1

Filed 7/12/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sierra)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BOBBY GENE CAROTHERS,

Defendant and Appellant.

C078874

(Super. Ct. No. CR02153X)

APPEAL from a judgment of the Superior Court of Sierra County, John P. 

Kennelly, Judge. Reversed with directions.

THREE STRIKES PROJECT, Stanford Law School, and Michael S. Romano, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Michael P. Farrell, 

Assistant Attorneys General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys 

General, for Plaintiff and Respondent.

Defendant Bobby Gene Carothers, currently serving a prison term of 25 years to 

life imposed in 2008 under the three strikes law, appeals from the denial of his petition 

for resentencing under Proposition 36, the Three Strikes Reform Act of 2012 (as 
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approved by voters, Gen. Elec. (Nov. 6, 2012) (the Act)). He contends the trial court 

erred in finding he was not eligible for resentencing because he was convicted of murder 

in Texas in 1978. Under the Act, a prior conviction for a number of enumerated offenses, 

including “[a]ny homicide offense, including any attempted homicide offense, defined in 

Sections 187 to 191.5” of the Penal Code, renders an inmate ineligible for resentencing.1

(§§ 667, subd. (e)(2)(C)(iv)(IV), 1170.126, subd. (e)(3).) Defendant’s argument is twofold: (1) only prior California convictions can render an inmate ineligible for 

resentencing under the Act; and (2) even if a prior out-of-state conviction can render an 

inmate ineligible for resentencing, the record of defendant’s Texas murder conviction 

does not necessarily show he committed a murder as that crime is defined under 

California law.

We conclude a prior out-of-state conviction will render an inmate ineligible for 

resentencing under the Act if the crime committed in the other state would have 

disqualified the inmate had that crime been committed in California. However, because 

the crime defendant was convicted of committing in Texas might not have been a murder 

here in California, an enumerated disqualifying offense, the trial court incorrectly 

concluded he was ineligible for resentencing. We shall therefore reverse the order 

denying defendant’s petition for resentencing and remand the matter to the trial court for 

a determination as to whether or not resentencing him would pose an unreasonable risk of 

danger to public safety. 

BACKGROUND

In 2008, defendant entered a plea of no contest to one count of unlawfully taking 

or driving a vehicle (Veh. Code, § 10851, subd. (a)) and admitted having two prior strike 

convictions, a 1975 robbery conviction in California (§ 211) and a 1978 murder 

 

1 Undesignated statutory references are to the Penal Code. 
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conviction in Texas (Tex. Pen. Code, § 19.02, subd. (b)(2)). He was sentenced to state 

prison to serve an indeterminate term of 25 years to life. 

The facts of the current offense and prior robbery are not relevant to this appeal. 

The facts of the prior murder, as revealed in the record of conviction, are that defendant

killed the victim by stabbing him with a knife and hitting him on the head with a blunt 

object, conduct that was found by a Texas jury to be “clearly dangerous to human life” 

and done with the “inten[t] to cause serious bodily injury.”

In November 2012, California voters approved Proposition 36. “The Act changes 

the requirements for sentencing a third strike offender to an indeterminate term of 25 

years to life imprisonment” (§§ 667, 1170.12) and “also created a postconviction release 

proceeding whereby a prisoner who is serving an indeterminate life sentence imposed 

pursuant to the three strikes law for a crime that is not a serious or violent felony and who 

is not disqualified, may have his or her sentence recalled and be sentenced as a second 

strike offender unless the court determines that resentencing would pose an unreasonable 

risk of danger to public safety. (§ 1170.126.)” (People v. Yearwood (2013) 213 

Cal.App.4th 161, 167-168, italics added.) 

In November 2014, defendant filed a petition to recall his sentence and for 

resentencing under section 1170.126. The prosecution opposed the petition. 

Acknowledging defendant’s commitment offense was not a serious or violent felony, the 

prosecution argued defendant was nevertheless ineligible for resentencing under section 

1170.126, subdivision (e)(3), which provides that “[a]n inmate is not eligible for 

resentencing if he or she has a prior conviction for any offense appearing in section 667, 

subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv).” (People v. 

Thurston (2016) 244 Cal.App.4th 644, 655-656, italics omitted.) Among the enumerated 

offenses is “[a]ny homicide offense, including any attempted homicide offense, defined 

in Sections 187 to 191.5, inclusive.” (§ 667, subd. (e)(2)(C)(iv)(IV).) The prosecution 
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argued defendant’s Texas murder conviction therefore disqualified him from being 

resentenced under the Act. 

In reply, defendant argued (1) the plain language of section 667, subdivision 

(e)(2)(C)(iv)(IV), is “limit[ed] to murders defined by the California Penal Code” and 

therefore “does not contemplate convictions from other states,” and (2) even if out-ofstate convictions can be disqualifying, “the specific Texas statute under which 

[defendant] was convicted . . . is equivalent to California’s manslaughter statute” and 

manslaughter is not a disqualifying offense. 

At the hearing on the petition, responding to the prosecution’s argument that the 

Texas record of conviction established the crime committed in that state, i.e., “stabbing a 

victim, and hitting him on the head with a blunt object,” was the functional equivalent of 

a California implied malice murder, defendant’s attorney argued: “The records that we 

have from Texas don’t tell us anything about the nature of the conviction. They tell us 

essentially two facts, which are contained within the indictment and the jury instructions. 

And that is that there was one stab wound and that there was a hit with a blunt object, 

according to the instructions. [¶] We don’t know anything further about the facts. We 

don’t know how many stab wounds. We don’t know how many times he was hit or with 

what instrument or what the instrument consisted of, or what the victim’s actions were or 

what [defendant’s] actions were.” Because the facts were not established in the record of 

conviction, defendant’s attorney argued, the trial court should compare the California and 

Texas murder statutes and conclude the crime defendant committed in Texas was not 

necessarily a murder under California law because the statutes require different mental 

states. 

After taking the matter under submission, the trial court concluded defendant’s 

Texas murder conviction disqualified him from being resentenced under the Act and 

denied the petition.
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DISCUSSION

I

A Prior Out-of-state Conviction May Render an Inmate Ineligible for Resentencing

Defendant argues he is eligible to be resentenced under section 1170.126 “because 

the statute does not consider convictions from foreign jurisdictions as disqualifying 

offenses.” He is mistaken. 

Section 1170.126, subdivision (e)(3), provides that “an inmate is not eligible for 

resentencing if he or she has a prior conviction for any offense appearing in section 667, 

subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv).” (People v. 

Thurston, supra, 244 Cal.App.4th at pp. 655-656, italics omitted.) Both section 667, 

subdivision (e)(2)(C)(iv), and section 1170.12, subdivision (c)(2)(C)(iv), set forth a list of 

particularly egregious serious and/or violent felonies, commonly referred to as “super 

strikes.” (Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2016) § 20:63, 

p. 20-155.) Among the enumerated offenses is “[a]ny homicide offense, including any 

attempted homicide offense, defined in Sections 187 to 191.5, inclusive.” (§§ 667, 

subd. (e)(2)(C)(iv)(IV), 1170.12, subd. (c)(2)(C)(iv)(IV).) 

Each of those provisions (§§ 667, subd. (e)(2)(C)(iv), 1170.12, subd. (c)(2)(C)(iv))

specifically refers to that section’s definition of “prior serious and/or violent conviction 

for a felony.” (§ 1170.12, subd. (b).) Under that definition, “[a] prior conviction in 

another jurisdiction for an offense that, if committed in California, is punishable by 

imprisonment in the state prison shall constitute a prior conviction of a particular serious 

and/or violent felony if the prior conviction in the other jurisdiction is for an offense that 

includes all of the elements of a particular violent felony as defined in subdivision (c) of 

Section 667.5 or serious felony as defined in subdivision (c) of Section 1192.7.” (§§ 667, 

subd. (d)(2), 1170.12, subd. (b)(2).) 

Read together, the meaning of these provisions is clear and unambiguous. An 

inmate is not eligible for resentencing under section 1170.126 if he or she has a prior out-
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of-state conviction for an offense that, if committed in California, includes all of the 

elements of any of the super strike offenses appearing in section 667, subdivision 

(e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv). 

Nevertheless, defendant relies on our decision in People v. Hunt (1999) 74 

Cal.App.4th 939 in arguing only prior California convictions can disqualify an inmate 

from being resentenced under the Act. Such reliance is misplaced. In Hunt, we held a 

court-martial conviction in Germany for indecent acts with a child did not qualify as a 

conviction of a “sexually violent offense” within the meaning of the Sexually Violent 

Predators Act (SVPA). We concluded the statutory definition of “sexually violent 

offense,” set forth in Welfare and Institutions Code section 6600 that included “ ‘a 

conviction in another state’ for an offense that has all the elements of an offense 

described in subdivision (b)” of that section, “does not encompass a conviction via 

military court-martial in Germany.” (Hunt, supra, 74 Cal.App.4th at pp. 941-942.) As 

we explained, “we may not construe ‘another state’ as used in [Welfare and Institutions 

Code] section 6600 to encompass the more expansive term ‘another jurisdiction.’ Had 

the Legislature intended the application of the [SVPA] to have a broader reach, it could 

have utilized language similar to . . . section 668 regarding the use of prior convictions to 

enhance punishment for new offenses.” (Id. at p. 948.)2 

 

2 Section 668 provides: “Every person who has been convicted in any other state, 

government, country, or jurisdiction of an offense for which, if committed within this 

state, that person could have been punished under the laws of this state by imprisonment 

in the state prison, is punishable for any subsequent crime committed within this state in 

the manner prescribed by law and to the same extent as if that prior conviction had taken 

place in a court of this state. The application of this section includes, but is not limited 

to, all statutes that provide for an enhancement or a term of imprisonment based on a 

prior conviction or a prior prison term or a term pursuant to subdivision (h) of Section 

1170.” 
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Here, as already explained, section 1170.126, subdivision (e)(3),’s disqualification

of inmates with a prior super strike conviction specifically incorporates sections 667, 

subdivision (e)(2)(C)(iv), and 1170.12, subdivision (c)(2)(C)(iv). These provisions, 

in turn, specifically incorporate those sections’ definition of “prior serious and/or violent 

felony conviction” that includes convictions in “another jurisdiction.” (§§ 667, 

subd. (d)(2), 1170.12, subd. (b)(2).) Thus, in enacting Proposition 36, the 

voters approved the use of the more expansive term the Legislature declined to use in 

drafting the SVPA. 

Thus, we must determine whether defendant’s 1978 Texas murder conviction, if 

committed in California, includes all of the elements of a super strike offense appearing 

in section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv). 

We turn to that analysis now. 

II

Defendant’s 1978 Texas Murder Conviction is Not Necessarily a Disqualifying Offense

Defendant argues his Texas murder conviction “is most analogous to a 

manslaughter conviction in California” and therefore is not a disqualifying offense under 

the Act. While we disagree with this characterization, we conclude the record of 

defendant’s 1978 Texas murder conviction does not support the trial court’s finding of 

ineligibility. 

Again, among the enumerated super strike offenses is “[a]ny homicide offense, 

including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.” 

(§ 667, subd. (e)(2)(C)(iv)(IV).) Thus, a prior conviction for voluntary, involuntary, or 

vehicular manslaughter defined in section 192 will not render an inmate ineligible for 

resentencing under the Act. (Couzens et al., supra, § 20:63, p. 20-145.) 

Defendant was convicted of violating section 19.02, subdivision (b)(2) (former

subdivision (a)(2); Acts 1973, p. 1123, 63d Leg; ch. 426, art. 2, § 1), of the Texas Penal 

Code. Under this provision, a defendant commits murder if he or she “intends to cause 
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serious bodily injury and commits an act clearly dangerous to human life that causes the 

death of an individual.” As the Texas Court of Criminal Appeals has explained, a 

conviction of this offense requires proof that “the individual, acting with the conscious 

objective or desire to create a substantial risk of death, serious permanent disfigurement, 

or protracted loss or impairment of any bodily member or organ, caused the death of an 

individual.” (Lugo-Lugo v. State (Tex. Crim. App. 1983) 650 S.W.2d 72, 81.) The 

prosecution is also required to prove that “the act intended to cause serious bodily injury 

[was] objectively clearly dangerous to human life.” (Ibid., italics omitted.) This form of 

murder under Texas law is distinct from intentional murder under section 19.02, 

subdivision (b)(1) (former subdivision (a)(1); Acts 1973, p. 1123, 63d Leg; ch. 426, art. 

2, § 1), that requires proof the defendant intentionally or knowingly caused the death of 

an individual. Thus, a defendant who intends to kill and does so is guilty of murder 

under subdivision (b)(1) of the Texas murder statute; where he or she intends only to 

cause serious bodily injury and the victim dies, the defendant’s actions must have been 

clearly dangerous to human life, measured by an objective standard, in order for murder 

liability to attach under subdivision (b)(2). (Lugo-Lugo, supra, at p. 81.) 

Contrary to defendant’s argument on appeal, this latter form of murder under 

Texas law is not “equivalent to involuntary manslaughter” under California law. Instead, 

we conclude it is most analogous to implied malice murder under California law. In 

California, murder is defined as “the unlawful killing of a human being . . . with malice 

aforethought.” (§ 187, subd. (a).) “Such malice may be express or implied.” (§ 188.) 

Express malice “requires an intent to kill that is ‘unlawful’ because . . . ‘ “there is no 

justification, excuse, or mitigation for the killing recognized by the law.” ’ [Citation.] 

[¶] Malice is implied when an unlawful killing results from a willful act, the natural and 

probable consequences of which are dangerous to human life, performed with conscious 

disregard for that danger.” (People v. Elmore (2014) 59 Cal.4th 121, 133, italics 

omitted.) 
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However, while the crimes are analogous, defendant is correct they are not 

identical. Under Texas law, as long as the act that causes death was done with intent to 

cause serious bodily injury and was objectively clearly dangerous to human life, murder 

liability attaches. In California, the act that causes death need not have been done with 

intent to cause serious bodily injury, but it must be “conduct that endangers the life of 

another” and the defendant must have subjective awareness of the risk of death. (People 

v. Knoller (2007) 41 Cal.4th 139, 143.) Here, the Texas jury found defendant stabbed the 

victim and hit him in the head with a blunt object intending to cause him serious bodily 

injury. The jury also found these actions were objectively and clearly dangerous to 

human life. The jury was not called upon to determine whether defendant was 

subjectively aware of that danger. 

The question for us, however, is not whether the Texas jury found each element of 

a California implied malice murder was satisfied, but whether the crime revealed by the 

record of conviction, if committed in California, would have been a murder under our 

Penal Code. The record of conviction is too sparse for us to answer that question in the 

affirmative. All we know is defendant stabbed the victim and hit him in the head with a 

blunt object. We do not know where the victim was stabbed or how many times. We do 

not know how many times the victim was hit in the head with the blunt object or what 

that object was. Nor do we know any of the surrounding circumstances. We do know 

the Texas jury found defendant intended to cause serious bodily injury, which under 

Texas law means the “conscious objective or desire to create a substantial risk of death, 

serious permanent disfigurement, or protracted loss or impairment of any bodily member 

or organ.” (Lugo-Lugo v. State, supra, 650 S.W.2d at p. 81.) If defendant intended to 

create a substantial risk of death, then he was obviously subjectively aware of the risk of 

death and the crime would have been murder here in California as well. But the same 

conclusion does not flow inexorably from the other two forms of intent to cause serious 

bodily injury, i.e., intent to permanently disfigure or intent to cause protracted 
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impairment of a body part or organ. It is possible, even if unlikely, defendant intended to 

inflict such injury but was not subjectively aware of the risk of death. And while the 

Texas jury also found these actions were objectively and clearly dangerous to human life, 

depending on the circumstances surrounding the attack, which are not revealed by the 

record of conviction, it is possible defendant did not subjectively register the danger. 

Again, in California, such subjective awareness is required for implied malice murder. In 

Texas, it is not. 

Nevertheless, the Attorney General argues that because our murder statute uses 

“common-law terminology to define the crime of murder,” and because “[t]he common 

law of England recognized that ‘one who intended to do serious bodily injury short of 

death, but who actually succeeded in killing, was guilty of murder in spite of his [or her] 

lack of an intent to kill, in the absence of circumstances which mitigated the offense to 

voluntary manslaughter or which justified or excused it’ ” so too does this form of second 

degree murder exist in California. In support of this assertion, the Attorney General cites 

Witkin and Epstein for the proposition that “[a]n intent to inflict serious injury is 

sufficient to establish malice aforethought (‘an abandoned and malignant heart’).” (1 

Witkin and Epstein, Cal. Criminal Law (4th ed. 2012) § 189, p. 1003.) In addition to 

citing Wharton’s treatise on Criminal Law (2 Wharton’s Crim. Law (15th ed. 2015) 

§§ 139, 140), Witkin and Epstein cite four decisions from the Second Appellate District, 

each upholding murder convictions where severe child abuse resulted in the death of the 

child. (See People v. Aeschlimann (1972) 28 Cal.App.3d 460 (Aeschlimann); People v. 

Weisberg (1968) 265 Cal.App.2d 476 (Weisberg); People v. Lint (1960) 182 Cal.App.2d 

402 (Lint); People v. Murillo (1931) 119 Cal.App. 59 (Murillo).) 

In Aeschlimann, supra, 28 Cal.App.3d 460, the jury convicted the defendants of 

first degree murder by torture, but the trial court reduced the convictions to second degree 

murder. (Id. at p. 464.) After rejecting the defendants’ argument that the evidence was 

insufficient to support instructing the jury as to first degree murder by torture (id. at p. 
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469), the court held the same evidence, i.e., that “both defendants engaged in a course of 

conduct of inflicting grievous pain and suffering upon the child,” was also sufficient to 

support their convictions for second degree murder. (Id. at p. 475.) This is not the same 

as holding an intent to cause serious bodily injury alone is sufficient to establish malice 

aforethought. 

In Weisberg, supra, 265 Cal.App.2d 476, a case also cited by the Attorney 

General, the court relied on a previous edition of the same treatise for the proposition that 

malice will exist “ ‘where the intent is only to cause serious injury,’ ” and held evidence 

the deceased 7-week-old child suffered broken ribs, skull fractures, and a fractured leg 

was sufficient to establish the defendant “at least acted with intent to inflict serious 

injury.” (Id. at pp. 480-481.) In Lint, supra, 182 Cal.App.2d 402, the court held 

evidence the defendant severely beat and choked the four-year-old victim, “coupled with 

the showing of defendant’s propensity to torment the victim on several occasions,” was 

sufficient to support his second degree murder conviction. (Id. at p. 412.) Similarly, in 

Murillo, supra, 119 Cal.App. 59, the court held evidence the defendant repeatedly beat 

the two-year-old victim, “sometimes using her fists and at other times a stick, and on one 

occasion a bottle,” and also stated she hated the child and wanted to see her dead, was 

sufficient to support her second degree murder conviction. (Id. at pp. 60, 63-64.) No 

assertion was made in either Lint or Murillo that an intent to cause serious injury would 

alone suffice to establish malice aforethought. 

Thus, the only case cited by the treatise supportive of the Attorney General’s 

position is Weisberg, supra, 265 Cal.App.2d 476, which itself cites the treatise for the 

challenged proposition. The Attorney General also cites an 1861 decision from our 

Supreme Court, People v. Bealoba (1861) 17 Cal. 389. That case supports the Attorney 

General’s premise, i.e., that “[i]n England, if death ensues from any unlawful act of 

violence, the slayer, although there existed no intention to kill, but only to do bodily 

harm, is guilty of murder.” (Id. at p. 395.) The court also stated that under our murder 
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statute, except those murders defined to be of the first degree, “all other homicide which 

was murder at common law is now murder in the second degree.” (Id. at p. 398.) 

However, these comments were made in connection with the court’s rejection of the 

defendant’s specific argument that in order for a murder to be of the first degree, that 

murder must not only be deliberate, willful and premeditated, but must also be similar to 

the specific kinds of murders listed in the statute, e.g., perpetrated by means of poison, 

lying in wait, or torture. (Id. at pp. 393-394.) The court was not called upon to determine 

whether an intent to do bodily harm will alone suffice to establish malice aforethought 

under California law. And as our Supreme Court has repeatedly warned, its opinions are 

not authority for propositions not under consideration in an individual case. (Nolan v. 

City of Anaheim (2004) 33 Cal.4th 335, 343; Hadberg v. California Federal Bank FSB

(2004) 32 Cal.4th 350, 374.) 

In light of the myriad of times our Supreme Court has defined implied malice 

murder to require a showing the unlawful killing resulted from a willful act, the natural 

and probable consequences of which are dangerous to human life, and the defendant 

consciously disregarded that danger (see, e.g., People v. Knoller, supra, 41 Cal.4th at 

pp. 151-152 [“implied malice requires a defendant’s awareness of the risk of death to 

another”] and cases cited therein), we decline to hold, based on the scant authority 

provided by the Attorney General, an intent to inflict great bodily injury, regardless of 

whether or not the defendant was subjectively aware of the risk of death, will suffice to 

establish malice aforethought. 

Because the record of the 1978 Texas murder does not establish each element of a 

California murder, we must conclude the trial court incorrectly determined this prior 

conviction disqualified defendant from being resentenced under the Act. 
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DISPOSITION

The order denying defendant’s petition for resentencing under Proposition 36 is 

reversed and the matter is remanded to the trial court for a determination as to whether or 

not resentencing defendant would pose an unreasonable risk of danger to public safety. 

 /s/

HOCH, J.

We concur:

 /s/

RAYE, P. J.

 /s/

MAURO, J.