pled guilty to count 2 “as charged.”
Considering this evidence, the trial court in the current case questioned whether there was
sufficient evidence that defendant had personally inflicted great bodily injury in the prior
case for the conviction to qualify as a serious felony and thus a strike.
At the sentencing hearing on June 15, 2018, the trial court again considered
whether the prior conviction qualified as a serious felony conviction, this time concluding
that the inclusion in the information’s allegation of “within the meaning of Penal Code
Section 12022.7” raised the prosecution’s own burden of proof and satisfied the finding
of personal infliction. Thus, the court concluded the prior conviction qualified as a strike
under the Three Strikes law. The court proceeded to impose a total of 21 years, as
follows: the upper term of 10 years on count 2, doubled to 20 years pursuant to the Three
Strikes law, plus one year for the prior prison term enhancement.4
4 Although the court found both prior prison term allegations true, the probation
officer reported that on January 12, 2015, the 2013 second degree burglary conviction
3.
On June 19, 2018, defendant filed a notice of appeal.
DISCUSSION
I. Qualification of Prior Conviction as a Strike
Defendant contends there was insufficient evidence his 2011 conviction qualified
as a serious felony. The People acknowledge this case is indistinguishable from People
v. Valenzuela (2010) 191 Cal.App.4th 316 (Valenzuela) and concede the trial court
committed error. We agree and borrow the analysis of Valenzuela.
A. Law
“Section 1192.8 defines a ‘serious’ felony as including ‘any violation of …
subdivision (b) of Section 23104 … of the Vehicle Code, when any of these offenses
involve the personal infliction of great bodily injury on any person other than an
accomplice ….’ (§ 1192.8, subd. (a), italics added.) The People had the burden to prove
each of the elements of this definition beyond a reasonable doubt. [Citation.]
“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.
[Citations.] [¶] ‘ “The proper test for determining a claim of insufficiency of evidence in
a criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.” ’ [Citation.]
“The prosecution is entitled to go beyond the least adjudicated elements of the
prior offense and use the entire record to prove the prior conviction was for a serious or
violent felony. [Citations.] When, however, the record fails to disclose the facts of the
had been reduced to a misdemeanor. Thus, the court struck its finding on that prior
prison term allegation.
4.
prior crime, the court must presume the prior conviction was for the least offense
punishable under the statute. [Citations.]
“Vehicle Code section 23104 is violated whenever reckless driving of a vehicle
‘proximately causes great bodily injury … to a person other than the driver ….’ (Veh.
Code, § 23104, subd. (b), italics added.) With nothing more than defendant’s bare plea,
we must assume defendant’s reckless driving proximately caused injury to another
person. [Citation.] But the fact that defendant proximately caused great bodily injury to
another person does not establish that defendant personally inflicted great bodily injury to
another person.
“ ‘[T]he statutory term ‘personally inflict’ has a distinct meaning, which is
something different than proximate cause. [Citation.]’ [Citation.] Case law establishes
that proof a defendant proximately caused great bodily injury does not constitute proof
the defendant personally inflicted such injury.” (Valenzuela, supra, 191 Cal.App.4th at
pp. 320–321.)5
5 “A defendant ‘personally inflicts’ great bodily injury if he directly causes the
injury—that is, if the defendant ‘himself’ ‘actually’ ‘inflicts the injury’ by ‘directly
perform[ing] the act that causes the physical injury.’ [Citations.] Under this definition, it
is not enough to show that the defendant ‘proximately cause[d]’ the great bodily injury—
that is, it is not enough to show that the defendant’s conduct was a ‘ “substantial factor
contributing” ’ to the injury because that conduct ‘set[ ] in motion the chain of events’
that ‘natural[ly]’ ripened into the injury. [Citations.] It is also not enough to show that
the defendant aided and abetted the person who directly caused the injury. [Citation.]
Requiring this direct causal link furthers the enhancement’s underlying purpose of
imposing a greater penalty upon (and thereby deterring) persons who inflict such
grievous injuries.” (People v. Ollo (2019) 42 Cal.App.5th 1152, 1156–1157.)
5.
B. Analysis
In 2011, defendant pled guilty to a violation of Vehicle Code section 23104,
subdivision (b) and admitted having a prior drunk driving conviction. The information
alleged he proximately caused great bodily injury.
Defendant’s admission (based on his plea to the offense “as charged”) that he
drove recklessly and “proximately cause[d] great bodily injury” was insufficient to prove
his 2011 prior conviction was for a serious felony. “The People must also prove
defendant[’s] [reckless driving] ‘directly, personally, inflict[ed] the injur[ies]’ to his
victims. [Citation.] While the bare facts of his plea establish that defendant’s reckless
driving was a volitional act, we are still left to speculate on the precise cause of the
victims’ injuries.” (Valenzuela, supra, 191 Cal.App.4th at p. 323.)
It also is not sufficient that defendant admitted he “proximately cause[d] great
bodily injury, within the meaning of Penal Code Section 12022.7 ….” “Section 12022.7
does not define ‘proximately causing great bodily injury.’ Indeed, the term ‘proximately
cause’ appears nowhere in the statute. What is defined in section 12022.7 is ‘great bodily
injury,’ which is defined as a significant or substantial physical injury. (§ 12022.7,
subd. (f).)” (Valenzuela, supra, 191 Cal.App.4th at p. 323.) Thus, in defendant’s
admission that he “ ‘[proximately] cause[d] great bodily injury upon [the victims], within
the meaning of Penal Code section 12022.7,’ the phrase ‘within the meaning of Penal
Code section 12022.7’ can refer only to the term ‘great bodily injury,’ not ‘proximately
cause.’ Any other interpretation would be without foundation in the statute.”
(Valenzuela, at p. 323.)
Thus, defendant’s bare plea did not prove he personally inflicted great bodily
injury on his victim. (Valenzuela, supra, 191 Cal.App.4th at p. 323.) “Without
additional facts regarding the crime, there is insufficient evidence that defendant’s prior
conviction was for a serious felony within the meaning of Penal Code section 1192.8.
We shall remand the case to the trial court with directions that the People be afforded the
6.
opportunity to present sufficient evidence that defendant was previously convicted of a
serious felony. (People v. Barragan (2004) 32 Cal.4th 236, 239 [‘[R]etrial of a strike
allegation is permissible where a trier of fact finds the allegation to be true, but an
appellate court reverses that finding for insufficient evidence.’].)” (Valenzuela, at
p. 323.)
II. Prior Prison Term Enhancement
By way of supplemental briefing, defendant contends his prior prison term
enhancement must be stricken in light of Senate Bill No. 136. The People concede and
we agree.
Senate Bill No. 136 (2019−2020 Reg. Sess.) amended section 667.5,
subdivision (b) to limit prior prison term enhancements to only prior terms that were
served for a sexually violent offense as defined by Welfare and Institutions Code
section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590,
§ 1, eff. Jan. 1, 2020.) Defendant’s prior prison term was served for the 2011 reckless
driving conviction discussed above, not for a sexually violent offense, and thus it must be
stricken.
III. Conclusion
In their supplemental brief, the People withdraw their request that we remand for
resentencing, asserting it is unnecessary because the trial court imposed the maximum
term possible, and the parties have agreed the sentence should not have been doubled
pursuant to the Three Strikes law and the prior prison term must be stricken. The People
urge us to strike the two improper sentences and reduce the sentence to 10 years. As
noted, however, Valenzuela concluded remand is appropriate to allow the prosecution the
opportunity to retry the strike allegation, if it so choses. Accordingly, we will remand to
allow the prosecution this opportunity.
7.
DISPOSITION
The trial court’s finding that defendant was previously convicted of a serious
felony (Veh. Code, § 23104, subd. (b)) in case No. 11CM2181 is reversed, and the prior
prison term enhancement (§ 667.5, subd. (b)) is stricken. The sentence is vacated as to
the doubling of the 10-year term and the one-year enhancement. The matter is remanded.
The People shall have 60 days after the remittitur is filed in which to give notice of their
intent to seek retrial of the prior serious felony strike allegation. If the People give such
notice, the trial court shall hold a new trial on the prior strike allegation. If the People fail
to give such notice, the court shall resentence defendant to 10 years. In either event, the
court shall prepare an amended abstract of judgment and forward certified copies to the
appropriate entities. In all other respects, the judgment is affirmed.
8.