Filed 12/21/17




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S231260
           v.                        )
                                     )                      Ct.App. 2/6 B257357
SULMA MARILYN GALLARDO,              )
                                     )                     Los Angeles County
           Defendant and Appellant.  )                 Super. Ct. No. VA126705-01
____________________________________)


        Defendant Sulma Marilyn Gallardo was convicted of various offenses
including second degree robbery and transportation of a controlled substance.
Although her offenses would ordinarily be punishable by a maximum term of
imprisonment of six years, the prosecution sought an increased sentence on the
ground that defendant had previously been convicted of a “serious felony” under
Penal Code section 667, subdivision (a), that was also a strike for purposes of the
“Three Strikes” law. The conviction in question was for a crime—assault with a
deadly weapon or with force likely to produce great bodily injury, in violation of
Penal Code former section 245, subdivision (a)—whose statutory definition
sweeps more broadly than the definition of “serious felony”: An assault
conviction qualifies as a serious felony if the assault was committed with a deadly
weapon, but not otherwise. After reviewing the transcript of the preliminary
hearing in defendant’s assault case, the trial court determined that defendant did,




                 SEE CONCURRING AND DISSENTING OPINION
in fact, commit the assault with a deadly weapon, and sentenced defendant to a
term of 11 years in prison.
       Under the Sixth Amendment to the United States Constitution, as
interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), any
fact, other than the fact of a prior conviction, that increases the statutorily
authorized penalty for a crime must be found by a jury beyond a reasonable doubt.
Defendant contends that her increased sentence rests on an exercise in judicial
factfinding that violated her Sixth Amendment right to a jury trial.
       We considered a similar issue more than a decade ago, in People v. McGee
(2006) 38 Cal.4th 682 (McGee). In McGee, we held that the Sixth Amendment
permits courts to review the record of a defendant’s prior conviction to determine
whether the crime qualifies as a serious felony for purposes of the sentencing laws.
Although we made clear that the inquiry is a “limited one” that “focus[es] on the
elements of the offense of which the defendant was convicted,” we also said that a
court may review the record to determine whether “the conviction realistically
may have been based on conduct that would not constitute a serious felony under
California law.” (Id. at p. 706.) We acknowledged, however, that continued
examination of the scope of the rule announced in Apprendi—then still a relatively
recent development in the high court’s jurisprudence—might one day call for
reconsideration of this approach. (Id. at p. 686.)
       Defendant argues that day has now arrived. Specifically, she contends that
the approach approved in McGee should be reconsidered in light of the high
court’s recent decisions in Descamps v. United States (2013) 570 U.S. ___ [133
S.Ct. 2276] (Descamps) and Mathis v. United States (2016) 579 U.S. ___ [136
S.Ct. 2243] (Mathis), which, in her view, make clear that the Sixth Amendment
forbids a sentencing court from reviewing preliminary hearing testimony to



                                           2
determine what conduct likely (or “realistically”) supported the defendant’s
conviction.
       We agree that it is time to reconsider McGee. Although the holdings of
Descamps and Mathis both concern the proper interpretation of a federal statute
not at issue here, their discussions of background Sixth Amendment principles
pointedly reveal the limits of a judge’s authority to make the findings necessary to
characterize a prior conviction as a serious felony. The cases make clear that
when the criminal law imposes added punishment based on findings about the
facts underlying a defendant’s prior conviction, “[t]he Sixth Amendment
contemplates that a jury—not a sentencing court—will find such facts,
unanimously and beyond a reasonable doubt.” (Descamps, supra, 133 S.Ct. at
p. 2288.) While a sentencing court is permitted to identify those facts that were
already necessarily found by a prior jury in rendering a guilty verdict or admitted
by the defendant in entering a guilty plea, the court may not rely on its own
independent review of record evidence to determine what conduct “realistically”
led to the defendant’s conviction. Here, the trial court violated defendant’s Sixth
Amendment right to a jury trial when it found a disputed fact about the conduct
underlying defendant’s assault conviction that had not been established by virtue
of the conviction itself. We disapprove People v. McGee, supra, 38 Cal.4th 682,
insofar as it suggests that the trial court’s factfinding was constitutionally
permissible.
                                           I.
       In April 2014, a jury found defendant guilty of robbery (Pen. Code, § 211),
being an accessory after the fact (id., § 32), and transportation of marijuana
(Health & Saf. Code, § 11360, subd. (a)). The jury also found true an allegation
that a principal was armed with a firearm during the commission of the robbery
(Pen. Code, § 12022, subd. (a)(1)).

                                           3
       The criminal information alleged that defendant had a 2005 conviction for
assault with a deadly weapon or with force likely to produce great bodily injury
(Pen. Code, former section § 245, subd. (a)(1)).1 It further alleged that this
conviction qualified as a “serious felony” conviction for purposes of Penal Code
section 667, subdivision (a)(1). Under that provision, a criminal defendant who
commits a felony offense after a prior conviction for a “serious felony” is subject
to a five-year sentence enhancement. A “serious felony” conviction is also a prior
strike for purposes of the Three Strikes law, which requires a second-strike
defendant to be sentenced to double the otherwise applicable prison term for his or
her current felony conviction. (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds.
(a)–(d).) The term “serious felony” is defined to include “assault with a deadly
weapon.” (Pen. Code, § 1192.7, subd. (c)(31).) If defendant committed assault
with a deadly weapon, the prior conviction counted as a strike; if she committed
assault by any means of force likely to produce great bodily injury, it did not.
(People v. Delgado (2008) 43 Cal.4th 1059, 1065.)
       For some time, California cases have held that such determinations are to
be made by the court, rather than by the jury, based on a review of the record of
the prior criminal proceeding. (McGee, supra, 38 Cal.4th at p. 685; see id. at
p. 691 [citing cases].) A defendant does, however, have a statutory right to a jury
trial on “the question of whether or not the defendant has suffered the prior
conviction”—though not “whether the defendant is the person who has suffered
the prior conviction.” (Pen. Code, § 1025, subds. (b) & (c); see also id., § 1158.)


1      Penal Code section 245, subdivision (a), has since been amended to
separate the prohibitions against assault “with a deadly weapon” and assault “by
any means of force likely to produce great bodily injury” into different
subdivisions. (Stats. 2011, ch. 183, § 1, p. 2394.)



                                          4
Defendant waived her right to a jury trial on prior convictions. She did not
stipulate to the prior conviction, but she did stipulate to identity.
       To determine whether defendant’s assault conviction qualified as a “serious
felony,” the trial court examined the preliminary hearing transcript from the
underlying proceeding. At the hearing, the victim testified that defendant had
“tried to scare me with the knife,” “push[ed] me aggressively to get me away from
the car,” and “punched me on the face, on the forehead . . . .” Relying on this
testimony, the trial court concluded that defendant had, in fact, been convicted of
“assault with a deadly weapon; to wit, knife.” The court sentenced defendant to
the middle term of three years for the robbery conviction, which was doubled
based on the strike, with a five-year enhancement for a prior serious felony
conviction, for a total of 11 years. The court also imposed a one-year term for the
marijuana transportation conviction, doubled based on the strike, and ordered it to
run concurrent to the principal term. The court stayed the firearm enhancement.
       The Court of Appeal reversed the accessory conviction but otherwise
affirmed. It rejected defendant’s argument that the trial court’s finding that she
committed her prior assault offense with a deadly weapon abridged her Sixth
Amendment right to have a jury, unanimously and beyond a reasonable doubt, find
the facts that made her prior assault conviction a serious felony. The Court of
Appeal explained that defendant had waived her right to a jury trial on the prior
conviction allegations, and, in any event, the trial court’s ruling was consistent
with the rule approved in McGee. The court further concluded that nothing in the
high court’s recent decision in Descamps had called into question whether a trial
court may consult a preliminary hearing transcript, as the trial court did here, to
determine the nature of a prior conviction.
       In contrast to the court below, several Courts of Appeal have concluded
that the approach approved in McGee is incompatible with the understanding of

                                            5
the reach of the Sixth Amendment reflected in the United States Supreme Court’s
opinions in Descamps and Mathis. (See People v. Eslava (2016) 5 Cal.App.5th
498, 509–510 [collecting appellate decisions reaching the same conclusion],
review granted Feb. 15, 2017, S239061 (Eslava); see also People v. Wilson (2013)
219 Cal.App.4th 500, 516 [holding that, under both Descamps and McGee, “[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”].) We granted review to consider the issue.
                                        II.
       Before we turn to the merits, we must first consider a threshold matter. The
Attorney General argues that defendant may not now be heard to object to the trial
court’s decision on Sixth Amendment grounds because she (a) waived her right to
a jury trial on the prior conviction allegations, and (b) failed to raise her
constitutional objection in the trial court. We address each argument in turn.
       We begin with the jury trial waiver. At the time of defendant’s trial,
California law made clear that a defendant’s right to a jury trial extended only to
“the question of whether or not the defendant has suffered the prior conviction.”
(Pen. Code, § 1025, subd. (b); see id., § 1158; see also People v. Epps (2001) 25
Cal.4th 19, 23 [“The right, if any, to a jury trial of prior conviction allegations
derives from sections 1025 and 1158, not from the state or federal Constitution.”].)
McGee had clearly established that defendant had no right to a jury determination
of whether her prior conviction qualified as a serious felony for purposes of the
sentencing laws. (McGee, supra, 38 Cal.4th at p. 685.) Of course, by the time
defendant was sentenced, Descamps had been decided, and some litigants might
well have recognized that the high court’s decision would call McGee into doubt.
But the parties in this case never discussed the effect of Descamps on McGee.
Under the circumstances, defendant’s jury trial waiver is most naturally

                                              6
understood as a waiver of the limited statutory right to have a jury decide whether
she had suffered the prior assault conviction. It is not reasonably understood as a
waiver of any constitutional right to have a jury make the findings necessary to
determine whether her prior conviction was a serious felony, much less as an
abandonment of her argument about the limits of the court’s factfinding powers as
illuminated by Descamps. (Cf. People v. French (2008) 43 Cal.4th 36, 48
[“Defendant’s waiver of jury trial on the offenses in connection with his no contest
plea cannot reasonably be interpreted to extend to proof of aggravating
circumstances when, at the time of the plea, no right to a jury trial on such
circumstances had been recognized.”].)
       It is a separate question whether defendant forfeited her Sixth Amendment
challenge by failing to raise the issue in the trial court. Although defendant did
object to the trial court’s consideration of the preliminary hearing transcript on
evidentiary grounds, she did not raise the Sixth Amendment argument she presses
here. But that is not always the end of the matter. We have previously “ ‘excused
[] failure[s] to object [on a particular ground] where to require defense counsel to
raise [that] objection “would place an unreasonable burden on defendants to
anticipate unforeseen changes in the law and encourage fruitless objections in
other situations where defendants might hope that an established rule . . . would be
changed on appeal.” ’ ” (People v. Williams (1976) 16 Cal.3d 663, 667, fn. 4,
quoting People v. De Santiago (1969) 71 Cal.2d 18, 23; see, e.g., People v. Rangel
(2016) 62 Cal.4th 1192, 1215.) Here, as previously noted, at the time defendant
was sentenced, California law allowed a trial court to look to a preliminary hearing
transcript to determine whether a defendant’s prior conviction was “realistically” a
serious felony. To be sure, Descamps, which forms the centerpiece of defendant’s
argument to this court, had been decided by the time of defendant’s sentencing.
But Descamps did not squarely overrule existing California law; it discussed the

                                          7
relevant Sixth Amendment principles only en route to construing the federal
statute at issue to avoid constitutional concerns. (Descamps, supra, 133 S.Ct. at
pp. 2287–2289.) It is at least questionable whether defendant should be made to
bear the burden of anticipating potential changes in the law based on the reasoning
of a United States Supreme Court opinion addressed to the proper interpretation of
a federal statute not at issue here.
       But we need not resolve that question, for the simple reason that the
Attorney General did not make his forfeiture argument to the Court of Appeal and
the Court of Appeal did not address it. Forfeiture is not a jurisdictional doctrine,
and we are under no obligation to address a forfeiture argument that was neither
raised nor addressed below. (Cf. People v. Braxton (2004) 34 Cal.4th 798, 809.)
We therefore proceed to the merits.
                                       III.
                                       A.
       The Sixth Amendment to the United States Constitution, together with the
Fourteenth Amendment, “entitle[s] a criminal defendant to ‘a jury determination
that [he] is guilty of every element of the crime with which he is charged, beyond
a reasonable doubt.’ ” (Apprendi, supra, 530 U.S. at p. 477.) In Apprendi, the
United States Supreme Court held that the Sixth Amendment right to jury trial
extends to those disputed facts that may not be formally designated as “elements”
of the offense, but nevertheless expose the defendant to additional punishment.
(Id. at pp. 476–490.) The court, however, recognized a “limited exception” for the
“ ‘fact’ of prior conviction.” (Id. at p. 488 & fn. 14, citing Almendarez-Torres v.
United States (1998) 523 U.S. 224.) The court explained that “there is a vast
difference between accepting the validity of a prior judgment of conviction
entered in a proceeding in which the defendant had the right to a jury trial and the
right to require the prosecutor to prove guilt beyond a reasonable doubt, and

                                              8
allowing the judge to find the required fact under a lesser standard of proof.”
(Apprendi, supra, at p. 496.)
       In the wake of Apprendi, questions arose about the scope of the so-called
Almendarez-Torres exception to the general Sixth Amendment rule forbidding
judicial factfinding in criminal cases. This court addressed the issue in McGee,
supra, 38 Cal.4th 682. The defendant in McGee had been charged with various
crimes in connection with an armed robbery and shooting, and the prosecution
sought increased punishment based on the defendant’s prior convictions for
robbery in Nevada state court, which the prosecution contended qualified as
serious felonies for purposes of the sentencing laws. The statutory definition of
“serious felony” includes “robbery” as defined by California law. (Pen. Code,
§§ 1170.12, subd. (b)(1), 1192.7, subd. (c)(19).) But Nevada’s robbery law was
broader in certain respects than California’s. (McGee, supra, 38 Cal.4th at
p. 688.) It therefore “was at least theoretically possible that defendant’s Nevada
convictions involved conduct that would not constitute robbery under California
law” and thus would not qualify as serious felonies. (Ibid.) To determine whether
the defendant’s prior convictions were strikes, the trial court examined preliminary
hearing transcripts from the two Nevada proceedings and reviewed the victims’
testimony describing the defendant’s conduct during each robbery. It also
examined the defendant’s admissions in connection with the taking of his pleas of
guilty in both cases. Based on these materials, the trial court concluded that each
of the Nevada convictions was based on conduct that would also have constituted
robbery under California law, and therefore qualified as serious felonies. (Id. at
p. 690.)
       The defendant contended that the trial court’s determination violated the
Sixth Amendment as it had been interpreted in Apprendi. We rejected the
argument. Before Apprendi, we explained, our cases had held that such

                                          9
determinations are to be made by judges, rather than juries, on the basis of the
record of the prior criminal proceeding. (McGee, supra, 38 Cal.4th at p. 691,
citing People v. Woodell (1998) 17 Cal.4th 448, 459 (Woodell), and People v.
Guerrero (1988) 44 Cal.3d 343, 355 (Guerrero).) These cases had explained that
“ ‘[b]ecause the nature of the conviction is at issue, the prosecution is not allowed
to go outside the record of conviction to “relitigat[e] the circumstances of a crime
committed years ago . . . .” ’ (Citations.)” (McGee, at p. 691, quoting Guerrero,
44 Cal.3d at p. 355.) But operating within the confines of the record of
conviction, we said, it is for the court to determine “the nature or basis of the
crime of which the defendant was convicted.” (Ibid.) A court must conduct the
inquiry “with a focus on the elements of the offense of which the defendant was
convicted,” but “[i]f 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.”2 (Id. at p. 706, citing Woodell, supra, 17 Cal.4th at
pp. 452–461.) We did not specifically address what types of materials a judge
may consult in conducting this inquiry, but we cited with approval a prior case
holding that the materials available for consultation include preliminary hearing
transcripts. (See McGee, at p. 694, citing People v. Reed (1996) 13 Cal.4th 217,
220.) The trial court in McGee itself had consulted preliminary hearing
transcripts, among other materials, in making its determination.

2      In Guerrero, this court overruled People v. Alfaro (1986) 42 Cal.3d 627,
which had held that this inquiry is limited to “matters necessarily established by
the prior conviction.” (Id. at p. 629; see Guerrero, supra, 44 Cal.3d at pp. 345,
355–356.)




                                          10
       We concluded in McGee that the approach adopted in these prior cases was
not inconsistent with Apprendi. Apprendi, we noted, preserved the Almendarez-
Torres exception for “the fact of a prior conviction” (Apprendi, supra, 530 U.S. at
p. 490). (McGee, supra, 38 Cal.4th at pp. 706–707.) And identifying the “fact of
a prior conviction,” we reasoned, necessarily entails a limited inquiry into the
“nature or basis of the crime of which the defendant was convicted.” (Id. at
p. 691.) We went on to explain: “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.” (Id.
at p. 706.)
       While McGee was pending in this court, the United States Supreme Court
issued its decision in Shepard v. United States (2005) 544 U.S. 13 (Shepard). The
question in Shepard concerned the interpretation of the Armed Career Criminal
Act of 1984 (ACCA) (18 U.S.C. § 924(e)), a federal sentencing statute that
prescribes increased penalties for certain firearm offenses if the defendant has
three or more prior convictions for specified offenses, including “burglary,”
understood generically to refer to 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 (Taylor).) To determine whether a
particular state burglary offense qualifies as generic burglary for ACCA purposes,
the high court had adopted the so-called categorical approach, under which a court
looks “only to the fact of conviction and the statutory definition of the prior

                                          11
offense,” rather than “delving into particular facts disclosed by the record of
conviction.” (Id. at p. 602; Shepard, supra, at p. 17.) In Shepard, the high court
set out what has since come to be known as the modified categorical approach,
which permits courts to review certain documents underlying the conviction to
determine what facts were necessarily found, or admitted, to determine whether
the defendant was convicted of a version of a broadly defined offense that
corresponds to generic burglary under the ACCA. This approach permits courts to
review materials such as charging documents, jury instructions, and any agreed-to
factual basis for a guilty plea, but does not permit a court to make findings about
the real conduct underlying the conviction based on police reports or complaint
applications. (Shepard, supra, at pp. 22–23, 26.)
       Writing for a plurality of the members of the court, Justice Souter invoked
constitutional considerations as reinforcement for the modified categorical
approach. To permit a judge to “make a disputed finding of fact about what the
defendant and state judge must have understood as the factual basis of the prior
plea . . . raises the concern underlying . . . Apprendi: the Sixth and Fourteenth
Amendments guarantee a jury standing between a defendant and the power of the
State, and they guarantee a jury’s finding of any disputed fact essential to increase
the ceiling of a potential sentence.” (Shepard, supra, 544 U.S. at p. 25.) While a
disputed fact about the manner in which a crime was committed might in some
sense be “described as a fact about a prior conviction, it is too far removed from
the conclusive significance of a prior judicial record, and too much like the
findings subject to . . . Apprendi, to say that Almendarez-Torres clearly authorizes
a judge to resolve the dispute.” (Shepard, at p. 25.) Justice Thomas, who joined
the remainder of the opinion, did not join this portion. He instead wrote separately
to express the view that permitting judges to find disputed facts about the nature of
the defendant’s burglary offense would not merely raise serious Sixth Amendment

                                         12
questions, but would actually violate the Sixth Amendment. (Id. at p. 28 (conc.
opn. of Thomas, J.).)
       We acknowledged in McGee that “the Shepard decision may suggest that a
majority of the high court” would view California’s existing approach to the
permissible scope of judicial factfinding as “presenting a serious constitutional
issue.” (McGee, supra, 38 Cal.4th at p. 708.) But because the high court had not
purported to decide the case on constitutional grounds, we concluded that
“Shepard does not provide the type of clear resolution of the issue that would
justify overturning the relevant California precedents.” (McGee, at p. 708.)
       Justice Kennard dissented. In her view, when a trial court examines the
record of conviction in an attempt to discern “ ‘whether the conviction realistically
may have been based on conduct that would not constitute a felony under
California law,’ ” it is necessarily making a determination that properly belongs to
a jury, not a judge. (McGee, supra, 38 Cal.4th at pp. 714–715 (dis. opn. of
Kennard, J.); id. at p. 710.)
                                      B.
       Much as the court anticipated in McGee, Shepard was not the high court’s
final word on the scope of the Almendarez-Torres exception to the Apprendi rule.
Some 10 years later, in Descamps and Mathis, the high court again addressed the
issue. The high court’s discussions are persuasive evidence that the
Almendarez-Torres exception is narrower than McGee had supposed.
       The question in Descamps concerned whether a California burglary
conviction qualified as a generic burglary conviction for purposes of the ACCA.
(Descamps, supra, 133 S.Ct. at pp. 2281–2282.) Because the California burglary
statute, Penal Code section 459, does not require proof of unlawful or unprivileged
entry, it proscribes a broader range of conduct than generic burglary. (Descamps,
at pp. 2285–2286.) To determine whether the defendant’s section 459 conviction

                                           13
nevertheless qualified as a burglary conviction for ACCA purposes, the trial court
reviewed a transcript of the defendant’s plea colloquy, in which the prosecutor
stated that “the crime ‘ “involve[d] the breaking and entering of a grocery
store.” ’ ” (Id. at p. 2282.) The defendant had not objected to that statement
before entering his plea, and the trial court relied on it in concluding that the
burglary conviction did, in fact, involve an unlawful entry and therefore was a
generic burglary conviction for purposes of the federal sentence enhancement.
(Ibid.) The court of appeals affirmed, but the high court reversed. As in Shepard,
the question before the high court was one of statutory interpretation: May a
sentencing court apply the modified categorical approach when a defendant was
convicted under an “ ‘indivisible’ statute—i.e., one not containing alternative
elements—that criminalizes a broader swath of conduct than the relevant generic
offense” under the ACCA? (Id. at p. 2281.) The high court answered that
question in the negative. It explained that because California’s burglary statute is
not divided into lawful entry and unlawful entry alternatives, the prosecutor’s
reference to defendant’s breaking and entering was simply gratuitous; no legal
consequence flowed from the fact that defendant may have broken and entered the
establishment. (Id. at pp. 2285–2286.) Such extraneous facts, the high court
ruled, could play no role in the sentencing court’s efforts to determine whether the
conviction qualified as an ACCA predicate offense. (Id. at p. 2286.)
       Although this holding was grounded in the court’s ACCA jurisprudence,
the court also drew on Sixth Amendment principles. The lower court’s decisions,
the high court explained, failed to consider “the categorical approach’s Sixth
Amendment underpinnings.” (Descamps, supra, 133 S.Ct. at p. 2288.) The court
of appeals had sanctioned an approach that permits trial courts “to discern what a
trial showed, or a plea proceeding revealed, about the defendant’s underlying
conduct.” (Ibid.) But “[t]he Sixth Amendment contemplates that a jury—not a

                                          14
sentencing court—will find such facts, unanimously and beyond a reasonable
doubt. And the only facts the court can be sure the jury so found are those
constituting elements of the offense—as distinct from amplifying but legally
extraneous circumstances.” (Ibid.)
       In Mathis, supra, 136 S.Ct. 2243, the high court considered yet another
iteration of the question of when burglary is burglary for ACCA purposes. At
issue was a conviction entered under an Iowa statute that state courts had
interpreted to set out multiple means of satisfying a single element, some of which
corresponded to the generic federal definition of burglary and some of which did
not. While Iowa burglary can be committed by means of unlawful entry into
“ ‘any building, structure, [or] land, water, or air vehicle,’ ” generic burglary for
ACCA purposes is limited to unlawful entry into a “ ‘building or other
structure.’ ” (Id. at p. 2250.) After reviewing the records of the defendant’s prior
convictions, the sentencing court determined the defendant had burgled buildings,
rather than vehicles. The court of appeals affirmed, but the high court reversed,
concluding that a court may not employ the modified categorical approach to
identify the basis of a prior conviction under a statute that lists alternative means
of establishing a single element of a crime, rather than alternative elements.
       In so holding, the court grounded its decision in its line of cases interpreting
the ACCA, but once again drew on Sixth Amendment principles to bolster its
analysis. The court concluded that allowing courts to look to “old record
materials” to determine whether a defendant had burgled a building or a vehicle
would “raise serious Sixth Amendment concerns” because, under the Sixth
Amendment, “a judge cannot go beyond identifying the crime of conviction to
explore the manner in which the defendant committed that offense. [Citations.]
He is prohibited from conducting such an inquiry himself; and so too he is barred
from making a disputed determination about ‘what the defendant and state judge

                                          15
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.’ ” (Mathis, supra, 136
S.Ct. at pp. 2250, 2252.)3
                                         C.
       The high court’s description of the Sixth Amendment principle at work in
these cases confirms what the dissenting opinion in McGee had already discerned.
In short: “The Sixth Amendment contemplates that a jury—not a sentencing
court—will find” the facts giving rise to a conviction, when those facts lead to the
imposition of additional punishment under a recidivist sentencing scheme.
(Descamps, 133 S.Ct. at p. 2288.) This means that a sentencing court may identify
those facts it is “sure the jury . . . found” in rendering its guilty verdict, or those
facts as to which the defendant waived the right of jury trial in entering a guilty
plea. (Ibid.) But it may not “rely on its own finding” about the defendant’s
underlying conduct “to increase a defendant’s maximum sentence.” (Id. at
p. 2289.)
       We are persuaded that the approach sanctioned in McGee is no longer
tenable insofar as it authorizes trial courts to make findings about the conduct that
“realistically” gave rise to a defendant’s prior conviction. The trial court’s role is


3      Although no member of the court disagreed with the majority’s description
of general Sixth Amendment principles, several justices expressed the view that
the means/elements distinction is irrelevant to the Sixth Amendment analysis.
(See Mathis, supra, 136 S.Ct. at p. 2258 [“In my view, Apprendi was incorrect
and, in any event, does not compel the elements based approach. That approach is
required only by the Court’s statutory precedents, which Congress remains free to
overturn.”] (conc. opn. of Kennedy, J.); id. at p. 2265 [if the State charges only
one of several alternative means of committing a crime, it must prove that fact to a
jury beyond a reasonable doubt, and Apprendi is satisfied] (dis. opn. of Breyer, J.,
joined by Ginsburg, J.); id. at pp. 2269–2270 [noting substantial practical
difficulties raised by the majority’s approach] (dis. opn. of Alito, J.).)



                                              16
limited to determining the facts that were necessarily found in the course of
entering the conviction. To do more is to engage in “judicial factfinding that goes
far beyond the recognition of a prior conviction.” (Descamps, supra, 133 S.Ct. at
p. 2280.)
       The Attorney General resists this conclusion. He argues that the
constitutional analysis in Descamps and Mathis is no more authoritative than the
constitutional analysis in Shepard, which we had considered, and dismissed, in
McGee. We agree with him to this extent: It is true that Descamps and Mathis,
like Shepard, were decided on statutory, rather than constitutional, grounds. This
is to say, the high court did not hold that the Sixth Amendment, as opposed to the
federal ACCA, forbids application of the so-called modified categorical approach
when the statute of conviction has a single, “indivisible” set of elements
(Descamps) or when it sets out alternative means, rather than alternative elements
constituting the same crime (Mathis). And indeed, as counsel confirmed at oral
argument, defendant here does not argue that California courts are constitutionally
compelled to emulate the high court’s version of the categorical approach in all of
its particulars.
       But the high court’s interpretation of the relevant federal statute was
informed by an understanding of certain basic, background Sixth Amendment
principles, and the court’s explication of those principles was both considered and
unequivocal: The jury trial right is violated when a court adds extra punishment
based on factfinding that goes “beyond merely identifying a prior conviction” by
“tr[ying] to discern what a trial showed, or a plea proceeding revealed, about the
defendant’s underlying conduct.” (Descamps, supra, 133 S.Ct. at p. 2288.) We
are persuaded, and we will follow the court’s guidance.
       The Attorney General also argues that, to the extent that Descamps and
Mathis illuminate the relevant Sixth Amendment principles, those principles

                                         17
should be understood as confined to the administration of a sentencing scheme that
prescribes additional punishment based on the elements of the crime of which the
defendant was convicted, as the high court has described the ACCA, rather than a
scheme that characterizes the offense based on the underlying conduct that gave
rise to the conviction, as this court has described California’s Three Strikes law.
(Compare Descamps, supra, 133 S.Ct. at p. 2287, citing Taylor, supra, 495 U.S. at
p. 600, with, e.g., People v. Avery (2002) 27 Cal.4th 49, 53 [inquiry focuses on
whether the defendant’s conviction “involve[d] conduct that would qualify as a
serious felony”].) Whatever the merits of the comparison, however, the distinction
makes no difference for purposes of delimiting the constitutional bounds of
judicial factfinding. “[I]n determining the truth of an alleged prior conviction
when . . . the necessary elements of that conviction do not establish that it is a
serious felony, and thus subject to California’s Three Strikes law, the trier of fact
must decide whether the defendant’s conduct, as demonstrated in the record of the
prior conviction, shows that the crime was a serious felony.” (McGee, supra, 38
Cal.4th at pp. 714–715 (dis. opn. of Kennard, J.).) And when the sentencing court
must rely on a finding regarding the defendant’s conduct, but the jury did not
necessarily make that finding (or the defendant did not admit to that fact), the
defendant’s Sixth Amendment rights are violated. (See Apprendi, supra, 530 U.S.
at p. 490.)
       The judicial factfinding permitted under the Almendarez-Torres exception
does not extend “beyond the recognition of a prior conviction.” (Descamps,
supra, 133 S.Ct. at p. 2288.) Consistent with this principle, and with the benefit of
further explication by the high court, we now hold that a court considering
whether to impose an increased sentence based on a prior qualifying conviction
may not determine the “nature or basis” of the prior conviction based on its
independent conclusions about what facts or conduct “realistically” supported the

                                          18
conviction. (McGee, supra, 38 Cal.4th at p. 706.) That inquiry invades the jury’s
province by permitting the court to make disputed findings about “what a trial
showed, or a plea proceeding revealed, about the defendant’s underlying conduct.”
(Descamps, supra, at p. 2288.) The court’s role is, rather, limited to identifying
those facts that were established by virtue of the conviction itself—that is, facts
the jury was necessarily required to find to render a guilty verdict, or that the
defendant admitted as the factual basis for a guilty plea.4

                                       IV.
       Here, the trial court engaged in a form of factfinding that strayed beyond
the bounds of the Sixth Amendment. Defendant had entered a plea of guilty to
assault under a statute that, at the time, could be violated by committing assault
either with a “deadly weapon” or “by any means of force likely to produce great
bodily injury.” (Pen. Code, former § 245, subd. (a)(1).) Defendant did not specify
that she used a deadly weapon when entering her guilty plea. The trial court’s sole
basis for concluding that defendant used a deadly weapon was a transcript from a
preliminary hearing at which the victim testified that defendant had used a knife
during their altercation. Nothing in the record shows that defendant adopted the
preliminary hearing testimony as supplying the factual basis for her guilty plea.

4      Other state high courts to address the issue in the wake of Descamps have
also concluded that the Sixth Amendment bars courts from finding facts about the
conduct underlying a defendant’s prior convictions. (State v. Dickey (2015) 301
Kan. 1018, 1039–1040; see also Dorsey v. United States (D.C.Ct.App. 2017) 154
A.3d 106, 124–126 [approving of trial court’s comparison of foreign statute of
conviction to D.C. equivalent based on elements alone]; State v. Guarnero (2015)
363 Wis.2d 857, 868–872 [approving of use of guilty plea to identify basis for
defendant’s prior conviction under federal statute of conviction where statute was
divisible]; State v. Olsen (2014) 180 Wn.2d 468, 476–477 [approving of
Washington’s method of comparing foreign statutes of conviction to state
equivalents for sentencing purposes].)



                                          19
       The Court of Appeal concluded this was permissible under Descamps
because that decision allows trial courts to “consult ‘a limited class of documents,
such as indictments and jury instructions,’ ” in order to identify which elements of
the statute “formed the basis of the prior conviction.” Because “nothing in
Descamps excludes the preliminary hearing transcript from that class of
documents,” the court concluded that the sentencing court properly used the
transcript to determine that defendant’s conviction was based on assault with a
deadly weapon and thus qualified as a serious felony within the meaning of the
Three Strikes law.
       While Descamps does permit courts to rely on certain documents to
identify the precise statutory basis for a prior conviction, the documents listed in
Descamps—“indictments and jury instructions” (Descamps, supra, 133 S.Ct. at
p. 2279)—differ from the preliminary hearing transcript here in a meaningful way.
An indictment or jury instructions might help identify what facts a jury necessarily
found in the prior proceeding. (See Shepard, supra, 544 U.S. at pp. 20–21.) But
defendant’s preliminary hearing transcript can reveal no such thing. A sentencing
court reviewing that preliminary transcript has no way of knowing whether a jury
would have credited the victim’s testimony had the case gone to trial. And at least
in the absence of any pertinent admissions, the sentencing court can only guess at
whether, by pleading guilty to a violation of Penal Code section 245, subd. (a)(1),
defendant was also acknowledging the truth of the testimony indicating that she
had committed the assault with a knife.
       By relying on the preliminary hearing transcript to determine the “nature or
basis” of defendant’s prior conviction, the sentencing court engaged in an
impermissible inquiry to determine “ ‘what the defendant and state judge must
have understood as the factual basis of the prior plea.’ ” (Descamps, supra, 133
S.Ct. at p. 2284.) Because the relevant facts were neither found by a jury nor

                                          20
admitted by defendant when entering her guilty plea, they could not serve as the
basis for defendant’s increased sentence here.
                                        V.
       The final question concerns next steps. The Attorney General argues that
we should remand the case to permit the trial court to conduct a new hearing on
the prior conviction allegations. On remand, the Attorney General contends, the
inquiry would be “confined to the record of the prior plea proceedings,” and the
trial court would only “mak[e] a determination about what facts appellant
necessarily admitted in entering her plea,” without “relitigat[ing] the prior
offense.” In the alternative, the Attorney General argues that the case should be
remanded for a jury trial on the prior conviction allegations. Defendant concedes
the first remedy is appropriate; she vigorously opposes the jury trial alternative.
       The Attorney General’s request for a limited remand is reasonable, and we
will grant it. We today hold that defendant’s constitutional right to a jury trial
sweeps more broadly than our case law previously recognized: While a trial court
can determine the fact of a prior conviction without infringing on the defendant’s
Sixth Amendment rights, it cannot determine disputed facts about what conduct
likely gave rise to the conviction. This is a development the parties apparently did
not anticipate at the time this case was tried. (See pt. II, ante.)
       We also agree with the parties that the appropriate course is to remand to
permit the trial court to make the relevant determinations about what facts
defendant admitted in entering her plea. Our precedent instructs that
determinations about the nature of prior convictions are to be made by the court,
rather than a jury, based on the record of conviction. (See McGee, supra, 38
Cal.4th at p. 695.) We have explained that the purpose of the latter limitation is to
avoid forcing the parties to relitigate long-ago events, threatening defendants with
“harm akin to double jeopardy and denial of speedy trial.” (Guerrero, supra, 44

                                             21
Cal.3d at p. 355.) The Attorney General has not asked us to reconsider this aspect
of our precedent. His primary contention, rather, is that the trial court on remand
should review the record of conviction in order to determine what facts were
necessarily found or admitted in the prior proceeding. Such a procedure fully
reconciles existing precedent with the requirements of the Sixth Amendment.
       Justice Chin’s concurring and dissenting opinion takes the view that we can
instead reconcile Guerrero with the Sixth Amendment right to a jury trial by
simply reassigning the task of reviewing the record of conviction to a jury, as
opposed to a judge. This argument ventures beyond the Attorney General’s own
submission; although the Attorney General’s second-choice option is to convene a
jury trial, the Attorney General does not ask that the jury be limited to reviewing
the record of conviction. And not without reason, because such a proceeding—in
which a jury would be impaneled for the sole purpose of reading the preliminary
hearing transcript in defendant’s prior assault case—would raise significant
constitutional concerns under Apprendi. The basic rationale of Apprendi is that
facts that are used to increase the defendant’s maximum possible sentence are the
functional equivalent of elements of the offense, and they must be proved in the
same way: i.e., at a trial before a jury, and beyond a reasonable doubt. (Apprendi,
supra, 530 U.S. at pp. 476, 490.) To permit a jury to make factual findings based
solely on its review of hearsay statements made in a preliminary hearing would be
to permit facts about the defendant’s prior conviction to be proved in a way that no
other elemental fact is proved—that is, without the procedural safeguards, such as
the Sixth Amendment right to cross-examine one’s accusers, that normally apply




                                         22
in criminal proceedings.5 This kind of proceeding might involve a jury, but it
would not be much of a trial.6

5       Justice Chin’s proposal relies on our pre-Apprendi, pre-McGee decision in
People v. Reed, supra, 13 Cal.4th 217, which held that the prosecution could rely
on preliminary hearing transcripts but not live witnesses to establish the nature of
the defendant’s prior conviction, but reserved the question of whether the defense
would be permitted to introduce live testimony. Shortly thereafter, a Court of
Appeal answered that question in the negative, concluding that the logic of
Guerrero bars both sides from calling live witnesses. (People v. Bartow (1996) 46
Cal.App.4th 1573, 1580–1582.)
        As already noted, the underlying rationale of Guerrero, on which Reed and
Bartow both relied, is that the limitation to the record of conviction “effectively
bars the prosecution from relitigating the circumstances of a crime committed
years ago.” (Guerrero, supra, 44 Cal.3d at p. 355.) Justice Chin’s proposal would
instead appear to affirmatively authorize relitigation before a jury—so as to allow
the jury to find the facts necessary for application of the Three Strikes law, as we
now understand the Sixth Amendment requires—but based on a highly restricted
universe of documentary evidence including hearsay statements contained in a
preliminary hearing transcript.
        Justice Chin says, however, that while the prosecution would be “limited”
to reliance on the preliminary hearing transcript, defendant might be free to call
witnesses if she chooses (notwithstanding Bartow). But if the preliminary hearing
witnesses are available to be called, then the prosecution may not introduce their
preliminary hearing testimony without producing the witnesses for cross-
examination. (See Crawford v. Washington (2004) 541 U.S. 36, 53–54, 68.) It is
not an answer to say that defendant could call the preliminary hearing witnesses to
the stand if she wished: “[T]he Confrontation Clause imposes a burden on the
prosecution to present its witnesses, not on the defendant to bring those adverse
witnesses into court.” (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305,
324.)
6       As Justice Chin’s concurring and dissenting opinion notes, some Courts of
Appeal to consider the issue have concluded that the proper remedy for violating a
defendant’s Sixth Amendment right to a jury trial is to give that defendant a jury
trial on facts underlying a prior conviction, but to limit the evidentiary scope of
such a trial to the record of conviction. (Dis. opn., post, at p. 5; see Eslava, supra,
5 Cal.App.5th at pp. 520–521, review granted; People v. Marin (2015) 240
Cal.App.4th 1344, 1366–1367.) Other Courts of Appeal have ordered a jury trial
without specifying such an evidentiary limitation. (People v. McCaw (2016) 1
Cal.App.5th 471, 486–487, review granted Oct. 19, 2016, S236618.) And still
                                                          (Footnote continued on next page.)


                                          23
        We thus remand the case, as both parties appear to acknowledge we should,
to permit the People to demonstrate to the trial court, based on the record of the
prior plea proceedings, that defendant’s guilty plea encompassed a relevant
admission about the nature of her crime.
                                           VI.
        We reverse the judgment of the Court of Appeal and remand for a new
determination on the prior conviction allegations in accordance with this opinion.


                                                  KRUGER, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
HOFFSTADT, J.*




(Footnote continued from previous page.)

other Courts of Appeal appear to have concluded that questions about the proper
characterization of a prior conviction are for a court to resolve, based on its
evaluation of the facts necessarily encompassed by the guilty verdict or admitted
by the defendant in pleading guilty to the prior crime. (See People v. Navarette
(2016) 4 Cal.App.5th 829; People v. Saez (2015) 237 Cal.App.4th 1177.) The
parties in this case appear to agree that the latter course is appropriate. For the
reasons explained above, we agree as well.
*      Associate Justice of the Court of Appeal, Second Appellate District,
Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.



                                             24
          CONCURRING AND DISSENTING OPINION BY CHIN, J.



       I agree with much of the majority opinion. I agree that defendant has not
waived or forfeited her contentions. (Maj. opn., ante, at pp. 6-8.) I also agree that
under the rationale of Descamps v. United States (2013) 570 U.S. __ [133 S.Ct.
2276] (Descamps) and Mathis v. United States (2016) 579 U.S. __ [136 S.Ct.
2243] (Mathis), defendant has a right to a jury trial on the nature of her prior
conviction. (Maj. opn., ante, at pp. 16-19.) Specifically, I agree that what the
court here did — review the preliminary hearing transcript to find that the
conviction was based on defendant’s assault with a deadly weapon — “invade[d]
the jury’s province.” (Maj. opn., ante, at p. 19.) To that extent, but only to that
extent, People v. McGee (2006) 38 Cal.4th 682 (McGee) is no longer good law.
       I disagree, however, with the majority’s remedy. It remands for a new, and
very limited, court trial at which the court will not be permitted to engage in
factfinding. (Maj. opn., ante, at pp. 21-24.) But the remand should be for a jury
trial. The proper remedy for a violation of defendant’s jury trial right is to give
her that jury trial.
       The difference between remanding for a court trial and remanding for a jury
trial is critical. As the majority concludes, and I agree, the court may not engage
in factfinding. Doing so invades the jury’s province. But the jury may engage in
factfinding. That is what juries do. As the majority explains, “when the criminal
law imposes added punishment based on findings about the facts underlying a


                                          1
defendant’s prior conviction, ‘[t]he Sixth Amendment contemplates that a jury —
not a sentencing court — will find such facts, unanimously and beyond a
reasonable doubt.’ ” (Maj. opn., ante, at p. 3, quoting Descamps, supra, 570 U.S.
__ [133 S.Ct. at p. 2288].)
       It has long been settled that the trier of fact — it used to be the court but
now must be the jury — may “look to the record of the conviction — but no
further” to determine the conduct underlying the conviction. (People v. Guerrero
(1988) 44 Cal.3d 343, 355.) It is equally settled that the record of conviction to
which the trier of fact may look includes the transcript of the preliminary hearing.
(People v. Reed (1996) 13 Cal.4th 217, 220 (Reed); see maj. opn., ante, at p. 10.)
The court here reviewed the preliminary hearing transcript and determined that
defendant’s prior conviction was a serious felony and thus a strike under the
“Three Strikes” law. (Maj. opn., ante, at pp. 1-2, 5.)
       On remand, the jury should be allowed to do the same thing the court did
and, if it so finds unanimously and beyond a reasonable doubt, reach the same
result — that defendant’s prior conviction was based on assault with a deadly
weapon and is thus a strike. Remanding for another court trial, but without the
ability to make factual findings, improperly precludes this possibility.
       As the majority recognizes, we have interpreted California’s recidivist
statutes differently than the statutory scheme at issue in Descamps, supra, 570 U.S.
__ [133 S.Ct. 2276] and Mathis, supra, 579 U.S. __ [136 S.Ct. 2243]. The high
court interpreted the scheme it considered as strictly elements based; the underlying
conduct is irrelevant. But in California, the trier of fact examines the conduct
underlying the conviction to determine whether it qualifies as a strike, although the
examination is limited to the record of conviction. (McGee, supra, 38 Cal.4th at p.
706; Reed, supra, 13 Cal.4th at pp. 222-223; People v. Guerrero, supra, 44 Cal.3d
at p. 355; see maj. opn., ante, at pp. 10-11.) As the majority also correctly

                                           2
recognizes, “California courts are [not] constitutionally compelled to emulate the
high court’s version of the categorical approach in all of its particulars.” (Maj.
opn., ante, at p. 17.) California’s conduct-based approach remains valid, except
that now the jury, not the court, must make the determination.
       Both Descamps and Mathis make clear that a conduct-based approach is
permissible. (Descamps, supra, 570 U.S. at p. __ [133 S.Ct. at p. 2287] [“If
Congress had wanted to increase a sentence based on the facts of a prior offense, it
presumably would have said so; other statutes, in other contexts, speak in just that
way,” citing Nijhawan v. Holder (2009) 557 U.S. 29, 36 (Nijhawan)]; Mathis,
supra, 579 U.S. at p. __ [136 S.Ct. at p. 2252] [“Congress well knows how to
instruct sentencing judges to look into the facts of prior crimes: In other statutes,
using different language, it has done just that,” citing Nijhawan at p. 36 and
United States v. Hayes (2009) 555 U.S. 415, 421 (Hayes)].)
       In Nijhawan, the high court held that an immigration statute “does not refer
to an element of the fraud or deceit crime [the crime at issue]. Rather it refers to
the particular circumstances in which an offender committed a (more broadly
defined) fraud or deceit crime on a particular occasion.” (Nijhawan, supra, 557
U.S. at p. 32; see id. at p. 36.) Nijhawan was a deportation case, not, like here, a
criminal case; as the high court noted, “the Government does not have to prove its
claim ‘beyond a reasonable doubt.’ ” (Id. at p. 42.) Accordingly, that case might
not govern here.
       But Hayes was a criminal prosecution. An indictment charged the
defendant with “possessing firearms after having been convicted of a
misdemeanor crime of domestic violence.” (Hayes, supra, 555 U.S. at p. 419.)
The statute the defendant was charged under prohibits a person convicted of “ ‘a
misdemeanor crime of domestic violence’ ” from possessing a firearm. (Id. at p.
418.) The high court held “that the domestic relationship, although it must be

                                          3
established beyond a reasonable doubt in a . . . firearms possession prosecution,
need not be a defining element of the predicate offense.” (Ibid.) It explained that
the Government may “charge and prove a prior conviction that was, in fact, for ‘an
offense . . . committed by’ the defendant against a spouse or other domestic
victim.” (Id. at p. 421, italics added.) Accordingly, to obtain a conviction, “the
Government must prove beyond a reasonable doubt that the victim of the predicate
offense was the defendant’s current or former spouse or was related to the
defendant in another specified way. But that relationship, while it must be
established, need not be denominated an element of the predicate offense.” (Id. at
p. 426.)
       In Hayes, after the defendant’s motion to dismiss the indictment was
denied, he “entered a conditional guilty plea and appealed.” (Hayes, supra, 555
U.S. at p. 420.) Because of the guilty plea, the high court did not explain exactly
how the prosecution was to prove the domestic relationship underlying the
predicate crime. Presumably, the trial would be before a jury, not a court.
Whether, as in California, the prosecution would be limited to the record of
conviction is not clear. (See United States v. Hill (8th Cir. 2016) 820 F.3d 1003,
1005 [agreeing with the government that, in a prosecution for failure to register as
a sex offender, the prosecution may present “any reliable evidence” regarding the
nature of the predicate offense].)
       Mathis and Descamps require us now to have a jury review the record of
conviction to determine whether the conviction was based on conduct that
qualifies it as a strike. But those cases do no more. They do not affect the rest of
our longstanding jurisprudence. A jury may review the record of conviction,
including the transcript of the preliminary hearing, to determine whether
defendant’s prior conviction was based on assault with a deadly weapon.



                                          4
       Other courts have remanded for a jury trial in similar circumstances. In
People v. Eslava (2016) 5 Cal.App.5th 498, review granted February 15, 2017,
S239061, the court held, as does this court today, that the defendant was entitled to
a jury trial regarding the nature of the prior conviction. But it also held the
remedy for violating the defendant’s right to a jury trial was to give him that jury
trial. It remanded for a jury trial. It “conclude[d] that Eslava has a Sixth
Amendment right to have a jury resolve the issue. Descamps and Mathis prevent a
court from looking at the record of conviction and drawing the factual inference
that Eslava admitted inflicting serious bodily injury on [the victim], but those
cases do not prevent the People from asking a jury to draw that inference . . . or to
find personal infliction of serious bodily injury on some other basis that may be
supported by the record of conviction.” (Eslava, at pp. 520-521.) Eslava is
correct in this regard.
       Two other recent decisions also remanded for a jury trial in similar
circumstances. (People v. McCaw (2016) 1 Cal.App.5th 471, 486-487, review
granted October 19, 2016, S236618; People v. Marin (2015) 240 Cal.App.4th
1344, 1366-1367.) McCaw and Marin are also correct in this regard.
       As the majority notes, two recent cases did not remand for a jury trial or,
indeed, for any trial. (Maj. opn., ante, at p. 24, fn. 6.) Those cases simply reverse
or strike the conviction at issue. (People v. Navarette (2016) 4 Cal.App.5th 829;
People v. Saez (2015) 237 Cal.App.4th 1177.) But Navarette found the evidence
insufficient under state law to support the finding regarding the conviction.
(Navarette, at pp. 835, 840, 849, 855.) A finding of legal insufficiency precludes
any retrial. (People v. Hatch (2000) 22 Cal.4th 260, 272.) Navarette did not hold
that a jury trial is never appropriate. Saez simply reversed the finding on the
conviction. (Saez, at p. 1209.) But it did not explain why it did so rather than
remand for a jury trial.

                                           5
       The majority remands for a court trial apparently due to the way this
particular case has been litigated. If so, that presumably would permit a jury trial
in another case that was litigated differently. In that event, although this defendant
will win by avoiding jury factfinding, presumably, in other cases, the defendants
should receive the jury trial due them, complete with factfinding based on the
record of conviction.
       The majority also seems to base its refusal to order a jury trial on the belief
that “it would not be much of a trial.” (Maj. opn., ante, at p. 23.) That is not a
reason to overturn decades of settled jurisprudence. I agree that a jury would
probably read the transcript of the preliminary hearing and, as the trial court
already did, reach the obvious conclusion that the underlying conviction was for
assault with a deadly weapon. (See maj. opn., ante, at p. 5.) The jurors might
wonder why they were called on to do so, just as they might in any trial limited to
the fact of a prior conviction. (Such a limited jury trial sometimes occurs, as a
defendant has always had a jury trial right on the existence of the conviction.
(Maj. opn., ante, at p. 6.)) Defendants are entitled to such a limited jury trial if
they want one. The limited nature of the trial provides no reason to preclude it.
       Additionally, defendant did have “an opportunity and incentive to cross-
examine” witnesses at the preliminary hearing (Reed, supra, 13 Cal.4th at p. 229),
which was why we permitted the factfinder to consider the transcript of that
hearing, while prohibiting consideration of a probation report. (Reed, at p. 230; cf.
maj. opn., ante, at pp. 22-23.) Regarding other procedural safeguards, in Reed, we
“express[ed] no opinion as to whether a defendant would be entitled to call live
witnesses to dispute circumstances of the prior offense”; we held only that “the
prosecution is not permitted to present live testimony outside the record of
conviction . . . .” (Reed, at p. 229.) It may be that defendants have the right to
present live testimony at a jury trial to dispute the nature of the conviction, should

                                           6
they wish to do so. Only the prosecution might be limited to the record of
conviction.
       Except regarding the jury trial right, the majority cites no high court
authority inconsistent with our jurisprudence in this area, including Reed, supra,
13 Cal.4th 217. As in Hayes, supra, 555 U.S. 415, a jury should be allowed to
determine the nature of the underlying conviction but, under California law, the
prosecution would be limited to the record of conviction.
       I dissent from the majority’s remanding the case for a limited court trial,
rather than a jury trial.
                                                         CHIN, J.




                                          7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gallardo
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 11/16/15 – 2nd Dist., Div. 6
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S231260
Date Filed: December 21, 2017
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Thomas I. McKnew, Jr.

__________________________________________________________________________________

Counsel:

Christian C. Buckley, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Shawn McGahey Webb, Louis
W. Karlin and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Christian C. Buckley
Buckley & Buckley
9921 Carmel Mountain Road, #355
San Diego, CA 92129
(858) 538-6054

Noah P. Hill
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6000
