Filed 9/5/13
                             CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT


THE PEOPLE,                                           H037262
                                                     (Santa Clara County
        Plaintiff and Respondent,                     Super. Ct. No. C9922421)

        v.

RICK J. WILSON,

        Defendant and Appellant.



        This case concerns the scope of a court‘s power to increase a defendant‘s sentence
based on the record of a prior conviction. The trial court initially sentenced defendant
Rick J. Wilson to a term of 25 years to life for felony drunk driving — his third strike
under the ―Three Strikes‖ law. The court found the first two strikes based on the record
of a prior drunk driving offense from 1993. In that case, Wilson caused an accident while
driving drunk, injuring one passenger and killing another. He pleaded no contest to
(1) causing injury while driving intoxicated, and (2) gross vehicular manslaughter while
intoxicated. The court examined the transcript of the 1993 preliminary hearing and found
Wilson had ―personally inflicted‖ great bodily injury on both victims, making each
offense a separate strike.
        After several appeals, a federal court vacated Wilson‘s sentence because the trial
court had violated Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). On remand,
the state trial court struck the first strike, but left intact the second strike that was based
on the manslaughter offense. The court resentenced Wilson as a second strike offender to
a six-year term, double the three-year upper term for felony drunk driving. On appeal,
Wilson claims the trial court‘s finding of ―personal infliction‖ for the second strike
violated his right to a jury trial.
       We hold the trial court erred by doubling defendant‘s sentence based on the strike
for the prior manslaughter conviction. Wilson never admitted to conduct sufficient to
establish personal infliction in that 1993 manslaughter offense. To the contrary, he
disputed the relevant facts of his conduct. The trial court could not have found the
offense to be a strike without resolving this factual dispute. By doing so, the court
violated federal law under Apprendi and state law under People v. McGee (2006)
38 Cal.4th 682 (McGee).
                        I. FACTUAL AND PROCEDURAL BACKGROUND
    A. Overview
       The proceedings below concerned two felony drunk driving incidents — the first
in Nevada County in 1993, and the second in Santa Clara County in 1999.1 In sentencing
Wilson for the 1999 offense, the trial court looked to the record of the 1993 offense and
found two prior ―serious felonies‖ qualifying as strikes, or ―strike priors‖ under the Three
Strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)2 The court sentenced Wilson as
a third strike offender to a term of 25 years to life.
       After exhausting his state court appeals, Wilson petitioned for a writ of habeas
corpus in federal court. A federal district court initially denied his petition, but the Ninth
Circuit Court of Appeals reversed. (Wilson v. Knowles (9th Cir. 2011) 638 F.3d 1213
(Wilson v. Knowles).) The district court then vacated his sentence. On remand for
resentencing, the state trial court struck one of the two strike priors, but not the other.
Accordingly, the court sentenced Wilson as a second strike offender to a term of six

1
       Wilson suffered numerous other convictions, but they are irrelevant to the legal
analysis here.
2
       Subsequent undesignated statutory references are to the Penal Code.
                                               2
years. Wilson appeals this sentence, claiming the trial court erred by increasing his
sentence based on the remaining strike prior.
   B. The 1993 Drunk Driving Offense
       In 1993, Wilson, driving while intoxicated, caused an accident resulting in injuries
to one passenger and the death of another. At the preliminary hearing, witnesses testified
to the following:
       Wilson was driving eastbound on Interstate 80 from Truckee to Reno on the
morning of September 8. The highway had four lanes — two lanes in each direction,
separated by a median. The road was flat and dry, with a slight curve to the right.
Wilson‘s girlfriend, Debra Horvat, rode in the front passenger‘s seat. They had picked up
a hitchhiker, John Haessly, who sat in the rear seat.
       A motorist behind them saw the car traveling in the left lane at about 85 miles per
hour. The car moved into the right lane, then turned back across the left lane and onto the
dirt of the median. The car then overcorrected and veered right, across the eastbound
lanes, and off the right side of the road, where it flipped over. The motorist drove past
the scene to a weigh station where he reported the accident. Tire tracks on the median
and skid marks on the road corroborated the motorist‘s account of the accident.
       Another motorist stopped at the scene after spotting Wilson trying to flag down
help. California Highway Patrol Officer David Cox testified that according to this second
motorist, Wilson stated, ―The bitch grabbed the wheel. What did she grab the wheel
for?‖ The motorist also reported the statement to another officer on the scene.
       Horvat was found in the car with the right front passenger‘s seat belt wrapped
around her neck. Haessly was found lying in a field between the car and the highway,
dead from blunt force trauma.
       Officer Cox interviewed Wilson at the hospital about an hour after the accident.
Wilson appeared intoxicated. He was belligerent and exhibited mood swings. When
Officer Cox asked if he had been drinking, Wilson answered, ―Yes. All of us were.‖
                                             3
Wilson denied that he had been driving. He claimed Horvat was driving. Wilson said he
had been in the back seat, and that he was thrown from the car. He also claimed he had
been wearing a seat belt. Wilson then ended the interview. A blood sample taken at the
hospital contained 0.21 percent alcohol.
       Officer Cox attempted to interview Horvat in the hospital emergency room, but
Horvat could not speak. She was in pain and had an oxygen mask over her mouth.
Officer Cox instructed her to nod her head ―yes‖ or ―no‖ in response to his questions.
When he asked if she had been driving, she shook her head to indicate ―no.‖ When he
asked if Wilson had been driving, she nodded ―yes.‖ When he asked if Haessly had been
in the back seat, she nodded ―yes.‖
       Horvat also testified at the preliminary hearing. The car, a 1991 Ford Tempo,
belonged to her. She and Wilson had been driving around the area since 8:00 p.m. the
night before the accident. She gave the keys to Wilson to drive because she did not like
driving in the mountains and she ―panicked.‖ As the sun was coming up, they pulled into
a field to rest, and she fell asleep. She slept soundly because she had been awake for 24
hours. Her next memory was that of waking up in the hospital. She did not recall the
accident. She did not recall picking up Haessly, and she did not recall Officer Cox
questioning her. She denied that she had been drinking alcohol, and she denied seeing
Wilson drink alcohol. She testified that there was no alcohol in the car at any time. She
knew that a claim had been brought against her insurance company. She also knew that
she could be sued personally.
       In closing argument, Wilson argued the evidence was insufficient to establish
probable cause for the charges against him. Wilson specifically challenged the evidence
of causation, arguing that statements at the scene of the accident showed Horvat had
grabbed the steering wheel, thereby causing the accident. Regarding Horvat‘s testimony
that she was asleep at the time, Wilson challenged her credibility given that she knew she
could be found liable for her role in the accident. The court, discounting the credibility of
                                             4
the claim that Horvat had grabbed the wheel, found probable cause for all the charges and
held Wilson to answer.
       The case never went to trial. Wilson pleaded no contest to (1) proximately
causing bodily injury to another person while driving intoxicated, and (2) gross vehicular
manslaughter while intoxicated. (Veh. Code, § 23153; § 191.5, subd. (a).) He also
admitted a prior misdemeanor conviction for driving under the influence of alcohol.
(Veh. Code, § 23152.) The record shows no transcript of any plea colloquy. Wilson
signed a change of plea form. A section on the form titled ―Court‘s Findings and Order‖
states that the court, having questioned the defendant, found ―that there is a factual basis
for the plea.‖ There is no record of Wilson admitting to any facts. The minutes of the
sentencing hearing refer only to ―the Probation Report, the diagnostic report, letters and
the statement of the victim,‖ and ―comments by counsel.‖
       The court sentenced Wilson to a term of seven years, suspended, with five years of
probation to include 365 days in county jail.
   C. The 1999 Drunk Driving Offense
       In 1999, a police officer stopped Wilson after he ran a red light at high speed. The
officer smelled alcohol and observed signs of intoxication. Wilson was unable to
complete several field sobriety tests. After the officer arrested him, Wilson became
belligerent and refused to take a blood test.
       The information charged Wilson with felony driving under the influence of
alcohol, with a prior conviction for gross vehicular manslaughter while intoxicated.
(Veh. Code, § 23152, subd. (a), former Veh. Code, § 23175.5, subd. (a)(3), Stats. 1997,
ch. 901, § 6, p. 6488, now Veh. Code, § 23550.5, subd. (b).) In addition to alleging a
prior conviction, the information alleged two strike priors based on the 1993 offense:
(1) driving under the influence of alcohol with personal infliction of great bodily injury,
pertaining to the injuries inflicted on Horvat; and (2) gross vehicular manslaughter while


                                                5
intoxicated with personal infliction of great bodily injury, pertaining to the death of
Haessly. (§ 1192.8, subd. (a).)
       The court held a jury trial on the charge of driving under the influence, and the
jury found Wilson guilty. After Wilson waived his right to a jury trial on the fact of the
prior conviction — but not on the facts required to prove the strike prior — the court
found true the allegation that Wilson had suffered a prior conviction for gross vehicular
manslaughter.
       The court subsequently held a bench trial on the strike priors. The prosecution
introduced the following documents from the record of the 1993 conviction in Nevada
County: (1) the information; (2) the above-mentioned change of plea form; (3) minutes of
the sentencing hearing; (4) the abstract of judgment; and (5) the transcript of the
preliminary hearing. The prosecution also introduced the booking sheets from Wilson‘s
arrests in the 1993 and 1999 offenses. A fingerprint expert testifying for the prosecution
opined that the fingerprints on both booking sheets were those of the same person. The
parties presented no other evidence. Discussion of the evidence focused exclusively on
the preliminary hearing transcript, and argument centered on whether Horvat had suffered
great bodily injury. Defense counsel argued that ―great bodily injury is not an element of
a felony driving under the influence, and I don‘t believe that sufficient evidence has been
produced in order to prove personal infliction of that type of injury, great bodily injury.‖
       The trial court, rejecting Wilson‘s argument, found true both strike prior
allegations, but the court allowed further briefing on the matter. Wilson submitted a trial
brief arguing that the trial court could not make the findings necessary to establish a
strike prior under People v. Guerrero (1988) 44 Cal.3d 343 (Guerrero), because only a
jury could find the required facts from the record of conviction. Wilson also moved to
dismiss the strike priors under section 1385.
       The trial court denied the motion to dismiss and reaffirmed its findings of the
strike priors. The court thereby found three strikes — two strike priors from the 1993
                                                6
offense, and one strike from the current 1999 offense. Accordingly, the court sentenced
Wilson as a third strike offender to a term of 25 years to life. (§§ 667, subd, (e)(2)(A)(ii),
1170.12, subd. (c)(2)(A)(ii).)
    D. Subsequent Proceedings
       Wilson appealed from the sentence for the 1999 offense.3 His opening brief raised
claims primarily related to the strike prior pertaining to the injuries inflicted on Horvat.
Wilson claimed the evidence was insufficient to support the required findings, including
the finding of personal infliction. He further argued that the trial court improperly found
facts underlying the strike prior in violation of his due process rights and Guerrero. In
his reply brief, Wilson specifically challenged the strike prior pertaining to the death of
Haessly. Wilson argued that the evidence was insufficient to ―establish personal
infliction in light of the evidence that Horvat grabbed the steering wheel[,] leading to the
accident.‖ Wilson cited Apprendi for the proposition that federal law required that the
strike prior findings be proven beyond a reasonable doubt.
       This court affirmed the judgment over a dissent by Presiding Justice Rushing.
(People v. Wilson (Dec. 23, 2002, H021472) [nonpub. opn.].) The majority opinion found
the claim that Horvat had grabbed the wheel to be ―suspect‖ and held that the sentencing
court properly discredited that evidence. (Id. at p. 3.) The majority opinion also rejected
Wilson‘s procedural due process arguments against the trial court‘s adjudication of
disputed facts pertaining to the injuries inflicted on Horvat. (Id. at p. 5.) In dissent,
Justice Rushing wrote that the trial court‘s factfinding violated Wilson‘s federal
constitutional rights under Apprendi, as well as state law under Guerrero. Of significant
note, neither the majority nor the dissent considered Wilson‘s claims pertaining to the
strike prior for gross vehicular manslaughter. Wilson sought review by the California
Supreme Court, but it denied his petition for review.

3
       Defendant has requested that we take judicial notice of the record in his prior
appeal. We hereby do so. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
                                               7
       Wilson then petitioned a United States District Court for a writ of habeas corpus.
The district court denied the petition, and Wilson appealed. In agreement with Justice
Rushing‘s dissent, the Ninth Circuit Court of Appeals reversed, holding that the state trial
court violated Wilson‘s federal constitutional rights under Apprendi. (Wilson v. Knowles,
supra, 638 F.3d at p. 1216.) Accordingly, the district court granted the petition, issued
the writ, and vacated Wilson‘s sentence. The court remanded the matter to the state trial
court for resentencing ―in a manner consistent with the views stated‖ in Wilson v.
Knowles.
       On remand, the state trial court struck the strike prior finding pertaining to the
injuries to Horvat. However, the court interpreted Wilson v. Knowles to leave intact the
strike prior based on the gross vehicular manslaughter conviction. Accordingly, the court
resentenced Wilson to a six-year term as a second strike offender. Although his attorney
agreed with the court‘s interpretation of Wilson v. Knowles, Wilson personally objected to
the remaining strike prior. The court overruled his objection and advised him to consult
with his appellate counsel. The court ordered Wilson released forthwith since he had
already spent more than twelve years in custody for the 1999 offense.
                                        II. DISCUSSION
       Both California law and the federal Constitution constrain a trial court‘s power to
make findings for the purpose of sentence enhancement. (Apprendi, supra, 530 U.S. at p.
477; People v. Epps (2001) 25 Cal.4th 19, 25.) Wilson contends the trial court violated
both state and federal law by finding his prior conviction for gross vehicular
manslaughter to be a serious felony, thereby doubling his sentence. We agree.
   A. Relevant Statutes
       Section 191.5, subdivision (a) defines gross vehicular manslaughter while
intoxicated as ―the unlawful killing of a human being without malice aforethought, in the
driving of a vehicle, where the driving was in violation of Section 23140, 23152, or
23153 of the Vehicle Code, and the killing was either the proximate result of the
                                              8
commission of an unlawful act, not amounting to a felony, and with gross negligence, or
the proximate result of the commission of a lawful act that might produce death, in an
unlawful manner, and with gross negligence.‖ The elements of the offense are:
(1) driving a vehicle while intoxicated; (2) when so driving, committing some unlawful
act, such as a Vehicle Code offense with gross negligence, or committing with gross
negligence an ordinarily lawful act which might produce death; and (3) as a proximate
result of the unlawful act or the negligent act, another person was killed. (People v.
Verlinde (2002) 100 Cal.App.4th 1146, 1159.)
       ―Personal infliction‖ of ―great bodily injury‖ are not elements of gross vehicular
manslaughter while intoxicated. However, section 1192.8, subdivision (a) defines this
offense as a ―serious felony‖ when it ―involve[s] the personal infliction of great bodily
injury on any person other than an accomplice . . . .‖ Similarly, section 1192.7,
subdivision (c)(8) defines any felony as a ―serious felony‖ when ―the defendant
personally inflicts great bodily injury on any person, other than an accomplice . . . .‖ This
includes gross vehicular manslaughter while intoxicated if, in the commission of the
crime, the defendant personally inflicts great bodily injury on another person who is not
an accomplice. (People v. Gonzales (1994) 29 Cal.App.4th 1684, 1688.)
       The Three Strikes law in effect at the time of Wilson‘s 1999 offense required the
sentencing court to double the applicable term of imprisonment for the current felony
when the defendant was found to have committed one prior serious felony. (§§ 667,
subd. (e)(1), 1170.12, subd. (c)(1).) The trial court did so here in sentencing Wilson to a
six-year term, twice the upper three-year term. (§ 18.)
   B. State Law Governing the Trial Court’s Power to Find Sentence Enhancements
       Historically, California law has afforded criminal defendants a limited right to jury
trial on the truth of prior convictions, (§§ 1025, 1158; People v. Wiley (1995)
9 Cal.4th 580, 589), but this right does not extend to the determination of whether a prior
conviction constitutes a serious felony qualifying as a strike under the Three Strikes law.
                                             9
(People v. Kelii (1999) 21 Cal.4th 452, 457.) With respect to findings that lengthen a
defendant‘s sentence, California law mandates that ―it is the court, rather than the jury,
that is entrusted with the responsibility of undertaking this inquiry and making the
determination.‖ (McGee, supra, 38 Cal.4th at p. 685.) As set forth in McGee, a
sentencing court making this inquiry is limited to examining the record of the prior
conviction to determine ―the nature or basis‖ of the prior offense. (McGee, supra, at
691.) In doing so, the court must not engage in resolving factual disputes concerning the
defendant‘s conduct. ―[T]he 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.‖ (Id. at p. 706.) ―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.‖ (Ibid.) (Italics added.)
       Under this rule, for example, a court may look to the record of conviction to
determine whether the defendant‘s prior serious felony convictions were sustained ―on
charges brought and tried separately. . . .‖ (Wiley, supra, 9 Cal.4th at p. 585.) This is a
purely legal inquiry. And to the extent it requires certain factual determinations, ―such as
the filing of charges either in a single complaint or multiple complaints, such facts
generally are readily ascertainable upon an examination of court documents. This is the
type of inquiry traditionally performed by judges as part of the sentencing function.‖ (Id.
at p. 590.)
       ―Sometimes the determination does have a factual content . . . .‖ (Kelii, supra,
21 Cal.4th at p. 456.) ―But these factual questions are of limited scope.‖ (Ibid.) The
facts of McGee illustrate those limits. McGee had suffered two prior convictions for
robbery in Nevada, both alleged to be serious felonies in his California case. (McGee,
                                              10
supra, 38 Cal.4th at p. 688.) Robbery constitutes a serious felony under section 1192.7,
subdivision (c)(19), but the elements of robbery under Nevada law vary from those under
California law. The Nevada definition sweeps more broadly than the California
definition, such that ―it was at least theoretically possible that [McGee‘s] Nevada
convictions involved conduct that would not constitute robbery under California law.‖
(Ibid.) However, in the plea colloquy for each prior conviction, McGee admitted to
specific conduct satisfying the elements of robbery under California law. (Id. at p. 689.)
Absent any factual dispute on this point, the trial court could properly determine whether
the prior convictions ―realistically may have been based on conduct that would not
constitute a serious felony under California law.‖ (Id. at p. 706.)
       Here, the applicable statutory definition of a serious felony required the trial court
to make three findings in addition to whether defendant suffered the prior conviction.
The trial court had to determine whether the prior conviction involved (1) personal
infliction, (2) of great bodily injury, (3) on any person other than an accomplice.
(§ 1192.8, subd. (a).)
       As to great bodily injury, the court could properly make this finding under
California law because it was necessarily implied by the elements of the prior conviction.
Wilson‘s plea of no contest to gross vehicular manslaughter while intoxicated constituted
an admission of every element of that offense. (People v. Jones (1959) 52 Cal.2d 636,
651.) The death of another person is an element of the crime. (Verlinde, supra, 100
Cal.App.4th at p. 1159.) Therefore, as implied by the elements of the offense, Wilson
admitted the fact that another person was killed as a proximate result of his conduct.
Wilson did not dispute — and cannot dispute, as a matter of pure logic — that by causing
Haessly‘s death, he necessarily caused him great bodily injury. Thus, the trial court, by
examining the ―nature or basis‖ of the vehicular manslaughter offense, properly
determined that it involved great bodily injury to Haessly. (McGee, supra, at 691.)


                                             11
       By contrast, the court could not determine from the record of conviction whether
the offense involved personal infliction without resolving a factual dispute. By pleading
to the vehicular manslaughter charge, Wilson only admitted to the element of proximately
causing Haessly‘s death. (Verlinde, supra, at p. 1159.) But proximate causation and
personal infliction are two different elements. (People v. Rodriguez (1999) 69
Cal.App.4th 341, 347.) ―To ‗personally inflict‘ an injury is to directly cause an injury, not
just to proximately cause it.‖ (Ibid.) In construing the phrase ―personally inflicts great
bodily injury‖ in the analogous context of section 12022.7, the California Supreme Court
held it applies ―only to a person who himself inflicts the injury.‖ (People v. Cole (1982)
31 Cal.3d 568, 572.) Citing to a dictionary definition of ―personally,‖ the court in Cole
further construed it to mean ― ‗done in person without the intervention of another; direct
from one person to another.‘ ‖ (Ibid.) The defendant need not be exclusively involved in
inflicting the injury, but the defendant must ―do so directly rather than through an
intermediary. . . .‖ (People v. Modiri (2006) 39 Cal.4th 481, 493.) This construction
proscribes a much narrower range of conduct than the element of proximate causation,
which only requires that death be a foreseeable ―direct, natural and probable‖ result of
―but for‖ causation. (People v. Dawson (2009) 172 Cal.App.4th 1073, 1094 [quoting
CALJIC No. 3.40].)
       At the preliminary hearing in the 1993 offense, the prosecution put into evidence
Wilson‘s own statements claiming that Horvat grabbed the steering wheel. The
prosecution apparently offered the evidence to prove Wilson was driving at the time, but
Wilson relied on this same evidence to dispute proximate causation for the injuries to
Horvat. As the element of personal infliction was not at issue, Wilson had no reason to
argue specifically against it, but the logic of his argument relating to proximate cause
applies equally to personal infliction of great bodily injury. If it were true that Horvat
had grabbed the wheel, Wilson would not have personally inflicted the injuries on
Haessly because Wilson would not have been acting ―without the intervention of
                                             12
another.‖ (Cole, supra, 31 Cal.3d at p. 572.) Instead, Horvat would have been acting as
an ―intermediary‖ such that the chain of causation did not flow ―direct[ly] from one
person to another.‖ (Ibid.; Modiri, supra, 39 Cal.4th at p. 493.)
       Thus, the prior conviction ―realistically may have been based on conduct that
would not constitute a serious felony under California law.‖ (McGee, supra, at p. 706.)
The sentencing court could only resolve the relevant factual dispute by weighing the
evidence and discrediting defendant‘s statements. As the majority recognized in our prior
opinion in this matter, the court did so implicitly. (People v. Wilson, supra, H021472.)
But because this finding involved ―a disputed issue of fact relating to the defendant‘s
prior conduct,‖ we now hold––in light of McGee, issued after our prior opinion––that the
court did not have the power to resolve this dispute under California law. 4 (McGee at
p. 706.)
    C. Federal Law Governing the Trial Court’s Power to Find Sentence Enhancements
       The Sixth Amendment right to trial by jury and the Fourteenth Amendment right
to due process also limit a judge‘s role in sentencing. (Apprendi, supra, 530 U.S. 466,
483, fn. 10.) ―Other 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.‖5 (Id. at p. 490; Almendarez-Torres v. United States
(1998) 523 U.S. 224, 227.) At issue here is the extent to which the federal law‘s
exception for ―the fact of a prior conviction‖ allows the sentencing court to find facts




4
       As noted above, section 1192.8 also requires a finding that Haessly was not an
accomplice to the prior offense. Defendant does not argue that the trial court erred in
making this finding. Having held that the court erred on other grounds, we decline to
decide whether it did so with respect to this finding.
5
       Under the current version of California‘s current triad-based determinate
sentencing scheme, the upper term is the relevant statutory maximum. (People v. Jones
(2009) 178 Cal.App.4th 853, 866.)
                                             13
about the prior conviction beyond those admitted by the defendant or implied by the
elements of the offense.
       The California Supreme Court most recently examined the scope of the prior
conviction exception in McGee, supra, 38 Cal.4th at 707. As noted in McGee, the United
States Supreme Court had not yet squarely applied Apprendi to priors-based sentence
enhancements in a way that would have overturned California law. (McGee at p. 686.)
When McGee was decided, the high court‘s leading case was Shepard v. United States
(2005) 544 U.S. 13. In that case, the court considered sentencing under the federal
Armed Career Criminal Act (ACCA), a priors-based sentence enhancement statute
analogous to California‘s Three Strikes law. (18 U.S.C. § 924, subd. (e).) The ACCA
imposes a minimum sentence of 15 years for any felon who possesses a firearm after
three prior convictions for serious drug offenses or violent felonies. The term ―violent
felony‖ includes burglary, inter alia. (18 U.S.C. § 924, subd. (e)(2)(B)(ii).) Burglary
under the ACCA is defined generically as an ―unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.‖ (Taylor v. United
States (1990) 495 U.S. 575, 599.) Shepard had pleaded guilty in four prior burglary
convictions, but they arose under Massachusetts law, which defines burglary more
broadly to include entry into a boat or car. The record of conviction was silent on the
factual basis for the pleas, ―there being no plea agreement or recorded colloquy in which
Shepard admitted the generic fact.‖ (Shepard at p. 25.)
       The government argued that the sentencing court could look to the facts in the
police reports or complaint applications to determine whether Shepard‘s convictions fell
within the generic definition of burglary. But the high court, rejecting the argument, held
that the sentencing court 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.‖ (Id. at p. 16.) (Italics
added.) In Part II of the opinion, a majority of the court based its holding on a statutory
                                             14
construction of the ACCA. In Part III, a four-justice plurality wrote that Apprendi would
prohibit the sentencing court from looking to the record of conviction to make any
disputed findings of fact. (Id. at p. 25 (plur. opn. of Souter, J.).) Justice Thomas wrote
separately, concurring in the judgment on the basis that Apprendi would preclude the
sentencing court from factfinding altogether. (Id. at p. 28 (conc. opn. of Thomas, J.).)
       The California Supreme Court, while acknowledging that a majority of the high
court had voiced constitutional concerns about the proper scope of judicial inquiry in
Shepard, observed that the court had resolved the issue as a matter of statutory
interpretation. (McGee, supra, at p. 708.) The McGee court ―recognize[d] the possibility
that the United States Supreme Court, in future decisions, may extend the Apprendi
rule. . . .‖ (Id. at p. 709.) But the court concluded ―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‖ to examining the record of a prior conviction for
sentencing purposes. (Ibid.) Accordingly, the California Supreme Court held that the
type of examination of the record conducted by the court that sentenced McGee fell
within Apprendi‘s prior conviction exception. (Ibid.)
       The United States Supreme Court recently revisited the issue in Descamps v.
United States (2013) 133 S.Ct. 2276 (Descamps), another case concerning the application
of Apprendi to sentence enhancements under the ACCA. Like the defendant in Shepard,
Descamps faced a 15-year minimum sentence based on the finding of a prior conviction
for burglary. Descamps had pleaded guilty to burglary in California, wherein ―[e]very
person who enters [certain locations] with intent to commit grand or petit larceny or any
felony is guilty of burglary.‖ (§ 459.) This California statute sweeps more broadly than
the generic definition of burglary under the ACCA, which requires the element of
―unlawful or unprivileged entry.‖ (Taylor v. United States, supra, 495 U.S. at p. 599.)
To determine whether Descamps‘ prior offense involved ―unlawful or unprivileged
entry,‖ the sentencing court looked to facts set forth in the transcript of his plea colloquy.
                                              15
At the plea hearing, the prosecutor had proffered that the crime involved the breaking and
entering of a grocery store, and Descamps failed to object to that statement. (Descamps,
supra, at p. 2282.) On this basis, the district court doubled his sentence.
       The high court rejected this factfinding as a violation of the Sixth Amendment
under Apprendi. After first applying a statutory construction analysis as it did in
Shepard, the court turned to the ―Sixth Amendment underpinnings‖ of the analysis. The
court held that a sentencing court‘s factfinding ―would (at the least) raise serious Sixth
Amendment concerns if it went beyond merely identifying a prior conviction.‖
(Descamps, supra, at p. 2288.) The court continued, ―Those concerns, 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,‘. . . .‖ (Ibid.)6 Thus, in Descamps, a majority of the United States
Supreme Court held that a sentencing court‘s finding of priors based on the record of
conviction implicates the Sixth Amendment under Apprendi.7
       Turning to the case at bar, we hold that the Sixth Amendment under Apprendi
precluded the court from finding the facts — here in dispute — required to prove a strike
prior based on the gross vehicular manslaughter offense. Like the court that sentenced
Descamps, the trial court looked beyond the facts necessarily implied by the elements of
the prior conviction. The record here was even barer than that in Descamps. There is no
record of any plea colloquy, or any other admissions — factual or otherwise — made by
Wilson on the record of the prior conviction. The only facts in the record — apart from
those necessarily implied by the elements of the offense — are those found in the
transcript of the preliminary hearing. The hearing consisted of testimony from several

6
        For this proposition, the court cited to its plurality opinion in Shepard, together
with Justice Thomas‘s concurring opinion.
7
        Justice Thomas, concurring in the judgment, again wrote separately to express his
view that Apprendi prohibits a sentencing court from all factfinding. (Descamps, supra,
at p. 2295 (conc. opn. of Thomas, J.).)
                                             16
witnesses who offered statements evidencing, at times, competing versions of key facts.
None of Wilson‘s statements — not even those offered via hearsay by the officer who
questioned him — established personal infliction. To the contrary, the record shows
Wilson explicitly contested the key fact at issue — whether Horvat grabbed the steering
wheel. To resolve the issue, the sentencing court was necessarily required to weigh the
credibility of various witnesses and statements. The trial court could not have increased
Wilson‘s sentence without ―mak[ing] a disputed determination‖ of fact — a task the
United States Supreme Court specifically counseled against. (Descamps, supra, at p.
2288.)
         We need not consider here 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, absent the findings of a jury: 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.8
         The history of this case underscores the importance of the procedural safeguards
furnished by this rule. At the time of Wilson‘s prior offense in 1993, the Legislature had
not yet enacted section 1192.8 (clarifying that section 1192.7 includes gross vehicular
manslaughter as a ―serious felony‖ when a defendant personally inflicts great bodily
injury on a nonaccomplice). And this court did not decide whether section 1192.7
included that offense until 1994 in People v. Gonzales, supra, 29 Cal.App.4th 1684.
Adding to this uncertainty, the Three Strikes law had not yet been enacted when Wilson
entered his plea in 1993. Thus, the most prescient of counsel could not have foreseen the
extent of Wilson‘s potential liability. Even assuming these matters could have been

8
       Under Apprendi, of course, a court could increase a defendant‘s sentence if a jury
found the required facts beyond a reasonable doubt.
                                             17
predicted, Wilson had no legal right to litigate all the facts relevant to the findings
required to establish a serious felony. (See People v. Henley (1999) 72 Cal.App.4th 555,
565 [―There was no justiciable issue [. . .] concerning the serious felony elements. . . .
Defendant thus had no right or opportunity to litigate the question at that time.‖].) To
double a defendant‘s sentence based on disputed facts that he had no reason or right to
contest would be fundamentally unfair.
   D. Waiver
       The Attorney General contends Wilson waived his claim by failing to raise it on
direct appeal from his initial sentencing in 1999. The Attorney General erroneously
states that ―appellant specifically did not challenge the strike finding as to his conviction
for vehicular manslaughter.‖ In his opening brief in the prior appeal, Wilson primarily
challenged the strike prior arising from the injuries inflicted on Horvat. The logic of his
arguments — that the evidence was insufficient to support a finding of personal infliction
of great bodily injury, and that the trial court erred in making such findings under
Guerrero — apply on the same grounds to the strike prior at issue here. Wilson‘s opening
brief in his first appeal back in 1999 so recognized, arguing that ―[p]roximate cause is not
enough to find that Wilson personally inflicted or personally caused the injuries to both
Horvat and the deceased, Haessly, and is therefore insufficient to qualify as a serious
felony.‖ (Italics added.)
       Furthermore, in his reply brief in that prior appeal, Wilson explicitly set forth his
claim as to the second strike prior arising from the injuries to Haessly. He argued that
―although the evidence established beyond a reasonable doubt that Haessly suffered
serious bodily injury [. . .], it did not so establish personal infliction in light of the
evidence that Horvat grabbed the steering wheel[,] leading to the accident. Thus, Wilson
does challenge the sufficiency of the evidence of this strike as well.‖ Wilson then




                                                18
requested leave to enlarge his appeal to include the strike prior based on the vehicular
manslaughter.9
       Wilson, now appealing from resentencing on remand, further argues that the
sentencing court erroneously interpreted the federal court‘s mandate on remand. The
Attorney General contends the federal court‘s order was a limited remand that left the
trial court without authority to strike the strike prior based on the vehicular manslaughter
conviction. But the federal district court‘s order does not refer to the strike priors at all.
It simply vacated Wilson‘s sentence, and remanded for resentencing ―in a manner
consistent with the views stated‖ in the opinion of the Ninth Circuit Court of Appeals.
That court, applying Apprendi, noted the absence of support for the finding of personal
infliction, and held that ―[t]he judge‘s fact-finding seven years after the 1993 conviction
extended beyond any reasonable interpretation of the prior conviction exception.‖
(Wilson v. Knowles, supra, 638 F.3d at p. 1215.) In its harmless error analysis, the court
held that Wilson could have created reasonable doubt as to whether Horvat caused the
accident by grabbing the steering wheel. (Id. at p. 1216.) While that opinion primarily
discusses the first strike prior, the logic underlying the analysis applies with equal force
to the second strike prior. 10 The state trial court‘s judgment to the contrary provided
fresh grounds for appeal.

9
        The majority opinion in the prior appeal implicitly declined defendant‘s request.
The opinion characterized his appeal as raising only a claim as to the strike prior
pertaining to Horvat. Courts of appeal generally disfavor claims raised for the first time
in an appellant‘s reply brief. (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295,
fn. 11.) However, this rule may be relaxed when the parties come before the court a
second time, or intervening case law has affected the proper disposition of the case.
(Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 424; Bardeen v. Commander Oil
Co. (1941) 48 Cal.App.2d 355, 358, fn. 1.) Both conditions apply here.
10
        This is not to say we are bound by that analysis under the doctrine of law of the
case. ―[L]aw of the case doctrine is not absolute; it ‗is merely a rule of procedure and
does not go to the power of the court. . . .‘ [Citation.] Further, we are not required to
adhere to decisions by the federal appellate courts, even on questions of federal law.‖
(Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93, 97 [citing Metalclad Corp.
                                              19
       The Attorney General argues that our holding in People v. Senior (1995) 33
Cal.App.4th 531, mandates waiver here. There, we held that an appellant could not raise
a claim for the first time on his third appeal, even after remand for resentencing.
However, we ―caution[ed] against an overly broad interpretation of our holding. There
are many circumstances — too numerous to contemplate — where legitimate appellate
issues arise in the trial court following an appeal and remand.‖ (Id. at p. 538.) One of the
circumstances we did contemplate exists here: A significant change in the applicable law.
(Ibid.) Both McGee and Descamps were handed down long after Wilson‘s initial appeal.
The subsequent establishment of a right to a jury trial under the federal Constitution
weighs especially strong against a finding of waiver. (See People v. French (2008) 43
Cal.4th 36, 48 [defendant did not forfeit Sixth Amendment right to a jury trial on
aggravating circumstances where right had yet to be established].)
       Finally, Wilson cannot waive his claim because the trial court was not authorized
to impose the sentence. ―If a trial court imposes a sentence unauthorized by law, a
reviewing court may correct that sentence whenever the error is called to the court‘s
attention.‖ (People v. Crooks (1997) 55 Cal.App.4th 797, 811.) ―[A] sentence is
generally ‗unauthorized‘ where it could not lawfully be imposed under any circumstance
in the particular case. Appellate courts are willing to intervene in the first instance
because such error is ‗clear and correctable‘ independent of any factual issues presented
by the record at sentencing.‖ (People v. Scott (1994) 9 Cal.4th 331, 354.) The sentencing
court here could not have imposed the defective sentence under any circumstances.
Furthermore, we resolve Wilson‘s claim not by resolving a factual dispute, but rather by
acknowledging its existence.
       Given the above procedural history and circumstances, we find Wilson has not
waived his claim on appeal.

v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705,
1714-1715].)
                                              20
   E. Harmless Error
       Having found Wilson‘s sentence unauthorized under Apprendi, we now consider
whether the error requires reversal. ―Failure to submit a sentencing factor to the jury, like
failure to submit an element to the jury, is not structural error.‖ (Washington v. Recuenco
(2006) 548 U.S. 212, 222.) ―Such an error does not require reversal if the reviewing
court determines it was harmless beyond a reasonable doubt, applying the test set forth in
Chapman v. California (1967) 386 U.S. 18. . . .‖ (People v. French, supra, 43 Cal.4th at
pp. 52-53.) If we conclude, beyond a reasonable doubt, that a jury, applying the beyond-
a-reasonable-doubt standard, unquestionably would have found true the strike prior
allegation, then the error is harmless. (See id. at p. 53 [assessing harmless error under
Cunningham v. California (2007) 549 U.S. 270].) ―The failure to submit a sentencing
factor to a jury may be found harmless if the evidence supporting that factor is
overwhelming and uncontested, and there is no ‗evidence that could rationally lead to a
contrary finding.‘ ‖ (French, supra, at p. 53.)
       As noted by the Ninth Circuit Court of Appeals, the analysis is somewhat
obscured by requiring us to imagine a trial that never occurred. (Wilson v. Knowles,
supra, 638 F.3d at p. 1216.) Even assuming a hypothetical jury would have seen only the
evidence that was presented at the preliminary hearing, we cannot say with any certainty–
–much less beyond a reasonable doubt––that such a jury would have found Wilson‘s
offense to be a serious felony.
       The record contained several facts from which a jury could rationally find
reasonable doubt as to the finding of personal infliction. The movement of the car before
the accident — from the right lane to the left, then back across the road — was consistent
with someone grabbing the steering wheel. Horvat‘s own testimony was inconclusive,
since she had no memory of the accident. She admitted panicking while driving the night
before. While a jury might have doubted the credibility of Wilson‘s statements, they also
could have doubted Horvat‘s credibility. She denied knowing Wilson had been drinking,
                                             21
and she was aware of her own potential liability. On this basis, we agree with the Ninth
Circuit Court of Appeals that Wilson could have created reasonable doubt as to whether
Horvat grabbed the wheel of the car. (Wilson v. Knowles, supra, at p. 1216.)
       In sum, we find the evidence on the record could rationally support a jury‘s
finding of reasonable doubt as to the requirement of personal infliction. The error was
therefore not harmless. We will reverse.
                                     III.    DISPOSITION
       The finding that Wilson‘s 1993 conviction for gross vehicular manslaughter while
intoxicated was a serious felony and a strike prior for purposes of resentencing is
stricken, and the judgment is reversed. We remand this matter to the trial court for
resentencing consistent with this opinion.



                                   _______________________________
                                   MÁRQUEZ, J.




       WE CONCUR:


       ______________________________
        RUSHING, P.J.



       ____________________________________________
        GROVER, J.




                                             22
Trial Court:                                  Santa Clara County
                                              Superior Court No.: C9922421


Trial Judge:                                  The Honorable Philip H. Pennypacker



Attorney for Defendant and Appellant          Michael Satris
Rick J. Wilson:                               under appointment by the Court of
                                              Appeal for Appellant




Attorneys for Plaintiff and Respondent        Kamala D. Harris,
The People:                                   Attorney General

                                              Dane R. Gillette,
                                              Chief Assistant Attorney General

                                              Gerald A. Engler,
                                              Senior Assistant Attorney General

                                              Stan Helfman,
                                              Supervising Deputy Attorney General

                                              Christopher J. Wei,
                                              Deputy Attorney General




People v. Wilson
H037262




                                         23
