Sentencing court’s reliance on the preliminary hearing transcript in finding defendant’s prior conviction qualified as a serious felony was impermissible and violated defendant’s Sixth Amendment right to a jury trial. In 2016, after a jury found Hudson guilty of mayhem, the court held a separate trial to determine whether his 1991 conviction for assault under Penal Code section 245, subdivision (a)(1), was a serious felony within the meaning of section 667, subdivisions (a) and (d). To prove that Hudson’s conviction was based on a theory involving use of a deadly weapon rather than by means likely to produce great bodily injury (only the former of which qualifies as a serious felony), the prosecution relied in part on the transcript of the preliminary hearing, during which the victim described Hudson beating him with a metal pipe. The record was silent as to which basis Hudson pled. The court found the prior conviction qualified as a strike and a prior serious felony. Hudson appealed. Held: Reversed and remanded. Under the Sixth Amendment, courts must employ a categorical or elements-based approach in applying recidivist sentence enhancements. A sentencing court cannot enhance a defendant’s sentence above the statutory maximum based on facts gleaned from the record by the sentencing court that were not necessarily found beyond a reasonable doubt by a jury. (Descamps v. United States (2013) 570 U.S. 254, 268-270.) The California Supreme Court applied Descamps to section 245, subdivision (a)(1), in People v. Gallardo (2017) 4 Cal.5th 120, holding that a sentencing court erred in relying upon the preliminary hearing transcript to support the finding that the prior felony was a serious felony because the relevant facts were neither found by a jury nor admitted by the defendant when entering her guilty plea. Here, the court’s reliance on the preliminary hearing transcript was similarly impermissible.

Defendant did not forfeit his claim by failing to raise an objection in the trial court. The People argued that Hudson should have objected because the U.S. Supreme Court had issued Descamps several years before his trial. Despite the authority in Descamps and Apprendi v. New Jersey (2000) 530 U.S. 466, California Supreme Court precedent allowed for review of judicial records not contemplated in Apprendi and Descamps, including preliminary hearing transcripts, to determine whether a defendant’s prior conviction was “realistically” a serious felony. (People v. McGee (2006) 38 Cal.4th 682, 685.) There was no guarantee that the issuance of Descamps was going to have any effect on the application of California law. Gallardo was the first time the California Supreme Court readdressed its holding in McGee in order to attempt to comply with relevant federal authority. Here, Hudson did not forfeit his claim by failing to raise an objection “as it placed an unreasonable burden to anticipate unforeseen changes in the law.” He was not required to raise an objection in the trial court to preserve the claim.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/F074016.PDF