Under the least adjudicated elements test, the evidence of defendant’s Florida burglary prior was insufficient to prove it qualified as a California strike prior. Denard was convicted of second degree burglary. In a bifurcated proceeding, the prosecution presented documentary evidence of Denard’s Florida burglary, which did not contain any of the facts of the offense. The court found two strike priors true. Denard appealed, challenging the sufficiency of the evidence to prove a Florida burglary conviction was a strike. Held: Reversed. In order for a prior conviction from another jurisdiction to qualify as a strike prior in California, it must involve the same conduct and contain the statutory elements of a California strike offense. If the foreign law can be violated in different ways and the record does not reflect the facts of the offense, the court will presume that the prior conviction was for the least offense punishable under the foreign law (least adjudicated elements test). A first degree burglary in California requires entry into a structure which is currently being used for dwelling purposes with the intent to commit any felony or theft (Pen. Code, §§ 459, 460). The Florida statute (Fla. Stats. Ann. § 810.02(1)) is broader than California’s burglary statute, as a burglary may be committed by remaining in a dwelling after forming the requisite intent and the Florida statute does not require the building to be inhabited. Because the evidence did not describe the facts of the offense, under the least adjudicated elements test, it was insufficient to prove the Florida prior is a strike offense.

There was insufficient evidence that the Florida manslaughter conviction was a California strike prior. The trial court also found Denard had a 1993 conviction in Florida for second degree felony manslaughter and that this offense constituted a strike prior. However, the Florida manslaughter statute is broader than California’s voluntary manslaughter statute (which is a serious felony and a strike offense; Pen. Code, § 1192.7, subd. (c)(1)), encompassing conduct that would satisfy the elements of involuntary manslaughter (which is not a strike offense), as well as voluntary manslaughter. Thus, it did not automatically qualify as a California strike prior.

The appellant’s Sixth Amendment right to trial by jury was abridged when the trial court used a probable cause affidavit to prove the Florida manslaughter conviction was a California strike prior. Because the Florida manslaughter statute did not demonstrate that appellant’s conviction constituted a strike prior, the prosecution turned to the only document that described the facts of the Florida manslaughter—a probable cause affidavit. However, the affidavit was not part of the record of conviction as it set forth the basis for arresting Denard for two crimes with which he was neither charged nor convicted. “The record of conviction refers only to those record documents reliably reflecting the facts of the offense for which the defendant was convicted.” The affidavit contained multiple layers of hearsay and was therefore not a reliable account of the conduct underlying the offense of conviction. The court’s reliance on this document to determine that Denard’s Florida manslaughter conviction constituted a strike also violated Denard’s Sixth Amendment right to a jury trial because the court engaged in judicial factfinding that went beyond the elements of the crime. (See Descamps v. U.S. (2013) 133 S.Ct. 2276.) The court agreed with People v. Saez (2015) 237 Cal.App.4th 1177 and People v. Marin (2015) 240 Cal.App.4th 1344 on this point.

The prosecutor’s argument constituted Griffin error, but was harmless. During investigation of the burglary, police used a photograph of the perpetrator which was extracted from a store surveillance camera. When police showed the photo to Denard’s wife, Rosa, and she identified him. She so testified at trial. The defense argued that Rosa was in no better position than the jury to identify Denard from the photo. During closing argument, the prosecutor stated that Denard placed the burden on his wife to testify and refused to take responsibility for his crime. As Denard argued, this was Griffin error because it could only be construed as a comment regarding his silence. Under the Fifth Amendment, a prosecutor is prohibited from commenting directly or indirectly on an accused’s invocation of his right to remain silent. (Griffin v. California (1965) 380 U.S. 609.) However, the identification evidence was strong, leaving no doubt the jury would have reached the same result absent the error (Chapman v. California (1967) 386 U.S. 18).