P. v. Massiet

Filed 7/14/06 P. v. Massiet CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Larrie Brainard, Judge. Reversed and remanded with directions.

I.

INTRODUCTION

The People charged Cory G. Massiet with driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a) (count 1)), and driving while having a measurable blood alcohol content (Veh. Code, § 23152, subd. (b) (count 2)). The People also alleged that Massiet had suffered a strike prior under the Three Strikes law (Pen. Code,^[1] §§ 667, subds. (b)-(i), 1170.12, 668), stemming from a 1996 conviction for vehicular manslaughter (§ 192, subd. (c)(3)).

Prior to the start of a bifurcated trial, the trial court found that Massiet's 1996 vehicular manslaughter conviction constituted a serious felony under the Three Strikes law. At trial, the jury found Massiet guilty of both of the charged offenses. After the jury returned its verdict, Massiet admitted to having suffered the prior felony conviction, but objected to the court's finding that the offense underlying that conviction constituted a serious felony.

Massiet claims there is insufficient evidence in the record to support the trial court's finding that his 1996 vehicular manslaughter conviction constituted a serious felony. Specifically, Massiet contends that the record contains no evidence that he personally inflicted great bodily injury in the prior case, as is required in order for a vehicular manslaughter conviction to constitute a serious felony. We agree and reverse the trial court's finding concerning the prior serious felony conviction. We remand with directions that the court allow the People to retry the prior serious felony allegation.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The prior case

In August 1996, the People filed a three count felony complaint in the Superior Court of Orange County. In their complaint, the People charged Massiet with felony vehicular manslaughter (§ 192, subd. (c)(3) (count 1)), driving under the influence of alcohol or drugs (Veh. Code, § 23153, subd. (a) (count 2)), and driving with a blood alcohol with .08 percent or more (Veh. Code, § 23153, subd. (b) (count 3)).

In October 1996, the People filed an amended three count complaint. The amended complaint charged Massiet with the same three counts alleged in the original complaint. However, with respect to counts 2 and 3, the People also alleged:

" . . . that on [counts 2 and 3], said defendant Cory Massiet personally inflicted great bodily injury on Ramona Mendoza during the commission and attempted commission of the above offense(s), within the meaning of Penal Code Section 12022.7 and said offense(s) is/are serious Felony/Felonies, within the meaning of Penal Code section 1192.7(c)(8)."

In November 1996, the People filed a three count information that was identical in all material respects to the amended complaint. On June 6, 1997, the People amended the information by interlineation to strike the great bodily injury enhancement and the serious felony allegations charged in relation to counts 2 and 3.

That same day, Massiet filed a guilty plea form. On the plea form, Massiet admitted to the following as the factual basis of his guilty plea:

"In Orange County on August 22, 1996[,] I willfully and unlawfully and without gross negligence caused the death of Ramona Mendoza while driving under the influence of alcohol and in the commission of a lawful act not amounting to a felony to wit ─ [Vehicle Code section] 21453 [and] 22350. I also drove a car while under the influence of alcohol [and] with a blood alcohol level over .08% and proximately cause[d] injury to 2 people ─ G. Mendoza and R. Mendoza."

The plea form also states, "[The] People strike [section] 12022.7 [great bodily injury enhancement] as not applicable by law."

That same day, the Orange County Superior Court accepted Massiet's guilty plea, suspended imposition of sentence and placed Massiet on probation for three years on the condition that he be confined in the county jail for one year.

B. The instant case

In December 2004, the People filed a felony complaint charging Massiet with driving under the influence of alcohol or drugs (Veh. Code § 23152, subd. (a) (count 1)), and driving while having a measurable blood alcohol content (Veh. Code, § 23152, subd. (b) (count 2)). The People also alleged that Massiet had previously been convicted of a felony violation pursuant to section 192, subdivision (c)(3) in the Orange County case. This allegation raised the charged offenses to the status of felonies. In March 2005, the People filed an amended complaint in which they added the allegation that Massiet had suffered a strike prior stemming from the 1996 vehicular manslaughter conviction (§ 192, subd. (c)(3)).

At the preliminary hearing in the instant case, the People offered as an exhibit various documents from the prior case including the felony complaint, the amended felony complaint, the information, the guilty plea form, and the trial court's minute order indicating that the court had accepted Massiet's guilty plea and granted him probation.^[2] The People subsequently filed an information in the instant case that was identical in all material respects to the amended complaint.

In June 2005, Massiet filed a trial brief in which he waived his right to a jury trial as to the truth of the prior felony conviction allegation. In his trial brief, Massiet also requested that the court determine whether that conviction qualified as a prior serious felony under California law. Massiet noted that the parties disputed whether his vehicular manslaughter conviction in the prior case constituted a serious felony under the Three Strikes law.

On June 16, prior to the commencement of a jury trial on the charged offenses, the court stated that it would provide Massiet the opportunity to be heard on his request that the court determine that the vehicular manslaughter conviction did not constitute a serious felony. Massiet argued that the record of the prior conviction did not contain evidence that he had personally inflicted great bodily injury in that case, as would be required in order for the 1996 vehicular manslaughter conviction to constitute a serious felony. After hearing argument from the People, the court ruled that the prior felony conviction constituted a serious felony.

The jury rendered guilty verdicts on both of the charged offenses. After the jury returned its verdict, Massiet admitted the truth of the prior conviction, but contested that it constituted a serious felony. The court stated that it had already ruled that the prior conviction was a serious felony, but that the court would allow Massiet an opportunity to revisit the issue at sentencing.

Massiet filed a sentencing brief in which he reiterated his argument that there was not substantial evidence in the record to support the finding that he had suffered a prior serious felony. The People also filed a sentencing brief. In their brief, the People described various alleged "facts" about the prior case, with no reference to the record of conviction in the prior case. At the sentencing hearing, the court ruled that the prior vehicular manslaughter conviction constituted a serious felony.

The court sentenced Massiet to four years on count 1, which constituted the midterm of two years, doubled pursuant to the Three Strikes law. The court sentenced Massiet to an identical sentence on count 2, and stayed the sentence on that count pursuant to section 654.

Massiet timely appeals.

III.

DISCUSSION

The record contains insufficient evidence to support the trial court's

finding that Massiet's prior conviction constitutes a serious felony

Massiet claims there is insufficient evidence to support the trial court's finding that he has previously suffered a serious felony conviction.

We review Massiet's challenge to the trial court's serious felony finding in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa)) applicable to claims of insufficient evidence. (People v. Cortez (1999) 73 Cal.App.4th 276, 279.)

"'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.]

"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' [Citation.]" (Ochoa, supra, 6 Cal.4th at p. 1206.)

A. Felony vehicular manslaughter is a serious felony for purposes of the Three

Strikes law when the defendant personally inflicts great bodily injury

California's Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) provides longer sentences for persons convicted of a felony who have previously been convicted of a serious or violent felony. Section 667, subdivision (e)(1) provides, "If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." For purposes of section 667, subdivision (e)(1), a prior felony conviction includes "any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state." (§ 667, subd. (d)(1).)

Section 1192.7, subdivision (c) in turn provides a list of specific offenses that constitute serious felonies (e.g., § 1192.7, subd. (c)(1) "murder or voluntary manslaughter"). In addition to these specifically enumerated offenses, section 1192.7 subdivision (c)(8) defines a serious felony as "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm." Similarly, section 1192.8 provides in relevant part, "For purposes of subdivision (c) of Section 1192.7, 'serious felony' also means any violation of . . . paragraph . . . (3) of subdivision (c) of Section 192 [defining vehicular manslaughter] . . . when . . . [this] offense[] involve[s] the personal infliction of great bodily injury on any person other than an accomplice . . . ." Thus, felony vehicular manslaughter as defined in section 192, subdivision (c)(3)^[3] is a serious felony when the defendant personally inflicts great bodily injury on a person other than an accomplice.

B. In order for a defendant's prior vehicular manslaughter conviction to constitute a

serious felony, the People must prove that the defendant personally inflicted great

bodily injury in the prior case, not just that he proximately caused such injury

The prosecution has the burden of proving beyond a reasonable doubt each element of a prior conviction that is used to enhance a defendant's sentence. (People v. Rodriguez (2004) 122 Cal.App.4th 121, 128.) In determining the truth of the existence of a prior felony conviction for purposes of the Three Strikes law, the trier of fact generally may "look to the record of the conviction ─ but no further . . . ." (People v. Guerrero (1988) 44 Cal.3d 343, 355 (Guerrero).) In order to establish that a prior vehicular manslaughter conviction constitutes a serious felony, the People must prove beyond a reasonable doubt, from the record of the prior conviction, that the defendant personally inflicted great bodily injury on a person other than an accomplice. (See People v. Rodriguez, supra, 122 Cal.App.4th at p. 128; Guerrero, supra, 44 Cal.3d at p. 355; §§ 1192.7, 1192.8.)

Case law clearly establishes that proof that a defendant proximately caused great bodily injury, does not constitute proof that the defendant personally inflicted such injury. (People v. Bland (2002) 28 Cal.4th 313, 337 (Bland); People v. Jackson (2000) 77 Cal.App.4th 574, 580; People v. Rodriguez (1999) 69 Cal.App.4th 341, 347-348 (Rodriguez).) In Rodriguez, supra, 69 Cal.App.4th at pages 347–348, the court considered whether a defendant's prior conviction for resisting a police officer and proximately causing serious bodily injury (§ 148.10), constituted a serious felony. The Rodriguez court explained that Rodriguez's prior felony conviction would constitute a serious felony only if he personally inflicted great bodily injury in the prior case. (Id. at p. 346.) The Rodriguez court held that the trial court had erroneously instructed the jury that it could find that the prior conviction constituted a serious felony if it found that Rodriguez had proximately caused great bodily injury in the prior case, stating:

"To 'personally inflict' an injury is to directly cause an injury, not just to proximately cause it. The instruction was wrong because it allowed the jury to find against Rodriguez if the officer's injury was a 'direct, natural and probable consequence' of Rodriguez's action, even if Rodriguez did not personally inflict the injury." (Rodriguez, supra, 69 Cal.App.4th at pp. 347-348.)

In concluding that the instructional error was prejudicial, the Rodriguez court determined that the evidence in the record was insufficient to establish that Rodriguez had personally inflicted great bodily injury in the prior case:

"According to the record, Rodriguez did not push, struggle or initiate any contact with the officer during the 1992 incident. Instead, the evidence shows that Rodriguez was trying to escape arrest on a bicycle and the officer injured himself when he tackled Rodriguez. Not only is it reasonably probable that a properly instructed jury would not have found Rodriguez personally inflicted the injury, there is in fact no evidentiary basis in this record for a jury to find he personally inflicted that injury." (Rodriguez, supra, 69 Cal.App.4th at p. 352.)

In Bland, supra, 28 Cal.4th 313, the Supreme Court considered whether section 12202.53, subdivision (d) requires that a defendant have personally inflicted great bodily injury or death. The Bland court noted that, "Section 12022.53(d) requires that the defendant 'intentionally and personally discharged a firearm' (italics added), but only that he 'proximately caused' the great bodily injury or death." (Bland, supra, 28 Cal.4th at p. 336.) The Bland court observed, "Proximately causing and personally inflicting harm are two different things." (Id. at p. 336.) In holding that the section 12202.53, subdivision (d) enhancement requires only proof that the defendant proximately caused great bodily injury or death, and not proof that the defendant personally inflicted such injury, the Bland court relied on the Rodriguez court's analysis of the distinction between the two concepts. (Bland, supra, 28 Cal.4th at pp. 336-337.)

In People v. Guzman (2000) 77 Cal.App.4th 761, 762 (Guzman), the court rejected the defendant's challenge to the trial court's finding that he personally inflicted great bodily injury (§ 12022.7) during the commission of the offenses of driving under the influence of alcohol and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)) and driving with a .08 percent blood-alcohol level or more and causing bodily injury (Veh. Code, § 23153, subd. (b)). Guzman made an unsafe left turn in front of another vehicle and collided with another vehicle. His passenger, Amy Quinonez, was seriously injured. (Guzman, supra, 77 Cal.App.4th at p. 764.)

In analyzing Guzman's claim that he had not personally inflicted great bodily injury, the court acknowledged that in order for the great bodily injury enhancement to apply, "the defendant must directly cause an injury, not just proximately cause it." (Guzman, supra, 77 Cal.App.4th at p. 764, citing Rodriguez, supra, 69 Cal.App.4th at p. 347.) The Guzman court concluded that under the facts of that case, the defendant had directly caused such an injury:

"Here, appellant turned his vehicle into oncoming traffic. This volitional act was the direct cause of the collision and therefore was the direct cause of the injury. Appellant was not merely an accomplice. Thus, appellant personally inflicted the injury on Ms. Quinonez." (Guzman, supra, 77 Cal.App.4th at p. 764.)

C. The record contains evidence that Massiet proximately caused great bodily

injury in the prior case, but no evidence that he personally inflicted great

bodily injury

Although the record contains evidence that Massiet proximately caused great bodily injury in the prior case, there is no evidence that he that he personally inflicted such injury as defined in the cases cited. The People suggest that Massiet's admission to the elements of vehicular manslaughter as defined in section 192, subdivision (c)(3) constitutes evidence that Massiet personally inflicted great bodily injury in the prior case. We reject this argument.

Section 192 provides in relevant part:

"Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

[¶] . . . [¶]

"(c) Vehicular ─

[¶] . . . . [¶]

"(3) 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."

Vehicular manslaughter requires proof that the defendant's act was the proximate cause of a death. (See 1 Witkin & Epstein, Cal. Criminal Law (3d Ed. 2000) Crimes Against the Person, § 241, p. 849 "[Section 192] seems intended merely to state the usual requirement that the act be a proximate cause of the death"].) For example, in People v. Harris (1975) 52 Cal.App.3d 419 (Harris), the defendant was involved in a high speed car chase with a police officer. During the chase, the officer's car crashed into a third vehicle, killing an occupant in that vehicle. (Id. at pp. 421-423.) Harris was charged with vehicular manslaughter. (Id. at p. 421.) The trial court granted Harris's motion to set aside the information on the ground that he had not proximately caused the victim's death. (Id. at p. 425.) The People appealed.

The Harris court concluded that reasonable and probable cause existed to charge the defendant with vehicular manslaughter (Harris, supra, 52 Cal.App.3d at p. 428, fn. 4), stating:

"[D]efendant's conduct can be a proximate cause of a death even where death results from collision with a third vehicle. [Citations, fn. omitted.] The determination of whether defendant's unlawful act or acts were a proximate cause of the death is a question for resolution by the trier of fact [citation] and is determined according to the ordinary principles governing proximate causation." (Id. at pp. 426-427.)

Similarly, in People v. Pike (1988) 197 Cal.App.3d 732 (Pike), the defendant was involved in a high speed chase with two police cars. (Id. at pp. 735-737.) During the chase, the police cars collided with each other, and one of the officers died from injuries sustained in the crash. (Id. at pp. 738-739.) After a jury trial, the defendant was convicted of vehicular manslaughter. (Id. at p. 735.) On appeal, the defendant challenged the sufficiency of the evidence supporting the jury's finding that he had proximately caused the officer's death. (Ibid.) The Pike court concluded there was sufficient evidence to support the jury's finding that the defendant was the proximate cause of the crash, notwithstanding that the defendant was not personally involved in the collision. (Id. at pp. 749-750.)

These cases are consistent with CALJIC No. 8.93, which specifies the elements of vehicular manslaughter. CALJIC No. 8.93 provides that one of the elements of vehicular manslaughter is that the defendant's "act is a cause of the death of another human being." The Use Note to the CALJIC No. 8.93 states that the trial court must also instruct the jury pursuant to the "cause" instruction provided in CALJIC No. 3.40. CALJIC No. 3.40 in turn defines proximate cause.

In short, proof that Massiet committed vehicular manslaughter establishes that he proximately caused great bodily injury, but does not establish that he personally inflicted such injury within the meaning of section 1192.7, subdivision (c)(8). (Accord § 1192.8 [defining vehicular manslaughter (§ 192, subd. (c)(3)) as a serious felony only when the offense involves "the personal infliction of great bodily injury on any person other than an accomplice"].)

There is no other evidence in the record to support the trial court's finding that Massiet personally inflicted such injury. Massiet's guilty plea establishes only that he "caused the death of Ramona Mendoza" and "proximately cause[d] injury to . . . G. Mendoza and R. Mendoza." The statements Massiet made during his guilty plea do not provide substantial evidence that he personally inflicted great bodily injury. The trial court could not rely on the People's statement of facts regarding the prior case as set forth in its sentencing memorandum in the charged case, because that statement of facts contained no reference to facts in the record.

Undoubtedly, in most vehicular manslaughter cases, the defendant will have both proximately caused great bodily injury and personally inflicted great bodily injury. (See People v. Gonzales (1994) 29 Cal.App.4th 1684, 1694 [suggesting that vehicular manslaughter convictions "might invariably" constitute serious felonies].) However, cases such as Harris and Pike make it clear that there are circumstances in which a defendant can be convicted of vehicular manslaughter in the absence of evidence that the defendant personally inflicted great bodily injury. Here, there is no simply no evidence in the record from which the trial court could determine whether Massiet personally inflicted great bodily injury in the prior case. Accordingly, we are forced to conclude that the People failed to present sufficient evidence that Massiet personally inflicted great bodily injury in the prior case, and thus, that there is insufficient evidence to support the trial court's finding that Massiet previously suffered a serious felony conviction.

D. The strike allegation may be retried

"[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." (People v. Barragan (2004) 32 Cal.4th 236, 239.) We remand the case to the trial court with directions that the People be afforded the opportunity to present sufficient evidence that Massiet has suffered a serious felony conviction.

IV.

DISPOSITION

The judgment is reversed to the extent it is based on the trial court's finding that Massiet has suffered a prior serious felony conviction. 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 conviction allegation. If the People give such notice, the court shall hold a new trial on the prior serious felony allegation. If the People fail to give such notice, the court shall resentence Massiet in accordance with this opinion.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

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^[1] Unless otherwise specified, all subsequent statutory references are to the Penal Code.

^[2] There is no transcript of the preliminary hearing from the prior case in the record on appeal.

^[3] Vehicular manslaughter as defined in section 192, subdivision (c)(3) is a "wobbler" offense that may be punished as either a felony or a misdemeanor. (See § 193 [defining punishment for a violation of section 192, subd. (c)(3)].)