Filed 10/27/16




                      CERTIFIED FOR PARTIAL PUBLICATION*


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                    F069534
        Plaintiff and Respondent,
                                                         (Super. Ct. No. VCF286530)
                 v.

JESUS NAVARETTE,                                                 OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Tulare County. H. N.
Papadakis, Judge.
        Gordon S. Brownell, under appointment by the Court of Appeal, for Plaintiff and
Appellant.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Max
Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
                                         -ooOoo-



        *Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I and II of the Discussion.
       Jesus Navarette appeals from his convictions and sentence for infliction of
corporal injury on a cohabitant or coparent, false imprisonment, making criminal threats,
attempting to dissuade a witness from testifying, and dissuading a witness from
prosecuting a crime. He contends the trial court abused its discretion in admitting
evidence of a prior domestic violence arrest under Evidence Code section 1109, a claim
we reject. He also argues the court erred in not applying Penal Code1 section 654 to his
sentence for dissuading a witness from prosecuting a crime. The People concede the
point, and we agree. Finally, Navarette challenges the trial court’s finding that his prior
conviction for a homicide offense in the State of Sinaloa, Mexico, constituted a serious
felony within the meaning of the serious felony sentence enhancement statute, as well as
the three strikes law. We conclude that, under applicable state and federal law, the trial
court’s finding as to Navarette’s prior conviction is not supported by substantial
evidence. Accordingly, we strike the trial court’s finding. The matter is remanded for
resentencing consistent with this opinion. The judgment is affirmed in all other respects.
                        FACTS AND PROCEDURAL HISTORY
       On March 13, 2014, Navarette was charged by a first-amended information filed
in the Tulare County Superior Court with attempted second-degree robbery (count 1,
§§ 211, 664); assault with a firearm (count 2, § 245, subd. (a)(2)); criminal threats
(count 3, § 422); attempting to dissuade a witness from testifying (count 4, § 136.1,
subd. (b)(2)); and dissuading a witness from prosecuting a crime (count 5, § 136.1,
subd. (b)(2)). The information alleged as to counts 1, 2, and 3 that Navarette personally
used a firearm (§ 12022.53, subds. (a), (b) & (c)) and also alleged as to all counts that he
had a prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and a prior
serious felony conviction (§ 667, subd. (a)(1)) in that he had been convicted of murder in
the State of Sinaloa, Mexico, in 2006.

       1Subsequent   statutory references are to the Penal Code unless otherwise specified.


                                             2.
       The matter proceeded to jury trial on April 1, 2014. On April 3, 2014, the court
granted a defense motion to dismiss count 1; count 2 was dismissed by the People. The
court also granted the prosecution’s oral motion to amend the information to add a count
of infliction of corporal injury on a cohabitant or coparent (count 6, § 273.5, subd. (a)), a
count of false imprisonment (count 7, § 236), as well as allegations, with respect to each
of these counts, that Navarette personally used a firearm (§ 12022.5, subd. (b)(2)). That
same day, the jury found Navarette guilty on counts 3 through 7 and found the special
firearm allegations related to counts 3, 6, and 7 to be true (the judge subsequently ordered
the firearm allegations to be “modified by interlineation to PC12022.5(a)”).
       On April 11, 2014, the court found true the prior strike allegations as to counts 3,
4, and 5; however, the court subsequently appeared to indicate that the strike prior
applied to “each of the counts” of conviction notwithstanding that it was only alleged in
connection with counts 3, 4, and 5. Although the court did not expressly address the
prior serious felony allegation, the minute order of the proceedings reflects that the court
found it true as to counts 3 and 4.
       On June 4, 2014, the court sentenced Navarette to an aggregate term of 27 years in
prison. The court imposed a term of 23 years on his conviction for infliction of corporal
injury to a cohabitant or coparent in count 6, as follows: the upper term of four years,
doubled to eight years based on the strike prior (§ 1170.12, subd. (c)(1)), plus a
consecutive five-year term based on the prior serious felony conviction (§ 667,
subd. (a)(1)), and a consecutive 10-year term for the firearm enhancement (§ 12022.5,
subd. (a)). The court further imposed consecutive sentences of 16 months (1/3 the
midterm, doubled on account of the strike prior) for Navarette’s convictions in counts 3,
4, and 5. Finally, the court sentenced Navarette to the upper term of six years on his
conviction for false imprisonment in count 7, which was stayed pursuant to section 664
(this six-year term evidently reflects a doubling of the upper term based on the strike



                                              3.
prior). (See § 237, subd. (a) [punishment for false imprisonment by violence or
menace].)
Factual summary
       On the night of August 3, 2013, Navarette followed his ex-girlfriend, Anami
Alvarado, as she drove home from the store. He contacted her by cell phone asking her
to pull over, which she did.2 Navarette approached her car carrying a rifle, demanded she
get out of the car, and attempted to grab her car keys from the ignition. When Alvarado
resisted, Navarette punched her on the left side of her face and, as she drove off, fired two
rounds into the ground. Alvarado contacted the Tulare County Sheriff’s Department and
gave a statement against Navarette. Navarette was then arrested, jailed, and charged in
the instant case.
       Navarette subsequently threatened Alvarado from jail, over the phone, in letters,
and during personal visits. He explicitly directed Alvarado to drop the charges and told
her how to change her prior description of events should the case proceed to trial. At
trial, Alvarado testified as directed by Navarette, but her prior statements to law
enforcement personnel were presented to the jury through the testimony of the relevant
personnel.
Alvarado’s trial testimony
       Alvarado began a relationship with Navarette in 2008. They lived together in
Earlimart off and on and were the parents of a two-year-old daughter. Although not
legally married, Alvarado considered Navarette her husband. Eventually they separated.
       After they separated, on the evening of August 3, 2013, Alvarado drove to
Earlimart with her daughter to buy food. On the way home, she noticed a white car
following her with Navarette in the passenger seat.

       2The   People, in their recitation of the facts, state that “[Navarette] sent Alvarado a
text asking her to stop .…” It is not clear from the record whether the contacts were by
oral or text communications.


                                               4.
       Navarette contacted her by cell phone telling her to stop. She complied, pulling
over by a house in Teviston. As Navarette approached, she lowered her window halfway.
Navarette told Alvarado he wanted to reconcile and asked her to turn the car off and to
get out. Alvarado did not turn the car off or get out. Navarette stuck his hand through
the window, asking her to lower it so they could speak. Alvarado did not want to speak
to him and pushed his hand away.
       Navarette then tried to open Alvarado’s car door but it was locked. He grabbed
Alvarado’s arm as they continued to argue. Alvarado’s car was blocked by the white car
and some trash cans. A man came out of the driver’s side of the white car carrying a
rifle. Alvarado recognized him as one of Navarette’s friends. The man argued with
Navarette then shot the rifle in the air twice. Navarette and the man then got back in the
white car. Alvarado fled in her car.
       Alvarado drove to the Pixley sheriff’s station. On the way there, she called 911.
She remembered speaking to Deputy Cruz at the sheriff’s station but did not remember
the details of the conversation because she was very nervous. She denied telling Deputy
Cruz that Navarette reached into her vehicle and tried to remove the keys. She denied
that Navarette punched her in the left side of the face and that he fired the rifle into the
ground. She denied telling Deputy Cruz that Navarette told her he would kill her father
that evening. Alvarado also denied that Navarette had called her while she was at the
sheriff’s station.
       Alvarado denied that Navarette called her from jail on August 6, 2013, directing
her to refuse to testify against him and to tell the police he did not fire the rifle. Alvarado
stated she had spoken to Navarette while he was in jail and had visited him there.
       Alvarado also denied that she told the Tulare County District Attorney’s Office
Investigator Martha Rodriguez that she was afraid of Navarette hurting her if he got out
of jail. She denied telling Investigator Rodriguez that Navarette had been offered a job
running a drug trafficking operation and that he had threatened to use hit men under his

                                              5.
control to kill her family in Mexico. She also denied telling Investigator Rodriguez that
when she went to visit Navarette he would hold drawings up to the window with
messages written at the bottom regarding how she should testify in court.
Other prosecution evidence
       On August 3, 2013, Tulare County Sheriff’s Deputy Nathan Cruz was dispatched
to the intersection of Avenue 72 and Road 132 in Teviston to investigate a report of shots
fired. Shortly thereafter, Alvarado arrived at the sheriff’s station in Pixley and Deputy
Cruz returned to talk to her.
       Alvarado told Deputy Cruz that Navarette was her ex-boyfriend. Earlier that
evening, Alvarado went shopping in Earlimart. While she was in the store, she received a
call from Navarette. Navarette told Alvarado that he wanted to talk. Alvarado declined
as their relationship had ended in July 2012. Navarette said he would follow her and she
should “watch her back.”
       Alvarado left the store to return home, taking a route that she did not normally use.
She got another call from Navarette when she was near the intersection of Avenue 72 and
Road 132 in Teviston. Navarette told her he was in the car behind her and she should
pull over. Alvarado saw a white Ford Mustang behind her.
       Alvarado pulled over in the vicinity of the intersection, and the white Mustang
stopped behind her. Navarette got out of the passenger side, holding a rifle. Navarette
came to the driver’s side of Alvarado’s car and told her to get out. When Alvarado
refused, he reached through the window with his left hand and tried to grab the car keys
out of the ignition. Alvarado pushed his hand out of the car. Navarette punched her on
the left side of her face. She put the car in gear. Navarette fired two rounds from the rifle
toward the ground. He told Alvarado he would kill her father later that night. Alvarado
drove away quickly. As she did, she saw Navarette throw shell casings onto a property
with an open gate. During the encounter, Alvarado’s daughter was in the back seat of the
car.

                                             6.
       As Alvarado was talking to Deputy Cruz, her cell phone rang. She told Deputy
Cruz the caller was Navarette. Alvarado answered the phone and put it on speaker.
Navarette said, in Spanish, “You fucking bitch, don’t be rolling around town without my
permission.” Alvarado told Navarette their relationship was over and to leave her alone.
       Alvarado told Deputy Cruz she was afraid for her life. She appeared fearful to
Deputy Cruz. She also had a bump and redness on her left cheek below her eye.
Alvarado informed Deputy Cruz that Navarette lived on Cedar Avenue in Earlimart.
Deputy Cruz went to Navarette’s residence and arrested him.
       On August 16, 2013, Deputy Cruz called Alvarado. She informed him she no
longer wanted to cooperate with the investigation and refused to meet with him. She also
demanded that the charges brought against Navarette be dropped.
       Abraham Chavez lived near Road 132 and Avenue 72 in Teviston on August 3,
2013. Around 8:00 or 9:00 p.m., he was sitting on the porch in front of his house; he
heard a man and woman arguing. The man told the woman to “get inside” and the
woman responded “no.” The man also told the woman, in Spanish, “Bitch, get the fuck
off the car.” A few seconds later Chavez heard a gunshot. The man and woman left in
separate cars. One of the cars was a white Mustang. Maricruz Chavez, Abraham’s wife,
also heard the argument and a gunshot.
       Tulare County Sheriff’s Deputy Anthony Young was dispatched to the location in
Teviston where the shooting occurred. He was taking Chavez’s statement when Deputy
Cruz called to tell him that Navarette had thrown shell casings nearby. Deputy Young
searched the property near the intersection and found a 7.62 x 39 shell casing beyond the
open gate. That caliber of shell is commonly used in an AK-47 rifle.
       On August 6, 2013, Navarette made two calls to Alvarado from jail. Investigator
Rodriguez obtained a recording of the calls. She played one of the calls for Alvarado.
Alvarado identified the woman’s voice as her own and the other voice as Navarette’s. In
the call, Navarette told Alvarado to try to contact the court and explain that “she did not

                                             7.
have anything against him, that they did not argue, that he did not hit her.” Navarette
also said, “if they try to bring you in, you tell them, ‘No, I do not have a reason to go. I
don’t want to go. I don’t have to go.’” Navarette told Alvarado he was facing charges of
domestic violence and criminal threats and asked her to say that the charges were
unfounded.
       Investigator Rodriguez subsequently spoke to Alvarado on February 18, 2014.
Alvarado told her she was afraid of Navarette. She was concerned that, were Navarette
deported to Mexico, he would harm her daughters who lived there. On March 21, 2014,
Rodriguez again met with Alvarado, who did not want to be seen meeting with
Rodriguez. Earlier that day, Alvarado had visited Navarette in jail. He told her he had
been offered a drug-trafficking job by a person known to Alvarado and would have hit
men under his control. Alvarado cried during the conversation; she was worried about
the safety of family members who lived in Sinaloa, Mexico. She believed that Navarette
wielded power both inside and outside the walls of the jail and, consequently, she was
fearful of cooperating with law enforcement.
       On April 1, 2014, Alvarado gave Investigator Rodriguez two letters that Navarette
had sent her; she did not want Rodriguez to disclose that she had obtained the letters from
Alvarado. A court interpreter read the letters, in translation, to the jury. In one letter,
Navarette directed Alvarado to testify, in connection with the Teviston incident, that
another man was driving the car that Navarette had pulled up in and that it was the other
man who fired the rifle. In the other letter, Navarette repeated that Alvarado should
testify that the other man fired the rifle and disposed of the shell casings; he also told her
to clarify that he did not hit her. Alvarado also told Rodriguez that, during jail visits,
Navarette would hold up drawings he had made for their daughter. The drawings
incorporated messages from Navarette to Alvarado regarding how he wanted her to
testify in court.



                                              8.
Section 1109 evidence
       Officer Leonard Diaz worked at the Phoenix, Arizona, Police Department in 2002.
On May 29, 2002, he was dispatched on a domestic violence call. He contacted the
victim, Myra Galaviz, who was suffering from head and lower back pain. Upon
investigation of the matter, Navarette was arrested on domestic violence and assault
charges.
Defense case
       Navarette did not testify or otherwise present a defense.
                                       DISCUSSION
I.     Admission of evidence of Navarette’s prior domestic violence arrest
       Navarette contends the trial court’s decision, under Evidence Code sections 352
and 1109, to admit evidence of his prior domestic violence arrest from 2002 was an abuse
of discretion. We disagree.
       A.      Background
       In a written motion in limine, the prosecution sought to introduce evidence
regarding an incident during which Navarette assaulted his live-in girlfriend at the time,
Myra Galaviz, in Phoenix, Arizona, in 2002.3 In the incident, Navarette and Galaviz
were arguing outside their apartment. Navarette shouted profanities at Galaviz, grabbed
her hair, pulled her over to a side door and pushed her inside the apartment. He was
subsequently arrested.
       The court held an Evidence Code section 402 hearing on the issue. The
prosecution presented testimony regarding the incident from Officer Diaz, the arresting
officer. Officer Diaz testified that he talked to Galaviz on May 29, 2002, and that she
complained of pain in her neck and lower back. While Diaz was at the apartment,
Navarette was the subject of a traffic stop and Diaz was able to contact him. Navarette

       3The   motion mistakenly refers to the ex-girlfriend as “Maria G.”


                                             9.
waived his Miranda rights and told Diaz and his partner that he got into an argument with
Galaviz, with whom he had been living for about six months, and had pushed her and
grabbed her by the hair. Diaz arrested Navarette for assaulting his girlfriend.
       Defense counsel objected to the testimony under Evidence Code section 352
because the incident occurred 12 years ago and “adds very little to these proceedings” for
purposes of Evidence Code section 1101. The court ruled that the evidence was
inadmissible under Evidence Code section 1101 but could come in under Evidence Code
section 1109. The court noted the evidence would be limited because it would be
restricted to Officer Diaz’s personal observations. The court concluded the evidence was
“relevant [and] in the interest of justice.”
       Officer Diaz testified before the jury that he worked at the Phoenix Police
Department in Arizona in 2002. On May 29, 2002, he was dispatched on a domestic
violence call. He contacted the victim, Myra Galaviz, who complained of head and lower
back pain. Myra Galaviz was Navarette’s girlfriend. As part of his investigation, Diaz
contacted Navarette and interrogated him, leading to the latter’s arrest on domestic
violence and assault charges.
       B.     Analysis
       Under Evidence Code section 1109, evidence of a defendant’s other acts of
domestic violence is admissible for the purpose of showing a propensity to commit such
crimes. (People v. Brown (2011) 192 Cal.App.4th 1222, 1232.) Evidence that is
admissible pursuant to section 1109 is nonetheless subject to Evidence Code section 352,
which provides: “[t]he court in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” The trial court exercises its sound discretion in
admitting or excluding evidence under Evidence Code sections 1109 and 352, and we
review its decision for abuse of discretion. (Evid. Code, §§ 352, 1109; see also People v.

                                               10.
Johnson (2010) 185 Cal.App.4th 520, 531 (Johnson).) A court abuses its discretion if it
acts “in an arbitrary, capricious, or patently absurd manner.” (People v. Thomas (2012)
53 Cal.4th 771, 806.)
       Evidence Code section 1109 restricts the admission of acts of domestic violence
that are more than 10 years old: “[e]vidence of acts occurring more than 10 years before
the charged offense is inadmissible under this section, unless the court determines that the
admission of this evidence is in the interest of justice.” (Evid. Code, § 1109, subd. (e).)
In evaluating whether a remote prior act is admissible under the “interest of justice”
exception of Evidence Code section 1109, subdivision (e), the court applies “a more
stringent standard of admissibility” than is encompassed by Evidence Code section 352.
As the Johnson court explained, “some greater justification for admissibility is necessary
under subdivision (e) than under section 352. Balancing under section 352 is required
even under subdivision (a) [of Evidence Code section 1109], where the presumption runs
in favor of admission. By including a specific ‘interest of justice’ requirement under
subdivision (e), the Legislature must have intended to require a more rigorous standard of
admissibility for remote priors.” (Johnson, supra, 185 Cal.App.4th at p. 539.) Johnson
determined that, in contrast to Evidence Code section 1109, subdivision (a), which sets
up a presumption in favor of admissibility, subject to balancing the probative value of the
evidence at issue against its potential for prejudice under Evidence Code section 352,
Evidence Code section 1109, subdivision (e), establishes a presumption against
admissibility subject to the balancing test encompassed by Evidence Code section 352.
(Johnson, supra, at p. 539.) Thus, evidence is admissible under Evidence Code
sections 1109, subdivision (e), and 352 if its probative value weighs more heavily on the
same scale that is used to evaluate the admissibility of evidence under Evidence Code
sections 1109, subdivision (a), and 352. (Johnson, supra, at p. 539.)
       The instant charges against Navarette encompassed a physical assault by Navarette
on a former girlfriend (with whom he had a child), after an argument. The evidence of

                                             11.
the prior act of domestic violence also concerned a physical assault by Navarette on a
girlfriend (who was pregnant with his child at the time), after an argument. (Johnson,
supra, 185 Cal.App.4th at p. 531 [“‘“The principal factor affecting the probative value of
an uncharged act is its similarity to the charged offense.”’”].) Moreover, as the
prosecutor pointed out, during most of the period between the assault on Galaviz and the
assault on Alvarado, Navarette was incarcerated in Mexico. (Id. at p. 539 [remote
conduct’s probative value higher when defendant has not led blameless life in interim].)
Also, Officer Diaz’s testimony concerning the prior act was succinct and brief and did
not dwell on or amplify inflammatory details. (Id. at p. 534 [“‘[p]ainting a person
faithfully is not, of itself, unfair’”].) In any event, the circumstances of the instant
incident in which Navarette deployed a firearm were far more egregious in comparison.
(Id. at p. 534, fn. 11 [“Courts are primarily concerned where the past bad act was ‘more
inflammatory’ than the offense for which the defendant is on trial.”].) Furthermore, in
light of the discrete nature of the evidence, there was no danger of confusion of issues or
of an inordinate consumption of time in its presentation. Under these circumstances,
admission of the evidence of the prior incident of domestic violence in Arizona was not
an abuse of discretion.
       Finally, even if we were to assume the trial court erred in admitting evidence of
the prior domestic violence incident, the error was harmless. The evidence against
Navarette was overwhelming. Although at trial Alvarado recanted the statements she had
given law enforcement during the investigation of the incident, those statements were
presented to the jury through the testimony of Deputy Cruz and Investigator Rodriguez.
Abraham and Maricruz Chavez also testified about the confrontation between Navarette
and Alvarado as well as the gunshot they heard at the time. Further, there was extensive
evidence regarding Navarette’s attempts to intimidate Alvarado so as to influence her
trial testimony, including letters and jail phone calls, as well as his references during in-
person visits to having access to hitmen in Mexico. In light of this record, it is not

                                              12.
reasonably probable the result of the proceeding would have been more favorable to
Navarette had the evidence of the Arizona incident been excluded. (People v. Watson
(1956) 46 Cal.2d 818; see also People v. Ogle (2010) 185 Cal.App.4th 1138, 1145 [any
error in admitting uncharged act of domestic violence was harmless under Watson
standard]; People v. Harris (1998) 60 Cal.App.4th 727, 741 [applying Watson standard to
sexual offense propensity evidence admitted under Evid. Code, § 1108].)
II.    Application of section 654 to the sentences on counts 4 and 5
       Navarette argues his sentence on count 5 should have been stayed pursuant to
section 654 because it was based on the same conduct as count 4. The People concede
the point. We agree.
       Navarette was charged in count 4 with attempting, “[o]n or about August 6, 2013,”
to dissuade a witness from testifying (§ 136.1, subd. (a)(2)) and in count 5 with
dissuading, “[o]n or about August 6, 2013,” a witness from prosecuting a crime.
       During closing argument, the prosecutor argued that count 4 was premised on a
call that Navarette made from jail to Alvarado on August 6, 2013, in which he urged her
not to testify against him. The prosecutor stated that this attempt to influence Alvarado’s
testimony also related to count 5, which he described as “a variation [on] … count four”
because “that all stems … from the August 6, 2013 jail call.”
       At sentencing, defense counsel requested that count 5 be stayed pursuant to
section 654. The prosecutor responded: “Counts four and five we received evidence that
the defendant told the victim not to go to court, not to cooperate with [the] police
investigation, not just once, but several times.” The court declined to apply section 654
to count 5 based on its recollection that, “in addition to attempting to dissuade her by the
calls, there was also the threat to her family.”
       Section 654, subdivision (a), provides that “[a]n act or omission that is punishable
in different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or

                                              13.
omission be punished under more than one provision.” The People concede that the
charging document and prosecutor’s closing argument both identified Navarette’s
conduct in the August 6, 2013, jail call as the act underlying counts 4 and 5.
Accordingly, as both parties agree, we find the trial court was required to stay the
sentence on count 5 pursuant to section 654. (See People v. Siko (1988) 45 Cal.3d 820,
823-826.)

III.   Sufficiency of the evidence as to Navarette’s prior murder conviction in Sinaloa,
       Mexico
       Navarette contends the evidence was insufficient to support the trial court’s true
findings on the prior strike and serious felony allegations in the information. We agree.
Accordingly, we strike the trial court’s finding and remand the matter for resentencing
consistent with this opinion.
       A.     Background
       The first-amended information alleged, as to counts 3, 4, and 5, that Navarette had
suffered a prior serious felony within the meaning of section 667, subdivision (a)(1). The
information further alleged, with respect to the same counts, that Navarette had suffered a
“prior conviction of a serious or violent felony” or “strike” under the three strikes law,
sections 1170.12, subdivisions (a)-(d), and 667, subdivisions (b)-(i).4 (See People v.
Vargas (2014) 59 Cal.4th 635, 639, 642.) The information specified, with respect to
these enhancement allegations, that Navarette’s prior serious felony conviction was a
murder conviction in the State of Sinaloa, Mexico, dated February 28, 2006, “which
includes all the elements of California Penal Code section 187 .…”
       After a bifurcated hearing during which the prosecutor presented records relating
to the underlying proceeding, the court summarily determined, “Court is satisfied that the

       4The  trial court interpreted the prior strike and serious felony allegations to apply
to counts 6 and 7 as well, which apparently were orally added as charges after trial had
commenced.


                                             14.
defendant Jesus Navarette in this trial is the person in the document presented, that he has
suffered a conviction for the crime of murder, which is the equivalent of murder in this
country. It, therefore, finds true the special allegation pursuant to [sections 1170.12(a)]
through [(d)] and 667(b) through (i)” as to all counts of conviction.5 Though the court
did not expressly find the special allegation of a prior serious felony pursuant to
section 667, subdivision (a)(1), to be true, the finding is reflected in the court’s minute
order from the proceedings.
       Defense counsel then noted his objections for the record, including his objection
that the elements of the homicide offense in Sinaloa, Mexico, did not match the elements
of murder in California and that it would violate Navarette’s constitutional rights were
the court to go behind the elements of the respective offenses and “delve into the actual
facts” of the Mexican proceeding to make its findings. Without addressing the latter
argument, the court summarily rejected Navarette’s objection that the elements of the
respective offenses in Mexico and California did not match, with the Mexican offense
being broader and missing certain elements, including malice aforethought, present in
California’s statutory definition of murder. (See § 187.) With reference to the appellate
opinion from the Mexican case, the court stated it appeared the appellate court had
determined the homicide was “intentional,” which “substantiates the murder and the
intentional element.” The court also noted that a claim of self-defense was adjudicated in


       5Under   California law, a defendant has a right to a jury trial on the truth of a prior
conviction, i.e., whether he in fact suffered the prior conviction alleged as the basis for a
sentence enhancement. The question whether the prior conviction qualifies as a “serious
felony” for a sentence enhancement under section 667, subdivision (a)(1), and as a
“strike” for a sentence enhancement under the three strikes law, is, however, reserved for
the sentencing judge to resolve. (See § 1025; People v. Epps (2001) 25 Cal.4th 19, 23.)
Here, Navarette waived his right to have a jury determine the truth of the prior
conviction. He did not have, in the first instance, an option for jury trial on the issue of
whether the prior conviction qualified as a serious felony or as a strike for purposes of the
enhancements.


                                             15.
the Mexican proceeding but it did not address whether the absence of a justification such
as self-defense was an element of the prior offense.
       B.     Analysis
       As our Supreme Court has explained, “[f]or criminal sentencing purposes in this
state, the term ‘serious felony’ is a term of art. Severe consequences can follow if a
criminal offender, presently convicted of a felony, is found to have suffered a prior
conviction for a serious felony.” (People v. Warner (2006) 39 Cal.4th 548, 552
(Warner).) If the present conviction is also for a serious felony, “the offender is subject
to a five-year enhancement term to be served consecutively to the regular sentence.”6
(Ibid.) Moreover, a prior conviction for a serious felony also “renders the offender
subject to the more severe sentencing provisions of the three strikes law.” (Ibid.; also see
People v. Delgado (2008) 43 Cal.4th 1059, 1065.)
       Whether a crime qualifies as a serious felony is determined by section 1192.7,
subdivision (c), which lists and describes dozens of qualifying crimes, including murder,
robbery, kidnapping, and forcible sexual assaults. (Warner, supra, 39 Cal.4th at p. 552.)
“Under our sentencing laws, foreign convictions may qualify as serious felonies, with all
the attendant consequences for sentencing, if they satisfy certain conditions. For a prior
felony conviction from another jurisdiction to support a serious-felony sentence
enhancement, the out-of-state crime must ‘include[] all of the elements of any serious
felony’ in California. (§ 667, subd. (a)(1).) For an out-of-state conviction to render a
criminal offender eligible for sentencing under the three strikes law (§§ 667, subds. (b)-
(i), 1170.12), the foreign crime (1) must be such that, ‘if committed in California, [it
would be] punishable by imprisonment in the state prison’ (§§ 667, subd. (d)(2), 1170.12,
subd. (b)(2)), and (2) must ‘include[] all of the elements of the particular felony as


       6Navarettedoes not dispute that he was convicted of a serious felony in the current
proceeding. (§ 1192.7, subd. (c)(19).)


                                             16.
defined in’ section 1192.7(c) (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)).”7 (Id. at
pp. 552-553.)
       “The People must prove all elements of an alleged sentence enhancement beyond
a reasonable doubt. [Citation.]” (People v. Miles (2008) 43 Cal.4th 1074, 1082.) “On
review, we examine the record in the light most favorable to the judgment to ascertain
whether it is supported by substantial evidence. In other words, we determine whether a
rational trier of fact could have found that the prosecution sustained its burden of proving
the elements of the sentence enhancement beyond a reasonable doubt. [Citations.]”
(People v. Delgado, supra, 43 Cal.4th at p. 1067; People v. Saez (2015) 237 Cal.App.4th
1177, 1189.) Here our inquiry focuses on whether substantial evidence supports the trial
court’s determination that Navarette’s prior Mexican conviction constituted, beyond a
reasonable doubt, a serious felony for purposes of section 667, subdivision (a)(1), and the
three strikes law. (See Delgado, supra, at p. 1070.)
       The first-amended information specified, with respect to the allegation that
Navarette had suffered a prior “serious felony” for purposes of section 667,
subdivision (a)(1), and the three strikes law, that this Mexican prior conviction was a
“serious felony” that “includes all the elements of California Penal Code section 187,”
i.e., murder. Murder qualifies as a “serious felony” for purposes of recidivist
enhancements under both section 667, subdivision (a)(1), and the three strikes law. (See
§ 1192.7.)
       Here, both parties agree on the elements of the Mexican homicide prior. As
described in the People’s brief, “the elements of [the Mexican] crime” were: “a). - Illegal
deprivation of the life of another; b). - that is due to an external cause, imputable to a man
as a result of his intentional or imprudent act.” The parties also agree that Navarette had

       7A  criminal offender may also be sentenced under the three strikes law if he or she
has a prior conviction for a “violent felony” as defined in section 667.5, subdivision (c).
(§§ 667, subd. (d)(2), 1170.12, subd. (b)(2).)


                                             17.
raised a colorable claim of self-defense that was duly adjudicated in the Mexican
proceeding. In addition, Navarette contends, and the People do not dispute, that
Navarette bore the burden of proving that he acted in self-defense. Navarette argues the
elements of his Mexican homicide offense do not include all the elements of murder
under California law as alleged in the information and summarily found by the trial court.
       Under California law, the elements of murder—that the prosecution, by definition,
is required to prove beyond a reasonable doubt—are as follows: (1) the defendant
committed an act that caused the death of another person; (2) when the defendant acted,
he had a state of mind called malice aforethought; and (3) he killed without lawful excuse
or justification. (See CALCRIM No. 520; People v. Frye (1992) 7 Cal.App.4th 1148,
1159 [California treats “the absence of excuse or justification, and hence the question of
unlawfulness, as an element of an offense”]; also see § 187, subd. (a) [“Murder is the
unlawful killing of a human being … with malice aforethought.”]; People v. Catlin
(2001) 26 Cal.4th 81, 139 [“The elements of a charge of murder are an unlawful killing
with malice aforethought.”].) The element of malice aforethought, moreover,
encompasses two alternative mental states, express malice and implied malice, which
must be formed before the act that causes death is committed. (CALCRIM No. 520.) A
defendant acted with express malice if he unlawfully intended to kill, and with implied
malice if he (1) intentionally committed an act; (2) the natural and probable consequences
of the act were dangerous to human life; (3) at the time he acted, he knew his act was
dangerous to human life; and (4) he deliberately acted with conscious disregard for
human life. (Ibid.)
       Navarette contends the Mexican offense does not include the element of malice
aforethought or an element requiring the prosecution to prove that the killing was
unlawful, i.e., that Navarette did not act in justifiable self-defense. Focusing on the latter
point, the People do not dispute that Navarette bore the burden to prove he acted in self-
defense and, as a consequence, the absence of justifiable self-defense was not an element

                                             18.
of the crime.8 Nonetheless, the People argue that the sentencing court could still properly
have found, based on the facts of the Mexican proceedings and certain findings reflected
in an appellate opinion from that case, that the prior homicide offense included all the
elements of murder under California law.
       For the reasons discussed below, we find the type of factfinding advocated by the
People is foreclosed under both applicable state and federal case law, i.e., People v.
McGee (2006) 38 Cal.4th 682 (McGee), as well as Descamps v. United States (2013) 133
S.Ct. 2276 (Descamps), on Apprendi grounds. (Apprendi v. New Jersey (2000) 530 U.S.
466 (Apprendi).) Accordingly, we conclude the trial court’s determination that the
Mexican offense included all the elements of murder under California law is not
supported by substantial evidence. In turn, we find the People have failed to sustain their
burden to prove all the elements of the sentencing enhancements alleged pursuant to
section 667, subdivision (a)(1), and the three strikes law. Consequently, we strike the
trial court’s true findings on the enhancement allegations, reverse the judgment, and
remand the matter for resentencing consistent with this opinion.

              1.      State law limitations on a sentencing court’s power to adjudicate
                      sentence enhancements
       With respect to findings regarding whether a prior conviction qualifies as a
“serious felony” for purposes of sentencing enhancements, California law mandates that
“it is the court, rather than the jury, that is entrusted with the responsibility of undertaking
this inquiry and making this determination.”9 (McGee, supra, 38 Cal.4th at p. 685.)


       8Although   the elements of the Mexican offense refer to an “[i]llegal deprivation of
the life of another,” the People do not argue that this element incorporates a requirement
that the prosecution prove that Navarette acted without a justification such as self-
defense, as required under the California definition of murder, and the meaning of the
term “illegal” in this context is inconclusive.
       9A defendant has the right to a jury trial only on the truth of the prior conviction.
(See §§ 1025, 1158; People v. Wiley (1995) 9 Cal.4th 580, 589; People v. Epps, supra, 25

                                              19.
“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.” (Id. at p. 706.) In other words, when
the elements of the prior conviction are broader than the elements of the corresponding
serious felony, such that it is at least theoretically possible that the prior conviction
involved conduct that would not constitute a serious felony under California law, the
sentencing court may look to the record of the prior conviction to determine whether the
prior conviction did in fact involve such conduct.
       However, in doing so, the court is limited to examining the record to determine
“the nature or basis” of the prior offense and cannot engage in resolving factual disputes
concerning a defendant’s conduct. (McGee, supra, 38 Cal.4th at p. 691; §§ 667,
subd. (d)(2), 1170.12, subd. (b)(2).) “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, at p. 706.)




Cal.4th at p. 23.) Here, Navarette waived his right to jury trial on whether he suffered the
prior underlying the enhancement allegations.


                                              20.
       In sum, “[t]o qualify as a serious felony, a conviction from another jurisdiction
must involve conduct that would qualify as a serious felony in California.” (People v.
Avery (2002) 27 Cal.4th 49, 53.) Moreover, to the extent this inquiry transcends an
elements-based analysis and spills over into an examination of the record of the prior
conviction, McGee prohibits the court from resolving disputed issues of fact in
determining whether the prior 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.)
       Here, a comparison of the elements of Navarette’s Mexican offense with that of
the elements of murder under California law readily reveals that the elements of the
Mexican offense are broader than the elements of murder under California law, such that
the former offense can theoretically encompass conduct that would not constitute a
serious felony under California law. The Mexican offense contains the alternative
elements that a defendant deprived another of his life by committing an intentional or
imprudent act. The elements of an “intentional” or “imprudent” act, respectively, are not
equivalent facially to either the element of express malice aforethought, which requires
an unlawful intent to kill, or the element of implied malice aforethought, which requires
that a defendant have deliberately acted with conscious disregard for human life.
Furthermore, the Mexican offense does not contain an element requiring the prosecution
to prove that there was no justification, such as the need for self-defense, for a
defendant’s actions. Although the elements of the Mexican offense reflect a requirement
of an “[i]llegal deprivation of the life of another,” it is clear, nonetheless, that “[i]llegal
deprivation” does not require the prosecution to prove the absence of justification,
including the need for self-defense, as there is no dispute that, in the Mexican
proceedings, the burden to prove the applicability of self-defense fell on Navarette.
       The People nonetheless urge that the trial court’s finding that the Mexican offense
was a serious felony under California law should be upheld because the record of the

                                               21.
Mexican conviction reflects an appellate finding that unequivocally disposes of
Navarette’s self-defense claim. Even if we assumed the appellate court made such a
finding, there is no dispute the appellate court’s entire analysis was conducted through a
lens placing the burden of proof regarding the applicability of self-defense on Navarette,
as that count found Navarette had “not proven” his self-defense claim. It is axiomatic
that finding Navarette has “not proven” the applicability of self-defense does not translate
to a finding that the prosecution proved the absence of justification, i.e., the need for self-
defense, as an element of the offense. Indeed, this point is crystalized by reference to the
final findings of the lower court in the Mexican proceedings, which concluded:

       “[T]he fact that the accused JESUS ALFREDO NAVARETTE
       [FERNANDEZ], alias EL NENE, alleges that he repelled the aggression
       from the deceased MARCIAL MARTINEZ JIMENEZ, because it was the
       latter who provoked him, and he was imperiously forced to save his life,
       meaning that he acted in self defense, this cannot be corroborated in the
       file, even [if] it has been demonstrated that the deceased MARCIAL
       MARTINEZ JIMENEZ, had a firearm, the one he actually used several
       times, however it is unknown if it was him who fired first or after to try to
       defend his life, since there were no witnesses that saw the events and
       therefore there is only one version which is the one of the defendant, in the
       sense that he was repe[l]ling the aggressing from the today deceased,
       because the several pieces of evidence such as the expert forensic reports in
       ballistics and the sodium radiozonate analysis, as well as the toxicology
       studies practiced on the accused as well as the deceased, as well as the
       weapons that they both carried, determined without questions that truly
       there were sufficient elements identified consistent with the deflagration of
       gun powder finding stains on the usual zones on the one who in life
       answered to the name of MARCIAL MARTINEZ JIMENEZ, as well as the
       ingestion of alcoholic beverages and consumption of cocaine, in addition to
       [the witnesses] LIDIA ROMERO SAUCEDA, ALMA ROSA SERNA
       SAUCED[O] AND MARIA SONIA SANDOVAL FERNANDEZ,
       confirmed in their statements that truly on the day of the commission of the
       crime, … they saw that he was carrying a firearm on his right hand, the
       same that was removed before the authorities arrived to the place of the
       event, fact that is somehow corroborated by the accused that, MARCIAL
       MARTINEZ JIMENEZ, had a firearm and []he actually used it, as this is
       confirmed by the studies practiced by the official experts, however it is not
       proved beyond doubt that it was MARCIAL MARTINEZ JIMINEZ who first

                                              22.
       fired the weapon that he had and as a result of it JESUS ALFREDO
       NAVARETTE FERNANDEZ, had to repel the aggression and also fired
       shots against the physical integrity of the today deceased and [based on the
       injuries sustained] he lost his life; but even with the proof offered by the
       defense counsel, consisting on the expansion of the statements issued by the
       witnesses … which were admitted during a judicial proceeding in this
       Tribunal pursuant to what is required by Law, it was not demonstrated that
       the fact that the accused alleges, in the sense that he deprived MARCIAL
       MARTINEZ JIMENEZ of his life, in self defense, that it was the latter the
       one who first fired his gun caliber 38 super; however, this reviewer is not
       convinced that the accused had really acted to defend his life, repelling an
       actual violent aggression, without the right to do so, resulting in an
       imminent danger (self defense as prescribed by article 26 faction IV of the
       Penal Code).[10] There is no doubt that the victim in this case also fired his
       weapon at the accused with caliber 38 pistol and which was secured during
       the preliminary investigation, and that the deceased carried at the time of
       the events, what is widely proved, because the accused had a rifle what is
       called goat’s horn, an[d] which is actually a weapon more powerful than the
       one that the today deceased carried, therefore he had full knowledge that
       when he fired the rifle he would deprive MARCIAL MARTINEZ
       JIMENEZ of his life no matter the circumstances.

              “Being as things are, the affirmative defense of self defense, is not
       proved in this case; yet there is evidence that the accused deprived the
       victim of his life after both parties verbally aggravated each other, that is
       why we cannot use the dispute that the defense alleges in his conclusion
       about guilt, and that may constitute an extenuating circumstance in the
       punishment .…” (Italics added.)
       Thus, the record of the Mexican proceedings for present purposes reflects a factual
dispute over the applicability of self-defense as a justification for the killing as Navarette
bore the burden of proof on the question in the earlier case. In the Mexican proceeding,
Navarette provided a statement to the effect that he had acted in self-defense, specifically
that decedent, Marcial Martinez Jimenez, had shot him first, and Navarette returned fire


       10This reference by the Sinaloa court indicates that the law applicable to self-
defense is codified in article 26 of the Penal Code of that state. However, the record does
not contain the specific statutory language, nor have the parties included it in their briefs.
In any event, it is clear that, in adjudicating Navarette’s homicide case, the Sinaloa courts
placed on Navarette the burden of proving his self-defense claim.


                                             23.
because he was in imminent danger of being killed.11 Other witnesses testified that
Jimenez had a pistol in his right hand when his dead body was found. There was
uncontroverted evidence, based on gunpowder residue on Jimenez’s hands and ballistics
analysis, that Jimenez had actually fired shots from his weapon. Moreover, bullets and
casings from both Jimenez’s and Navarette’s weapons were found around the body.
Finally, one witness stated he heard the gunshots related to the incident, and gunshots
from a smaller weapon such as the one carried by Jimenez preceded louder gunshots that

       11In the Mexican proceeding, Navarette provided a statement dated December 12,
2002, as follows:

       “‘That it is my wish to testify with regard to these events, the ones that have
       been read aloud, and I must mention that what is stated in this last
       informative report on Sunday 03 of November of this year, it was around
       09:00 hours in the morning, and I bought a cow to slaughter and barbecue it
       at my aunt ROSARIO FERNANDEZ VALENZUELA’S home, and that
       about ten or eleven we started drinking beer and we were all relatives and it
       was around that time that we started to grill the meat and at around seven in
       the evening of that day, the deceased MARCIAL MARTINEZ JIMENEZ,
       who I used to call EL MARCIAL, this one arrived by himself to my uncle’s
       home where we had drank and ate and he started talking and it was almost
       eight at night we came to where the truck was, it was a FORD make truck,
       white, double traction and we were drinking over there and talking and
       around nine thirty in the evening we were listening to some music and
       MARCIAL pulled a 38 caliber gun, super, and he yelled I HAVE ONE
       RIGHT HERE THAT DOES [NOT] MISS, and in that place he fired four
       shots in front of my feet and what I did is go get my rifle which is a goat-
       horn NORINCO brand which I had close by the truck, and in that place I
       fired four shots by his feet to put him on his place because I did not want to
       have any problems, and I saw that MARCIAL was being stubborn and then
       I closed the truck and took my rifle on my shoulder ready, and started
       walking to my uncle AUGUSTIN FERNANDEZ’S home … and when it
       was about five meters to arrive to his house when MARCIAL reached me
       and told me ARE YOU FLEEING YOU CHICKEN SHIT [and] when I
       turned MARCIAL fired three shots at me, and they pass by zooming by my
       head, and he fired from about two to three meters, and I grabbed my rifle
       and fired about six shots walking toward him firing, because I was afraid he
       would kill me, and then I saw MARCIAL falling and I saw that he had the
       gun on his right hand .…’”

                                            24.
sounded like shots from a rifle. On the other hand, an appellate decision upholding the
lower court’s ruling noted that the trajectories of the bullets that struck Jimenez suggested
the latter was not facing Navarette as implied in Navarette’s account and, moreover, that
ballistics evidence and the type of wounds on Jimenez’s body indicated that a third
weapon had been used during the incident. The sentencing court in the instant
proceedings could only resolve the complex factual dispute regarding Navarette’s claim
of self-defense by weighing the evidence and discrediting his statements, which type of
factfinding is prohibited under McGee.
       Moreover, applying the test outlined in McGee, the record of the Mexican
proceedings in any event demonstrates that Navarette’s Mexican conviction “realistically
may have been based on conduct that would not constitute a serious felony under
California law.” (McGee, supra, 39 Cal.4th at p. 706.) Specifically, Jimenez was found
holding a firearm in his right hand; gun powder residue on both his hands reflected that
he had fired a weapon; bullets and casings from his weapon were found in the vicinity of
the body; he had been drinking and had cocaine in his system that evening; and several
witnesses stated he was an aggressive and offensive person. Next, Navarette testified that
he shot Jimenez after the latter fired three shots that “zoom[ed] by” Navarette’s head,
narrowly missing him. Finally, the Mexican lower court concluded that Navarette had
failed to prove the applicability of self-defense because it was unclear whether Jimenez
or Navarette had fired first. Given this scenario, Navarette’s self-defense claim
realistically may have prevailed under California law. (See CALCRIM No. 505.) It
follows that the Mexican conviction “realistically may have been based on conduct that
would not constitute a serious felony under California law.” (People v. Avery, supra, 27
Cal.4th at p. 53 [“To qualify as a serious felony, a conviction from another jurisdiction
must involve conduct that would qualify as a serious felony in California.”]; see also
§§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) Thus, under McGee, the evidence is



                                            25.
insufficient to support the trial court’s finding that the prior conviction constituted a
serious felony under California law.12

              2.      Federal law limitations on a sentencing court’s power to
                      adjudicate sentencing 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.” (People v. Wilson (2013) 219
Cal.App.4th 500, 513, citing Apprendi, supra, 530 U.S. at p. 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.”13 (Apprendi, supra, at p. 490; also see Almendarez-Torres v. United
States (1998) 523 U.S. 224.) Here, the People urge us to uphold the trial court’s
enhancement findings based on the record of the Mexican proceeding. The issue is
whether Apprendi’s exception for “the fact of a prior conviction” permits the sentencing
court to refer to the record of the prior case to ascertain necessary facts beyond those
admitted by a defendant in the later case or implied by the elements of the prior
offense.14 (See Shepard v. United States (2005) 544 U.S. 13, 14 [“the Sixth and


       12Since  we have resolved this question on the basis of a missing element requiring
the prosecution to show that Navarette acted without justifiable self-defense, we need not
analyze the related issue of the lack of a malice-aforethought element in the Mexican
offense. We note, further, that voluntary manslaughter is also a “serious felony” under
California law. (See section 1192.7, subd. (c)(1).) However, voluntary manslaughter
also includes an element requiring the prosecution to prove that a defendant acted
unlawfully, i.e., without a justification such as self-defense. (See § 192; CALCRIM
No. 500.)
       13Under   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.)
       14Apprendi’s   exception for prior convictions is based in part on the fact that
“unlike virtually any other consideration used to enlarge the possible penalty for an
offense, … a prior conviction must itself have been established through procedures
satisfying the fair notice, reasonable doubt, and jury trial guarantees.” (Jones v. U.S.

                                              26.
Fourteenth Amendments guarantee a jury’s standing between a defendant and the power
of the State, and they guarantee a jury’s finding of any disputed fact essential to increase
a potential sentence’s ceiling.”]
       When our Supreme Court decided McGee, the United States Supreme Court had
not yet definitively delineated the limits under the Sixth Amendment of judicial
factfinding related to prior convictions alleged as the basis for sentence enhancements.
The McGee court “recognize[d] the possibility that the United States Supreme Court, in
future decisions, may extend the Apprendi rule” to limit judicial factfinding related to
priors. 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 a sentencing judge’s examination of the record of a prior
conviction for sentencing purposes. (McGee, supra, 38 Cal.4th at p. 709.)
       The United States Supreme Court has since revisited the issue in Descamps v.
United States, supra, 133 S.Ct. 2276, which extended Apprendi to the determination of
qualifying priors under the federal Armed Career Criminal Act of 1984 (ACCA), a
priors-based sentence enhancement statute analogous to California’s three strikes law.
Descamps explained that, under the Sixth Amendment, this inquiry must strictly conform
to the categorical approach and cannot encompass further factfinding beyond the
elements of the prior offense. Descamps clarified, “The [ACCA], [citations], increases

(1999) 526 U.S. 227, 249.) “[T]he certainty that procedural safeguards [are] attached to
any ‘fact’ of [a] prior conviction … mitigate[s] 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.) Although California law provides that the truth of a prior conviction be
determined by a jury (see § 1025), the instant matter encompasses the added wrinkle that
the prior conviction at issue is from a foreign country with a different legal system. For
purposes of this analysis, we have assumed Navarette’s prior conviction comported with
the due process standards that are presumed to apply to convictions obtained in this
country. This assumption also applied to our preceding analysis under state law
regarding the propriety of the trial court’s true findings on the enhancement allegations.


                                              27.
the sentences of certain federal defendants who have three prior convictions ‘for a violent
felony,’ including ‘burglary, arson, or extortion.’ To determine whether a past conviction
is for one of those crimes, courts use what has become known as the ‘categorical
approach’: They compare 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, at p. 2281.)
       Under the ACCA, Descamps faced an enhanced sentence based on a prior
California conviction for burglary. In the prior proceeding, Descamps had pleaded guilty
to a California burglary offense which provided that “[e]very person who enters [certain
locations] with intent to commit grand or petit larceny or any felony is guilty of
burglary.” (§ 459; Descamps, supra, 133 S.Ct. at p. 2282.) The generic offense under
the ACCA, however, required an element of “unlawful or unprivileged entry” akin to
breaking and entering. (Shepard v. United States, supra, 544 U.S. at pp. 16-17.)
Although the California statute was broader than the generic definition of burglary in the
ACCA, the district court determined the defendant’s prior California conviction matched
the elements of the generic offense. The district court relied on the transcript of
Descamps’s plea colloquy, during which the prosecutor had stated, to no objection, that
Descamps’s crime involved the breaking and entering of a grocery store. The court then
applied the sentence enhancement, which more than doubled Descamps’s sentence.
(Descamps, supra, at p. 2282.)
       The high court rejected the district court’s factfinding as a violation of the Sixth
Amendment under Apprendi. Initially applying a statutory interpretation analysis
specific to the ACCA, the court next addressed 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

                                             28.
conviction.” (Descamps, supra, 133 S.Ct. at p. 2288.) The court further explained that
“[t]hose concerns … 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. [Citations.] Hence our insistence on the categorical approach.”
(Ibid., italics added.) Descamps clarified that, by contrast, an inquiry in which the
sentencing “court is merely asking whether a particular set of facts leading to a
conviction conforms to a generic ACCA offense” is precisely “what we have expressly
and repeatedly forbidden.” (Id. at p. 2291 [emphasizing that “fact pattern is [not] an
‘implied’ statutory definition” to be discerned by sentencing judge].)
       Ultimately, Descamps makes clear that the Sixth Amendment principles laid out in
Apprendi require strict adherence to the categorical approach and foreclose any
factfinding by the sentencing court beyond the facts necessarily implied by the elements
of the prior offense.15 (Descamps, supra, 133 S.Ct. at p. 2286 [“We know Descamps’


       15Descamps    also emphasized the limited scope of the “modified categorical
approach,” which is employed when a strict categorical approach is not possible. Under
the modified categorical approach, courts may consult a limited range of approved
record-based documents (i.e., charging documents, jury instructions, plea agreement, and
plea colloquy) to identify the elements of the prior offense when the statute lists them in
the alternative. But Descamps cautioned that, “[o]ur decisions authorize review of the
plea colloquy or other approved extra-statutory documents only when a statute defines
burglary not (as here) overbroadly, but instead alternatively, with one statutory phrase
corresponding to the generic crime and another not. In that circumstance, a court may
look to the additional documents to determine which of the statutory offenses (generic or
non-generic) formed the basis of defendant’s conviction.” (Descamps, supra, 133 S.Ct.
at p. 2286.) Descamps emphasized that, “[t]he modified [categorical] 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.]” (Id. at p. 2285.)


                                             29.
crime of conviction, and it does not correspond to the relevant generic offense. Under
our prior decisions, the inquiry is over.”].) An “elements-centric, ‘formal categorical
approach’ … avoids the Sixth Amendment concerns that would arise from sentencing
courts’ making findings of fact that properly belong to juries.” (Id. at p. 2287.) In sum,
under Descamps, a sentencing court considering a prior conviction for sentencing
purposes is limited to an elements-centric inquiry; it cannot substitute “a fact-based
inquiry for an elements-based one.” (Id. at p. 2293.) If there is a “mismatch in
elements,” the person convicted under the statute relevant to the prior proceeding “is
never convicted of the generic crime.” (Id. at p. 2292.)
          Applying Descamps to the instant case, Navarette cannot stand convicted of
murder in California because the Mexican homicide statute was missing an element
requiring the prosecution to prove the absence of a justification such as self-defense. As
in Descamps, “[t]he dispute here does not concern any list of alternative elements”; rather
“it involves a simple discrepancy” between the Mexican offense and the crime of murder
under California law. (Descamps, supra, 133 S.Ct. at p. 2285.) Under Descamps, the
sentencing court could not, without violating the Sixth Amendment, “look beyond the
elements to the evidence or, otherwise said, to explore whether a person convicted of one
crime could also have been convicted of another, more serious offense.” (Id. at p. 2292.)
“[T]hat circumstance-specific review is just what the categorical approach precludes.”
(Ibid.)
          Because the prosecution in the Sinaloa case did not have to prove the absence of a
justification, i.e., self-defense, to obtain the homicide conviction that Navarette suffered,
that prior conviction cannot constitute a serious felony in California. (See Descamps,
supra, 133 S.Ct. at pp. 2285-2286 [“because California, to get a conviction, need not
prove that Descamps broke and entered—a § 459 violation cannot serve as an ACCA
predicate”].) As Descamps explained, the defendant’s actual conduct “makes no
difference,” nor does it matter whether the defendant admitted, in the prior proceeding, to

                                              30.
the conduct at issue. (Ibid.) The trial court simply cannot use an examination of the
record of the prior conviction as a “device employed … to evaluate the facts that the
judge or jury found” or to make and “rely on its own finding about a non-elemental fact,”
thereby turning an “elements-based inquiry into an evidence-based one.” (Id. at
pp. 2287, 2289.) In the instant case, the court also would be prohibited from examining
the record of the prior conviction to determine whether that offense involved malice
aforethought, given that the elements of the Mexican offense do not, on their face,
include any element that corresponds to malice aforethought (either express or implied)
that is included in California’s definition of murder. (See § 187.)
       In addition to delineating the critical Sixth Amendment implications of a factual
approach, the Supreme Court also addressed “the practical difficulties and potential
unfairness” that arise when a sentencing court usurps a jury’s factfinding function.
(Descamps, supra, 133 S.Ct. at p. 2287.) The high court highlighted the “‘daunting’
difficulties and inequities” that confront courts attempting to glean information about the
scope of a prior conviction with reference to old, confusing, and incomplete records of
proceedings from a variety of jurisdictions, especially given that the parties to the prior
proceeding were not necessarily focused on the implications of the conviction for
recidivist enhancements alleged in subsequent cases (potentially in foreign jurisdictions).
(Id. at p. 2289.) The court noted that, “[i]n case after case, sentencing courts … would
have to expend resources examining (often aged) documents for evidence that a
defendant admitted in a plea colloquy, or a prosecutor showed at trial, facts that, although
unnecessary to the crime of conviction, satisfy an element of the relevant generic offense.
The meaning of those documents will often be uncertain. And the statements of fact in
them may be downright wrong.” (Ibid.)
       Such concerns are particularly relevant to this case where the prior conviction
alleged in the information is from a foreign country, indeed a particular state within a
foreign country with a very different legal and constitutional system than this one.

                                             31.
Mexico adheres to the civil law system rather than a common law one, which would
preclude the right to a jury trial in the first instance. The standard of proof applicable to
criminal cases also may not coincide with the “reasonable doubt” standard that is
mandated by the United States Constitution. (In re Winship (1970) 397 U.S. 358, 364;
Apprendi, supra, 530 U.S. at pp. 477-478.)
       Additionally, there can be no dispute that the translated record of the Mexican
conviction is very difficult to decipher; the standards of proof and review, as well as the
evidentiary rules applicable to the proceedings, are ambiguous and hard to ascertain; and
records and documents that form a standard part of the record in criminal cases in this
country, such as charging documents and jury instructions (that courts may properly rely
on for purposes of the modified categorical approach as endorsed by Descamps), are
conspicuously absent.
       Our state Supreme Court has yet to consider the impact of Descamps on the
California procedure for proof of prior convictions as outlined in McGee.16 However, a
number of Courts of Appeal have already addressed, at length, the intersection of McGee
and Descamps. In People v. Wilson, supra, the Sixth District held 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.” (People v. Wilson, supra, 219
Cal.App.4th at p. 516.) Similarly, in People v. Saez, supra, 237 Cal.App.4th at
pages 1207 through 1208, the First District held, “this much is clear: when the elements
of a prior conviction do not necessarily establish that it is a serious … felony under
California law …, the court may not under the Sixth Amendment ‘“make a disputed”


       16McGee    declined to extend Apprendi to “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,” pending clear direction
from the United States Supreme Court. (McGee, supra, 38 Cal.4th at p. 709.)


                                             32.
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.’” Saez further noted that, “while Descamps did not explicitly
overrule McGee, 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.” (Id. at p. 1207.)
       Next, in People v. Marin (2015) 240 Cal.App.4th 1344, 1348, the Second District
held that Descamps had effectively overruled McGee: “[U]nder Descamps, judicial
factfinding authorized by [McGee], going beyond the elements of the crime to ‘ascertain
[if] that record reveals whether the conviction realistically may have been based on
conduct that would not constitute a serious felony under California law’ [citation],
violates the Sixth Amendment right to a jury trial .…”17 (See Marin, supra, at p. 1348.)
People v. Denard (2015) 242 Cal.App.4th 1012, 1033-1034, another case from the
Second District, agreed with the conclusion in Marin that “‘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.’” Finally,
People v. McCaw (2016) 1 Cal.App.5th 471, 484-485, held that a sentencing court’s
reliance on legally superfluous statements in a plea colloquy to supply a missing element
in the statute that was the basis of the defendant’s prior conviction, “runs afoul of several
portions of the Descamps analysis,” including by going beyond the statutory elements of
the prior to determine the defendant’s underlying conduct.



       17People   v. Marin further held that there is no Sixth Amendment violation “when,
in determining whether a prior conviction qualifies to increase a defendant’s punishment,
the trial court considers ‘[approved] documents … i.e., indictment, jury instructions, plea
colloquy, and plea agreement … to determine the statutory elements of the crime of
which the defendant was convicted .…” (People v. Marin, supra, 240 Cal.App.4th at
pp. 1348-1349.)


                                             33.
       Our holding today that, under Descamps, the trial court could not find that
Navarette’s Mexican conviction constituted a serious felony under California law is
consistent with the aforementioned opinions of our sister Courts of Appeal. It is clear the
trial court did not have the power to parse the record of the Mexican proceeding to
evaluate the disputed facts related to Navarette’s claim of self-defense in that matter.
(See People v. Wilson, supra, 219 Cal.App.4th at p. 516 & People v. Saez, supra, 237
Cal.App.4th at pp. 1207-1208.) Indeed, given the unequivocal mismatch in the elements
of the Mexican offense and those of murder in California, the trial court simply could not,
consistent with the Sixth Amendment, go beyond the elements of the Mexican offense in
determining whether the offense coincided with a serious felony in California. (See
People v. Marin, supra, 240 Cal.App.4th at pp. 1348, 1363; People v. Denard, supra, 242
Cal.App.4th at pp. 1033-1034.)
       In sum, the trial court’s findings on the sentencing enhancements alleged in the
information are not supported by substantial evidence.18
                                      DISPOSITION
       The trial court’s finding that Navarette’s 2002 Mexican murder conviction was a
serious felony and a strike under California law for sentencing purposes is stricken. The
trial court is directed to stay Navarette’s sentence on count 5, pursuant to section 654.




       18Since  we are remanding the matter for resentencing consistent with this opinion,
we need not address Navarette’s challenge, on different grounds, to the enhancements
applied to his sentence.


                                             34.
The judgment is reversed, and the matter is remanded to the trial court for resentencing
consistent with this opinion.

                                                                _____________________
                                                                              Smith, J.

WE CONCUR:


 _____________________
 Detjen, Acting P.J.


 _____________________
 Peña, J.




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