People v. Eslava

• Decision Date: 14 November 2016
• Docket Number: A142881
• Citation: 210 Cal.Rptr.3d 331,5 Cal.App.5th 498
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mario ESLAVA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

5 Cal.App.5th 498

210 Cal.Rptr.3d 331

The PEOPLE, Plaintiff and Respondent,

v.Mario ESLAVA, Defendant and Appellant.

A142881

Court of Appeal, First District, Division 4, California.

Filed November 14, 2016

Juliana Drous, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Bruce M. Slavin, Deputy Attorney General for Plaintiff and Respondent.

Streeter, J.

This case comes to us on appeal a second time following defendant Mario Eslava's conviction on a jury verdict finding him guilty of voluntary manslaughter. In the first appeal, we affirmed the conviction and an accompanying weapons use enhancement, but reversed Eslava's 18–year prison sentence and remanded for a bench trial to determine whether a prior conviction for battery resulting in serious bodily injury qualifies as a sentence-enhancing strike and serious felony. Eslava pled guilty to the battery in 2009.

The linchpin issue on remand was whether the record of conviction proves beyond a reasonable doubt that Eslava personally inflicted serious bodily injury on the battery victim. To address that issue, the trial court examined the complaint in the 2009 battery case, the transcript of the plea colloquy, and a police report of the underlying incident. During the plea colloquy, Eslava's counsel stipulated that the police report—which describes Eslava hitting the victim with a wooden stick, injuring him seriously enough to require hospitalization—supplies a factual basis for the conviction. Based on this stipulation, the trial court found the requisite personal infliction of serious bodily injury, and reimposed the original sentence.

Eslava now appeals again, arguing, as he did in the first appeal, that the evidence is insufficient to support the use of his prior battery conviction as a strike. He also argues that, under the terms of his plea agreement in the battery case, the People are barred from taking the position that his conviction in that case may be used in a subsequent case for sentence enhancement purposes. We see no merit to the argument that Eslava's plea agreement bars the use of his battery prior for later sentence enhancement, but we agree that the evidence is insufficient to support the personal infliction of serious bodily injury finding.

At the back of Eslava's insufficiency of the evidence argument is a contention that it was a violation of the Sixth Amendment for the trial court to engage in any factfinding beyond what is necessarily established by the 2009 battery conviction itself. Since personal infliction of serious bodily injury is not inherent to the conviction, Eslava contends, it was improper for the court—rather than a jury—to make that finding. As we explain below, we must agree.

We reach this conclusion reluctantly, since we remanded specifically for a bench trial and the trial court simply followed our directions. But the law has evolved significantly since we decided the first appeal, and now requires a different disposition. Accordingly, once again we reverse and remand, this time for a jury trial on the issue of personal infliction of serious bodily injury in the 2009 battery, unless Eslava is prepared to waive his constitutional right to jury determination of that issue.

I. BACKGROUND

Eslava fatally stabbed his roommate, Troy Swann, in a single room occupancy hotel in San Francisco on January 2, 2011.¹ The evidence adduced at trial concerning that homicide is not material here. At the conclusion of trial in March 2012, the jury returned a verdict finding Eslava guilty of voluntary manslaughter.

The voluntary manslaughter conviction carried various sentencing enhancement allegations, including that Eslava used a deadly or dangerous weapon in the course of the offense (Pen. Code,² former § 12022, subd. (b)(1)), that he had committed the offense within five years of completing a prior prison term (§ 667.5, subd. (b)), and that he had previously been convicted of a prior felony conviction which qualified as a strike and a five-year serious felony prior. (§§ 667, subds. (a), (e)(1), 1170.12, subd. (c)(1), 1192.7, subd. (c)(8), 1192.8, subd. (a)). The jury found true the only sentence enhancement allegation submitted to it, the former section 12022, subdivision (b)(1) use of a weapon allegation.

A single prior conviction, resting on Eslava's plea of guilty in 2009 to a felony charge of battery resulting in serious bodily injury (§ 243, subd. (d)), was the basis of the alleged strike and serious felony enhancements and the alleged prison prior. Eslava was charged in the 2009 case with four other counts in addition to battery—two separate counts for assault with a deadly weapon (§ 245, subd. (a)(1)), one count of making a criminal threat of death or great bodily injury (§ 422), and one count of brandishing a weapon (§ 417, subd. (a)(1)), together with sentence enhancement allegations that Eslava personally inflicted great bodily injury (§ 12022.7, subd. (a)) and used a deadly and dangerous weapon (former § 12022, subd. (b)(1)). He pled guilty only to count 2 of the complaint, charging a violation of section 243, subdivision (d). As part of this negotiated plea, the "balance of the complaint ... and any remaining allegations" were dismissed.

After the jury reached a verdict in Eslava's trial for killing Swann but before returning to the courtroom to pronounce it, the court inquired whether it would be necessary to "proceed before the jury for the finding of the prior." Eslava's counsel responded, "We'll waive the jury, your Honor." The court then inquired directly of Eslava about the jury waiver, advising him, "[Y]ou have the right to have a jury make a determination as to whether or not the allegation in this case that you had a prior prison commitment has been proved beyond a reasonable doubt. It's my understanding through your attorney that you wish to waive that and have this Court decide the issue. Is that what you wish to do, sir?" Eslava answered "Yes."

At sentencing, the parties focused their attention on whether Eslava's 2009 conviction for violating section 243, subdivision (b), qualified as a strike or a serious felony. The issue turned on whether a police report of the incident established that Eslava personally inflicted serious bodily injury on the battery victim. The defense argued in its sentencing brief that the police report was not a part of record of conviction and was inadmissible hearsay. The People argued that Eslava had admitted the facts stated in the police report because, in the plea colloquy, his counsel stipulated to the facts in the report as the basis for the plea. The police report itself was never offered or admitted into evidence at the sentencing proceeding, but was in the court's file, having been attached to a previous motion by the prosecution to amend the complaint.

Based on the stipulation to the police report by Eslava's counsel, the court found "it was Mr. Eslava who personally inflicted serious bodily injury" on the battery victim, and then proceeded to sentence Eslava on the voluntary manslaughter conviction, with that enhancement taken into account. The sentence Eslava received, in total, was for a prison term of six years on the manslaughter conviction, doubled to twelve years for a strike prior (§ 667, subd. (e)(1)), increased by another five years for a serious felony prior (§ 667, subd. (a)(1)), and further increased by a year for the use of a deadly and dangerous weapon in Swann's killing (former § 12022, subd. (b)(1))—amounting to an aggregate term of 18 years.

In an unpublished opinion filed January 22, 2014, we affirmed the manslaughter conviction and weapons use enhancement, but reversed the sentence to the extent it was enhanced for Eslava's prior battery conviction. (People v. Eslava (Jan. 22, 2014) A135568, 2014 WL 235460 [nonpub. opn.](Eslava I ).) We explained that, while the battery prior "may ... qualify as a serious felony (and thus a strike) if the record of the prior conviction establishes that the defendant ‘personally inflicted’ the injury [citations], the fact of conviction alone does not establish the element of personal infliction." (Ibid., citing People v. Bueno (2006) 143 Cal.App.4th 1503, 1508, 50 Cal.Rptr.3d 161 (Bueno ) ["[T]o establish that the battery was a serious felony the People were required to show that Bueno personally inflicted the injury, rather than that he aided and abetted another ... Accordingly, Bueno's prior conviction only qualifies as a serious felony if the People proved or Bueno admitted those additional facts regarding the crime."], italics in original; citations and fn. omitted.)

In reversing on this point, we were concerned with whether, procedurally, the trial court had properly adjudicated the facts underlying its strike and serious felony determination. What the court relied upon as the record of conviction for the 2009 battery conviction was not clear. Because the trial court's finding of personal infliction of injury was not based on admitted evidence of record, and because Eslava "never waived his right to a proper judicial determination" of that issue, we remanded for a bench trial, explaining, "the People have the burden to establish that the prior conviction was for a serious felony (and is thus a strike) by proving beyond a reasonable doubt that the record of conviction shows that Eslava personally inflicted the injury upon which the battery conviction was based." (Eslava I , supra , A135568, citing People v. Delgado (2008) 43 Cal.4th 1059, 1065–1066, 77 Cal.Rptr.3d 259, 183 P.3d 1226 (Delgado ) ["[t]he People must prove each element of an alleged sentence enhancement beyond reasonable doubt" and can only sustain their burden of showing that a prior offense qualified for an alleged sentencing enhancement by...