(Santa Cruz County Super.Ct.No. F17783)
The opinion of the court was delivered by: Duffy, J.
CERTIFIED FOR PUBLICATION
We address in this case whether the evidence was sufficient for the court to find that a prior felony conviction of second degree assault from the State of Washington constituted a strike for purposes of imposing an enhanced punishment under the Three Strikes law. This question requires us in turn to determine the admissibility of (1) the transcript of the Washington prosecutor's recitation of the alleged facts underlying the crime, which was received under the adoptive admission exception to the hearsay rule, and (2) the transcripts of the unsworn statements of others made after the court accepted the guilty plea, admitted as constituting part of "the entire record of the conviction" which may be considered to prove a strike allegation. (People v. Guerrero (1988) 44 Cal.3d 343, 352 (Guerrero).)
Defendant Michael Roberts pleaded guilty to assault upon a peace officer, grand theft, and evading an officer. He also admitted the Washington conviction, but denied that it constituted a strike. The court found the strike allegation true and sentenced defendant--utilizing the prior strike to calculate the sentence--to an aggregate prison term of nine years, four months.
We conclude that the court erred in admitting over defendant's objection the prosecutor's statement reciting the alleged facts relating to the Washington offense; this hearsay evidence was not admissible as an adoptive admission. We hold further that the unsworn statements of defendant, his attorney, and the victim made to the Washington court after it had accepted the guilty plea were also inadmissible to prove the strike. Although defendant's trial counsel failed to object to this evidence on the ground that it was not part of "the entire record of conviction," such omission constituted deficient performance of counsel which was prejudicial. We will therefore consider the otherwise forfeited evidentiary objection. After reviewing only the admissible evidence, we conclude that there was insufficient evidence to support the finding that the Washington conviction constituted a strike. We therefore reverse the judgment and remand the matter to the trial court for further proceedings.
On April 6, 2009, defendant and his girlfriend were in a white Chevrolet Nova at a Valero gas station in Santa Cruz. The car had been reported stolen on April 5. An employee of the Valero station saw defendant accessing the trunk of her car. As she walked toward her car, the male saw her and fled the area in the Nova. The witness called the police and reported the license plate of the white car. She determined afterwards that she was missing a navigation system and her laptop computer.
Defendant then drove to another Valero gas station in Santa Cruz. He and his girlfriend were spotted there by Detective David Perry of the Santa Cruz Police Department, who pulled up behind the Nova. Defendant initially cooperated with Detective Perry but drove away after Detective Perry instructed him to remain because he had learned that the Nova had been reported stolen. As defendant fled, the Nova struck Detective Perry, who rolled over the hood of the car. Defendant was pursued by peace officers through a residential neighborhood and on the freeway; he was ultimately apprehended in Scotts Valley.
Defendant was charged by information filed May 1, 2009, with five felony offenses, namely, assault upon a peace officer (Pen. Code, § 245, subd. (c); count 1);*fn2 resisting an executive officer (§ 69; count 2); grand theft of personal property (§ 487, subd. (a); count 3); receiving stolen property (§ 496, subd. (a); count 4); unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 5); and evading an officer (Veh. Code, § 2800.2, subd. (a); count 6). He was also charged with two misdemeanors, resisting, obstructing or delaying a peace officer (§ 148, subd. (a); count 7), and hit and run driving (Veh. Code, § 20002, subd. (a); count 8). The information contained the further allegation that defendant had suffered one prior conviction within the meaning of section 665, subdivision (a), two prior convictions for which he had served prison terms (§ 667.5, subd. (b)), and two prior felony convictions from the State of Washington (second degree assault, and residential burglary) that constituted violent or serious felonies (§§ 667, subds. (b) - (i)/1170.12).
Defendant pleaded guilty to three of the felony counts (assault upon a peace officer [count 1], grand theft [count 3], and evading an officer [count 6]). He also admitted the fact of one of the Washington convictions alleged as a strike (i.e., the second degree assault conviction), but did not admit that the conviction constituted a strike. Pursuant to the People's motion, the court dismissed the remaining counts and struck the remaining allegations, including the second prior strike allegation.
In a later proceeding, the court heard evidence and determined that the second degree assault conviction from the State of Washington constituted a strike under California law. On January 7, 2010, after the court heard and denied defendant's motion to strike the prior strike allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, it sentenced defendant to eight years in prison in connection with the assault on a peace officer conviction (the midterm of four years for the offense, doubled because of his prior "strike" conviction, pursuant to §§ 667, subds. (b)-(i) and 1170.12), and a consecutive sentence of 16 months for the grand theft conviction (one-third of the midterm, doubled). The court also imposed a sentence of four years for the conviction of evading a peace officer (the midterm of two, doubled), but stayed imposition of that sentence pursuant to section 654. Defendant filed a timely notice of appeal.
I. Adjudication of Washington Conviction as a Strike
The People offered two documents into evidence to establish that the Washington conviction was a strike: (1) the documents reflecting the conviction, including the information, statement of defendant's plea, and judgment;*fn3 and (2) the transcript of the plea and sentencing hearing of July 17, 1999. The prosecution argued that the Washington conviction was a strike because the evidence showed that defendant had committed a felony in which he had personally inflicted great bodily injury, a strike under California law. (§ 1192.7, subd. (c)(8).)*fn4
The documents reflecting the conviction did not provide details concerning the underlying offense. The information, reciting the language of the Washington statute for second degree assault, alleged that defendant "[o]n or about May 17, 1999, in the State of Washington, . . . intentionally assaulted Angela Roberts, and thereby recklessly inflicted substantial bodily harm." The form statement of defendant's guilty plea similarly mirrored the language of the statute. And the judgment simply recited that defendant had been convicted based on a guilty plea of second degree assault.
The People relied on the reporter's transcript of the plea and sentencing in support of their contention that the underlying offense involved defendant's personal infliction of great bodily injury. The matters relied on consisted of (1) the assistant district attorney's recital of the facts underlying the charge; (2) defendant's statement to the court after his plea of guilty; (3) the statement by defense counsel after her client's plea was taken; and (4) the statement of the victim, defendant's then-wife.
Immediately after defendant entered his guilty plea, the prosecutor stated: "This . . . arrest was made by the Yakima Police Department on May 26, 1999, about 1:25 in the morning. . . . It was determined during the course of the investigation that . . . there was a physical confrontation during which Mr. Roberts assaulted Ms. Roberts by biting her lip and, Your Honor, this caused some permanent scarring and there was a portion of the lip that could not be reattached." Immediately after this recital, defense counsel said: "Judge, I have no other comment until the time of sentence." The court, based upon the prosecution's recital, then found that there was a factual basis for the guilty plea and accepted the plea.
Defendant responded to the court's inquiry as to whether he had anything to say before the imposition of the sentence: "Yes, I do, Your Honor. I'd like to apologize to Angela Roberts for what happened. . . . I do feel that in this case there is some doubts [sic] on myself and with her in the case. That's why I am pleading guilty. But I do understand that I did do bodily harm to her and I plan on pleading guilty for that and I'm sorry."
Defense counsel then stated: "My client has indicated to me as he just indicated to the Court that he does have a great deal of regret based upon the nature of this injury. It was very serious. . . . At the time of the incident in question he has maintained to me that they were involved in a physical fight and that she pulled out a deadly weapon, a letter opener, and he thought she was about to stab him with it. He, therefore, was trying to defend himself and was getting up biting at her. I don't think he was planning to bite her anywhere on the face area. However, he recognizes that where he did bite her was on her face. My understanding is it was on the lip. And there was quite a large injury inflicted. . . . [¶] . . . [¶] And again, I think this is a very unfortunate situation in which he never intended to cause this kind of harm. And, in fact, felt and still feels he was defending himself. But, on the other hand, is willing to come forward and take the blame. . . ."
The victim then provided the following statement to the court in connection with sentencing: "I don't feel that [defendant] should be released on work release. I feel he should serve his time. He did this in front of my children and I'm going to be scarred for the rest of my life. He was not defending himself. That's not the way it happened. . . ."
The court below concluded that the People had met their burden of establishing that the Washington conviction constituted a strike. In so holding, it relied on the statements from the transcript of the plea and sentencing hearing for the Washington conviction of (1) the prosecutor, reciting the alleged facts supporting the charge; (2) defendant, indicating that he "did do bodily harm to [his then-wife]"; (3) defense counsel, indicating that ...