Filed 10/7/15
                         CERTIFIED FOR PUBLICATION




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                    DIVISION FOUR


THE PEOPLE,                                   B256748

        Plaintiff and Respondent,             (Los Angeles County
                                               Super. Ct. No. MA054709)
        v.

SILVESTRE CANO MARIN,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Los Angeles County,
John Murphy, Judge. Reversed.
        Law Offices of Russell S. Babcock and Russell S. Babcock, under
appointment by the Court of Appeal, for Defendant and Appellant.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Michael R.
Johnsen, Alene M. Games and Brendan Sullivan, Deputy Attorneys General, for
Plaintiff and Respondent.
      A jury convicted defendant Silvestre Cano Marin of felony driving under the
influence, among other offenses. Following a prior appeal and remand, a different
jury found that his prior conviction by of vehicular manslaughter qualifies as a
strike under the Three Strikes law. The trial court enhanced defendant’s sentence
based on this finding. In his current appeal, defendant challenges the strike
finding, contending that: (1) it must be vacated for insufficient evidence and
instructional error, (2) the United States Supreme Court decision in Descamps v.
United States (2013) 570 U.S. __ [133 S.Ct. 2276] (Descamps) entitles him to a
jury trial on whether the prior conviction qualifies as a strike, and (3) because he is
entitled to a jury trial, and because the strike finding must be reversed for
insufficient evidence, double jeopardy bars such a retrial.
      As we explain, the evidence was insufficient to prove that defendant’s prior
vehicular manslaughter conviction is a strike, because neither the elements of the
crime nor the evidence presented showed that “defendant personally inflict[ed]
great bodily injury on any person, other than an accomplice” (Pen. Code,
§§ 1192.7, subd. (c)(8), 1192.8, subd. (a)). We also conclude that the case must be
remanded for further proceedings to determine what evidence, if any, the
prosecution will produce to prove that fact.
      To resolve defendant’s contentions that he is entitled to a jury trial, and that
therefore double jeopardy bars any retrial, as well as to provide necessary guidance
to the trial court, we consider the effect of Descamps on the California procedure
for proof of prior convictions. We hold: (1) under Descamps, judicial factfinding
authorized by People v. McGee (2006) 38 Cal.4th 682 (McGee), going beyond the
elements of the crime to “ascertain whether that record reveals whether the
conviction realistically may have been based on conduct that would not constitute
a serious felony under California law” (id. at p. 706), violates the Sixth

                                           2
Amendment right to a jury trial; (2) that right is not violated when, in determining
whether a prior conviction qualifies to increase a defendant’s punishment, the trial
court considers “the documents . . . approved in [Taylor v. United States (1990)
495 U.S. 575 and Shepard v. United States (2005) 544 U.S. 13 (Shepard)]—i.e.,
indictment, jury instructions, plea colloquy, and plea agreement” (Descamps,
supra, 133 S.Ct. at p. 2285, fn. 2) – to determine the statutory elements of the
crime of which the defendant was convicted (id. at p. 2288); (3) under the
reasoning of Descamps, the Sixth Amendment does not bar judicial factfinding
beyond the statutory elements of the prior conviction, if in entering a guilty plea to
the prior offense, the defendant waived his right to a jury trial as to such facts and
either admitted them or they were found true by the court with defendant’s assent;
(4) in the instant case, because the elements of defendant’s prior conviction by plea
of vehicular manslaughter do not show that he personally inflicted great bodily
injury on a person other than an accomplice, defendant is entitled to a jury trial on
those facts, unless he waived his right to a jury trial as to such facts and admitted
them or they were found true by the court with his assent; and (5) even if defendant
is entitled to a jury trial on this issue, double jeopardy does not bar the retrial.


                                   BACKGROUND
      This is the second time this case is before us. As we stated in our
unpublished opinion in the first appeal (B242432), a jury convicted defendant of
one count of driving under the influence of alcohol or drugs (Veh. Code, § 23152,
subd. (a)) (count 1, a felony), two counts of hit and run driving (Veh. Code,
§ 20002, subd. (a)) (counts 2 & 3, misdemeanors), and one count of vandalism
causing damage under $400 (Pen. Code, § 594, subd. (a)) (count 4, a
misdemeanor). As to count 1, it was alleged that defendant previously had been

                                            3
convicted of a violation of Penal Code section 192, subdivision (c)(1),1 vehicular
manslaughter, which is a sentencing enhancement pursuant to Vehicle Code
sections 23550 and 23550.5 and the “Three Strikes” law (§§ 1170.12, subds. (a)-
(d) & 667, subds. (b)-(i)). It was further alleged that defendant served a prior
prison term pursuant to section 667.5, subdivision (b) for a conviction of
possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)).
Before trial, defendant admitted his prior convictions and prison term. After the
jury rendered its verdict, he was sentenced to state prison for a term of seven years,
consisting of the upper term of three years on count 1, doubled pursuant to the
Three Strikes law; six months to run concurrently on count 2; six months to run
concurrently on count 4; and a one-year consecutive term for the prior prison term.
A six-month term on count 3 was stayed pursuant to section 654.
      Defendant appealed, and in our unpublished opinion we affirmed the
convictions, but reversed the true findings on the priors based due to the trial
court’s failure to advise defendant of his right of confrontation and privilege
against self-incrimination before taking his admission. We remanded the case for
new proceedings on the priors.
      On remand, defendant represented himself. A jury trial was held on the
prior convictions and prison term. The prosecution introduced documentary
evidence to prove the allegations. As relevant to the vehicular manslaughter
conviction, the prosecution introduced a certified copy of the abstract of judgment
which showed that defendant was convicted by “plea” of violating “PC 192(C)(1)
MANSLAUGHTER – VEHICULAR” on February 16, 2005, and was sentenced to
two years in prison. The prosecution also introduced a certified copy of the minute


1
      All unspecified section references are to the Penal Code.

                                           4
order reflecting that defendant pled no contest to the charge. The prosecution
introduced no evidence of the complaint or information, the circumstances
underlying the charge, or the plea transcript. The jury found the alleged prior
convictions, including the strike allegation, and prior prison term to be true, and, as
before, the trial court sentenced defendant to seven years in state prison.
Defendant appeals from the judgment.


                                    DISCUSSION
Insufficiency of the Evidence
      Defendant contends (and respondent concedes) that the evidence was
insufficient to prove that defendant’s prior vehicular manslaughter conviction
constituted a strike. We agree.
      The only evidence the prosecution introduced was a certified copy of the
abstract of judgment. It reflected a conviction by no contest plea of violating
section 192, subdivision (c)(1), which defines vehicular manslaughter in relevant
part as an unlawful killing without malice that occurs when “driving a vehicle in
the commission of an unlawful act, not amounting to a felony, and with gross
negligence; or driving a vehicle in the commission of a lawful act which might
produce death, in an unlawful manner, and with gross negligence.”
      Vehicular manslaughter under section 192, subdivision (c)(1) qualifies as a
serious felony (§ 1192.7, subd. (c)), and therefore a strike offense (§§ 667, subd.
(d)(1), 1170.12, subd. (b)(1)), if in its commission “the defendant personally
inflict[ed] great bodily injury on any person, other than an accomplice” (§§ 1192.7,
subd. (c)(8), 1192.8, subd. (a)).2 As respondent concedes, in the present case, the


2
       As here relevant, section 1192.7, subdivision (c) states in relevant part that the
term “serious felony” includes “(8) any felony in which the defendant personally inflicts
                                            5
prosecution introduced no evidence to prove this element. On a bare record
showing only that defendant was convicted by plea of violating section 192,
subdivision (c)(1), we can conclude at most that he admitted his grossly negligent
conduct proximately caused a death, not that he personally inflicted great bodily
injury. “‘Proximately causing an injury is clearly different from personally
inflicting an injury.’ [Citation.] ‘To “personally inflict” an injury is to directly
cause an injury, not just to proximately cause it. . . .’ [Citation.]” (People v. Bland
(2002) 28 Cal.4th 313, 337.) “‘We think it obvious that an individual can and
often does proximately cause injury without personally inflicting that injury. . . .’
[Citation.]” (Ibid.)
       Thus, absent proof that defendant personally inflicted the injuries that killed
the vehicular manslaughter victim and that the victim was someone other than an
accomplice in the crime, the prosecution failed to prove that defendant’s prior
vehicular manslaughter conviction was a strike. We therefore reverse the strike
finding. This conclusion renders moot defendant’s contention that the trial court
erred in not instructing the jury on the requirement of finding of personal infliction
of bodily injury.



great bodily injury on any person, other than an accomplice.” Effective 2008, the
Legislature amended section 1192.8, which, in response to the decisions in People v.
Gonzales (1994) 29 Cal.App.4th 1684 and People v. Bow (1993) 13 Cal.App.4th 1551,
clarified in relevant part that “For purposes of subdivision (c) of Section 1192.7, ‘serious
felony’ also means any violation . . . of Section 192, subdivision . . . (c) . . . of this code
. . . when [it] involve[s] the personal infliction of great bodily injury on any person other
than an accomplice . . . within the meaning of paragraph 8 . . . of subdivision (c) of
Section 1192.7.”
        Section 1192.8 also provides that vehicular manslaughter constitutes a serious
felony if it involves “the personal use of a dangerous or deadly weapon, within the
meaning of paragraph . . . (23) of subdivision (c) of Section 1192.7.” In their briefing,
the parties do not suggest this provision applies here, and we do not further discuss it.

                                               6
Remand is Required
      From the evidence presented, we cannot know what the record of conviction
(other than the abstract of judgment and plea minute order) reveals about the
defendant’s prior manslaughter conviction and whether it might qualify as a strike.
Therefore, the matter must be remanded for further proceedings to determine what
the nature of that evidence, if any, is.
      Defendant contends that on remand, he is entitled to a jury trial under
Descamps, supra, 570 U.S. __ [133 S.Ct. 2276] on whether he personally inflicted
bodily injury on a non-accomplice in the commission of his vehicular
manslaughter, and that, therefore, double jeopardy bars such a retrial. Respondent
contends that on remand, defendant is entitled to a jury trial only if the record of
conviction shows that “the conviction realistically may have been based on
conduct” that did not involve defendant’s personal infliction of great bodily injury
on a non-accomplice. (People v. McGee, supra, 38 Cal.4th 682 at p. 706.)
      In order to resolve these contentions and provide necessary guidance to the
trial court for the proceedings on remand, we must decide whether judicial
factfinding beyond the elements of the prior conviction permitted by McGee,
supra, survives the United States Supreme Court’s interpretation of the Sixth
Amendment jury trial right in Descamps, supra. To the extent the defendant is
entitled to a jury trial on whether his prior conviction constitutes a strike, we must
also consider whether double jeopardy bars a retrial. We discuss each of these
issues in turn.




                                           7
Right to a Jury Trial
      California Procedure
      In McGee, the California Supreme Court framed its view of permissible
judicial factfinding around the decisions of the United States Supreme Court in
Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and Shepard v.
United States (2005) 544 U.S. 13 (Shepard). Thus, we start with those decisions.
      In Apprendi, the high court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” (Apprendi, supra, 530 U.S. at p. 490.) It exempted “the fact of a prior
conviction” from the right to a jury trial based on its previous decision in
Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres). In
Almendarez-Torres, the court upheld the enhancement of the defendant’s sentence
based on prior convictions not alleged in his indictment. As construed in
Apprendi, the basis of the decision in Almendarez-Torres was as follows:
“Because Almendarez-Torres had admitted the three earlier convictions for
aggravated felonies — all of which had been entered pursuant to proceedings with
substantial procedural safeguards of their own — no question concerning the right
to a jury trial or the standard of proof that would apply to a contested issue of fact
was before the Court. . . . Both the certainty that procedural safeguards attached to
any ‘fact’ of prior conviction, and the reality that Almendarez-Torres did not
challenge the accuracy of that ‘fact’ in his case, mitigated the due process and
Sixth Amendment concerns otherwise implicated in allowing a judge to determine
a ‘fact’ increasing punishment beyond the maximum of the statutory range.”
(Apprendi, supra, 530 U.S. at p. 488.) The Apprendi court acknowledged “it is
arguable that Almendarez-Torres was incorrectly decided, and that a logical

                                           8
application of our reasoning today should apply if the recidivist issue were
contested.” (Id. at pp. 489, fn. omitted.) But because the validity of Almendarez-
Torres was not challenged, the court declined to “revisit it for purposes of our
decision today to treat the case as a narrow exception to the general rule we
recalled at the outset.” (Ibid.)
       Shepard, supra, 544 U.S. 13 arose under the Armed Career Criminal Act
(ACCA), which imposes a minimum 15-year prison sentence for certain offenses
based on three prior convictions qualifying under the ACCA as serious or violent
felonies, including so-called “generic burglary.” The Government contended that
in determining whether the defendant’s prior Massachusetts burglary convictions
by guilty plea constituted “generic burglary” – that is, whether defendant broke
into buildings — the district court could look beyond the elements of the offenses
to which the defendant had pleaded guilty, and consider police reports submitted
with the applications for the complaints in the prior cases. (Id. at pp. 17-19, 20-
21.)
       The issue in Shepard, as stated in the lead opinion, was as follows: “In
Taylor v. United States [1990] 495 U.S. 575, we held that a court sentencing under
the ACCA could look to statutory elements, charging documents, and jury
instructions to determine whether an earlier conviction after trial was for generic
burglary. The question here is whether a sentencing court can look to police
reports or complaint applications to determine whether an earlier guilty plea
necessarily admitted, and supported a conviction for, generic burglary. We hold
that it may not, and that a later court determining the character of an admitted
burglary is generally limited to examining the statutory definition, charging
document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented.” (Shepard,

                                          9
supra, 544 U.S. at p. 16; see id. at p. 26 “[w]e hold that enquiry under the ACCA
to determine whether a plea of guilty to burglary defined by a nongeneric statute
necessarily admitted elements of the generic offense is limited to the terms of the
charging document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was confirmed
by the defendant, or to some comparable judicial record of this information.”)
       The holding was based on statutory interpretation, but for a four-justice
plurality concluded that interpretation rested in part on avoiding Sixth Amendment
concerns under Apprendi: “[T]he sentencing judge considering the ACCA
enhancement would (on the Government’s view) make a disputed finding of fact
about what the defendant and state judge must have understood as the factual basis
of the prior plea, and the dispute raises the concern underlying Jones [v. United
States (1999) 526 U.S. 227] and Apprendi: the Sixth and Fourteenth Amendments
guarantee a jury standing between a defendant and the power of the State, and they
guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a
potential sentence. While the disputed fact here can be described as a fact about a
prior conviction, it is too far removed from the conclusive significance of a prior
judicial record, and too much like the findings subject to Jones and Apprendi, to
say that Almendarez-Torres clearly authorizes a judge to resolve the dispute. The
rule of reading statutes to avoid serious risks of unconstitutionality [citation],
therefore counsels us to limit the scope of judicial factfinding on the disputed
generic character of a prior plea, just as Taylor constrained judicial findings about
the generic implication of a jury’s verdict.” (Shepard, supra, 544 U.S. at pp. 25-
26.)
       The fifth vote for the holding was by Justice Thomas who did not join in the
plurality’s Sixth Amendment discussion. Rather, in a separate opinion, he

                                           10
expressed the view that all judicial factfinding under the ACCA violates the right
to a jury trial under Apprendi (Shepard, supra, 544 U.S. at p. 26), and that
“broadening the evidence judges may consider when finding facts under Taylor–by
permitting sentencing courts to look beyond charging papers, jury instructions, and
plea agreements to an assortment of other documents such as complaint
applications and police reports–. . . would give rise to constitutional error, no less
than does the limited factfinding that Taylor’s rule permits.” (Id. at p. 28.)
      With Apprendi and Shepard as a backdrop, the California Supreme Court in
McGee considered the constitutional viability of judicial factfinding beyond the
elements of a prior conviction permitted by California law. In McGee, it was
alleged that the defendant’s two prior Nevada convictions for robbery constituted
serious felonies and, therefore, strikes under California law. However, the
elements of robbery under Nevada law differ from California law: Nevada
requires general intent, whereas California requires specific intent to steal, and
Nevada robbery includes a taking through fear of future injury to the person or
property of anyone in the victim’s company, whereas California does not.
(McGee, supra, 38 Cal.4th at p. 688.) Relying on the record of defendant’s prior
Nevada convictions, including the preliminary hearing transcripts of the charges,
the trial court found that the convictions qualified as robberies under California
law and thus were strikes. (Id. at pp. 689-690.)
      The court of appeal in McGee held that under Apprendi, the defendant was
entitled to a jury trial to determine whether the prior convictions constituted
strikes. (McGee, supra, 38 Cal.4th at p. 690.) On review, our Supreme Court in
McGee concluded otherwise, reasoning that Apprendi and its discussion of
Almendarez-Torres recognized a narrow exception to the jury trial right for judicial
fact finding on issues related to recidivism. (Id. at pp. 698-699.)

                                          11
      Explaining the California procedure for proving prior convictions, the court
stated: “[T]he nature of the inquiry required (and permitted) in this context under
California law . . . is not . . . a determination or finding ‘about the [defendant’s
earlier] conduct itself, such as the intent with which a defendant acted.’ Instead, it
is a determination regarding the nature or basis of the defendant’s prior conviction
—specifically, whether that conviction qualified as a conviction of a serious
felony. California law specifies that in making this determination, the inquiry is a
limited one and must be based upon the record of the prior criminal proceeding,
with a focus on the elements of the offense of which the defendant was convicted.
If the enumeration of the elements of the offense does not resolve the issue, an
examination of the record of the earlier criminal proceeding is required in order to
ascertain whether that record reveals whether the conviction realistically may have
been based on conduct that would not constitute a serious felony under California
law. [Citation.] The need for such an inquiry does not contemplate that the court
will make an independent determination regarding a disputed issue of fact relating
to the defendant’s prior conduct [citation], but instead that the court simply will
examine the record of the prior proceeding to determine whether that record is
sufficient to demonstrate that the conviction is of the type that subjects the
defendant to increased punishment under California law. This is an inquiry that is
quite different from the resolution of the issues submitted to a jury, and is one
more typically and appropriately undertaken by a court.” (McGee, supra, 38
Cal.4th at p. 706.)
      The court also rejected the contention that the then-recent decision in
Shepard changed the analysis. The court reasoned that “[a]lthough the Shepard
decision may suggest that a majority of the high court would view the legal issue
presented in the case before us as presenting a serious constitutional issue, the high

                                           12
court’s decision did not purport to resolve that issue” and instead rested its decision
on statutory interpretation. Thus, “Shepard fails to establish the validity of the
Court of Appeal’s application of Apprendi.” (McGee, supra, 38 Cal.4th at p. 708.)
       The Supreme Court added, however: “We recognize the possibility that the
United States Supreme Court, in future decisions, may extend the Apprendi rule in
the manner suggested by the Court of Appeal below. But because in our view
there is a significant difference between the nature of the inquiry and the
factfinding involved in the type of sentence enhancements at issue in Apprendi and
its progeny as compared to the nature of the inquiry involved in examining the
record of a prior conviction to determine whether that conviction constitutes a
qualifying prior conviction for purposes of a recidivist sentencing statute, we are
reluctant to assume, in advance of such a decision by the high court, that the
federal constitutional right to a jury trial will be interpreted to apply in the latter
context.” (McGee, supra, 38 Cal.4th at p. 709.)


The Decision in Descamps
       In 2013, the United States Supreme Court decided Descamps, supra, 570
U.S. __ [133 S.Ct. 2276].3 As we explain, that decision constitutes the extension
of Apprendi that McGee envisioned might occur.
       Like Shepard, Descamps involved proof of a qualifying prior conviction
under the ACCA. As we have noted, the ACCA increases sentences for defendants


3
       Justice Kagan authored the opinion, in which Chief Justice Roberts and Justices
Scalia, Kennedy, Ginsburg, Breyer, and Sotomayor concurred. Justice Kennedy filed a
separate concurring opinion. Justice Thomas concurred in the judgment, reiterating his
position that the ACCA violates Apprendi because it permits trial judges to find facts that
increase a defendant’s sentence. (Descamps, supra, 133 S.Ct. at pp. 2294-2295.) Justice
Alito dissented.

                                            13
who have three prior convictions of a violent felony, including (among other listed
offenses) “burglary.” It is the court’s Sixth Amendment discussion in Descamps
that is directly relevant to the continuing viability of McGee, but to understand the
full import of that discussion it is necessary to consider the high court’s analysis of
how priors may be proved under the ACCA.
      The high court explained that its past decisions established two methods a
district court may use to determine if a prior convictions qualifies under the
ACCA. The first is the “‘categorical approach,’” under which the court
“compare[s] the elements of the statute forming the basis of the defendant’s
conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly
understood. The prior conviction qualifies as an ACCA predicate only if the
statute’s elements are the same as, or narrower than, those of the generic offense.”
(Descamps, supra, 133 S.Ct. at p. 2281.)
      The second method is the “‘modified categorical approach,’” which applies
“when a prior conviction is for violating a so-called ‘divisible statute.’”
(Descamps, supra, 133 S.Ct. at p. 2281.) As the court explained, “[t]hat kind of
statute sets out one or more elements of the offense in the alternative—for
example, stating that burglary involves entry into a building or an automobile. If
one alternative (say, a building) matches an element in the generic offense, but the
other (say, an automobile) does not, the modified categorical approach permits
sentencing courts to consult a limited class of documents, such as indictments and
jury instructions, to determine which alternative formed the basis of the
defendant’s prior conviction. The court can then do what the categorical approach
demands: compare the elements of the crime of conviction (including the
alternative element used in the case) with the elements of the generic crime.” (Id.
at p. 2281.) Conceptually, according to the court, a divisible statute “effectively

                                          14
creates ‘several different . . . crimes’” (id. at p. 2285) rather than “several different
methods of committing one offense” (id. at p. 2285, fn. 2), and the modified
categorical approach merely allows the court to determine which crime was the
crime of conviction (id. at pp. 2284-2285).
      In Descamps, the prior conviction at issue was the defendant’s California
burglary conviction (by guilty plea) under section 459, which (because it does not
necessarily require breaking and entering) defines burglary more broadly than the
generic crime of “burglary.” (Id. at p. 2282.) However, section 459 is not a
“divisible” statute – it defines a single crime and does not list its elements in the
alternative. Nonetheless, in deciding that the defendant’s burglary conviction
qualified under the ACCA, the district court applied the “‘modified categorical
approach,’” and considered the guilty plea transcript. The transcript reflected that
the prosecutor had stated the crime “‘“involve[d] the breaking and entering of a
grocery store.”’” (Id. at p. 2282.) Because the defendant had not objected to that
statement, the district court concluded that the prior conviction was for a generic
burglary and qualified as a violent felony under the ACCA. (Id. at p. 2282.)
      The Ninth Circuit affirmed. As described by the high court, the Ninth
Circuit’s application of the modified categorical approach to indivisible statutes
permitted the sentencing court to “‘conside[r] to some degree the factual basis for
the defendant’s conviction’ or, otherwise stated, ‘the particular acts the defendant
committed.’ [Citation.] More specifically, the court could look to reliable
materials (the charging document, jury instructions, plea colloquy, and so forth) to
determine ‘what facts’ can ‘confident[ly]’ be thought to underlie the defendant’s
conviction in light of the ‘prosecutorial theory of the case’ and the ‘facts put
forward by the government.’ [Citation.] It makes no difference, in the Ninth
Circuit’s view, whether ‘specific words in the statute’ of conviction ‘“actually

                                           15
required”’ the jury (or judge accepting a plea) ‘to find a particular generic
element.’ [Citation.]” (Descamps, supra, 133 S.Ct. at p. 2286.)
      The high court “granted certiorari . . . to resolve a Circuit split on whether
the modified categorical approach applies to statutes like § 459 that contain a
single, ‘indivisible’ set of elements sweeping more broadly than the corresponding
generic offense.” (Descamps, supra, 133 S.Ct. at p. 2283.) Based its review of its
prior case law, including Shepard and Taylor, and the rationale of those decisions
(including Sixth Amendment concerns), the court held that the modified
categorical approach did not apply to an indivisible statute.
      As the court observed: “the modified approach serves a limited function: It
helps effectuate the categorical analysis when a divisible statute, listing potential
offense elements in the alternative, renders opaque which element played a part in
the defendant’s conviction. So understood, the modified approach cannot convert
Descamps’ conviction under § 459 into an ACCA predicate, because that state law
defines burglary not alternatively, but only more broadly than the generic offense.”
(Descamps, supra, 133 S.Ct. at p. 2283.) The court characterized the modified
categorical approach as “merely help[ing] implement the categorical approach
when a defendant was convicted of violating a divisible statute. The modified
approach thus acts not as an exception, but instead as a tool. It retains the
categorical approach’s central feature: a focus on the elements, rather than the
facts, of a crime. And it preserves the categorical approach’s basic method:
comparing those elements with the generic offense’s. All the modified approach
adds is a mechanism for making that comparison when a statute lists multiple,
alternative elements, and so effectively creates ‘several different . . . crimes.’
[Citation.] If at least one, but not all of those crimes matches the generic version, a
court needs a way to find out which the defendant was convicted of. That is the

                                           16
job, as we have always understood it, of the modified approach: to identify, from
among several alternatives, the crime of conviction so that the court can compare it
to the generic offense.” (Id. at p. 2285.)
      In practical use, as described by the court (in response to the dissent), “if the
dissent’s real point is that distinguishing between ‘alternative elements’ and
‘alternative means’ is difficult, we can see no real-world reason to worry.
Whatever a statute lists (whether elements or means), the documents we approved
in Taylor and Shepard—i.e., indictment, jury instructions, plea colloquy, and plea
agreement—would reflect the crime’s elements. So a court need not parse state
law . . . : When a state law is drafted in the alternative, the court merely resorts to
the approved documents and compares the elements revealed there to those of the
generic offense.” (Descamps, supra, 133 S.Ct. at p. 2285, fn. 2.)
      The high court’s limits on proving prior convictions under the ACCA had
three underpinnings. Two of the underpinnings – the “ACCA’s text and history,”
and “‘the practical difficulties and potential unfairness of a factual approach’”
(Descamps, supra, 133 S.Ct. at p. 2287) — are not relevant here. But the third —
“the Sixth Amendment concerns that would arise from sentencing courts’ making
findings of fact that properly belong to juries” (ibid.) — is critical.
      Regarding its Sixth Amendment concerns, the court reiterated the holding of
Apprendi: “We have held that ‘[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.’” (Descamps,
supra, 133 S.Ct. at p. 2288.) The court continued: “Under ACCA, the court’s
finding of a predicate offense indisputably increases the maximum penalty.
Accordingly, that finding would (at the least) raise serious Sixth Amendment
concerns if it went beyond merely identifying a prior conviction. Those concerns,

                                             17
we recognized in Shepard, counsel against allowing a sentencing court to ‘make a
disputed’ determination ‘about what the defendant and state judge must have
understood as the factual basis of the prior plea,’ or what the jury in a prior trial
must have accepted as the theory of the crime. [Citation.] Hence our insistence on
the categorical approach. [¶] . . . the Ninth Circuit’s ruling flouts our reasoning
. . . by extending judicial factfinding beyond the recognition of a prior conviction.
Our modified categorical approach merely assists the sentencing court in
identifying the defendant’s crime of conviction, as we have held the Sixth
Amendment permits. But the Ninth Circuit’s reworking authorizes the court to try
to discern what a trial showed, or a plea proceeding revealed, about the defendant’s
underlying conduct. [Citation.] And there’s the constitutional rub. The Sixth
Amendment contemplates that a jury—not a sentencing court—will find such
facts, unanimously and beyond a reasonable doubt. And the only facts the court
can be sure the jury so found are those constituting elements of the offense—as
distinct from amplifying but legally extraneous circumstances. [Citation.]
Similarly, as Shepard indicated, when a defendant pleads guilty to a crime, he
waives his right to a jury determination of only that offense’s elements; whatever
he says, or fails to say, about superfluous facts cannot license a later sentencing
court to impose extra punishment. [Citation.] So when the District Court here
enhanced Descamps’ sentence, based on his supposed acquiescence to a
prosecutorial statement (that he ‘broke and entered’) irrelevant to the crime
charged, the court did just what we have said it cannot: rely on its own finding
about a non-elemental fact to increase a defendant’s maximum sentence.” (Id. at
pp. 2288-2289.)




                                           18
California Court of Appeal Decisions Interpreting Descamps
      Two decisions by the Court of Appeal, People v. Wilson (2013) 219
Cal.App.4th 500 (Wilson) and People v. Saez (2015) 237 Cal.App.4th 1177 (Saez),
have considered the impact of Descamps, supra, 570 U.S. __ [133 S.Ct. 2276] on
the California procedure for proof of prior convictions under McGee.
      In Wilson, the prior conviction was for gross vehicular manslaughter while
intoxicated (§ 191.5, subd. (a)), to which the defendant had pled no contest.
(Wilson, supra, 219 Cal.App.4th at pp. 503-504.) Examining the record of the
conviction, the trial court concluded that the conviction constituted a strike because
the defendant (as the driver of the vehicle when the fatal accident occurred) had
personally inflicted great bodily injury on the victim, the backseat passenger in the
defendant’s car. However, at the preliminary hearing, the defendant had disputed
whether he was in control of the vehicle when the fatal accident occurred.
According to statements he made at the accident scene, his front seat passenger
(who was also injured) had grabbed the steering wheel, causing the accident.
Thus, in order to find that the defendant personally inflicted great bodily injury, the
trial court necessarily had resolved a disputed factual issue related to the
circumstances of the underlying offense.
      The court in Wilson concluded that the trial court’s finding violated both the
California procedure under McGee and the Sixth Amendment right to a jury trial
under Apprendi as construed in Descamps. As for McGee, the court relied on
McGee’s language that permissible factfinding “‘does not contemplate that the
court will make an independent determination regarding a disputed issue of fact
relating to the defendant’s prior conduct.’” (Wilson, supra, 219 Cal.App.4th at p.
510, quoting McGee, supra, 38 Cal.4th at p. 706.) As for Apprendi, the court
reasoned that Descamps “held that a sentencing court’s finding of priors based on

                                           19
the record of conviction implicates the Sixth Amendment under Apprendi”
(Wilson, supra, 219 Cal.App.4th at p. 515), and that the trial court had necessarily
made “‘“a disputed” determination’ of fact” related to the defendant’s underlying
conduct – “a task [Descamps] specifically counseled against.” (Wilson, supra, 219
Cal.App.4th at p. 516, quoting Descamps, supra, 133 S.Ct. at p. 2288.)
      The court did “not consider . . . whether the broader application of Apprendi
and Descamps to California’s sentence enhancement scheme would leave intact the
kinds of findings—e.g., those not concerning the facts of a defendant’s prior
conduct—heretofore endorsed under California law. We hold only that federal law
prohibits what McGee already proscribed: A court may not impose a sentence
above the statutory maximum based on disputed facts about prior conduct not
admitted by the defendant or implied by the elements of the offense.” (Wilson,
supra, 219 Cal.App.4th at p. 516.)
      In Saez, the court confronted the issue left open by Wilson. The prior
conviction at issue was a Wisconsin conviction by guilty plea for false
imprisonment while in possession of a weapon. (Saez, supra, 237 Cal.App.4th at
p. 1192.) The elements of that crime do not themselves establish facts necessary to
qualify the conviction as a strike under California law. (Id. at pp. 1194-1195.)
Whether the conviction constituted a strike turned on whether it involved personal
use of a firearm (§ 1192.7, subd. (c)(8)). That determination turned on
consideration of a police officer’s affidavit of probable cause, attached to the
complaint, in which the officer stated, in substance, that he saw the defendant point
a handgun at the victim while restraining him. (Id. at pp. 1193, 1196.) A transcript
of the guilty plea was not produced, but the judgment roll contained an entry for
the sentencing hearing stating that all parties had stipulated to the complaint as the
basis of the plea. (Id. at p. 1192.) The trial court concluded that the conviction

                                          20
constituted a strike, but did not specifically discuss the basis of its determination.
(Id. at p. 1193.)
       The court of appeal in Saez held that “nothing in McGee . . . or other state
cases addressing reliance on prior-conviction records prevented the trial court from
relying on the affidavit statements to conclude that Saez’s Wisconsin conviction
for false imprisonment while armed involved his personal use of a firearm and was
therefore a strike under California law.” (Saez, supra, 237 Cal.App.4th at p. 1198.)
But the court concluded that such reliance did violate the Sixth Amendment,
because “Descamps declared that the Sixth Amendment prohibits ‘a sentencing
court [from] “mak[ing] a disputed” determination “about what the defendant and
state judge must have understood as the factual basis of the prior plea.”’
[Citation.]” (Id. at p. 1206.) In his guilty plea, the defendant admitted the
elements of the Wisconsin crime, “[b]ut he did not admit, or waive his Sixth
Amendment rights regarding,” the fact that he personally used a firearm, and “his
stipulation to the complaint as the factual basis of his plea [did not] constitute a
waiver of Sixth Amendment rights or an admission as to those additional facts.”
(Id. at p. 1206.)
       Recognizing that the California Supreme Court had not yet spoken on
whether the California procedure described in McGee survives Descamps, the
court in Saez nonetheless concluded that “Descamps’s discussion of the Sixth
Amendment principles applicable when prior convictions are used to increase
criminal sentences is clear and unavoidable and was adopted by eight of the nine
justices on the high court. Under these unusual circumstances, we are compelled
to apply those constitutional principles here. [¶] . . . . [T]his much is clear [from
Descamps]: when the elements of a prior conviction do not necessarily establish
that it is a serious or violent felony under California law (and, thus, a strike), the

                                           21
court may not under the Sixth Amendment ‘“make a disputed” determination
“about what the defendant and state judge must have understood as the factual
basis of the prior plea,” or what the jury in a prior trial must have accepted as the
theory of the crime.’ [Citation.] Thus, we conclude that the trial court acted in
contravention of the Sixth Amendment by necessarily relying on the police
officer’s statements in the Wisconsin record of conviction to increase Saez’s
sentence.” (Saez, supra, 237 Cal.App.4th at p. 1207-1208.)


Unconstitutionality of Judicial Factfinding Permitted by McGee
      We have discussed the foregoing decisions in some detail to make clear why
we conclude, as did the court in Saez, that it is no longer tenable to draw a
distinction, in the words of McGee, “between the nature of the inquiry and the
factfinding involved in the type of sentence enhancements at issue in Apprendi and
its progeny as compared to the nature of the inquiry involved in examining the
record of a prior conviction to determine whether that conviction constitutes a
qualifying prior conviction for purposes of a recidivist sentencing statute.”
(McGee, supra, 38 Cal.4th at p. 709.) The type of factfinding permitted by McGee
is virtually indistinguishable from the Ninth Circuit approach that the high court
disapproved in Descamps. The Ninth Circuit approach permitted an examination
of “reliable materials” to determine “‘what facts’ can ‘confident[ly]’ be thought to
underlie the defendant’s conviction in light of the ‘prosecutorial theory of the case’
and the ‘facts put forward by the government.’ [Citation.]” (Descamps, supra,
133 S.Ct. at p. 2286, italics added.) Similarly, McGee permits an examination of
the record of conviction to determine “whether that record reveals whether the
conviction realistically may have been based on conduct that would not constitute
a serious felony under California law.” (McGee, supra, 38 Cal.4th at p. 706, italics

                                          22
added.) The two approaches – one based on facts “confidently” believed to
underlie the conviction, the other on facts that “realistically” underlie the
conviction – are in all relevant respects indistinguishable.
      Descamps leaves no true room for debate that this type of factfinding
violates the Sixth Amendment. Though not a holding, the court’s language is
particularly pointed: a court’s factfinding beyond identifying the elements of the
crime “would (at the least) raise serious Sixth Amendment concerns”; “the Ninth
Circuit’s ruling flouts our reasoning” by “extending judicial factfinding beyond the
recognition of a prior conviction” (Descamps, supra, 133 S.Ct at p. 2288, italics
added); “[t]he Sixth Amendment contemplates that a jury—not a sentencing
court—will find such facts”; “when the District Court here enhanced Descamps’
sentence, based on [judicial factfinding], the court did just what we have said it
cannot [referring to the Sixth Amendment discussion in Shepard]: rely on its own
finding about a non-elemental fact to increase a defendant’s maximum sentence”
(id. at pp. 2288-2289, italics added). Such language conveys the unmistakable
message that eight members of the high court believe (though they did not
expressly hold in Descamps) that the Sixth Amendment precludes the kind of
factfinding permitted by the Ninth Circuit approach, and hence, by McGee.
      For these reasons, we conclude that Descamps is the extension of Apprendi
that the California Supreme Court contemplated in McGee. The California
procedure for determining whether prior convictions qualify as strikes, insofar as it
is based on judicial factfinding beyond the elements of the offense, is incompatible
with the United States Supreme Court’s view of the Sixth Amendment right to a
jury trial as articulated in Descamps. In short, such judicial factfinding, which
looks beyond the elements of the crime to the record of conviction to determine



                                          23
what conduct “realistically” underlay the conviction, violates the Sixth
Amendment right to a jury trial.


Defendant’s Right to a Jury Trial on Remand in This Case
      Within the concept of determining the “fact of a prior conviction”
(Apprendi, supra, 530 U.S. at p. 490), Descamps is clear that a certain type of
judicial factfinding is constitutionally permissible. In determining whether a prior
conviction qualifies to be used to increase a defendant’s punishment under a
recidivist sentencing statute, the trial court may, without violating the Sixth
Amendment right to a jury trial, use “the documents . . . approved in Taylor and
Shepard—i.e., indictment, jury instructions, plea colloquy, and plea agreement”
(Descamps, supra, 133 S.Ct. at p. 2285, fn. 2) – to the extent they show the
statutory elements of the crime of which the defendant was convicted (id. at p.
2288). This kind of factfinding is permissible because it simply reflects the crime
(and more particularly the elements of the crime) which the defendant admitted in
his guilty plea following a waiver of his right to a jury trial, or the crime (and its
elements) a jury determined beyond a reasonable doubt that he committed.
      Beyond the elements of the crime, the scope of judicial factfinding that is
incompatible with the right to a jury trial is variously described in Descamps as the
following: (1) “‘a disputed’ determination ‘about what the defendant and state
judge must have understood as the factual basis of the prior plea,’ or what the jury
in a prior trial must have accepted as the theory of the crime” (citing the plurality
opinion in Shepard, supra, 544 U. S. at p. 25, and Justice Thomas’ concurrence
that such a finding would be “‘constitutional error, no doubt,’” id. at p. 28); (2) a
finding concerning “what a trial showed, or a plea proceeding revealed, about the
defendant’s underlying conduct”; (3) a finding about “amplifying but legally

                                           24
extraneous circumstances”; (4) inferences from a plea transcript based on
“whatever [a defendant] says, or fails to say, about superfluous facts” (citing the
Shepard plurality, supra, 544 U.S. at pp. 24-26); and (5) the trial court’s “own
finding about a non-elemental fact.” (Descamps, supra, 133 S.Ct. at pp. 2288-
2289.) In its various wordings, the court’s language conveys that judicial
factfinding beyond the elements of the defendant’s prior conviction – so called
“superfluous facts” or “non-elemental facts” – is generally constitutionally
impermissible. However, despite such language, the reasoning of Descamps,
supplemented by its favorable treatment of Shepard, would permit judicial
factfinding beyond the elements of the prior conviction if, in entering a guilty plea,
the defendant waived his right to a jury trial as to such facts and either admitted
them or they were found true by the court with defendant’s assent. (See Shepard,
supra, 544 U.S. at p. 16 [“a later court determining the character of an admitted
burglary is generally limited to examining the statutory definition, charging
document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented” (italics added)];
id. at p. 26 [“[w]e hold that enquiry under the ACCA to determine whether a plea
of guilty to burglary defined by a nongeneric statute necessarily admitted elements
of the generic offense is limited to the terms of the charging document, the terms
of a plea agreement or transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information” (italics added)].)4


4
        In Saez, the court expressly did not “decide whether a trial court could violate the
Sixth Amendment by relying on a defendant’s prior admission of a non-elemental fact in
making a strike determination.” (237 Cal.App.4th at p. 1207, fn. 21.) We consider the
issue, because it is necessary to give guidance on the nature of the proceedings on
remand.
                                              25
       As relevant to the proceedings on remand here, we already have determined
that the elements of defendant’s prior vehicular manslaughter conviction do not
show that he personally inflicted great bodily injury on a person other than an
accomplice. Therefore, on remand, under our understanding of Descamps, if the
prosecution seeks to prove that fact by resort to documents in the record of
conviction, the defendant is entitled to a jury trial on the issue whether he
personally inflicted great bodily injury on a person other than an accomplice,
unless the defendant waived his right to a jury trial as to such facts and either
admitted them or they were found true by the court with defendant’s assent.


Double Jeopardy
       The courts in Wilson and Saez did not discuss the double jeopardy
implications, if any, of their decisions. Both decisions reversed the trial court’s
strike finding, and remanded for resentencing, without discussing the issue raised
by defendant here: that to the extent he is entitled to a jury trial, double jeopardy
bars such a retrial, because the strike finding is being reversed for insufficient
evidence. (Saez, supra, 237 Cal.App.4th at p. 1209; Wilson, supra, 219
Cal.App.4th at pp. 519-520.) We conclude that double jeopardy does not bar a
retrial.
       In People v. Monge (1997) 16 Cal.4th 826 (Monge I), the California
Supreme Court held that retrial of a prior conviction violates neither the state nor
federal constitutional Double Jeopardy Clause. As to the federal constitutional
holding, the United State Supreme Court affirmed that decision in Monge v.
California (1998) 524 U.S. 721 (Monge II), a pre-Apprendi decision. The Monge
II court held that “the Double Jeopardy Clause does not preclude retrial on a prior
conviction allegation in the noncapital sentencing context.” (Id. at p. 734.) As the

                                          26
court explained, double jeopardy “protects against successive prosecutions for the
same offense after acquittal or conviction and against multiple criminal
punishments for the same offense,” but not against repeated “sentencing
proceedings [citation] because the determinations at issue do not place a defendant
in jeopardy for an ‘offense,’” and “[a]n enhanced sentence imposed on a persistent
offender thus ‘is not to be viewed as either a new jeopardy or additional penalty for
the earlier crimes’ but as ‘a stiffened penalty for the latest crime, which is
considered to be an aggravated offense because a repetitive one.’ [Citations.]” (Id.
at pp. 727-728.) Moreover, when the result of a sentencing proceeding is
overturned for insufficient evidence, that finding is not the equivalent of an
acquittal of an offense, because “pronouncement of sentence simply does not ‘have
the qualities of constitutional finality that attend an acquittal,’ [citations],” and
“[t]he Double Jeopardy Clause ‘does not provide the defendant with the right to
know at any specific moment in time what the exact limit of his punishment will
turn out to be.’ [Citation.] Consequently, it is a ‘well-established part of our
constitutional jurisprudence’ that the guarantee against double jeopardy neither
prevents the prosecution from seeking review of a sentence nor restricts the length
of a sentence imposed upon retrial after a defendant’s successful appeal.
[Citations.]” (Id. at pp. 729-730.)
      The court in Monge II distinguished its decision in Bullington v. Missouri
(1981) 451 U.S. 430, which applied double jeopardy to capital sentencing
proceedings, as being based on “both the trial-like proceedings at issue and the
severity of the penalty at stake.” (Monge II, supra, 524 U.S. at p. 722.) “Where
noncapital sentencing proceedings contain trial-like protections, that is a matter of
legislative grace, not constitutional command. Many States have chosen to
implement procedural safeguards to protect defendants who may face dramatic

                                            27
increases in their sentences as a result of recidivism enhancements. We do not
believe that because the States have done so, we are compelled to extend the
double jeopardy bar. Indeed, were we to apply double jeopardy here, we might
create disincentives that would diminish these important procedural protections.
[¶] We conclude that Bullington’s rationale is confined to the unique
circumstances of capital sentencing and that the Double Jeopardy Clause does not
preclude retrial on a prior conviction allegation in the noncapital sentencing
context.” (Id. at p. 734.)
      We recognize that to the extent Sixth Amendment right to a jury trial applies
to proof of a prior conviction based on the post-Monge II decision in Descamps (as
well as Apprendi and Shepard), part of the rationale for the decision in Monge II is
undercut. (See United States v. Blanton (2007) 476 F.3d 767, 772 [Government’s
appeal from district court decision denying ACCA sentencing enhancement based
on insufficient evidence violated double jeopardy; “without assuming that Monge
is no longer good law, but following the more recent dictate of Apprendi, we find
that the general inapplicability of the Double Jeopardy Clause to sentencing
proceedings is not sufficient to answer the question presented in this case.”].)
However, the United States Supreme Court has not overruled Monge II. Moreover,
in People v. Barragan (2004) 32 Cal.4th 236, 239, 241-242, our Supreme Court,
relying in part on Monge I and Monge II, held that retrial of strike allegation after
reversal for insufficient evidence is permissible. (Cf. People v. Seel (2004) 34
Cal.4th 535, 542-543, 548-550 [discussing Monge I and Monge II, but holding that
under Apprendi double jeopardy prohibited retrial of allegation of premeditation
under section 664].)
      Under these circumstances, we are bound by Monge I, Monge II, and
Barragan. In short, depending on what evidence the prosecution presents on

                                          28
remand, defendant may be entitled to a jury trial, but under the current state of the
law that proceeding remains a noncapital sentencing proceeding to which double
jeopardy does not apply.


                                      DISPOSITION
             The judgment is reversed as to the true finding on the strike
allegation. The case is remanded to the trial court for further proceedings. On
remand, if the prosecution elects to retry the strike allegation, defendant is entitled
to a jury trial as to whether in his prior vehicular manslaughter conviction he
personally inflicted great bodily injury on a person other than an accomplice,
unless in the plea proceeding that resulted in the conviction the defendant waived
his right to a jury trial as to such facts and either admitted them or they were found
true by the court with defendant’s assent.
             CERTIFIED FOR PUBLICATION




                                               WILLHITE, J.




             We concur:




             EPSTEIN, P. J.                    MANELLA, J.




                                          29
