Strike prior reversed where trial court engaged in judicial factfinding beyond the elements of the prior aggravated assault conviction in determining that it was a serious felony. A jury convicted defendant of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and battery (Pen. Code, § 242). The trial court found two strike priors (Pen. Code, § 667, subds. (b)-(i)), two prior serious felony enhancements (Pen. Code, § 667, subd. (a)), and two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) true. Defendant was sentenced to 35 years to life and appealed. Held: Reversed in part. When defendant pleaded guilty to aggravated assault, Penal Code section 245, subdivision (a)(1) applied to assaults committed by use of a deadly weapon or by means of force likely to produce great bodily injury (GBI). Under the Three Strikes law, only assault with a deadly weapon constitutes a serious felony (Pen. Code, §§ 1192.7 subd. (c)(31), 667, subd. (d)(1)). Thus, the mere fact of a conviction under former section 245, subdivision (a)(1) does not establish the prior conviction was a strike. A no contest plea admits the elements of a crime but not any aggravating circumstances. The trial court is permitted to draw reasonable inferences from the record to find the defendant’s prior conviction was for a serious felony. But here the court actually weighed the evidence contained in the record to make its own factual determination about the nature of the offense, by finding that references to a baseball bat established the crime as a serious felony. The court disregarded references to assault by force likely to cause GBI, contained in the information, the abstract of judgment, and the preliminary hearing transcript. Defendant’s prior assault conviction could have rested on either assault with a deadly weapon or by force likely to cause GBI. The evidence was insufficient to establish it was a serious felony.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B260824.PDF