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Name: People v. Banuelos
Case #: B172385
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 06/22/2005
Subsequent History: rehng. den. 7/18/05

Appellant was convicted of making a criminal threat and resisting a peace officer, and was sentenced to state prison after the trial court found in a bifurcated proceeding that he had been convicted of a prior serious felony within the meaning of the Three Strikes law, and which also triggered the five-year enhancement provision of Penal Code section 667, subdivision (a). On appeal, he argued that the record was insufficient to demonstrate that the prior conviction for a violation of section 245 (a)(1)qualified as a serious felony. The appellate court agreed and reversed the true finding on the enhancements. A conviction for a violation of section 245(a)(1) is not necessarily a serious felony if the perpetrator aided or abetted another during the assault, or personally committed an assault likely to commit great bodily injury without a weapon or not actually resulting in great bodily injury. The only evidence here was a 969b packet and fingerprint card which reflected a conviction for “ASSAULT GBI W/DEADLY WEAPON” as the result of a plea. The documents were silent as to whether appellant personally used the weapon or personally inflicted great bodily injury. Although the enactment of Proposition 21 means that an unambiguous reference to a conviction of assault with a deadly weapon will now suffice to prove a serious felony regardless of the personal use of a weapon or personal infliction of great bodily injury, People v. Rodriguez is still binding on the question of whether an abstract of judgment is sufficient to prove assault with a deadly weapon as opposed to assault by other means likely to produce great bodily injury. However, double jeopardy does not bar a retrial on the prior conviction allegations.