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Name: People v. Roberts
Case #: H035158
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 05/24/2011

The nature of a prior conviction may not be proven by the record of statements made after a plea of guilty on the basis that there was an adoptive admission under an exception to the hearsay rule. The challenge was to the sufficiency of evidence to prove that a conviction from Washington state for second degree assault constituted a strike. Proof of the prior was based on the introduction of the documents reflecting the conviction: the information, the plea, and judgment; and, the transcript of the plea and sentencing hearing. The guilty plea included admission of the element of substantial injury. The proof that there was personal infliction of great bodily injury, qualifying under Penal Code section 1192.7, subdivision (c)(8), was a statement by the prosecutor describing the exact nature of the injury including re-attachment of the victim’s lip and permanent scarring and the defendant and victim’s subsequent statements at the sentencing hearing. There was no objection from defense counsel, but also no agreement to the statements as the factual basis for the plea. The statements were not part of the “record of conviction” under People v. Guerrero (1988) 44 Cal.3d 343, 352 and they could not be used as adoptive admissions under People v. French (2008) 43 Cal.4th 36, 51. Trial counsel only made a blanket hearsay objection to all of the records and his failure to make an objection to the post-plea statements, resulting in forfeiture of the issue was ineffective assistance of counsel. The judgment was reversed and remanded for a possible retrial of the strike allegation.