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Name: People v. Gonzales
Case #: E035293
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 07/28/2005

On retrial of a strike allegation after a federal district court granted habeas relief, the court properly rejected defendant’s double jeopardy complaint and properly admitted the preliminary hearing transcript of the prior offense to determine whether it qualified as a strike. Double jeopardy does not bar retrial of a prior conviction allegation even if the reversal was due to insufficient evidence. Furthermore, under California law a court may properly examine a preliminary hearing transcript to determine whether a prior conviction qualifies as a strike. The United States Supreme Court decision to the contrary in Shepard v. United States (2005) 125 S.Ct. 1254 does not apply to these proceedings, because the court in that case was interpreting a federal statute. The federal scheme differs significantly from California’s, and thus Shepard does not control.