P. v. Garibay

Filed 5/19/08 P. v. Garibay CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANA M. GARIBAY,
Defendant and Appellant.
D048929
(Super. Ct. No. SCE250620)
APPEAL from a judgment of the Superior Court of San Diego County, Charles W.
Ervin, Judge. Affirmed in part, reversed in part.
A jury convicted Ana M. Garibay of two counts of gross vehicular manslaughter
while intoxicated (Pen. Code, § 191.5, subd. (a)) and one count of hit-and-run with injury
(Veh. Code, § 20001, subd. (a)). The jury also found true allegations that Garibay fled
the scene of the crime (Veh. Code, § 20001, subd. (c)) and inflicted serious bodily injury

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in the course of committing a felony (Pen. Code, §§ 12022.7, subd. (a), 1192.7,
subd. (c)(8)).1 The trial court sentenced Garibay to 18 years eight months in state prison.
On appeal, Garibay challenges her convictions and sentence. She contends that
her convictions are invalid because the trial court instructed the jury with Judicial
Council of California Criminal Jury Instructions (2006), CALCRIM No. 224, which
references the defendant's "innocence," as opposed to the "constitutionally correct
terminology" of the government's failure to prove guilt beyond a reasonable doubt.
Garibay contends that her sentence is invalid because the trial court: (i) relied on an
inapplicable rule of court2 in denying her request for probation; (ii) failed to strike the
great bodily injury enhancement findings; and (iii) violated her Sixth Amendment right to
a jury trial by relying on aggravating factors, including her "unsatisfactory" performance
on probation, to impose an upper term. For the reasons discussed below, we conclude
that Garibay's challenge to her convictions is without merit, but she is correct that
resentencing is required.
FACTS
On May 22, 2005, at approximately 5:00 p.m., Stephanie Jensen observed two cars
driving erratically, westbound on State Route 94. The two cars would repeatedly pass
each other and weave in and out of their lanes "to block [the other car] from being able to
pass them." In executing these maneuvers, the cars would periodically cross the double
1 All statutory references are to the Penal Code unless otherwise indicated.
2 All rule references are to the California Rules of Court.

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yellow lines separating the westbound lanes from oncoming traffic. Concerned with the
erratic driving of the two cars, Jensen began to dial 911 on her cell phone when she heard
a loud collision from the direction of the two cars. She looked up from her cell phone to
see a body flying through the air and crashing into a fence on the side of the road. As
Jensen pulled over to help, she saw the two cars she had previously observed pull to the
right momentarily and then "speed off." Hilary Dixon, who was traveling in the other
direction (eastbound) on State Route 94 with her fiancé, Ahmed Hluz, observed one of
the cars coming toward her with "severe front end damage" and a flat tire on the driver's
side.3
After Jensen arrived at the scene of the crash, she observed an adult male (later
identified as Ellis Dale Lemere) who had "sustained serious trauma" laying in a roadside
ditch, as well as a 12-year-old boy (Rudy Carranza) who appeared dead. Jensen also
observed the "remnants of a motorcycle." Lemere was briefly conscious and asked an
off-duty paramedic (Hluz) who had stopped at the scene, "Who hit us?" and "How is the
boy?" Lemere and Carranza, who had been riding together on a motorcycle eastbound on
State Route 94, died as a result of their injuries.
At the time of the collision, Rudy Gomez was working as a security gate attendant
at nearby Rancho Jamul Estates. Gomez observed Garibay drive up toward his security
booth, make a U-turn and then turn off the road and park her car. Gomez noticed that
3 Both Jensen and Dixon were placed on hold when they called 911. Dixon,
however, was able to dispatch paramedics directly by dialing the direct line of the local
paramedics outpost, with which she was familiar.

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Garibay's car was damaged and had blood on the driver's side door. Hearing sirens in the
distance, he called the police. While awaiting the arrival of the authorities, Gomez
observed Garibay use her cell phone and change her shirt.
California Highway Patrol Officer Jose Barraza soon arrived in response to
Gomez's call and parked in front of Garibay's car. As Barraza got out of his car he
noticed a strong smell of perfume and Garibay shuffling through clothing in the trunk of
the vehicle. Garibay, who had "red, watery eyes" and "slurred speech," acknowledged
being the driver of the vehicle. Garibay told police that she had been driving on the
highway when she heard an object hit her vehicle and, when she noticed that her front tire
was flat, drove further down the road until finding a place to pull off on Rancho Jamul
Drive. She admitted that she had been drinking alcohol that morning as well as the night
before. Approximately three hours after the crash, police administered alcohol screening
tests to Garibay that indicated a blood alcohol content of .134 and .144, and two breath
tests that both showed a blood alcohol content of .12.4 After Barraza took Garibay from
the scene, a man arrived and asked Gomez about the woman who had been driving the
damaged car.
An accident reconstruction expert called by the prosecution testified that based on
the physical evidence, including a significant debris field in the eastbound lane of State
Route 94, the collision occurred when Garibay's car crossed the double yellow line and
4 It is unlawful "for any person who has 0.08 percent or more, by weight, of alcohol
in his or her blood to drive a vehicle." (Veh. Code, § 23152, subd. (b).)

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drifted into the path of the oncoming motorcycle. A defense expert disputed certain
aspects of the prosecution expert's conclusions, and opined that the accident could have
occurred close to the double yellow line on either side.
DISCUSSION
I
The Trial Court's Reliance on CALCRIM No. 224 Does Not Warrant Reversal
Garibay contends that the trial court's reliance on CALCRIM No. 224 requires
reversal because the instruction discusses inferences that may point to the defendant's
innocence, rather than the "constitutionally correct terminology" of whether the defendant
is not guilty.5 This challenge has been repeatedly rejected by the California courts, and
we reject it as well.
We recognize, of course, that in a criminal case the prosecution must establish the
defendant's guilt beyond a reasonable doubt, and the failure to do so, as opposed to an
affirmative finding of innocence, is the standard for acquittal. (See People v. Anderson
5 The trial court instructed the jury, without objection, with the standard instruction
regarding circumstantial evidence contained in CALCRIM No. 224:
"Before you may rely on circumstantial evidence to conclude that a fact necessary
to find the defendant guilty has been proved, you must be convinced that the People have
proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to find the defendant
guilty, you must be convinced that the only reasonable conclusion supported by the
circumstantial evidence is that the defendant is guilty. If you can draw two or more
reasonable conclusions from the circumstantial evidence, and one of those reasonable
conclusions points to innocence and another to guilt, you must accept the one that points
to innocence. However, when considering circumstantial evidence, you must accept only
reasonable conclusions and reject any that are unreasonable."

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(2007) 152 Cal.App.4th 919, 932 (Anderson) ["For a defendant to be found not guilty, it
is not necessary that the evidence as a whole prove his innocence, only that the evidence
as a whole fails to prove his guilt beyond a reasonable doubt"].) The challenged
instruction, however, is not intended to define the prosecution's burden of proof. Instead,
CALCRIM No. 224, like its predecessor CALJIC No. 2.01, is intended to guide the jury's
consideration of particular items of circumstantial evidence, a context where the
suggestion that relevant evidence will "point[]" either to guilt or innocence is entirely
proper. (CALCRIM No. 224; CALJIC No. 2.01.) As explained by our colleagues in the
Third District:
"A particular item of evidence may fall into one of three categories: it may tend to
prove guilt; it may tend to prove innocence; or it may have no bearing on guilt or
innocence. If the evidence falls into the latter category, it does not support either a
guilty or a not guilty verdict. In effect, the evidence is not relevant to the case and
should be excluded. Thus, if a particular item of evidence, circumstantial or
otherwise, is relevant to the jury's ultimate determination, it is relevant only because
it tends to prove either guilt or innocence. [¶] CALCRIM No. 224 simply
recognizes this distinction when the jury is considering the circumstantial evidence
as a whole." (Anderson, supra, 152 Cal.App.4th at p. 934.)
Our Supreme Court has rejected a virtually identical challenge to CALCRIM
No. 224's CALJIC antecedent (CALJIC No. 2.01) that claimed the instruction "relieved
the prosecution of its burden of proof by implying that the issue was one of guilt or
innocence instead of whether there was or was not a reasonable doubt about defendant's
guilt." (People v. Crew (2003) 31 Cal.4th 822, 848.) The court explained that because
other standard instructions (e.g., CALJIC No. 2.01 — and CALCRIM No. 224 itself in
the instant case) direct the jury that a defendant must be proven guilty beyond a
reasonable doubt, "it is not reasonably likely that the jury would have misapplied or

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misconstrued the challenged instruction[]" as lessening the prosecution's burden of proof.
(Crew, at p. 848; People v. Han (2000) 78 Cal.App.4th 797, 809 ["this court and others
have consistently determined that there could be no harm" from the use of innocence in
certain instructions "because the other standard instructions make the law on the point"
that the defendant's guilt must be proven beyond a reasonable doubt "clear enough"].)
Echoing the Third District, the Supreme Court added that the instruction uses "the word
'innocence' to mean evidence less than that required to establish guilt, not to mean the
defendant must establish innocence or that the prosecution has any burden other than
proof beyond a reasonable doubt." (Crew, at p. 848; People v. Carey (2007) 41 Cal.4th
109, 130 [rejecting analogous argument that CALJIC instructions "misinformed the jury
that its duty was merely to decide whether defendant was guilty or innocent, rather than
whether he was guilty or not guilty beyond a reasonable doubt" by asserting simply, "We
have in the past rejected this argument," and citing Crew].)
Following our Supreme Court, and the reasoning of the courts of appeal that have
addressed this issue, we reject Garibay's challenge to CALCRIM No. 224. (See, e.g.,
Anderson, supra, 152 Cal.App.4th at p. 932 [rejecting contention that "CALCRIM
No. 224 improperly couches the jury's choices in terms of whether the circumstantial
evidence points to him being guilty or innocent, rather than being guilty or not guilty"];
People v. Ibarra (2007) 156 Cal.App.4th 1174, 1187 [rejecting contention "that
CALCRIM No. 224 improperly uses the language of 'innocence' and 'guilt' in violation of
the fundamental principle of criminal law that the prosecution has the burden of proof of
guilt beyond a reasonable doubt," and holding that "CALCRIM No. 224 correctly states

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the law"]; People v. Wade (1995) 39 Cal.App.4th 1487, 1492 [rejecting contention that
instructional language "regarding 'more likely to be' 'guilty' or 'innocent' undercut the
burden of proof because the issue is not one of guilt or innocence but whether there is a
reasonable doubt as to the state's evidence"].)6
II
Garibay Must Be Resentenced
Garibay challenges her sentence on a number of grounds. We evaluate these
challenges after setting forth the various components of the sentence Garibay received.
A. Garibay's Sentence
Garibay was convicted of two counts of gross vehicular manslaughter while
intoxicated, which is punishable by four, six, or 10 years in prison (§ 191.5, subd. (c)(1)),
and one count of hit-and-run with injury, which is punishable by two, three, or four years
in prison (Veh. Code, § 20001, subd. (b)(2)). The jury also found true allegations, with
respect to each of the manslaughter convictions, that Garibay fled the scene of the crime
(Veh. Code, § 20001, subd. (c)) and inflicted serious bodily injury (Pen. Code,
§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)).
At the outset of the sentencing proceeding, the trial court rejected Garibay's
request for probation. In subsequently fashioning Garibay's 18-year eight-month prison
sentence, the trial court imposed the upper term of 10 years in prison on the first count of
6 As we resolve this question against Garibay on the merits, we need not address the
Attorney General's contention that her failure to object to the instruction in the trial court
constitutes a forfeiture of the issue on appeal.

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gross vehicular manslaughter while intoxicated, and imposed an additional consecutive
five-year prison term as mandated by Vehicle Code section 20001 based on the jury
finding that Garibay fled the scene after committing a violation of section 191.5,
subdivision (a). (Veh. Code, § 20001, subd. (c).) On the second count of gross vehicular
manslaughter while intoxicated, the court imposed an additional three-year eight-month
prison term.7 The trial court determined that the sentencing enhancements based on the
jury findings that Garibay "personally inflict[ed] great bodily injury" (§ 12022.7,
subd. (a)) were "barred by operation of law." Finally, the trial court stayed imposition of
sentence on the hit-and-run conviction under section 654.
B. The Trial Court's Reference to Rule 4.413(c) Does Not Require Resentencing
Garibay contends that we must remand the case for resentencing because the trial
court, by referencing an inapplicable rule of court, applied an erroneous standard in
denying her request for probation. We disagree.
In imposing sentence, the trial court recognized that Garibay was not "statutorily
precluded from receiving" probation, but concluded that "the extremely serious nature of
these crimes and the lack of any circumstance or facts which suggest this case is unusual
within the meaning of [rule] 4.413(c) make probation inappropriate."
As both parties acknowledge, the trial court's reference to rule 4.413(c) was
misplaced. Rule 4.413(b) refers trial courts to rule 4.413(c) when "the defendant comes
7 The sentence on the second count was dictated by section 1170.1 and consisted of
one-third the middle term plus one-third of the five-year enhancement for fleeing the
scene. (See § 1170.1, subd. (a).)

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under a statutory provision prohibiting probation 'except in unusual cases where the
interests of justice would best be served,' or a substantially equivalent provision." (Rule
4.413(b).) As the statutes governing Garibay's convictions did not contain such a
provision, the trial court was not required to evaluate the propriety of a grant of probation
under rule 4.413(c).8
Nevertheless, the trial court's reference to rule 4.413(c) does not necessarily
demonstrate a misunderstanding of the applicable sentencing law, as the trial court's
comments can reasonably be interpreted in a manner that suggests it committed no error.
While the trial court was not required to consider rule 4.413(c), it was also not prohibited
from considering the factors listed therein (e.g., whether the defendant committed the
crime because of a mental condition) to the extent it viewed them as applicable. (See
People v. Carbajal (1995) 10 Cal.4th 1114, 1120 [emphasizing that "[t]he sentencing
court has broad discretion to determine whether an eligible defendant is suitable for
probation"].)
Here, the trial court may have simply been indicating that because of "the
extremely serious nature of the[] crimes" — which resulted in the violent death of two
defenseless persons, including a 12-year-old boy — the court itself was disinclined to
grant probation, separate and apart from any statutory presumption. (See § 1202.7
[listing "the nature of the offense" and "the loss to the victim" among the "primary
8 Rule 4.413(c), titled "Facts showing unusual case," lists a number of factors that
"may indicate the existence of an unusual case in which probation may be granted if
otherwise appropriate."

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considerations in the granting of probation"].) The court may have then looked to the
discussion of "unusual case[s]" in rule 4.413(c) for guidance (not because it was required
to do so) as to whether, despite the "tragedy of epic proportion" brought about by
Garibay's actions, probation might still be appropriate.
As the sentencing record is, thus, reasonably susceptible to a construction that
indicates the trial court did not misunderstand the applicable sentencing laws, we cannot
assume the contrary. (See rule 4.409 [sentencing judge will be "deemed to have . . .
considered" the relevant criteria enumerated in the rules "unless the record affirmatively
reflects otherwise"]; People v. Mosley (1997) 53 Cal.App.4th 489, 496 [recognizing that
"the presumption of regularity of judicial exercises of discretion apply to sentencing
issues"]; People v. Burnett (2004) 116 Cal.App.4th 257, 261 [same]; People v. Martinez
(1998) 65 Cal.App.4th 1511, 1517 [recognizing the " 'general rule' " that " 'a trial court is
presumed to have been aware of and followed the applicable law,' " and that this
" 'presumption of regularity of judicial exercises of discretion appl[ies] to sentencing
issues' "].)
In any event, even if the trial court did erroneously believe it was constrained by
rule 4.413(c), remand for the court to reevaluate its denial of Garibay's request for
probation would be an "idle act" because there is no reasonable probability that, upon
remand, the trial court would grant Garibay's request for probation. (People v. Coelho
(2001) 89 Cal.App.4th 861, 889 (Coelho) [recognizing that remand for sentencing error is
unwarranted where remanding "would be an idle act that exalts form over substance
because it is not reasonably probable the court would impose a different sentence"];

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People v. Sanchez (1994) 23 Cal.App.4th 1680, 1685 [same].) The probation report
recommended against a grant of probation because Garibay's "actions led directly to the
deaths of two individuals, and her behavior after the accident was appalling." The trial
court similarly took a dim view of a grant of probation, quickly ruling out the possibility
at the outset of the sentencing discussion with the statement that it was denying Garibay's
"request for probation, to the extent that she's requesting probation."
The trial court emphasized that Garibay's actions had caused "a tragedy of epic
proportion" and gravely told the victims' family members, many of whom spoke of their
tremendous loss at the hearing, that it could not "undo the things that were set in motion
one year and two days ago by Ms. Garibay." Then, after discounting the mitigating
factors suggested by the defense and highlighting numerous aggravating factors, the court
imposed the maximum prison term permitted by law, including an upper term sentence of
10 years (as opposed to a presumptive middle term of six years) in state prison on the
manslaughter conviction. (Cf. People v. Black (2007) 41 Cal.4th 799, 817 (Black) ["the
same fact may be used both to deny probation and to support imposition of an upper term
sentence"].) The court selected this sentence despite the availability of significantly less
severe alternatives, including a proposal by the defense of a 12-year prison term.
In sum, the trial court's comments at sentencing and the harsh sentence ultimately
imposed demonstrate that regardless of its belief as to the applicability of rule 4.413(c),
the trial court would not have granted Garibay's request for probation. Consequently,
even if the court erroneously believed it was constrained by rule 4.413(c), which the

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record does not affirmatively reflect, remand would be unwarranted on this ground.
(Coelho, supra, 89 Cal.App.4th at p. 889.)
C. The Great Bodily Injury Enhancements Must Be Stricken
As noted above, the jury made findings on both of Garibay's manslaughter
convictions that she "personally inflict[ed] great bodily injury" under section 12022.7.9
With respect to the manslaughter conviction for the death of Lemere, the jury found that
Garibay inflicted great bodily injury on Carranza; and with respect to the manslaughter
conviction for the death of Carranza, the jury found Garibay inflicted great bodily injury
on Lemere.
In evaluating the jury findings, the probation report noted that the section 12022.7
enhancements were inapplicable because the statute authorizing the enhancements states
that it "shall not apply to murder or manslaughter." (§ 12022.7, subd. (g).) Defense
counsel echoed this contention at sentencing, and the trial court apparently agreed. The
court stated, "I do concur with defense counsel by operation of 12022.7(g), the
application of the three years to count 1 and count 2 are barred." Later, the court
reiterated its agreement, stating that the enhancements were "barred by operation of law."
The trial court, however, did not explicitly strike or impose the enhancements; the minute
order states only that the enhancements were "stayed per PC12022.7(g)," (italics added)
9 Section 12022.7 states: "Any person who personally inflicts great bodily injury on
any person other than an accomplice in the commission of a felony or attempted felony
shall be punished by an additional and consecutive term of imprisonment in the state
prison for three years." (§ 12022.7, subd. (a).)

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and the abstract of judgment similarly indicates that the enhancements were stayed. (See
People v. Bracamonte (2003) 106 Cal.App.4th 704, 711 (Bracamonte) [emphasizing that
"the trial court must either impose an enhancement or strike the underlying finding, and
set forth its reasoning for such striking in the minutes. It is without authority simply to
stay the enhancement"].)
On appeal, Garibay highlights the trial court's failure to strike the enhancements
and contends that this was error. The Attorney General, while conceding that the minute
order is in error (because if section 12022.7, subdivision (g) applies, as the minute order
suggests, the findings should have been stricken not stayed), contends that section
12022.7, subdivision (g) does not apply, and the trial court "properly imposed" the
enhancements.
While it is unclear from the sentencing record whether the trial court, in stating
that the bodily injury enhancements were "barred by operation of law," intended to
impose and stay (as the minute order and abstract of judgment reflect), or strike, the
enhancements, a determination of the trial court's intent is not necessary to this appeal.
The proper treatment of the enhancements is a legal question that we must resolve
independently, applying the rules of statutory interpretation.
The role of the courts in construing a statute is to " 'ascertain the intent of the
Legislature so as to effectuate the purpose of the law.' " (People v. Wright (2006) 40
Cal.4th 81, 92.) " 'Because the statutory language is generally the most reliable indicator
of that intent, we look first at the words themselves, giving them their usual and ordinary
meaning.' " (Ibid.) " '[I]f there is no ambiguity, then we presume the lawmakers meant

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what they said, and the plain meaning of the language governs.' " (Allen v. Sully-Miller
Contracting Co. (2002) 28 Cal.4th 222, 227 (Allen).) When construing a statute in the
penal context, courts must also be cognizant of the rule of lenity, which counsels
construction of a penal statute " 'as favorably to the defendant as its language and the
circumstances of its application may reasonably permit . . . .' " (People v. Garcia (1999)
21 Cal.4th 1, 10.)
In the instant case, there is no ambiguity in the Legislature's statement that section
12022.7 "shall not apply to murder or manslaughter." (§ 12022.7, subd. (g).) This text
can only mean that where, as here, a defendant is convicted of manslaughter, a section
12022.7 enhancement "shall not apply," particularly if the enhancement is based on an
injury sustained in a separate instance of manslaughter. As the text is unambiguous,
then, we must " 'presume the lawmakers meant what they said, and the plain meaning of
the language governs.' " (Allen, supra, 28 Cal.4th at p. 227; People v. Palacios (2007) 41
Cal.4th 720, 728 [" '[I]f " 'the statutory language is clear and unambiguous, there is no
need for construction and courts should not indulge in it' " ' "].) Consequently, to the
extent the section 12022.7 enhancements were imposed in the instant case, this was error,
and the enhancements must be stricken. (Bracamonte, supra, 106 Cal.App.4th at p. 711.)
The two cases relied on by the Attorney General, People v. Verlinde (2002) 100
Cal.App.4th 1146 (Verlinde) and People v. Weaver (2007) 149 Cal.App.4th 1301
(Weaver), are distinguishable. In Weaver and Verlinde, this court ruled that a section
12022.7 great bodily injury enhancement could be applied to enhance a manslaughter
sentence where the enhancement was based on injuries received by victims other than the

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decedent — victims who were not themselves the subject of a manslaughter (or murder)
conviction. (Verlinde, at pp. 1168-1169; Weaver, at p. 1329.)10 In the instant case, the
enhancements were imposed based on injury (in fact, death) suffered by victims who
were each the subject of a separate count and conviction of manslaughter. Thus, in the
instant case, a great bodily injury enhancement was imposed on each of Garibay's
manslaughter convictions, based on a separate instance of manslaughter. It is simply
impossible to reconcile the imposition of these enhancements with the statutory text that
unambiguously commands "[t]his section shall not apply to . . . manslaughter."
(§ 12022.7, subd. (g).)11 Consequently, even assuming that that Weaver and Verlinde
(and not Beltran) were correctly decided — a question we do not reach — section
10 As the decision in Weaver notes, this conclusion is contrary to that reached by our
colleagues in the Second District on this same point. (See People v. Beltran (2000) 82
Cal.App.4th 693, 696; Weaver, supra, 149 Cal.App.4th at p. 1335 ["Based on our
reasoning in Verlinde, quoted above, we disagree with that conclusion by Beltran and
decline to apply it to this case"].)
11 At the very least, there is ambiguity as to whether the statutory text's statement
that section 12022.7 enhancements "shall not apply to . . . manslaughter" (§ 12022.7,
subd. (g)) permits application to Garibay's manslaughter conviction based on the separate
incidence of manslaughter. Consequently, consistent with the rule of lenity, we must
"construe the statute as favorably to the defendant as its language and the circumstance of
its application reasonably permit." (People v. Overstreet (1986) 42 Cal.3d 891, 896
["When language which is susceptible of two constructions is used in a penal law, the
policy of this state is to construe the statute as favorably to the defendant as its language
and the circumstance of its application reasonably permit. The defendant is entitled to
the benefit of every reasonable doubt as to the true interpretation of words or the
construction of a statute"]; In re Rottanak K. (1995) 37 Cal.App.4th 260, 269 ["A
defendant in a criminal case is entitled to the benefit of every reasonable doubt as to the
true interpretation of the words or construction of a penal statute"].)

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12022.7 by its terms was not applicable in this case, and the enhancements should have
been stricken, not merely stayed.
D. The Upper Term Sentence Violated Garibay's Sixth Amendment Rights
Garibay contends that the trial court violated her right to a jury trial under the
Sixth Amendment, as interpreted in the United States Supreme Court cases of
Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856]
(Cunningham) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), by relying
on facts that were not found by the jury to impose an upper term sentence. We agree.
In Cunningham, the United States Supreme Court held that California's
determinate sentencing law (the DSL) violated the jury trial right safeguarded by the
Sixth and Fourteenth Amendments to the federal Constitution. (Cunningham, supra, 127
S.Ct. at p. 860.)12 The court explained that, as set forth in Apprendi, "the Federal
Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to
impose a sentence above the statutory maximum based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant." (Cunningham, supra, 127
S.Ct. at p. 860.) In invalidating the DSL, the court concluded that the statutory
framework violated "Apprendi's bright-line rule" because "the middle term prescribed in
California's statutes, not the upper term, is the relevant statutory maximum," and
12 The DSL has since been amended in response to Cunningham. (See People v.
Sandoval (2007) 41 Cal.4th 825, 849 (Sandoval).) Our Supreme Court has held that
where, as here, the trial court imposes an upper term sentence that is invalid under
Cunningham, the appropriate remedy is to remand for the trial court to conduct a new
sentencing proceeding under the amended DSL. (Ibid.)

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imposition of an upper term sentence was authorized on the basis of factual findings
made by the trial court, not the jury. (Cunningham, at p. 868.)
The Attorney General concedes that the bulk of the factors relied upon by the trial
court to impose an upper term sentence were impermissible under Cunningham, but
contends that the sentence is nevertheless constitutionally sound because the trial court
relied on one permissible factor — rule 4.421(b)(5), which lists as a possible
"[c]ircumstance[] in aggravation" that "[t]he defendant's prior performance on probation
or parole was unsatisfactory."13 (See Black, supra, 41 Cal.4th at p. 816 [the "imposition
of the upper term does not infringe upon the defendant's constitutional right to jury trial
so long as one legally sufficient aggravating circumstance has been found to exist by the
jury, has been admitted by the defendant, or is justified based upon the defendant's record
of prior convictions"].) The Attorney General contends that this factor (Garibay's
performance on probation) falls within the recognized exception for the "fact of a prior
conviction" (Apprendi, supra, 530 U.S. at p. 490) because it is "based on [her] criminal
record" and, like a prior conviction, "relate[s] to recidivism."14 We disagree.
13 The trial court also noted as aggravating factors, Garibay's minimal showing of
remorse, her high blood alcohol content, the fact that she sought a "place of . . .
concealment . . . essentially hiding out in an area off the main roadway, where she could
avoid detection from passer[s]by[], including law enforcement responding to the scene of
the crash," and her efforts to conceal guilt by splashing herself with perfume and drinking
water.
14 The Attorney General does not contend that the misdemeanor theft convictions
themselves rendered Garibay eligible for an upper term sentence. Indeed, the trial court
noted as a mitigating factor that Garibay had an "insignificant record of criminal
conduct."

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To discern Garibay's performance on probation, the trial court relied on the report
prepared by the probation office for sentencing. The report indicates that Garibay was
placed on probation two times, once after being convicted of misdemeanor petty theft
(§ 488) in 1993 and again after being convicted of the same offense in 1996
(§§ 666/484). A shorthand notation adjacent to the initial conviction indicates that
approximately two months prior to Garibay's completion of the three-year probation term
imposed on the first offense (and nine years before the instant offense), Garibay
committed the second petty theft. Her probation in the 1993 case was subsequently
revoked, modified and then extended for another two years (or, as stated in the notation,
"Prob. Revk'd, Mod. Extended 2 yrs"). Garibay eventually completed the extended term
of probation and an additional three years of probation imposed on the second case.
In a presentence filing, Garibay contended that the fact that she "successfully
completed probation on both theft cases" was a mitigating factor. At sentencing, the trial
court acknowledged that Garibay "successfully completed probation on [the] theft related
offenses," but rejected the contention that this was a "circumstance in mitigation,"
because her performance on probation was "unsatisfactory" as "she was revoked prior to
completing" the initial probation term.
Regardless of whether we agree with Garibay or the trial court regarding the
appropriate characterization of her performance on probation, we believe reliance on that
performance as an aggravating factor for the instant manslaughter conviction does not fall
within the "narrow" exception for the "fact of a prior conviction." (Apprendi, supra, 530
U.S. at p. 490.)

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"[T]he right to jury trial and the requirement of proof beyond a reasonable doubt
do not apply to the aggravating fact of a prior conviction." (Sandoval, supra, 41 Cal.4th
at pp. 836-837; Apprendi, supra, 530 U.S. at p. 490 ["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"].) Our
Supreme Court has explained that "numerous decisions from other jurisdictions have
interpreted" this so-called Almendarez-Torres15 exception to "include not only the fact
that a prior conviction occurred, but also other related issues that may be determined by
examining the records of the prior convictions." (Black, supra, 41 Cal.4th at p. 819.)
In People v. McGee, our high court held that the Almendarez-Torres exception
permitted a trial court's examination of an out-of-state record of a conviction to determine
whether the conviction constituted a "serious felony" under California law. (People v.
McGee (2006) 38 Cal.4th 682, 706 (McGee).) The court explained that "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
15 Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).
As Garibay notes, there is reason to believe that the United States Supreme Court may
ultimately rescind the Almendarez-Torres exception. (See Shepard v. United States
(2005) 544 U.S. 13, 27 (conc. opn. of Thomas, J.) ["Almendarez-Torres . . . has been
eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the
Court now recognizes that Almendarez-Torres was wrongly decided"].)

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21
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." (Ibid.) More recently, in Black, supra, 41
Cal.4th 799, the court explained that "whether a defendant has suffered prior convictions,
and whether those convictions are 'numerous or of increasing seriousness' " also fall
within the prior conviction exception because these factors "require consideration of only
the number, dates, and offenses of the prior convictions alleged," and the "relative
seriousness of these alleged convictions may be determined simply by reference to the
range of punishment provided by statute for each offense." (Id. at p. 819.) Again, the
court explained, "[t]his type of determination is 'quite different from the resolution of
issues submitted to a jury, and is one more typically and appropriately undertaken by a
court.' " (Ibid.)16
Unlike the factors recognized in McGee and Black, the question of whether
Garibay's performance on probation was "satisfactory" cannot be determined by simply
reviewing the type of a prior conviction, or the "number, dates, and offenses of the prior
convictions alleged." (Black, supra, 41 Cal.4th at p. 819; McGee, supra, 38 Cal.4th at
p. 706.) There is no notation in Garibay's criminal record that reveals whether her
performance during her six years of misdemeanor probation supervision was
"satisfactory." Indeed, "satisfactory" performance is an inherently subjective
16 The precise scope of the prior conviction exception is currently pending before our
Supreme Court in People v. Towne, S125677, review granted July 14, 2004.

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consideration that requires a judgment call made by a third party observer, such as a
sentencing court (or a jury). (Cf. Sandoval, supra, 41 Cal.4th at p. 840 [recognizing that
many sentencing factors are phrased in "a somewhat vague or subjective" manner and can
require "an imprecise quantitative or comparative evaluation of the facts," which makes it
"difficult for a reviewing court to conclude with confidence that, had the issue been
submitted to the jury, the jury would have assessed the facts in the same manner as did
the trial court"].) While the instant trial court may not have been satisfied with Garibay's
performance on probation, the original sentencing court apparently deemed her
performance (ultimately) satisfactory. Despite Garibay's second petty theft conviction,
that court reinstated Garibay's probation, allowing her to successfully complete two more
years of probation, as well as the subsequent three years of probation imposed for the
second petty theft offense.
In sum, the legally appropriate characterization of Garibay's performance on
probation ("satisfactory" or "unsatisfactory") is, at least on the facts available in this
sentencing record, precisely the type of "independent determination regarding a disputed
issue of fact relating to the defendant's prior conduct" that our Supreme Court indicated
does not fall within the prior conviction exception. (McGee, supra, 38 Cal.4th at p. 706.)
As both the federal and our state supreme courts have suggested that such determinations,
when relied upon to impose a sentence beyond the statutory maximum, must be made by
juries not courts, we are required to remand for the trial court to conduct a new
sentencing hearing as set forth in Sandoval, supra, 41 Cal.4th 825, 849.

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DISPOSITION
The matter is remanded for resentencing. In all other respects the judgment is
affirmed.
IRION, J.
WE CONCUR:
NARES, Acting P. J.
HALLER, J.

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