Marin

A jury convicted defendant Silvestre Cano Marin of felony driving under the influence, among other offenses. Following a prior appeal and remand, a different jury found that his prior conviction of vehicular manslaughter qualifies as a strike under the “Three Strikes” law. The trial court enhanced defendant’s sentence based on this finding. In his current appeal, defendant challenges the strike finding, contending that (1) it must be vacated for insufficient evidence and instructional error, (2) the United States Supreme Court decision in Descamps v. United States (2013) 570 U.S._ [ 186 L.Ed.2d 438 , 133 S.Ct. 2276 ] (Descamps) entitles him to a jury trial on whether the prior conviction qualifies as a strike, and (3) because he is entitled to a jury trial, and because the strike finding must be reversed for insufficient evidence, double jeopardy bars such a retrial.

As we explain, the evidence was insufficient to prove that defendant’s prior vehicular manslaughter conviction is a strike, because neither the elements of the crime nor the evidence presented showed that “defendant personally inflict[ed] great bodily injury on any person, other than an accomplice” (Pen.…