People v. Gallardo

4 Cal.5th 120

407 P.3d 55

226 Cal.Rptr.3d 379

The PEOPLE, Plaintiff and Respondent,

v.Sulma Marilyn GALLARDO, Defendant and Appellant.

S231260

Supreme Court of California

Filed December 21, 2017

Christian C. Buckley, San Diego, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Shawn McGahey Webb, Louis W. Karlin and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

Kruger, J.Defendant Sulma Marilyn Gallardo was convicted of various offenses including second degree robbery and transportation of a controlled substance. Although her offenses would ordinarily be punishable by a maximum term of imprisonment of six years, the prosecution sought an increased sentence on the ground that defendant had previously been convicted of a "serious felony" under Penal Code section 667, subdivision (a), that was also a strike for purposes of the "Three Strikes" law. The conviction in question was for a crime—assault with a deadly weapon or with force likely to produce great bodily injury, in violation of Penal Code former section 245, subdivision (a)—whose statutory definition sweeps more broadly than the definition of "serious felony": An assault conviction qualifies as a serious felony if the assault was committed with a deadly weapon, but not otherwise. After reviewing the transcript of the preliminary hearing in defendant's assault case, the trial court determined that defendant did, in fact, commit the assault with a deadly weapon, and sentenced defendant to a term of 11 years in prison.

Under the Sixth Amendment to the United States Constitution, as interpreted in Apprendi v. New Jersey(2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 ( Apprendi ), any fact, other than the fact of a prior conviction, that increases the statutorily authorized penalty for a crime must be found by a jury beyond a reasonable doubt. Defendant contends that her increased sentence rests on an exercise in judicial factfinding that violated her Sixth Amendment right to a jury trial.

We considered a similar issue more than a decade ago, in People v. McGee(2006) 38 Cal.4th 682, 42 Cal.Rptr.3d 899, 133 P.3d 1054 ( McGee ). In McGee, we held that the Sixth Amendment permits courts to review the record of a defendant's prior conviction to determine whether the crime qualifies as a serious felony for purposes of the sentencing laws. Although we made clear that the inquiry is a "limited one" that "focus[es] on the elements of the offense of which the defendant was convicted," we also said that a court may review the record to determine whether "the conviction realistically may have been based on conduct that would not constitute a serious felony under California law." ( Id. at p. 706, 42 Cal.Rptr.3d 899, 133 P.3d 1054.) We acknowledged, however, that continued examination of the scope of the rule announced in Apprendi —then still a relatively recent development in the high court's jurisprudence—might one day call for reconsideration of this approach. ( Id. at p. 686, 42 Cal.Rptr.3d 899, 133 P.3d 1054.)

Defendant argues that day has now arrived. Specifically, she contends that the approach approved in McGee should be reconsidered in light of the high court's recent decisions in Descamps v. United States(2013) 570 U.S. 254, , 186 L.Ed.2d 438 ( Descamps ) and Mathis v. United States(2016) 579 U.S. ––––, , 195 L.Ed.2d 604 ( Mathis ), which, in her view, make clear that the Sixth Amendment forbids a sentencing court from reviewing preliminary hearing testimony to determine what conduct likely (or "realistically") supported the defendant's conviction.

We agree that it is time to reconsider McGee. Although the holdings of Descamps and Mathis both concern the proper interpretation of a federal statute not at issue here, their discussions of background Sixth Amendment principles pointedly reveal the limits of a judge's authority to make the findings necessary to characterize a prior conviction as a serious felony. The cases make clear that when the criminal law imposes added punishment based on findings about the facts underlying a defendant's prior conviction, "[t]he Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt." ( Descamps, supra, 133 S.Ct. at p. 2288.) While a sentencing court is permitted to identify those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea, the court may not rely on its own independent review of record evidence to determine what conduct "realistically" led to the defendant's conviction. Here, the trial court violated defendant's Sixth Amendment right to a jury trial when it found a disputed fact about the conduct underlying defendant's assault conviction that had not been established by virtue of the conviction itself. We disapprove People v. McGee, supra, 38 Cal.4th 682, 42 Cal.Rptr.3d 899, 133 P.3d 1054, insofar as it suggests that the trial court's factfinding was constitutionally permissible.

I.

In April 2014, a jury found defendant guilty of robbery ( Pen. Code, § 211 ), being an accessory after the fact (id., § 32), and transportation of marijuana ( Health & Saf. Code, § 11360, subd. (a) ). The jury also found true an allegation that a principal was armed with a firearm during the commission of the robbery ( Pen. Code, § 12022, subd. (a)(1) ).

The criminal information alleged that defendant had a 2005 conviction for assault with a deadly weapon or with force likely to produce great bodily injury (Pen. Code, former section § 245, subd. (a)(1)).¹ It further alleged that this conviction qualified as a "serious felony" conviction for purposes of Penal Code section 667, subdivision (a)(1). Under that provision, a criminal defendant who commits a felony offense after a prior conviction for a "serious felony" is subject to a five-year sentence enhancement. A "serious felony" conviction is also a prior strike for purposes of the Three Strikes law, which requires a second-strike defendant to be sentenced to double the otherwise applicable prison term for his or her current felony conviction. ( Pen. Code, §§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d).) The term "serious felony" is defined to include "assault with a deadly weapon." ( Pen. Code, § 1192.7, subd. (c)(31).) If defendant committed assault with a deadly weapon, the prior conviction counted as a strike; if she committed assault by any means of force likely to produce great bodily injury, it did not. ( People v. Delgado(2008) 43 Cal.4th 1059, 1065, 77 Cal.Rptr.3d 259, 183 P.3d 1226.)

For some time, California cases have held that such determinations are to be made by the court, rather than by the jury, based on a review of the record of the prior criminal proceeding. ( McGee, supra, 38 Cal.4th at p. 685, 42 Cal.Rptr.3d 899, 133 P.3d 1054 ; see id. at p. 691, 42 Cal.Rptr.3d 899, 133 P.3d 1054 [citing cases].) A defendant does, however, have a statutory right to a jury trial on "the question of whether or not the defendant has suffered the prior conviction"—though not "whether the defendant is the person who has suffered the prior conviction." ( Pen. Code, § 1025, subds. (b) & (c) ; see also id., § 1158.) Defendant waived her right to a jury trial on prior convictions. She did not stipulate to the prior conviction, but she did stipulate to identity.

To determine whether defendant's assault conviction qualified as a "serious felony," the trial court examined the preliminary hearing transcript from the underlying proceeding. At the hearing, the victim testified that defendant had "tried to scare me with the knife," "push[ed] me aggressively to get me away from the car," and "punched me on the face, on the forehead ...." Relying on this testimony, the trial court concluded that defendant had, in fact, been convicted of "assault with a deadly weapon; to wit, knife." The court sentenced defendant to the middle term of three years for the robbery conviction, which was doubled based on the strike, with a five-year enhancement for a prior serious felony conviction, for a total of 11 years. The court also imposed a one-year term for the marijuana transportation conviction, doubled based on the strike, and ordered it to run concurrent to the principal term. The court stayed the firearm enhancement.

The Court of Appeal reversed the accessory conviction but otherwise affirmed. It rejected defendant's argument that the trial court's finding that she committed her prior assault offense with a deadly weapon abridged her Sixth Amendment right to have a jury, unanimously and beyond a reasonable doubt, find the facts that made her prior assault conviction a serious felony. The Court of Appeal explained that defendant had waived her right to a jury trial on the prior conviction allegations, and, in any event, the trial court's ruling was consistent with the rule approved in McGee. The court further concluded that nothing in the high court's recent decision in Descamps had called into question whether a trial court may consult a preliminary hearing transcript, as the trial court did here, to determine the nature of a prior conviction.

In contrast to the court below, several Courts of Appeal have concluded that the approach approved in McGee is incompatible with the understanding of the reach of the Sixth Amendment reflected in the United States Supreme Court's opinions in Descamps and Mathis. (See People v. Eslava(2016) 5 Cal.App.5th 498, 509–510, 210 Cal.Rptr.3d 331 [collecting appellate decisions reaching the same conclusion], review granted ––– Cal.5th ––––, 213 Cal.Rptr.3d 591, 388 P.3d 819 (2017) ( Eslava ); see also People v. Wilson(2013) 219 Cal.App.4th 500, 516, 162 Cal.Rptr.3d 43 [holding that, under both Descamps and...