People v. Henley

Opinion

A felony is “serious” if the defendant personally inflicts great bodily injury on any person other than an accomplice. When the prior conviction of such a felony is alleged for purposes of the three strikes law, must the prosecution prove that the injured party was not an accomplice? We will answer this question in the affirmative. Because the trial court placed the burden of proof on the defendant, and because substantial evidence does not support the court’s finding that the prior felony was serious, we will reverse.

Factual and Procedural Background

The underlying facts are not disputed and not at issue here. Appellant Darrell Anthony Henley sold heroin on February 28, 1996, and on April 11, 1996. In two cases, which were consolidated, he pleaded no contest to two counts of selling heroin (Health & Saf.- Code, § 11352, subd. (a).) The informations further alleged that on or about May 11, 1992, appellant suffered a prior felony conviction for violating Vehicle Code section 2800.3, evading a peace officer causing injury or death. The prior felony was alleged to be “serious” within the meaning of the three strikes law.^[1] Appellant admitted the 1992 prior, reserving court trial on the issue of whether that conviction qualified as a strike. The parties stipulated that appellant would be sentenced to a prison term of five years four months in the event the strike was not sustained, eight years eight months in the event it was.

After taking the contested issue under submission, the court found the prior conviction qualified as a strike for purposes of the three strikes law. The court stated that appellant had the burden of proving that the party injured in commission of the prior felony was an accomplice. The record

Once the prosecutor presents prima facie evidence of conviction, the trial court is allowed to make reasonable inferences from the facts presented. If there is no evidence to the contrary, the trial court may consider the abstract and the facts of the particular case, and utilizing the official duty presumption, find a defendant was convicted of and served the term of imprisonment for the listed felony. {People v. Crockett (1990) 222 Cal.App.3d 258 , 262 [ 271 Cal.Rptr. 500 ].)

The transcript of appellant’s plea to a violation of section 2800.3 of the Vehicle Code was considered by the trial court. At the time of the plea, the following exchange took place between the court and appellant:

“The Court: [W]hat is your plea, sir, to a violation of Vehicle Code Section 2800.3, evading a peace office, causing injury, where it’s alleged that on or about April 11th of 1992 you did willfully, unlawfully and feloniously evade and attempt to evade a pursuing peace officer, proximately causing serious bodily injury to another? fl[] Is your plea guilty or no contest, sir?

“[Appellant]: No contest.”

The factual basis for the plea was explained by the prosecutor as follows: “[A]n officer observed [appellant] driving a motorcycle at high speed. After attempting to pull the [appellant] over, he activated his lights and siren.

In its analysis of whether appellant’s prior conviction constituted a “serious” felony for purposes of the three strikes law, the trial court stated, in pertinent part: “On its face, the transcript supports the finding that [appellant] personally caused the injury (ran into another vehicle and injured the passenger on the back of his motorcycle) and that the injury was great bodily injury (broken ankle). Since the burden of proving a person is an accomplice is on the [appellant] (CALJIC 3.19), this Court concludes that the silent record does not establish this and the Court finds that the passenger was not an accomplice. Accordingly, the factual basis and the plea set forth in the transcript is [sz'c] adequate to support the conclusion that this particular Vehicle Code Section 2800.3 conviction is a prior serious felony under Penal Code Section 667(d) . . . .”

The question then is whether the transcript of appellant’s plea in the previous conviction or the criminal complaint filed in the case, as interpreted by the trial court, is substantial evidence that the injured individual was not an accomplice.

The definition of substantial evidence in a criminal case is a familiar one. It is “evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” {People v. Johnson (1980) 26 Cal.3d 557 , 578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 , 16 A.L.R.4th 1255 ]; People v. Jones (1990) 51 Cal.3d 294 , 314 [ 270 Cal.Rptr. 611 , 792 P.2d 643 ].)

A trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction and served a prison term. {People v. Haney (1994) 26 Cal.App.4th 472 , 475 [ 31 Cal.Rptr.2d 547 ].) Here, we think the trial court’s inference that the injured individual was not an accomplice is without “solid value” unless, as the court stated, the burden of proof lay with appellant.

Whether the injured person was or was not an accomplice was not an issue at the time appellant was convicted of violating Vehicle Code section 2800.3. Therefore, neither the plea transcript nor the complaint mentions the injured party’s status. The prosecution did not present any additional evidence to prove that she was not an accomplice.

Appellant contends that the cases relied on by respondent are inapplicable here as they deal with whether the defendant had permission or authorization to engage in certain conduct or possess what would otherwise be contraband. (See, e.g., People v. George (1994) 30 Cal.App.4th 262 , 274-277 [ 35 Cal.Rptr.2d 750 ].) Appellant asserts that placing the burden on him on a matter which was not in issue in the prior proceeding, and which he had no opportunity to prove in the present case, denied him due process.

We will not labor over the question of whether the “other than an accomplice” proviso in section 1192.7, subdivision (c) is a definitional element of “serious felony” or a matter of affirmative defense. Even if it can be properly construed as stating a matter of affirmative defense, application of the rules concerning proof of a prior conviction worked to deprive appellant of a fair opportunity to carry the burden put upon him. We will thus conclude appellant was denied due process.

The California Supreme Court has held that a defendant’s statutory right to a jury trial on prior conviction allegations (§ 1025) has been expanded to include various procedural guaranties: the prosecution must prove the prior conviction allegation beyond a reasonable doubt, the defendant enjoys the privilege against self-incrimination and the right to confront and cross-examine witnesses against him, and the rules of evidence apply. (People v. Monge (1997) 16 Cal.4th 826 , 833-834 [ 66 Cal.Rptr.2d 853 , 941 P.2d 1121 ].)

In determining the truth of a prior conviction allegation the trier of fact may look to the entire record of that conviction, but no further. (People v. Guerrero (1988) 44 Cal.3d 343 , 355 [ 243 Cal.Rptr. 688 , 748 P.2d 1150 ].) Thus, if appellant bore the burden of proof on the accomplice issue, he was limited to whatever may have appeared in the record of the 1992 proceeding concerning that question.^[4] But the status of the injured party was of no moment in the earlier proceeding, either as an element of or a defense to the crime defined in Vehicle Code section 2800.3. Nothing in the record shows

Also, it appears appellant would not have had any meaningful opportunity to submit proof on the issue in the 1992 case. People v. Gonzales (1994) 29 Cal.App.4th 1684 [ 35 Cal.Rptr.2d 450 ], although dealing with another aspect of section 1192.7, subdivision (c)(8), is illustrative.^[5] In Gonzales the defendant had been earlier convicted of gross vehicular manslaughter other than while intoxicated. (§ 192, subd. (c)(1).) In a later case he pleaded guilty to four felonies but denied an allegation that the prior conviction was a serious felony under sections 667 and 1192.7. After a jury found the serious felony allegation true, the defendant attacked the finding on appeal. One of his asserted grounds was that the serious felony elements (personal infliction of great bodily injury on any person other than an accomplice) were not adjudicated in the prior proceeding. He argued that allowing the allegation to be made and adjudicated for the first time in the later case prejudicially compromised his constitutional rights—primarily the right to due process of law, including the right to confront adverse witnesses. (People v. Gonzales, supra, at p. 1699.) The appellate court rejected the argument. It found that “. . . there was no justiciable issue, in the [earlier case], as to whether Gonzales had personally inflicted great bodily injury on a person other than an accomplice. Gonzales could not have asserted, and a fortiori he cannot now plausibly complain that he was denied, a right to litigate that issue in that proceeding.” (Id. at p. 1700.)

The reasoning of the Gonzales court applies here as well. There was no justiciable issue, in appellant’s 1992 case, concerning the serious felony elements of sections 667 and 1192.7. He thus had no right or opportunity to litigate the question at that time.

Placing the burden of proof on appellant while restricting his proof to the record of a proceeding in which he had no opportunity to litigate the issue

C. Retrial of the serious felony allegation is not barred.

The question arises whether retrial of the serious felony allegation is barred by double jeopardy principles on remand. We conclude it is not.

Monge v. California (1998) 524 U.S. 721 [ 118 S.Ct. 2246 , 141 L.Ed.2d 615 ] and People v. Monge, supra, 16 Cal.4th 826 , appear directly on point. There the trial court found true an allegation the defendant had suffered a prior serious felony conviction. On appeal the Court of Appeal reversed that finding on grounds the evidence was insufficient to show the defendant personally inflicted great bodily injury on any person other than an accomplice (§ 1192.7, subd. (c)(8)) or personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)). The Court of Appeal further held that retrial of the prior conviction allegation was barred by the state and federal constitutional protections against double jeopardy. The California Supreme Court reversed the latter holding. The court concluded that in a noncapital case double jeopardy principles do not apply to the trial of a prior conviction allegation. (16 Cal.4th at pp. 843, 845.) The United States Supreme Court granted certiorari and affirmed the judgment of our state’s high court interpreting the federal constitutional double jeopardy clause. (Monge v. California, supra, 524 U.S. at p. 734 [118 S.Ct. at p. 2253].)^[7]

2. Substantial evidence supports the personal infliction of great bodily injury finding^[8]

Disposition

The judgment is reversed to the extent it is based on a finding that appellant suffered a prior serious felony conviction. The district attorney