After Descamps v. U.S. (2013) 133 S.Ct. 2276, California’s approach for determining whether a prior conviction constitutes a strike may violate the Sixth Amendment. A jury found Saez guilty of attempted premeditated murder. Two prior Wisconsin convictions were found to be strikes. On appeal, Saez raised a number of issues, including a Sixth Amendment challenge to the court’s strike finding on one of the Wisconsin priors. Held: Strike finding reversed. Saez’s Wisconsin conviction for false imprisonment while armed did not constitute a strike based on the fact of conviction alone. Instead, the strike determination turned on whether the conviction documents proved that Saez was convicted of personally using a firearm in the commission of his crime. (See Pen. Code, § 1192.7, subd. (c)(8).) The only document in the record of conviction that proved this element was a police officer’s statement in an affidavit included with the complaint. The Court of Appeal concluded that the trial court’s reliance on the affidavit to find that the Wisconsin conviction was a strike was appropriate under state law. (See People v. McGee (2006) 38 Cal.4th 682.) However, the court also concluded that this violated the Sixth Amendment based on Descamps. While Descamps did not expressly overrule McGee, its Sixth Amendment discussion compels the conclusion that where the elements of a prior conviction do not necessarily establish the offense is a serious or violent felony, the trial court may not make a disputed factual determination to make this finding. Here, the trial court erred under the Sixth Amendment by relying on the affidavit to increase Saez’s sentence. Based on the record in this case, Saez’s stipulation to the complaint as the factual basis of his plea did not constitute a waiver of his Sixth Amendment rights or an admission to the additional facts.

The premeditation allegation was improperly tried because it had been dismissed under Penal Code section 995 and was never appropriately re-alleged. After the information was filed in his case, Saez filed a section 995 motion to dismiss parts of it, including the allegation that the attempted murder was premeditated. The motion was granted as to the premeditation allegation. However, the minute order for the hearing erroneously stated the motion had been denied. Later, the prosecutor filed an amended information that included the allegation. This amendment went unchallenged below because the parties (both with new attorneys) and a different judge did not realize the minute order was incorrect. On appeal, Saez argued that the previously dismissed premeditation allegation was improperly tried. Held: Premeditation finding reversed. A trial court has discretion to correct its own prejudgment errors. However, there are different policy considerations if the reconsideration is accomplished by a different judge. An order made by one judge can neither be ignored nor overlooked by another judge. Here, the second judge was not free to simply disregard the order of dismissal and lacked the authority to permit the information to be amended to re-allege premeditation without the prosecution taking an appeal or filing a new accusatory pleading that would have required a new preliminary hearing. The error was prejudicial because it resurrected a dismissed allegation that had not been properly challenged and should not have been tried.