P. v. Hollimon

Filed 1/27/16 P. v. Hollimon CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ALFRED ALEXANDER HOLLIMON,
Defendant and Appellant.
G050259
(Super. Ct. No. 13WF0274)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County,
Lance Jensen, Judge. Affirmed.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr.,
Raquel M. Gonzalez and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *

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INTRODUCTION
Defendant Alfred Alexander Hollimon was convicted of child abuse and
mayhem. Defendant’s 11-month-old daughter, Y.V., was severely burned while
defendant was bathing her. While treating Y.V. for her burns, doctors discovered she had
suffered multiple recent fractures that were the result of nonaccidental trauma.
Following People v. Anderson (2011) 51 Cal.4th 989 and People v.
Jennings (2010) 50 Cal.4th 616, we reject defendant’s argument that the trial court had a
sua sponte duty to instruct the jury regarding the defense of accident.
Alternatively, defendant argues that his trial counsel was deficient for
failing to request an instruction on accident. We conclude defendant did not suffer any
prejudice due to the lack of such an instruction. The accident instruction reiterates the
need for the prosecution to prove defendant’s intent in committing the crime, and
evidence relating to the defense of accident, as testified to by defendant himself, was
inconsistent with the injuries suffered by Y.V.
Finally, defendant argues that the trial court erred by enhancing his
sentence due to a prior conviction in Nevada. Although the statutory elements of the
crime of attempted robbery are different in Nevada from those in California, the
information, guilty plea agreement, and judgment from defendant’s prior conviction in
Nevada establish that the crime he was convicted of committing there was the same as a
conviction for attempted robbery in California.
We therefore affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
About 5:50 p.m. on January 26, 2013, police and paramedics responded to a
911 call from defendant’s grandmother’s house. Y.V. was found to have suffered third
degree burns over 22 percent of her body.
At the scene, defendant told Westminster Police Officer Travis Hartman
that he had given Y.V. a warm bath, and that he had repeatedly checked the water, which

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did not seem hot. Defendant claimed Y.V. played in the bathtub for 10 to 20 minutes
without crying, and splashed the water with her hands. After Y.V. had been in the
bathtub for about 15 minutes, defendant noticed her legs were red, and thought the water
might be too hot. Defendant said that when he pulled Y.V. out of the water, her legs
were bleeding, and he began peeling off her skin. Defendant also told Officer Hartman
that Y.V. had “banged her head” in the bathtub two nights earlier.
Defendant was questioned at the University of California, Irvine, hospital,
where Y.V. was transported for treatment. During that interview, defendant again said he
had checked the water temperature and it did not feel hot to him. Defendant said he left
Y.V. unattended in the bathtub “for ten seconds, maybe,” to get her a diaper while she
played in the water. Defendant said she became “fussy crying,” so he pulled her out of
the bathtub and discovered “she was all red” and her skin was peeling off. Defendant
peeled off the skin from her legs, then screamed for his mother; defendant claimed he
thought removing Y.V.’s skin would not hurt her, but would help cool her down.
Defendant denied burning Y.V. on purpose, and denied that Y.V. had been crying when
she was in the water. Defendant again claimed Y.V. had bumped her head on the bathtub
faucet two days earlier. Defendant was arrested following the interview at the hospital.
Dr. Nicole Bernal, who treated Y.V. in the hospital, and performed several
surgeries to cut away burn tissue and replace it with skin grafts, testified that Y.V.’s
injuries were consistent with having been dipped into hot water, and reflexively bending
her legs up to protect herself. Y.V.’s injuries were not consistent with defendant’s
explanation of what had happened while he was bathing Y.V.
Dr. Sandra Murray, who also treated Y.V., testified that Y.V. had suffered
very deep, third degree burns, and that the water temperature must have been at least
130 degrees. Y.V. had developed infections as a result of the burns, and was in the
hospital in critical condition for two months. Y.V. underwent two surgeries on her feet
“because the toes were contracted and pulled up so that they were not . . . flat on the

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ground when she put her foot down.” Y.V. would require additional skin grafts as she
aged because “the graft skin does not grow as well as her normal skin does.”
Dr. Murray testified that the pattern of burns on Y.V. was not consistent
with defendant’s story that she had been sitting in a tub of water for 15 to 20 minutes.
Dr. Murray further testified that certain areas of Y.V.’s body were not burned because
Y.V. reflexively bent her legs up toward her stomach when her feet or her buttocks
touched the hot water. Dr. Murray opined that Y.V. was “absolutely clearly” dipped into
the tub of hot water.
Dr. Murray also testified that X-rays taken at the hospital showed several
recent fractures, including a right skull fracture, fractures of the vertebrae, a right rib
fracture, and a right wrist fracture. Y.V. had been X-rayed 15 days before the burning
incident; the foregoing injuries had all been suffered since that date. When she
reexamined the earlier X-rays, Dr. Murray observed two healing right rib fractures; those
had been acute on January 9, 2013, but were missed when the X-rays were originally
reviewed. Dr. Murray testified that all of the fractures suffered by Y.V. were caused by
“nonaccidental trauma.” The fractures were not consistent with any of defendant’s
explanations, but rather had to have been caused by “high energy forces,” such as those
caused during an automobile accident or a multistory fall, and could not have been
caused by Y.V. herself.
Y.V.’s maternal great-aunt, Jane V., testified that in January 2013, she was
Y.V.’s foster mother. Visitation between Y.V. and defendant occurred at defendant’s
grandparents’ house, and Y.V. was transported by a social worker. After Y.V. was
returned from a visit with defendant on January 9, 2013, Jane V. noticed bruises on
Y.V.’s ribs and pelvic bone area, and red marks on her shoulder and back. Jane V. called
the social worker, the social worker’s supervisor, and the child abuse hotline. She took
Y.V. to St. Joseph Hospital, where Y.V. was examined. When Y.V. returned from a visit
with defendant on January 16, Jane V. noticed a bruise on Y.V.’s forehead. Jane V. again

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called the social worker, the supervisor, and the child abuse hotline. Jane V. refused to
continue as Y.V.’s foster mother because she was worried that she would be blamed for
Y.V.’s injuries. Defendant’s grandmother became Y.V.’s foster parent, and Y.V. moved
into her paternal great-grandmother’s house on January 24—two days before she was
seriously burned.
The parties stipulated that defendant inflicted corporal injury on the mother
of his unborn child (Y.V.’s older sibling) on February 23, 2010.
Defendant testified in his own defense at trial. Defendant testified that he
put Y.V. in the bathtub, where she played without crying and without any apparent
problems for 15 to 20 minutes. Defendant left her alone two or three times, for a few
seconds each time. The last time he returned to the bathroom, Y.V. was standing up in
the bathtub, and was “not crying but like something was wrong.” Defendant picked her
up, and saw that her skin was peeling off. Defendant claimed he did not intentionally
burn or harm Y.V., and that her injuries were the result of an accident, but admitted he
accepted responsibility for Y.V.’s burns.
A jury convicted defendant of two counts of child abuse; one count related
to Y.V.’s burns (count 1), while the other count related to her fractures and additional
injuries (count 3). (Pen. Code, § 273a, subd. (a).) The jury also convicted defendant of
one count of mayhem (count 2). (Id., § 203.) With respect to count 1, the jury found true
an allegation that defendant personally inflicted great bodily injury on a child under the
age of five. (Id., § 12022.7, subd. (d).)
In a bifurcated proceeding, defendant admitted he had a prior conviction,
which the prosecution alleged was a serious and violent felony (Pen. Code, §§ 667,
subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), and he had suffered a prior prison term
for that offense (id., § 667.5, subd. (b)). Over defendant’s objection, the trial court found
the prior conviction was a serious and violent felony.

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The trial court sentenced defendant to a total prison term of 25 years eight
months: the upper term of six years on count 1, doubled to 12 years; a consecutive upper
term of six years for the great bodily injury sentencing enhancement; a consecutive term
of five years for the serious felony prior conviction; and a consecutive one-third doubled
midterm of two years eight months on count 3. (The court stayed execution of
defendant’s sentence on count 2, pursuant to Penal Code section 654.)
Defendant filed a timely notice of appeal.
DISCUSSION
I.
THE TRIAL COURT DID NOT HAVE A SUA SPONTE DUTY TO INSTRUCT THE JURY
ON THE DEFENSE OF ACCIDENT.
Defendant argues that the trial court erred by failing to instruct the jury sua
sponte on the defense of accident. (Pen. Code, § 26.) In People v. Anderson, supra,
51 Cal.4th at page 992, the California Supreme Court held “a trial court has no obligation
to provide a sua sponte instruction on accident where, as here, the defendant’s theory of
accident is an attempt to negate the intent element of the charged crime.” (See People v.
Jennings, supra, 50 Cal.4th at pp. 674-675 [same].) We conclude the trial court did not
err in this case.1
II.
DEFENDANT DID NOT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.
Defendant contends that his trial counsel was ineffective in failing to
request that the jury be instructed with CALCRIM No. 3404 on the defense of accident.2
1 Defendant acknowledges that under Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455, this court is required to follow People v. Anderson, but
submits the argument to preserve it for federal court review.
2 In his opening brief on appeal, defendant purports to raise a second
issue—that his trial counsel was ineffective by conceding defendant’s guilt as to count 1.
Defendant fails to provide any argument supporting this contention; an argument

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To prevail on a claim of ineffective assistance of counsel, defendant must prove by a
preponderance of the evidence that his trial counsel’s representation failed to meet an
objective standard of reasonableness, and that absent counsel’s deficient performance,
there is a reasonable probability the result would have been more favorable to defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Frye (1998) 18
Cal.4th 894, 979.)
We turn directly to the second prong and conclude there was no prejudice.
“[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.
. . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.” (Strickland
v. Washington, supra, 466 U.S. at p. 697; accord, In re Fields (1990) 51 Cal.3d 1063,
1079.)
In this case, the jury was properly instructed with CALCRIM Nos. 821 and
801, which contain the elements of child abuse likely to produce great bodily harm or
death, and mayhem, respectively. Both instructions informed the jury what mental state
the prosecution was required to prove as an element of the crime. CALCRIM No. 3404,
which defendant contends should have been given to the jury as well, provides:
“<General or Specific Intent Crimes> [¶] [The defendant is not guilty of _____ <insert
crime[s]> if (he/she) acted [or failed to act] without the intent required for that crime, but
acted instead accidentally. You may not find the defendant guilty of _____ <insert
crime[s]> unless you are convinced beyond a reasonable doubt that (he/she) acted with
the required intent.] [¶] <Criminal Negligence Crimes> [¶] [The defendant is not guilty
mentioned only in a heading has effectively been forfeited. (Cal. Rules of Court,
rule 8.204(a)(1)(B) & (C).)

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of _____ <insert crime[s]> if (he/she) acted [or failed to act] accidentally without
criminal negligence. You may not find the defendant guilty of _____ <insert crime[s]>
unless you are convinced beyond a reasonable doubt that (he/she) acted with criminal
negligence. Criminal negligence is defined in another instruction.]” CALCRIM
No. 3404 reiterates that intent is an element of the crime, which must be proven by the
prosecution; giving that instruction would not have altered the result of the case.
In any event, the defense of accident was inconsistent with defendant’s
version of the case. Had defendant, without the intent to burn Y.V., dipped her into a
scalding bath, he might not have had the necessary intent to be convicted of child abuse
or mayhem. Defendant’s contention that Y.V. was burned after sitting in a warm bath for
an extended period of time, or that she was burned while defendant stepped out of the
bathroom momentarily, was completely inconsistent with the testimony of two expert
witnesses who explained how hot the water had to be, and how Y.V. must have been
dipped into the water to produce the burns on her body.
The jury necessarily found defendant acted with the intent required to
support convictions for child abuse and mayhem; there is no reasonable probability that
the result would have been different if the jury had been instructed with CALCRIM
No. 3404.
III.
NEVADA STRIKE
Defendant argues that the trial court erred in finding his 2008 Nevada
conviction for attempted robbery was a prior strike and a serious felony, and, therefore,
his sentence must be modified. “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

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prosecution sustained its burden of proving the elements of the sentence enhancement
beyond a reasonable doubt.” (People v. Miles (2008) 43 Cal.4th 1074, 1083.)
Defendant waived his right to a jury trial on the prior conviction, and
admitted he had been convicted on August 11, 2008, in the State of Nevada, for
attempted robbery. Defendant contended in the trial court, and argues here, that
attempted robbery in Nevada is not equivalent to attempted robbery in California, and
therefore does not constitute a strike for sentencing purposes.
The trial court considered the information, guilty plea agreement, and
judgment of conviction from the District Court of Clark County, Nevada, in case
No. C245095. The information reads, in relevant part: “Alfred Hollimon . . . , having
committed the crime of Attempt Robbery (Category B Felony—NRS 193.330, 200.380),
on or about the 14th day of May, 2008, within the County of Clark, State of Nevada,
contrary to the form, force and effect of statutes in such cases made and provided, and
against the peace and dignity of the State of Nevada, did then and there wilfully,
unlawfully, and feloniously attempt to take personal property, to-wit: an iPod, from the
person of Henston Hortillosa, or in his presence, by means of force or violence, or fear of
injury to, and without the consent and against the will of the said Henston Hortillosa.”
(Boldface & some capitalization omitted.) The guilty plea agreement provided that
defendant pleaded guilty “to: Attempt Robbery (Category B Felony—NRS 193.330,
200.380), as more fully alleged in the charging document attached hereto as Exhibit ‘1’.”
(Boldface & some capitalization omitted.) (The attached charging document was the
information quoted ante.) The judgment of conviction reiterated that defendant had
entered a plea of guilty to attempted robbery.
In People v. McGee (2006) 38 Cal.4th 682, 688-689, the California
Supreme Court concluded that, looking only at the statutory elements of the crime of
robbery in California versus Nevada, the Nevada crime in that case would not count as a

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strike or prior serious felony conviction.3 The court then explained that “the relevant
inquiry in deciding whether a particular prior conviction qualifies as a serious felony for
California sentencing purposes is limited to an examination of the record of the prior
criminal proceeding to determine the nature or basis of the crime of which the defendant
was convicted.” (People v. McGee, supra, at p. 691.) The determination was a legal one
to be made by the court, not a jury. (Id. at p. 702.)
In People v. McGee, supra, 38 Cal.4th at page 688, the court held that the
crime of robbery in Nevada differed from the crime of robbery in California because
“under Nevada law, a taking accomplished by fear of future injury to the person or
property of anyone in the company of the victim at the time of the offense qualifies as
robbery [citation], whereas under California law such a taking does not [citation].” In the
present case, the Nevada information makes clear that defendant attempted to commit the
robbery by means of fear of injury to the victim, not someone in the company of the
victim.
In People v. McGee, supra, 38 Cal.4th at page 688, the court also noted that
the elements of the crime of robbery differ between California and Nevada because in
Nevada, robbery is a general intent crime, while California requires proof of a specific
3 Nevada’s statute prohibiting robbery provides, in relevant part: “Robbery
is the unlawful taking of personal property from the person of another, or in the person’s
presence, against his or her will, by means of force or violence or fear of injury,
immediate or future, to his or her person or property, or the person or property of a
member of his or her family, or of anyone in his or her company at the time of the
robbery. A taking is by means of force or fear if force or fear is used to: [¶] (a) Obtain or
retain possession of the property; [¶] (b) Prevent or overcome resistance to the taking; or
[¶] (c) Facilitate escape. [¶] The degree of force used is immaterial if it is used to compel
acquiescence to the taking of or escaping with the property. A taking constitutes robbery
whenever it appears that, although the taking was fully completed without the knowledge
of the person from whom taken, such knowledge was prevented by the use of force or
fear.” (Nev. Rev. Stat. § 200.380(1).)

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intent to permanently deprive the victim of property. Neither the information nor any of
the other documents from defendant’s Nevada case specifies that defendant acted with
the specific intent to permanently deprive the victim of his property. People v. McGee
teaches that no special language is required to establish that the prior robbery conviction
was committed with that specific intent, however.
In People v. McGee, supra, 38 Cal.4th at page 689 and footnote 3, the court
held the following information was sufficient to establish the Nevada robbery convictions
were serious felonies for sentencing enhancement purposes: “With regard to the 1988
Nevada case, the prosecution introduced various documents, including the transcript of
the preliminary hearing in that proceeding. This transcript included the testimony of the
victim, Delmar D. Foust, reflecting that while waiting with his brother and two friends at
a Reno bus station near midnight, he encountered defendant, who ‘threatened us and he
[defendant] took my money.’ Asked what other actions defendant took, Foust testified he
observed defendant ‘slapping another guy and saying that’s what will happen if anybody
tells on him.’ Defendant demanded money from Foust, who gave him $2. Asked why he
gave defendant the money, Foust testified: ‘Because I was afraid of being beat up.’ At
the hearing at which he entered his plea of guilty, defendant admitted having committed
the robbery.[4] [¶] With regard to the 1994 Nevada case, the prosecution introduced
4 “The transcript of these proceedings includes the following colloquy
(italics added):
‘The court: “The elements of the offense are as follows: [t]hat you did
on or about January 15, 1988, within Washoe County, Nevada, willfully and unlawfully
take personal property, that being money, from the person of Delmar Foust, at the City
Fare Bus transfer area in Washoe County, Nevada; that you did this against his will, and
by means of fear or immediate or future injury to his person. Do you understand that that
is the charge against you?”
‘Defendant: “Yes.”
‘The court: “Is that in fact what you did?”
‘Defendant: “Yes.”
‘The court: “Did you force Mr. Foust to give you money?”

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various documents, including the transcript of the preliminary hearing in that proceeding.
This transcript included the testimony of the victim, Ian T. Baker, who described
defendant asking him for money. Baker offered defendant some change. Defendant,
who was accompanied by another individual, replied, ‘No, we want money.’ Baker
refused to further comply. Defendant then struck him, causing him to fall. Baker then
gave defendant his wallet, and defendant took $120 from it, as well as Baker’s portable
tape player. The transcript of the proceedings reflects that defendant was asked in open
court whether he took personal property from Baker against Baker’s will, and that
defendant admitted having done so; in a written plea form, defendant acknowledged
‘willfully and unlawfully [having taken] personal property . . . from the person of Ian T.
Baker . . . against his will and by means of force or violence.’”5
Thus, the Supreme Court concluded that despite the difference in the
statutory language, the facts it could properly consider regarding intent established that
the defendant in People v. McGee had committed a crime in Nevada, which was the same
as the crime would be in California for sentencing enhancement purposes. In the present
case, by admitting in his guilty plea that he had committed attempted robbery as set forth
fully in the information, defendant admitted sufficient facts to establish that his attempted
robbery conviction in Nevada was comparable to a conviction for attempted robbery in
‘Defendant: “Yes.”
‘The court: “Did you do that by means of fear of immediate or future
injury to him? Did you make him afraid of what would happen if he did not give you
money?”
‘Defendant: “Yes.”’”
5 The Nevada and California statutes regarding attempt are virtually
identical; defendant does not argue to the contrary. “An act done with the intent to
commit a crime, and tending but failing to accomplish it, is an attempt to commit that
crime.” (Nev. Rev. Stat. § 193.330(1).) “An attempt to commit a crime consists of two
elements: a specific intent to commit the crime, and a direct but ineffectual act done
toward its commission.” (Pen. Code, § 21a.)

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California, with respect to the intent element. Therefore, the trial court did not err in
enhancing defendant’s sentence.
Defendant argues that People v. McGee is no longer good law, citing
Descamps v. United States (2013) 570 U.S. ___ [133 S.Ct. 2276] (Descamps). In
Descamps, the United States Supreme Court held that, in determining whether the
defendant had a prior conviction for purposes of increasing his sentence under the Armed
Career Criminal Act of 1984 (18 U.S.C. § 924(e)), a sentencing court generally could not
look beyond the elements of the statute the defendant was convicted of violating. The
court identified three grounds for its “elements-centric, ‘formal categorical approach.’”
(Descamps, supra, at p. ___ [133 S.Ct. at p. 2287].) First, the approach comported with
the text and history of the Armed Career Criminal Act—a consideration that is not
relevant here. (Ibid.) Second, the approach was consistent with the court’s previous
holding in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), that “‘[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.’” (Descamps, supra, at p. ___ [133 S.Ct. at p. 2288].) Finally, the
approach would obviate the need 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.” (Id. at p. ___
[133 S.Ct. at p. 2289.) In the present case, there is no similar concern—defendant’s
guilty plea accepts verbatim the language of the information.
The United States Supreme Court also held that when the prior conviction
is for violating a divisible statute (where the elements of the crime provide for alternative
ways in which it may be violated), the sentencing court may consider “a limited class of

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documents, such as indictments and jury instructions, to determine which alternative
formed the basis of the defendant’s prior conviction.” (Descamps, supra, 570 U.S. at

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p. ___ [133 S.Ct. at p. 2281].) In this case, in determining whether defendant had
committed the attempted robbery by using force or fear against the victim, as opposed to
the threat of force or fear against someone in the victim’s presence, the trial court could
properly consider the information, guilty plea agreement, and judgment of conviction
from the Nevada court case.
The remaining issue in this case is whether the trial court could consider the
information, guilty plea agreement, and judgment of conviction in the Nevada case to
determine whether defendant had the necessary intent in committing attempted robbery in
Nevada to be equivalent to a violation of the California robbery statute. Three recent
cases from the California Courts of Appeal, which follow and interpret Descamps, inform
our decision.
In People v. Wilson (2013) 219 Cal.App.4th 500, 503-504, the defendant
was convicted of felony drunk driving, and his sentence was enhanced under the “Three
Strikes” law. The defendant had pleaded no contest, in a prior case, to gross vehicular
manslaughter while intoxicated. (Id. at p. 503.) The trial court considered the
preliminary hearing transcript from the previous case to determine the defendant had
personally inflicted great bodily injury on the victims (id. at p. 503); the defendant did
not admit the disputed facts of inflicting great bodily injury (id. at p. 506). The appellate
court reversed the increase in sentence under Descamps because the trial court had
improperly made findings related to disputed facts to determine whether the prior
conviction was a strike. (People v. Wilson, supra, at pp. 515-516.)
The court in People v Wilson, supra, 219 Cal.App.4th at pages 515-516,
explained: “Turning to the case at bar, we hold that the Sixth Amendment under
Apprendi precluded the court from finding the facts—here in dispute—required to prove
a strike prior based on the gross vehicular manslaughter offense. Like the court that
sentenced Descamps, the trial court looked beyond the facts necessarily implied by the

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elements of the prior conviction. The record here was even barer than that in Descamps.
There is no record of any plea colloquy, or any other admissions—factual or otherwise—
made by Wilson on the record of the prior conviction. The only facts in the record—
apart from those necessarily implied by the elements of the offense—are those found in
the transcript of the preliminary hearing. The hearing consisted of testimony from
several witnesses who offered statements evidencing, at times, competing versions of key
facts. None of Wilson’s statements—not even those offered via hearsay by the officer
who questioned him—established personal infliction. To the contrary, the record shows
Wilson explicitly contested the key fact at issue—whether Horvat grabbed the steering
wheel. To resolve the issue, the sentencing court was necessarily required to weigh the
credibility of various witnesses and statements. The trial court could not have increased
Wilson’s sentence without ‘“mak[ing] a disputed” determination’ of fact—a task the
United States Supreme Court specifically counseled against. [Citation.] [¶] We need not
consider here whether the broader application of Apprendi and Descamps to California’s
sentence enhancement scheme would leave intact the kinds of findings—e.g., those not
concerning the facts of a defendant’s prior conduct—heretofore endorsed under
California law. We hold only that federal law prohibits what [People v. ]McGee[, supra,
38 Cal.4th 682] 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.”
The court in People v. Wilson also noted that an unauthorized sentence
under Apprendi and Descamps was subject to review for harmless error under the
Chapman v. California (1967) 368 U.S. 18 standard—whether it could be concluded
beyond a reasonable doubt “that a jury, applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true the strike prior allegation.” (People v. Wilson,
supra, 219 Cal.App.4th at p. 519.) The appellate court concluded the error in that case

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was not harmless beyond a reasonable doubt because “[t]he record contained several facts
from which a jury could rationally find reasonable doubt as to the finding of personal
infliction [of great bodily injury].” (Ibid.)
In People v. Saez (2015) 237 Cal.App.4th 1177, 1182-1183, 1191, the trial
court enhanced the defendant’s sentence based on a prior conviction in Wisconsin for
false imprisonment while armed.6 The appellate court first held that, while the crime of
which the defendant was convicted in Wisconsin was not necessarily a strike under
California law (id. at pp. 1193-1194), under People v. McGee, the trial court could
properly rely on the record of conviction in the Wisconsin case to establish that the
Wisconsin conviction qualified as a prior strike (People v. Saez, supra, at pp. 1195-1198).
The court then held that, under Descamps, the trial court violated the defendant’s Sixth
Amendment rights by relying on the Wisconsin record of conviction. (People v. Saez,
supra, at pp. 1198-1208.) Notably, the appellate court emphasized “that the trial court
acted in contravention of the Sixth Amendment by necessarily relying on the police
officer’s statements in the Wisconsin record of conviction to increase Saez’s sentence.”
(Id. at p. 1208.) The court did not go further to hold that reliance on the language of the
criminal complaint or information, to which a defendant pleaded guilty, would violate
Descamps.
Most recently, in People v. Marin (2015) 240 Cal.App.4th 1344, 1348, the
trial court enhanced the defendant’s sentence based on a jury finding that a prior
conviction for vehicular manslaughter qualified as a strike under the Three Strikes law.
The appellate court concluded that the evidence was insufficient to prove the defendant’s
6 The trial court also increased the defendant’s sentence based on a prior
conviction for armed robbery; the defendant did not challenge the trial court’s use of that
conviction on Apprendi grounds. (People v. Saez, supra, 237 Cal.App.4th at p. 1191,
fn. 12.)

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prior vehicular manslaughter conviction qualified as a strike. (Ibid.) “We hold (1) under
Descamps, judicial factfinding authorized by People v. McGee (2006) 38 Cal.4th 682
. . . , going beyond the elements of the crime to ‘ascertain whether that record reveals
whether the conviction realistically may have been based on conduct that would not
constitute a serious felony under California law’ [citation], violates the Sixth Amendment
right to a jury trial; (2) that right is not violated when, in determining whether a prior
conviction qualifies to increase a defendant’s punishment, the trial court considers ‘the
documents . . . approved in [Taylor v. United States (1990) 495 U.S. 575 . . . and Shepard
v. United States (2005) 544 U.S. 13 . . . ]—i.e., indictment, jury instructions, plea
colloquy, and plea agreement’ [citation]—to determine the statutory elements of the
crime of which the defendant was convicted [citation]; (3) under the reasoning of
Descamps, the Sixth Amendment does not bar judicial factfinding beyond the statutory
elements of the prior conviction, if in entering a guilty plea to the prior offense, the
defendant waived his right to a jury trial as to such facts and either admitted them or they
were found true by the court with the defendant’s assent . . . .” (Id. at pp. 1348-1349.)
In the present case, defendant’s sentence was increased based on a prior
conviction for which the trial court considered the information, guilty plea agreement,
and judgment of conviction from the previous case. This procedure does not run afoul of
Descamps, as it has been interpreted by California appellate courts. There was no dispute
as to the intent element of defendant’s Nevada prior conviction, based on his guilty plea.
And, even if the trial court erred, the error was harmless beyond a reasonable doubt
because, given the clear language of the information, guilty plea agreement, and
judgment of conviction, a jury would have found beyond a reasonable doubt the prior
conviction to be a strike felony.

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DISPOSITION
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
IKOLA, J.

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