Strike allegation based on vehicular manslaughter prior reversed where there was insufficient evidence that defendant personally inflicted great bodily injury on any person other than an accomplice. Marin was convicted of felony driving under the influence and other offenses. Following a prior appeal in which the true findings on Marin’s priors were reversed for a Boykin/Tahl error, the case was remanded to the trial court for new proceedings on the priors. A different jury found that Marin’s vehicular manslaughter prior was a strike. In this appeal, Marin claimed there was insufficient evidence that the prior was a strike. Held: Reversed and remanded. The only evidence the prosecution introduced regarding Marin’s prior was a certified copy of the abstract of judgment which reflected a no contest plea to vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)). Vehicular manslaughter qualifies as a serious felony (and, thus, a strike) if in its commission “the defendant personally inflicts great bodily injury on any person, other than an accomplice.” (Pen. Code, §§ 1192.7, subd. (c)(8), 1192.8, subd. (a).) On the record presented, the evidence at most showed that Marin admitted his grossly negligent conduct proximately caused a death, not that he personally inflicted great bodily injury. This requires reversal of the strike finding.

Judicial factfinding beyond the elements of the offense to determine whether a prior is a strike, as permitted by People v. McGee (2006) 38 Cal.4th 682, does not survive the U.S. Supreme Court’s interpretation of the Sixth Amendment jury trial right in Descamps v. United States (2013) 570 U.S.___. Relying on Descamps, Marin also argued that he was entitled to a jury trial on remand on the issue of whether he personally inflicted bodily injury on a non-accomplice in the commission of the vehicular manslaughter. The Court of Appeal agreed. In McGee, the California Supreme Court found a defendant has no constitutional right to a jury trial regarding whether a prior is a strike. Further, it held that the trial court could examine the record of the prior criminal proceeding to determine whether a prior conviction qualified as a strike in the event the enumeration of the elements of the offense did not resolve the issue. But in Descamps the Supreme Court extended the decision in Apprendi v. New Jersey (2000) 530 U.S. 466, to prohibit judicial factfinding when determining whether a prior qualifies to enhance a sentence. In Descamps, the Court determined the Sixth Amendment permits a sentencing court to identify the prior conviction based on the elements of the offense, but does not permit judicial factfinding about a non-elemental fact to increase a defendant’s maximum sentence. The type of factfinding permitted by McGee is virtually indistinguishable from the factfinding disapproved in Descamps. In this case, if on remand the prosecution intends to prove Marin’s prior is a strike with documents in the record of conviction, Marin is entitled to a jury trial on the issue of whether he inflicted great bodily injury on a person other than an accomplice, unless he waived his right to jury trial as to such facts and either admitted them or they were found true by the court with Marin’s consent.

Double jeopardy does not preclude retrial of Marin’s alleged strike prior. Finally, Marin argued that because Descamps entitles him to a jury trial on his strike prior, double jeopardy precludes retrial if his strike prior is reversed for insufficient evidence. Although Marin’s strike prior is being reversed for insufficient evidence, double jeopardy does not preclude a retrial. In Monge v. California (1998) 524 U.S. 721 (Monge II), the court held the double jeopardy clause does not bar retrial of a prior conviction allegation in the noncapital sentencing context. The U.S. Supreme Court has not overruled Monge II and the California Supreme Court in People v. Barragan (2004) 32 Cal.4th 236, relied upon it in holding that retrial of a strike allegation following reversal for insufficient evidence is permissible.