[CERTIFIED FOR PARTIAL PUBLICATION*]
SMITH, J. —
Jesus Navarette appeals from his convictions and sentence for infliction of corporal injury on a cohabitant or coparent, false imprisonment, making criminal threats, attempting to dissuade a witness from testifying, and dissuading a witness from prosecuting a crime. He contends the trial court abused its discretion in admitting evidence of a prior domestic violence arrest under Evidence Code section 1109, a claim we reject. He also argues the court erred in not applying Penal Code1 section 654 to his sentence for dissuading a witness from prosecuting a crime. The People concede the point, and we agree. Finally, Navarette challenges the trial court's finding that his prior conviction for a homicide offense in the State of Sinaloa, Mexico, constituted a serious felony within the meaning of the serious felony sentence enhancement statute, as well as the three strikes law. We conclude that, under applicable state and federal law, the trial court's finding as to Navarette's prior conviction is not supported by substantial evidence. Accordingly, we strike the trial court's finding. The matter is remanded for resentencing consistent with this opinion. The judgment is affirmed in all other respects.
FACTS AND PROCEDURAL HISTORY
On March 13, 2014, Navarette was charged by a first-amended information filed in the Tulare County Superior Court with attempted second-degree robbery (count 1; §§ 211, 664); assault with a firearm (count 2; § 245, subd. (a)(2)); criminal threats (count 3; § 422); attempting to dissuade a witness from testifying (count 4; § 136.1, subd. (b)(2)); and dissuading a witness from prosecuting a crime (count 5; § 136.1, subd. (b)(2)). The information alleged as to counts 1, 2, and 3 that Navarette personally used a firearm (§ 12022.53, subds. (a)-(c)) and also alleged as to all counts that he had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)) in that he had been convicted of murder in the State of Sinaloa, Mexico, in 2006.
The matter proceeded to jury trial on April 1, 2014. On April 3, 2014, the court granted a defense motion to dismiss count 1; count 2 was dismissed by the People. The court also granted the prosecution's oral motion to amend the information to add a count of infliction of corporal injury on a cohabitant or coparent (count 6; § 273.5, subd. (a)), a count of false imprisonment (count 7; § 236), as well as allegations, with respect to each of these counts, that Navarette personally used a firearm (§ 12022.5, subd. (b)). That same day, the jury found Navarette guilty on counts 3 through 7 and found the special firearm allegations related to counts 3, 6, and 7 to be true (the judge subsequently ordered the firearm allegations to be "modified by interlineation to PC12022.5(a)").
On April 11, 2014, the court found true the prior strike allegations as to counts 3, 4, and 5; however, the court subsequently appeared to indicate that the strike prior applied to "each of the counts" of conviction notwithstanding that it was only alleged in connection with counts 3, 4, and 5. Although the court did not expressly address the prior serious felony allegation, the minute order of the proceedings reflects that the court found it true as to counts 3 and 4.
On June 4, 2014, the court sentenced Navarette to an aggregate term of 27 years in prison. The court imposed a term of 23 years on his conviction for infliction of corporal injury to a cohabitant or coparent in count 6, as follows: the upper term of four years, doubled to eight years based on the strike prior (§ 1170.12, subd. (c)(1)), plus a consecutive five-year term based on the prior serious felony conviction (§ 667, subd. (a)(1)), and a consecutive 10-year term for the firearm enhancement (§ 12022.5, subd. (a)). The court further imposed consecutive sentences of 16 months (one-third the midterm, doubled on account of the strike prior) for Navarette's convictions in counts 3, 4, and 5. Finally, the court sentenced Navarette to the upper term of six years on his conviction for false imprisonment in count 7, which was stayed pursuant to section 664 (this six-year term evidently reflects a doubling of the upper term based on the strike prior). (See § 237, subd. (a) [punishment for false imprisonment by violence or menace].)
On the night of August 3, 2013, Navarette followed his ex-girlfriend, Anami Alvarado, as she drove home from the store. He contacted her by cell phone asking her to pull over, which she did.2 Navarette approached her car carrying a rifle, demanded she get out of the car, and attempted to grab her car keys from the ignition. When Alvarado resisted, Navarette punched her on the left side of her face and, as she drove off, fired two rounds into the ground. Alvarado contacted the Tulare County Sheriff's Department and gave a statement against Navarette. Navarette was then arrested, jailed, and charged in the instant case.
Navarette subsequently threatened Alvarado from jail, over the phone, in letters, and during personal visits. He explicitly directed Alvarado to drop the charges and told her how to change her prior description of events should the case proceed to trial. At trial, Alvarado testified as directed by Navarette, but her prior statements to law enforcement personnel were presented to the jury through the testimony of the relevant personnel.
Alvarado's trial testimony
Alvarado began a relationship with Navarette in 2008. They lived together in Earlimart off and on and were the parents of a two-year-old daughter. Although not legally married, Alvarado considered Navarette her husband. Eventually they separated.
After they separated, on the evening of August 3, 2013, Alvarado drove to Earlimart with her daughter to buy food. On the way home, she noticed a white car following her with Navarette in the passenger seat.
Navarette contacted her by cell phone telling her to stop. She complied, pulling over by a house in Teviston. As Navarette approached, she lowered her window halfway. Navarette told Alvarado he wanted to reconcile and asked her to turn the car off and to get out. Alvarado did not turn the car off or get out. Navarette stuck his hand through the window, asking her to lower it so they could speak. Alvarado did not want to speak to him and pushed his hand away.
Navarette then tried to open Alvarado's car door but it was locked. He grabbed Alvarado's arm as they continued to argue. Alvarado's car was blocked by the white car and some trash cans. A man came out of the driver's side of the white car carrying a rifle. Alvarado recognized him as one of Navarette's friends. The man argued with Navarette then shot the rifle in the air twice. Navarette and the man then got back in the white car. Alvarado fled in her car.
Alvarado drove to the Pixley sheriff's station. On the way there, she called 911. She remembered speaking to Deputy Cruz at the sheriff's station but did not remember the details of the conversation because she was very nervous. She denied telling Deputy Cruz that Navarette reached into her vehicle and tried to remove the keys. She denied that Navarette punched her in the left side of the face and that he fired the rifle into the ground. She denied telling Deputy Cruz that Navarette told her he would kill her father that evening. Alvarado also denied that Navarette had called her while she was at the sheriff's station.
Alvarado denied that Navarette called her from jail on August 6, 2013, directing her to refuse to testify against him and to tell the police he did not fire the rifle. Alvarado stated she had spoken to Navarette while he was in jail and had visited him there.
Alvarado also denied that she told the Tulare County District Attorney's Office Investigator Martha Rodriguez that she was afraid of Navarette hurting her if he got out of jail. She denied telling Investigator Rodriguez that Navarette had been offered a job running a drug trafficking operation and that he had threatened to use hit men under his control to kill her family in Mexico. She also denied telling Investigator Rodriguez that when she went to visit Navarette he would hold drawings up to the window with messages written at the bottom regarding how she should testify in court.
Other prosecution evidence
On August 3, 2013, Tulare County Sheriff's Deputy Nathan Cruz was dispatched to the intersection of Avenue 72 and Road 132 in Teviston to investigate a report of shots fired. Shortly thereafter, Alvarado arrived at the sheriff's station in Pixley and Deputy Cruz returned to talk to her.
Alvarado told Deputy Cruz that Navarette was her ex-boyfriend. Earlier that evening, Alvarado went shopping in Earlimart. While she was in the store, she received a call from Navarette. Navarette told Alvarado that he wanted to talk. Alvarado declined as their relationship had ended in July 2012. Navarette said he would follow her and she should "watch her back."
Alvarado left the store to return home, taking a route that she did not normally use. She got another call from Navarette when she was near the intersection of Avenue 72 and Road 132 in Teviston. Navarette told her he was in the car behind her and she should pull over. Alvarado saw a white Ford Mustang behind her.
Alvarado pulled over in the vicinity of the intersection, and the white Mustang stopped behind her. Navarette got out of the passenger side, holding a rifle. Navarette came to the driver's side of Alvarado's car and told her to get out. When Alvarado refused, he reached through the window with his left hand and tried to grab the car keys out of the ignition. Alvarado pushed his hand out of the car. Navarette punched her on the left side of her face. She put the car in gear. Navarette fired two rounds from the rifle toward the ground. He told Alvarado he would kill her father later that night. Alvarado drove away quickly. As she did, she saw Navarette throw shell casings onto a property with an open gate. During the encounter, Alvarado's daughter was in the backseat of the car.
As Alvarado was talking to Deputy Cruz, her cell phone rang. She told Deputy Cruz the caller was Navarette. Alvarado answered the phone and put it on speaker. Navarette said, in Spanish, "You fucking bitch, don't be rolling around town without my permission." Alvarado told Navarette their relationship was over and to leave her alone.
Alvarado told Deputy Cruz she was afraid for her life. She appeared fearful to Deputy Cruz. She also had a bump and redness on her left cheek below her eye. Alvarado informed Deputy Cruz that Navarette lived on Cedar Avenue in Earlimart. Deputy Cruz went to Navarette's residence and arrested him.
On August 16, 2013, Deputy Cruz called Alvarado. She informed him she no longer wanted to cooperate with the investigation and refused to meet with him. She also demanded that the charges brought against Navarette be dropped.
Abraham Chavez lived near Road 132 and Avenue 72 in Teviston on August 3, 2013. Around 8:00 or 9:00 p.m., he was sitting on the porch in front of his house; he heard a man and woman arguing. The man told the woman to "get inside" and the woman responded "no." The man also told the woman, in Spanish, "Bitch, get the fuck off the car." A few seconds later Chavez heard a gunshot. The man and woman left in separate cars. One of the cars was a white Mustang. Maricruz Chavez, Abraham's wife, also heard the argument and a gunshot.
Tulare County Sheriff's Deputy Anthony Young was dispatched to the location in Teviston where the shooting occurred. He was taking Chavez's statement when Deputy Cruz called to tell him that Navarette had thrown shell casings nearby. Deputy Young searched the property near the intersection and found a 7.62 × 39 shell casing beyond the open gate. That caliber of shell is commonly used in an AK-47 rifle.
On August 6, 2013, Navarette made two calls to Alvarado from jail. Investigator Rodriguez obtained a recording of the calls. She played one of the calls for Alvarado. Alvarado identified the woman's voice as her own and the other voice as Navarette's. In the call, Navarette told Alvarado to try to contact the court and explain that "she did not have anything against him, that they did not argue, that he did not hit her." Navarette also said, "if they try to bring you in, you tell them, `No, I do not have a reason to go. I don't want to go. I don't have to go.'" Navarette told Alvarado he was facing charges of domestic violence and criminal threats and asked her to say that the charges were unfounded.
Investigator Rodriguez subsequently spoke to Alvarado on February 18, 2014. Alvarado told her she was afraid of Navarette. She was concerned that, were Navarette deported to Mexico, he would harm her daughters who lived there. On March 21, 2014, Rodriguez again met with Alvarado, who did not want to be seen meeting with Rodriguez. Earlier that day, Alvarado had visited Navarette in jail. He told her he had been offered a drug-trafficking job by a person known to Alvarado and would have hit men under his control. Alvarado cried during the conversation; she was worried about the safety of family members who lived in Sinaloa, Mexico. She believed that Navarette wielded power both inside and outside the walls of the jail and, consequently, she was fearful of cooperating with law enforcement.
On April 1, 2014, Alvarado gave Investigator Rodriguez two letters that Navarette had sent her; she did not want Rodriguez to disclose that she had obtained the letters from Alvarado. A court interpreter read the letters, in translation, to the jury. In one letter, Navarette directed Alvarado to testify, in connection with the Teviston incident, that another man was driving the car that Navarette had pulled up in and that it was the other man who fired the rifle. In the other letter, Navarette repeated that Alvarado should testify that the other man fired the rifle and disposed of the shell casings; he also told her to clarify that he did not hit her. Alvarado also told Rodriguez that, during jail visits, Navarette would hold up drawings he had made for their daughter. The drawings incorporated messages from Navarette to Alvarado regarding how he wanted her to testify in court.
Section 1109 evidence
Officer Leonard Diaz worked at the Phoenix, Arizona, Police Department in 2002. On May 29, 2002, he was dispatched on a domestic violence call. He contacted the victim, Myra Galaviz, who was suffering from head and lower back pain. Upon investigation of the matter, Navarette was arrested on domestic violence and assault charges.
Navarette did not testify or otherwise present a defense.
III. Sufficiency of the evidence as to Navarette's prior murder conviction in Sinaloa, Mexico
Navarette contends the evidence was insufficient to support the trial court's true findings on the prior strike and serious felony allegations in the information. We agree. Accordingly, we strike the trial court's finding and remand the matter for resentencing consistent with this opinion.
The first-amended information alleged, as to counts 3, 4, and 5, that Navarette had suffered a prior serious felony within the meaning of section 667, subdivision (a)(1). The information further alleged, with respect to the same counts, that Navarette had suffered a "prior conviction of a serious or violent felony" or "strike" under the three strikes law, sections 1170.12, subdivisions (a)-(d), and 667, subdivisions (b)-(i).4 (See People v. Vargas (2014) 59 Cal.4th 635, 639, 642 [174 Cal.Rptr.3d 277, 328 P.3d 1020].) The information specified, with respect to these enhancement allegations, that Navarette's prior serious felony conviction was a murder conviction in the State of Sinaloa, Mexico, dated February 28, 2006, "which includes all the elements of California Penal Code section 187 ...."
After a bifurcated hearing during which the prosecutor presented records relating to the underlying proceeding, the court summarily determined, "Court is satisfied that the defendant Jesus Navarette in this trial is the person in the document presented, that he has suffered a conviction for the crime of murder, which is the equivalent of murder in this country. It, therefore, finds true the special allegation pursuant to [sections 1170.12(a)] through [(d)] and 667(b) through (i)" as to all counts of conviction.5 Though the court did not expressly find the special allegation of a prior serious felony pursuant to section 667, subdivision (a)(1), to be true, the finding is reflected in the court's minute order from the proceedings.
Defense counsel then noted his objections for the record, including his objection that the elements of the homicide offense in Sinaloa, Mexico, did not match the elements of murder in California and that it would violate Navarette's constitutional rights were the court to go behind the elements of the respective offenses and "delve into the actual facts" of the Mexican proceeding to make its findings. Without addressing the latter argument, the court summarily rejected Navarette's objection that the elements of the respective offenses in Mexico and California did not match, with the Mexican offense being broader and missing certain elements, including malice aforethought, present in California's statutory definition of murder. (See § 187.) With reference to the appellate opinion from the Mexican case, the court stated it appeared the appellate court had determined the homicide was "intentional," which "substantiates the murder and the intentional element." The court also noted that a claim of self-defense was adjudicated in the Mexican proceeding but it did not address whether the absence of a justification such as self-defense was an element of the prior offense.
(1) As our Supreme Court has explained, "[f]or criminal sentencing purposes in this state, the term `serious felony' is a term of art. Severe consequences can follow if a criminal offender, presently convicted of a felony, is found to have suffered a prior conviction for a serious felony." (People v. Warner (2006) 39 Cal.4th 548, 552 [47 Cal.Rptr.3d 1, 139 P.3d 475] (Warner).) If the present conviction is also for a serious felony, "the offender is subject to a five-year enhancement term to be served consecutively to the regular sentence."6 (Warner, at p. 552.) Moreover, a prior conviction for a serious felony also "renders the offender subject to the more severe sentencing provisions of the three strikes law." (Ibid.; see also People v. Delgado (2008) 43 Cal.4th 1059, 1065 [77 Cal.Rptr.3d 259, 183 P.3d 1226].)
(2) Whether a crime qualifies as a serious felony is determined by section 1192.7, subdivision (c), which lists and describes dozens of qualifying crimes, including murder, robbery, kidnapping, and forcible sexual assaults. (Warner, supra, 39 Cal.4th at p. 552.) "Under our sentencing laws, foreign convictions may qualify as serious felonies, with all the attendant consequences for sentencing, if they satisfy certain conditions. For a prior felony conviction from another jurisdiction to support a serious-felony sentence enhancement, the out-of-state crime must `include all of the elements of any serious felony' in California. (§ 667, subd. (a)(1).) For an out-of-state conviction to render a criminal offender eligible for sentencing under the three strikes law (§§ 667, subds. (b)-(i), 1170.12), the foreign crime (1) must be such that, `if committed in California, [it would be] punishable by imprisonment in the state prison' (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)), and (2) must `include all of the elements of the particular felony as defined in' section 1192.7(c) (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2))."7 (Warner, at pp. 552-553.)
(3) "The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. [Citation.]" (People v. Miles (2008) 43 Cal.4th 1074, 1082 [77 Cal.Rptr.3d 270, 183 P.3d 1236].) "On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt. [Citations.]" (People v. Delgado, supra, 43 Cal.4th at p. 1067; see People v. Saez (2015) 237 Cal.App.4th 1177, 1189 [189 Cal.Rptr.3d 72].) Here our inquiry focuses on whether substantial evidence supports the trial court's determination that Navarette's prior Mexican conviction constituted, beyond a reasonable doubt, a serious felony for purposes of section 667, subdivision (a)(1), and the three strikes law. (See Delgado, supra, at p. 1070.)
(4) The first-amended information specified, with respect to the allegation that Navarette had suffered a prior "serious felony" for purposes of section 667, subdivision (a)(1), and the three strikes law, that this Mexican prior conviction was a "serious felony" that "includes all the elements of California Penal Code section 187," i.e., murder. Murder qualifies as a "serious felony" for purposes of recidivist enhancements under both section 667, subdivision (a)(1), and the three strikes law. (See § 1192.7.)
Here, both parties agree on the elements of the Mexican homicide prior. As described in the People's brief, "the elements of [the Mexican] crime" were: "a). — Illegal deprivation of the life of another; b). — that is due to an external cause, imputable to a man as a result of his intentional or imprudent act." The parties also agree that Navarette had raised a colorable claim of self-defense that was duly adjudicated in the Mexican proceeding. In addition, Navarette contends, and the People do not dispute, that Navarette bore the burden of proving that he acted in self-defense. Navarette argues the elements of his Mexican homicide offense do not include all the elements of murder under California law as alleged in the information and summarily found by the trial court.
(5) Under California law, the elements of murder — that the prosecution, by definition, is required to prove beyond a reasonable doubt — are as follows: (1) the defendant committed an act that caused the death of another person; (2) when the defendant acted, he had a state of mind called malice aforethought; and (3) he killed without lawful excuse or justification. (See CALCRIM No. 520; People v. Frye (1992) 7 Cal.App.4th 1148, 1159 [10 Cal.Rptr.2d 217] [California treats "the absence of excuse or justification, and hence the question of unlawfulness, as an element of an offense"]; see also § 187, subd. (a) ["Murder is the unlawful killing of a human being ... with malice aforethought."]; People v. Catlin (2001) 26 Cal.4th 81, 139 [109 Cal.Rptr.2d 31, 26 P.3d 357] ["The elements of a charge of murder are an unlawful killing with malice aforethought."].) The element of malice aforethought, moreover, encompasses two alternative mental states, express malice and implied malice, which must be formed before the act that causes death is committed. (CALCRIM No. 520.) A defendant acted with express malice if he unlawfully intended to kill, and with implied malice if he (1) intentionally committed an act; (2) the natural and probable consequences of the act were dangerous to human life; (3) at the time he acted, he knew his act was dangerous to human life; and (4) he deliberately acted with conscious disregard for human life. (Ibid.)
Navarette contends the Mexican offense does not include the element of malice aforethought or an element requiring the prosecution to prove that the killing was unlawful, i.e., that Navarette did not act in justifiable self-defense. Focusing on the latter point, the People do not dispute that Navarette bore the burden to prove he acted in self-defense and, as a consequence, the absence of justifiable self-defense was not an element of the crime.8 Nonetheless, the People argue that the sentencing court could still properly have found, based on the facts of the Mexican proceedings and certain findings reflected in an appellate opinion from that case, that the prior homicide offense included all the elements of murder under California law.
For the reasons discussed below, we find the type of factfinding advocated by the People is foreclosed under both applicable state and federal case law, i.e., People v. McGee (2006) 38 Cal.4th 682 [42 Cal.Rptr.3d 899, 133 P.3d 1054] (McGee), as well as Descamps v. United States (2013) 570 U.S. ___ [186 L.Ed.2d 438, 133 S.Ct. 2276] (Descamps), on Apprendi grounds. (Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi).) Accordingly, we conclude the trial court's determination that the Mexican offense included all the elements of murder under California law is not supported by substantial evidence. In turn, we find the People have failed to sustain their burden to prove all the elements of the sentencing enhancements alleged pursuant to section 667, subdivision (a)(1), and the three strikes law. Consequently, we strike the trial court's true findings on the enhancement allegations, reverse the judgment, and remand the matter for resentencing consistent with this opinion.
1. State law limitations on a sentencing court's power to adjudicate sentence enhancements
(6) With respect to findings regarding whether a prior conviction qualifies as a "serious felony" for purposes of sentencing enhancements, California law mandates that "it is the court, rather than the jury, that is entrusted with the responsibility of undertaking this inquiry and making the determination."9 (McGee, supra, 38 Cal.4th at p. 685, italics omitted.) "California law specifies that in making this determination, the inquiry is a limited one and must be based upon the record of the prior criminal proceeding, with a focus on the elements of the offense of which the defendant was convicted. If the enumeration of the elements of the offense does not resolve the issue, an examination of the record of the earlier criminal proceeding is required in order to ascertain whether that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law." (Id. at p. 706.) In other words, when the elements of the prior conviction are broader than the elements of the corresponding serious felony, such that it is at least theoretically possible that the prior conviction involved conduct that would not constitute a serious felony under California law, the sentencing court may look to the record of the prior conviction to determine whether the prior conviction did in fact involve such conduct.
(7) However, in doing so, the court is limited to examining the record to determine "the nature or basis" of the prior offense and cannot engage in resolving factual disputes concerning a defendant's conduct. (McGee, supra, 38 Cal.4th at p. 691; §§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) "The need for such an inquiry does not contemplate that the court will make an independent determination regarding a disputed issue of fact relating to the defendant's prior conduct [citation], but instead that the court simply will examine the record of the prior proceeding to determine whether that record is sufficient to demonstrate that the conviction is of the type that subjects the defendant to increased punishment under California law. This is an inquiry that is quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court." (McGee, supra, at p. 706.)
(8) In sum, "[t]o qualify as a serious felony, a conviction from another jurisdiction must involve conduct that would qualify as a serious felony in California." (People v. Avery (2002) 27 Cal.4th 49, 53 [115 Cal.Rptr.2d 403, 38 P.3d 1].) Moreover, to the extent this inquiry transcends an elements-based analysis and spills over into an examination of the record of the prior conviction, McGee prohibits the court from resolving disputed issues of fact in determining whether the prior conviction "realistically may have been based on conduct that would not constitute a serious felony under California law." (McGee, supra, 38 Cal.4th at p. 706.)
Here, a comparison of the elements of Navarette's Mexican offense with that of the elements of murder under California law readily reveals that the elements of the Mexican offense are broader than the elements of murder under California law, such that the former offense can theoretically encompass conduct that would not constitute a serious felony under California law. The Mexican offense contains the alternative elements that a defendant deprived another of his life by committing an intentional or imprudent act. The elements of an "intentional" or "imprudent" act, respectively, are not equivalent facially to either the element of express malice aforethought, which requires an unlawful intent to kill, or the element of implied malice aforethought, which requires that a defendant have deliberately acted with conscious disregard for human life. Furthermore, the Mexican offense does not contain an element requiring the prosecution to prove that there was no justification, such as the need for self-defense, for a defendant's actions. Although the elements of the Mexican offense reflect a requirement of an "[i]llegal deprivation of the life of another," it is clear, nonetheless, that "[i]llegal deprivation" does not require the prosecution to prove the absence of justification, including the need for self-defense, as there is no dispute that, in the Mexican proceedings, the burden to prove the applicability of self-defense fell on Navarette.
The People nonetheless urge that the trial court's finding that the Mexican offense was a serious felony under California law should be upheld because the record of the Mexican conviction reflects an appellate finding that unequivocally disposes of Navarette's self-defense claim. Even if we assumed the appellate court made such a finding, there is no dispute the appellate court's entire analysis was conducted through a lens placing the burden of proof regarding the applicability of self-defense on Navarette, as that count found Navarette had "not proven" his self-defense claim. It is axiomatic that finding Navarette has "not proven" the applicability of self-defense does not translate to a finding that the prosecution proved the absence of justification, i.e., the need for self-defense, as an element of the offense. Indeed, this point is crystalized by reference to the final findings of the lower court in the Mexican proceedings, which concluded:
"[T]he fact that the accused JESUS ALFREDO NAVARETTE [FERNANDEZ], alias EL NENE, alleges that he repelled the aggression from the deceased MARCIAL MARTINEZ JIMENEZ, because it was the latter who provoked him, and he was imperiously forced to save his life, meaning that he acted in self defense, this cannot be corroborated in the file, even [if] it has been demonstrated that the deceased MARCIAL MARTINEZ JIMENEZ, had a firearm, the one he actually used several times, however it is unknown if it was him who fired first or after to try to defend his life, since there were no witnesses that saw the events and therefore there is only one version which is the one of the defendant, in the sense that he was repe[l]ling the aggressing from the today deceased, because the several pieces of evidence such as the expert forensic reports in ballistics and the sodium radiozonate analysis, as well as the toxicology studies practiced on the accused as well as the deceased, as well as the weapons that they both carried, determined without questions that truly there were sufficient elements identified consistent with the deflagration of gun powder finding stains on the usual zones on the one who in life answered to the name of MARCIAL MARTINEZ JIMENEZ, as well as the ingestion of alcoholic beverages and consumption of cocaine, in addition to [the witnesses] LIDIA ROMERO SAUCEDA, ALMA ROSA SERNA SAUCED[O] AND MARIA SONIA SANDOVAL FERNANDEZ, confirmed in their statements that truly on the day of the commission of the crime, ... they saw that he was carrying a firearm on his right hand, the same that was removed before the authorities arrived to the place of the event, fact that is somehow corroborated by the accused that, MARCIAL MARTINEZ JIMENEZ, had a firearm and he actually used it, as this is confirmed by the studies practiced by the official experts, however it is not proved beyond doubt that it was MARCIAL MARTINEZ JIMINEZ who first fired the weapon that he had and as a result of it JESUS ALFREDO NAVARETTE FERNANDEZ, had to repel the aggression and also fired shots against the physical integrity of the today deceased and [based on the injuries sustained] he lost his life; but even with the proof offered by the defense counsel, consisting on the expansion of the statements issued by the witnesses ... which were admitted during a judicial proceeding in this Tribunal pursuant to what is required by Law, it was not demonstrated that the fact that the accused alleges, in the sense that he deprived MARCIAL MARTINEZ JIMENEZ of his life, in self defense, that it was the latter the one who first fired his gun caliber 38 super; however, this reviewer is not convinced that the accused had really acted to defend his life, repelling an actual violent aggression, without the right to do so, resulting in an imminent danger (self defense as prescribed by article 26 faction IV of the Penal Code). There is no doubt that the victim in this case also fired his weapon at the accused with caliber 38 pistol and which was secured during the preliminary investigation, and that the deceased carried at the time of the events, what is widely proved, because the accused had a rifle what is called goat's horn, an[d] which is actually a weapon more powerful than the one that the today deceased carried, therefore he had full knowledge that when he fired the rifle he would deprive MARCIAL MARTINEZ JIMENEZ of his life no matter the circumstances.
"Being as things are, the affirmative defense of self defense, is not proved in this case; yet there is evidence that the accused deprived the victim of his life after both parties verbally aggravated each other, that is why we cannot use the dispute that the defense alleges in his conclusion about guilt, and that may constitute an extenuating circumstance in the punishment ...." (Italics added.)
Thus, the record of the Mexican proceedings for present purposes reflects a factual dispute over the applicability of self-defense as a justification for the killing as Navarette bore the burden of proof on the question in the earlier case. In the Mexican proceeding, Navarette provided a statement to the effect that he had acted in self-defense, specifically that decedent, Marcial Martinez Jimenez, had shot him first, and Navarette returned fire because he was in imminent danger of being killed.11 Other witnesses testified that Jimenez had a pistol in his right hand when his dead body was found. There was uncontroverted evidence, based on gunpowder residue on Jimenez's hands and ballistics analysis, that Jimenez had actually fired shots from his weapon. Moreover, bullets and casings from both Jimenez's and Navarette's weapons were found around the body. Finally, one witness stated he heard the gunshots related to the incident, and gunshots from a smaller weapon such as the one carried by Jimenez preceded louder gunshots that sounded like shots from a rifle. On the other hand, an appellate decision upholding the lower court's ruling noted that the trajectories of the bullets that struck Jimenez suggested the latter was not facing Navarette as implied in Navarette's account and, moreover, that ballistics evidence and the type of wounds on Jimenez's body indicated that a third weapon had been used during the incident. The sentencing court in the instant proceedings could only resolve the complex factual dispute regarding Navarette's claim of self-defense by weighing the evidence and discrediting his statements, which type of factfinding is prohibited under McGee.
(9) Moreover, applying the test outlined in McGee, the record of the Mexican proceedings in any event demonstrates that Navarette's Mexican conviction "realistically may have been based on conduct that would not constitute a serious felony under California law." (McGee, supra, 38 Cal.4th at p. 706.) Specifically, Jimenez was found holding a firearm in his right hand; gun powder residue on both his hands reflected that he had fired a weapon; bullets and casings from his weapon were found in the vicinity of the body; he had been drinking and had cocaine in his system that evening; and several witnesses stated he was an aggressive and offensive person. Next, Navarette testified that he shot Jimenez after the latter fired three shots that "zoom[ed] by" Navarette's head, narrowly missing him. Finally, the Mexican lower court concluded that Navarette had failed to prove the applicability of self-defense because it was unclear whether Jimenez or Navarette had fired first. Given this scenario, Navarette's self-defense claim realistically may have prevailed under California law. (See CALCRIM No. 505.) It follows that the Mexican conviction "realistically may have been based on conduct that would not constitute a serious felony under California law." (See People v. Avery, supra, 27 Cal.4th at p. 53 ["To qualify as a serious felony, a conviction from another jurisdiction must involve conduct that would qualify as a serious felony in California."]; see also §§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) Thus, under McGee, the evidence is insufficient to support the trial court's finding that the prior conviction constituted a serious felony under California law.12
2. Federal law limitations on a sentencing court's power to adjudicate sentencing enhancements
(10) "The Sixth Amendment right to trial by jury and the Fourteenth Amendment right to due process also limit a judge's role in sentencing." (People v. Wilson (2013) 219 Cal.App.4th 500, 513 [162 Cal.Rptr.3d 43], citing Apprendi, supra, 530 U.S. at p. 483, fn. 10.) "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."13 (Apprendi, supra, at p. 490; see also Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350, 118 S.Ct. 1219].) Here, the People urge us to uphold the trial court's enhancement findings based on the record of the Mexican proceeding. The issue is whether Apprendi's exception for "the fact of a prior conviction" permits the sentencing court to refer to the record of the prior case to ascertain necessary facts beyond those admitted by a defendant in the later case or implied by the elements of the prior offense.14 (See Shepard v. United States (2005) 544 U.S. 13, 14 [161 L.Ed.2d 205, 125 S.Ct. 1254] ["the Sixth and Fourteenth Amendments guarantee a jury's standing between a defendant and the power of the State, and they guarantee a jury's finding of any disputed fact essential to increase a potential sentence's ceiling."].)
When our Supreme Court decided McGee, the United States Supreme Court had not yet definitively delineated the limits under the Sixth Amendment of judicial factfinding related to prior convictions alleged as the basis for sentence enhancements. The McGee court "recognize[d] the possibility that the United States Supreme Court, in future decisions, may extend the Apprendi rule" to limit judicial factfinding related to priors. (McGee, supra, 38 Cal.4th at p. 709.) But the court concluded, "we are reluctant to assume, in advance of such a decision by the high court, that the federal constitutional right to a jury trial will be interpreted to apply" to a sentencing judge's examination of the record of a prior conviction for sentencing purposes. (Ibid.)
(11) The United States Supreme Court has since revisited the issue in Descamps, supra, 570 U.S. ___ [133 S.Ct. 2276], which extended Apprendi to the determination of qualifying priors under the federal Armed Career Criminal Act of 1984 (ACCA), a priors-based sentence enhancement statute analogous to California's three strikes law. Descamps explained that, under the Sixth Amendment, this inquiry must strictly conform to the categorical approach and cannot encompass further factfinding beyond the elements of the prior offense. Descamps clarified, "The [ACCA] increases the sentences of certain federal defendants who have three prior convictions `for a violent felony,' including `burglary, arson, or extortion.' [Citation.] To determine whether a past conviction is for one of those crimes, courts use a `categorical approach': They compare the statutory elements of a prior conviction with the elements of the `generic' crime — i.e., the offense as commonly understood. If the statute's elements are the same as, or narrower than, those of the generic offense, the prior conviction qualifies as an ACCA predicate." (Descamps, supra, at p. ___ [133 S.Ct. at p. 2281].)
Under the ACCA, Descamps faced an enhanced sentence based on a prior California conviction for burglary. In the prior proceeding, Descamps had pleaded guilty to a California burglary offense which provided that "[e]very person who enters [certain locations] with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459; see Descamps, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2282].) The generic offense under the ACCA, however, required an element of "`unlawful or unprivileged entry'" akin to breaking and entering. (Shepard v. United States, supra, 544 U.S. at pp. 16-17.) Although the California statute was broader than the generic definition of burglary in the ACCA, the district court determined the defendant's prior California conviction matched the elements of the generic offense. The district court relied on the transcript of Descamps's plea colloquy, during which the prosecutor had stated, to no objection, that Descamps's crime involved the breaking and entering of a grocery store. The court then applied the sentence enhancement, which more than doubled Descamps's sentence. (Descamps, supra, at p. ___ [133 S.Ct. at p. 2282].)
(12) The high court rejected the district court's factfinding as a violation of the Sixth Amendment under Apprendi. Initially applying a statutory interpretation analysis specific to the ACCA, the court next addressed the "Sixth Amendment underpinnings" of the analysis. The court held that a sentencing court's factfinding "would (at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction." (Descamps, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2288].) The court further explained that "[t]hose concerns ... counsel against allowing a sentencing court to `make a disputed' determination `about what the defendant and state judge must have understood as the factual basis of the prior plea,' or what the jury in a prior trial must have accepted as the theory of the crime. [Citations.] Hence our insistence on the categorical approach." (Ibid., italics added.) Descamps clarified that, by contrast, an inquiry in which the sentencing "court is merely asking whether a particular set of facts leading to a conviction conforms to a generic ACCA offense" is precisely "what we have expressly and repeatedly forbidden." (Id. at p. ___ [133 S.Ct. at p. 2291] [emphasizing that "fact pattern is [not] an `implied' statutory definition" to be discerned by sentencing judge].)
Ultimately, Descamps makes clear that the Sixth Amendment principles laid out in Apprendi require strict adherence to the categorical approach and foreclose any factfinding by the sentencing court beyond the facts necessarily implied by the elements of the prior offense.15 (Descamps, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2286] ["We know Descamps' crime of conviction, and it does not correspond to the relevant generic offense. Under our prior decisions, the inquiry is over."].) An "elements-centric, `formal categorical approach' ... avoids the Sixth Amendment concerns that would arise from sentencing courts' making findings of fact that properly belong to juries." (Id. at p. ___ [133 S.Ct. at p. 2287].) In sum, under Descamps, a sentencing court considering a prior conviction for sentencing purposes is limited to an elements-centric inquiry; it cannot substitute "a fact-based inquiry for an elements-based one." (Id. at p. ___ [133 S.Ct. at p. 2293].) If there is a "mismatch in elements," the person convicted under the statute relevant to the prior proceeding "is never convicted of the generic crime." (Id. at p. [133 S.Ct. at p. 2292].)
(13) Applying Descamps to the instant case, Navarette cannot stand convicted of murder in California because the Mexican homicide statute was missing an element requiring the prosecution to prove the absence of a justification such as self-defense. As in Descamps, "[t]he dispute here does not concern any list of alternative elements"; rather "it involves a simple discrepancy" between the Mexican offense and the crime of murder under California law. (Descamps, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2285].) Under Descamps, the sentencing court could not, without violating the Sixth Amendment, "look beyond the elements to the evidence or, otherwise said, to explore whether a person convicted of one crime could also have been convicted of another, more serious offense." (Id. at p. ___ [133 S.Ct. at p. 2292].) "[T]hat circumstance-specific review is just what the categorical approach precludes." (Ibid.)
Because the prosecution in the Sinaloa case did not have to prove the absence of a justification, i.e., self-defense, to obtain the homicide conviction that Navarette suffered, that prior conviction cannot constitute a serious felony in California. (See Descamps, supra, 570 U.S. at p. ___-___ [133 S.Ct. at pp. 2285-2286] ["because California, to get a conviction, need not prove that Descamps broke and entered — a § 459 violation cannot serve as an ACCA predicate"].) As Descamps explained, the defendant's actual conduct "makes no difference," nor does it matter whether the defendant admitted, in the prior proceeding, to the conduct at issue. (Ibid.) The trial court simply cannot use an examination of the record of the prior conviction as a "device employed ... to evaluate the facts that the judge or jury found" or to make and "rely on its own finding about a non-elemental fact," thereby turning an "elements-based inquiry into an evidence-based one." (Id. at pp. ___, ___ [133 S.Ct. at pp. 2287, 2289].) In the instant case, the court also would be prohibited from examining the record of the prior conviction to determine whether that offense involved malice aforethought, given that the elements of the Mexican offense do not, on their face, include any element that corresponds to malice aforethought (either express or implied) that is included in California's definition of murder. (See § 187.)
In addition to delineating the critical Sixth Amendment implications of a factual approach, the Supreme Court also addressed "`the practical difficulties and potential unfairness'" that arise when a sentencing court usurps a jury's factfinding function. (Descamps, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2287].) The high court highlighted the "`daunting' difficulties and inequities" that confront courts attempting to glean information about the scope of a prior conviction with reference to old, confusing, and incomplete records of proceedings from a variety of jurisdictions, especially given that the parties to the prior proceeding were not necessarily focused on the implications of the conviction for recidivist enhancements alleged in subsequent cases (potentially in foreign jurisdictions). (Id. at p. ___ [133 S.Ct. at p. 2289].) The court noted that, "[i]n case after case, sentencing courts ... would have to expend resources examining (often aged) documents for evidence that a defendant admitted in a plea colloquy, or a prosecutor showed at trial, facts that, although unnecessary to the crime of conviction, satisfy an element of the relevant generic offense. The meaning of those documents will often be uncertain. And the statements of fact in them may be downright wrong." (Ibid.)
Such concerns are particularly relevant to this case where the prior conviction alleged in the information is from a foreign country, indeed a particular state within a foreign country with a very different legal and constitutional system than this one. Mexico adheres to the civil law system rather than a common law one, which would preclude the right to a jury trial in the first instance. The standard of proof applicable to criminal cases also may not coincide with the "reasonable doubt" standard that is mandated by the United States Constitution. (In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 90 S.Ct. 1068]; Apprendi, supra, 530 U.S. at pp. 477-478.)
Additionally, there can be no dispute that the translated record of the Mexican conviction is very difficult to decipher; the standards of proof and review, as well as the evidentiary rules applicable to the proceedings, are ambiguous and hard to ascertain; and records and documents that form a standard part of the record in criminal cases in this country, such as charging documents and jury instructions (that courts may properly rely on for purposes of the modified categorical approach as endorsed by Descamps), are conspicuously absent.
(14) Our state Supreme Court has yet to consider the impact of Descamps on the California procedure for proof of prior convictions as outlined in McGee.16 However, a number of Courts of Appeal have already addressed, at length, the intersection of McGee and Descamps. In People v. Wilson, the Sixth District held that "federal law prohibits what McGee already proscribed: A court may not impose a sentence above the statutory maximum based on disputed facts about prior conduct not admitted by the defendant or implied by the elements of the offense." (People v. Wilson, supra, 219 Cal.App.4th at p. 516.) Similarly, in People v. Saez, supra, 237 Cal.App.4th at pages 1207 through 1208, the First District held, "this much is clear: when the elements of a prior conviction do not necessarily establish that it is a serious ... felony under California law ..., the court may not under the Sixth Amendment `"make a disputed" determination "about what the defendant and state judge must have understood as the factual basis of the prior plea," or what the jury in a prior trial must have accepted as the theory of the crime.'" Saez further noted that, "while Descamps did not explicitly overrule McGee, Descamps's discussion of the Sixth Amendment principles applicable when prior convictions are used to increase criminal sentences is clear and unavoidable and was adopted by eight of the nine justices on the high court." (Id. at p. 1207.)
Next, in People v. Marin (2015) 240 Cal.App.4th 1344, 1348 [193 Cal.Rptr.3d 294], the Second District held that Descamps had effectively overruled McGee: "[U]nder Descamps, judicial factfinding authorized by [McGee], going beyond the elements of the crime to `ascertain [if] that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law' [citation], violates the Sixth Amendment right to a jury trial ...."17 (See Marin, supra, at p. 1348.) People v. Denard (2015) 242 Cal.App.4th 1012, 1033-1034 [195 Cal.Rptr.3d 676], another case from the Second District, agreed with the conclusion in Marin that "`judicial factfinding beyond the elements of the offense, is incompatible with the United States Supreme Court's view of the Sixth Amendment right to a jury trial as articulated in Descamps.'" Finally, People v. McCaw (2016) 1 Cal.App.5th 471, 484-485 [203 Cal.Rptr.3d 914], held that a sentencing court's reliance on legally superfluous statements in a plea colloquy to supply a missing element in the statute that was the basis of the defendant's prior conviction, "runs afoul of several portions of the Descamps analysis," including by going beyond the statutory elements of the prior to determine the defendant's underlying conduct.
Our holding today that, under Descamps, the trial court could not find that Navarette's Mexican conviction constituted a serious felony under California law is consistent with the aforementioned opinions of our sister Courts of Appeal. It is clear the trial court did not have the power to parse the record of the Mexican proceeding to evaluate the disputed facts related to Navarette's claim of self-defense in that matter. (See People v. Wilson, supra, 219 Cal.App.4th at p. 516; People v. Saez, supra, 237 Cal.App.4th at pp. 1207-1208.) Indeed, given the unequivocal mismatch in the elements of the Mexican offense and those of murder in California, the trial court simply could not, consistent with the Sixth Amendment, go beyond the elements of the Mexican offense in determining whether the offense coincided with a serious felony in California. (See People v. Marin, supra, 240 Cal.App.4th at pp. 1348, 1363; People v. Denard, supra, 242 Cal.App.4th at pp. 1033-1034.)
In sum, the trial court's findings on the sentencing enhancements alleged in the information are not supported by substantial evidence.18
The trial court's finding that Navarette's 2002 Mexican murder conviction was a serious felony and a strike under California law for sentencing purposes is stricken. The trial court is directed to stay Navarette's sentence on count 5, pursuant to section 654. The judgment is reversed, and the matter is remanded to the trial court for resentencing consistent with this opinion.
Detjen, Acting P. J., and Peña, J., concurred.