Filed 10/28/16

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

CHADWICK VERNON LEARNARD,

Defendant and Appellant.

B260824

(Los Angeles County

Super. Ct. No. YA088533)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Alan B. Honeycutt, Judge. Affirmed in part, 

reversed in part, and remanded with directions.

Heather L. Beugen, under appointment by the Court of 

Appeal, for Defendant and Appellant.

* Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication with the exception 

of the Factual Background and part I of the Discussion, pages 3–

12.
2

Kamala D. Harris, Attorney General, Gerald A. Engler, 

Chief Assistant Attorney General, Lance E. Winters, Senior 

Assistant Attorney General, Victoria B. Wilson, Supervising 

Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney 

General, for Plaintiff and Respondent.

_________________________________

Chadwick Vernon Learnard appeals from the judgment 

entered following a jury trial in which he was convicted of one 

count of assault with a deadly weapon (Pen. Code,1 § 245, subd. 

(a)(1), count 1) and one count of simple battery2 (§ 242, count 5).

The trial court found that appellant had suffered two prior 

qualifying convictions under the “Three Strikes” law (§§ 667, 

subds. (b)–(i), 1170.12, subds. (a)–(d)), two prior serious felony 

convictions (§ 667, subd. (a)), and two prior prison terms (§ 667.5, 

subd. (b)). The court sentenced appellant to an aggregate term of 

35 years to life in state prison.

3

1 Undesignated statutory references are to the Penal Code.

2 The jury was unable to reach a verdict on count 2, assault 

by means likely to produce great bodily injury. (§ 245, subd. 

(a)(4).) The court found the jury was deadlocked and declared a 

mistrial as to that count. 

3 The sentence consisted of an indeterminate term of 25 

years to life on count 1, plus two five-year enhancements for the 

two prior serious felony convictions. (§§ 667, subds. (a), (e)(2).) 

On count 5, the court sentenced appellant to 180 days in county 

jail with credit for time served. 
3

We reverse the trial court’s determination that appellant’s 

2002 conviction for aggravated assault constituted a serious 

felony conviction and hence a strike based on the court’s reliance

on judicial fact-finding beyond the elements of the prior 

conviction itself. Given that none of the documents in the record 

of the prior conviction distinguished between assault with a 

deadly weapon and assault by means likely to produce great 

bodily injury, the trial court’s determination that the prior 

conviction constituted a serious felony is unsupported by 

substantial evidence. Accordingly, we remand the matter for 

resentencing. In all other respects, we affirm.

FACTUAL BACKGROUND*

On October 1, 2013, about 3:00 p.m., Luisina Hare and her 

husband, Charles, drove to the Fantastic Cafe in Lomita to pick 

up lunch. Their six-month-old son was in the backseat of the car. 

As the Hares pulled into the restaurant’s parking lot, they saw 

their friend Kari Lightfoot driving with her six-year-old son in 

the car. Luisina parked near the back door of the restaurant, and 

Lightfoot parked nearby leaving an empty parking space between 

the two vehicles. Sitting in their vehicles with the windows 

rolled down, the Hares chatted briefly with Lightfoot.

Charles got out of the car, and as he walked toward the 

restaurant, appellant emerged from the restaurant carrying a 

skateboard. Appellant yelled several times at Charles, “ ‘I heard 

you were talking shit.’ ” Charles looked up and saw appellant 

approaching rapidly. Holding the skateboard at shoulder height 

* See footnote, ante, page 1.
4

by its “trucks,”4 appellant struck a forceful blow to Charles’s face 

with the end of the skateboard. Charles was able to turn his 

head so that the skateboard struck his left cheek and the outer 

part of his eye. The force of the blow knocked him into the front 

of his car and he fell to the ground. As appellant continued his 

attack, Charles curled up and covered his head with his arms.

Luisina got out of her car and tried to stop the assault on 

her husband by jumping on appellant’s shoulder and throwing 

her arm around him. But appellant grabbed her face and shoved 

her to the ground, ripping off her shirt. While Luisina was on the 

ground appellant hit her a couple of times on her back with a 

heavy object or his hand.

Charles stood up and started punching appellant’s head 

and body. Appellant fought back, and the two men traded blows. 

Luisina went to the driver’s side of the car and tried to pop open 

the trunk to get something she could use to stop the fight. 

Appellant made a move toward the driver’s side of the Hares’ 

vehicle, and Charles put his hand on his pocket knife in case he 

needed to use it. At this point, appellant said, “Oh, oh, what, you 

got a gun?” He took a few steps backward, then turned and 

walked away with the skateboard.

Luisina called 911 and handed the phone to Charles, who

reported the incident. Charles declined medical attention, telling 

the operator he only had a scratch on his face and was fine. But 

Charles actually suffered several minor injuries from the attack, 

including abrasions on both corners of his left eye, a cut on the 

bridge of his nose, a cut lip, a scratch on his back, and abrasions 

4 The “trucks” of a skateboard are like a car’s axle: attached 

to the bottom of the skateboard, they hold the wheels in place.
5

on his upper chest, left knee, and left forearm. Luisina had an 

abrasion on her right knee, as well as bruises on her upper back, 

above her left eyebrow, and on her left arm and shoulder. None 

of Luisina’s injuries was serious enough to require medical 

attention.

Shortly after the incident, sheriff’s deputies found 

appellant in a nearby Laundromat hiding under a table and took 

him into custody. As Deputies Thomas Phillips and Stephen 

Capra were escorting appellant to their patrol car, Capra noticed

a skateboard that was propped against a traffic barrier in front of 

the Laundromat. Aware that the victims had reported a 

skateboard being used in the attack, Capra picked it up, and 

appellant said, “ ‘Don’t fucking lose my skateboard.’ ”

In the backseat of the patrol car, appellant became angry 

about being detained and started yelling profanities at the 

officers. Appellant was sweating profusely and turning red, and

demanded to know why he was “getting in trouble for socking . . . 

up . . . a drug dealer.” Claiming he was simply protecting his 

neighborhood, appellant declared, “ ‘Those people are dirty. They 

were selling drugs.’ ” Appellant called Capra a “ ‘beaner,’ ” a 

“ ‘punk-ass bitch,’ ” and a “ ‘child molester.’ ” Phillips described 

appellant’s demeanor in the patrol car as “pretty amped up, 

belligerent.” Appellant spat at Capra, hitting the Plexiglas shield 

between the front and rear seats of the patrol car.

At the station, appellant was placed in the booking cell, and 

his demeanor became increasingly erratic. He alternated 

between extreme anger and agitation to becoming emotional and 

slumping against the wall crying. He paced the cell, frequently 

punching his hand with his fist and slapping his hands against 

the walls and the glass door of the cell. He removed his shirt and 
6

threw it on the floor. After filling out some paperwork, he threw 

the pen against the wall so forcefully that the pen broke. He 

ranted and raved, repeatedly yelling, “Why am I in trouble for 

socking this guy up, protecting my neighborhood?”

DISCUSSION

I. Admission of evidence of appellant’s postarrest 

conduct and demeanor

Appellant contends the trial court abused its discretion in 

admitting irrelevant and unduly prejudicial evidence of his

postarrest conduct and demeanor. We find no abuse of discretion, 

but in any event conclude that any error in admitting such 

evidence was harmless.

Relevant background

Over strenuous defense objection, the trial court admitted a 

22-minute video without audio, which showed appellant in the 

booking cell exhibiting extremely agitated and erratic behavior. 

The defense also objected to admission of evidence that appellant 

spat at Deputy Capra in the patrol car and that appellant called 

him a “beaner,” a “punk-ass bitch,” and a “child molester” while 

he was being transported to the police station.

The court did not review the video, but relied on the district 

attorney’s description of it as showing appellant “punching and

slamming his hands, both open and closed, against the booking 

cage, walls, and counter.” The prosecutor further characterized 

appellant’s behavior as “going off in the cell. At some point he is 

handed a clipboard and something to write on, and within about 

a minute he throws something at the cage and then starts 

punching the glass door.” Defense counsel argued the tape was 

highly prejudicial and irrelevant, demonstrating only that 

appellant was angry about being in custody.
7

“Upon weighing the considerations under [Evidence Code 

section] 352,” the trial court admitted the booking cell video, 

finding it to be relevant and not unduly prejudicial.

5 The court

declared that the video appeared “to be highly probative of the 

demeanor of [appellant] at the time of the incident.” The court 

concluded that appellant’s actions in the patrol car and his 

demeanor in the booking cell helped to explain appellant’s 

conduct and demeanor during the commission of a crime in which 

he was “alleged to have set upon” total strangers for no apparent 

reason.

No abuse of discretion occurred

We start with the basic proposition that all relevant 

evidence is admissible, except as excluded by statute or the 

constitution. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, 

subd. (d).) Relevant evidence is defined as evidence “having any 

tendency in reason to prove or disprove any disputed fact that is 

of consequence to the determination of the action.” (Evid. Code, 

§ 210.) “ ‘The test of relevance is whether the evidence tends 

“logically, naturally, and by reasonable inference” to establish 

material facts such as identity, intent, or motive.’ ” (People v. 

Bivert (2011) 52 Cal.4th 96, 116–117; People v. Williams (2008) 

43 Cal.4th 584, 633–634.)

5 Because the trial court did not independently review the 

video before it was shown to the jury, the court was not in a 

position to properly weigh the potential prejudicial effect of its 

contents. Although we agree with the trial court’s ruling that the 

video was relevant and not unduly prejudicial based on our own 

review of the recording, we observe that it would have been far 

better practice for the trial court to conduct its 352 analysis on 

the basis of an independent review of the evidence.
8

Even if relevant, a trial court has broad discretion to

exclude evidence “if its probative value is substantially 

outweighed by the probability that its admission will 

(a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, or 

of misleading the jury.” (Evid. Code, § 352; People v. Lee (2011) 

51 Cal.4th 620, 643.) We review the trial court’s rulings on the 

admissibility of evidence, including those based on relevancy and 

Evidence Code section 352, for abuse of discretion. (Lee, at 

p. 643; People v. Hamilton (2009) 45 Cal.4th 863, 929–930 [“ ‘Our 

review on this issue is deferential’ ”].) The mere fact that 

reasonable people might disagree over the trial court’s decision 

does not provide grounds for reversal. “[A] trial court does not 

abuse its discretion unless its decision is so irrational or arbitrary 

that no reasonable person could agree with it.” (People v. 

Carmony (2004) 33 Cal.4th 367, 377.)

Appellant argues that evidence of his postarrest 

demeanor—his conduct in the police car and the video depicting 

appellant in a violent rage and “going nuts in the booking cage”—

was irrelevant to any issue before the jury, and the trial court 

abused its discretion in admitting it. To the contrary, evidence of 

appellant’s postarrest conduct and demeanor was relevant to 

counter the defense theory by showing appellant’s entire course 

of conduct, from his agitated pacing inside the restaurant before 

the assault6 to his agitation and rage in the patrol car and 

booking cell immediately after the assault.

6 Video from inside the restaurant showed appellant pacing 

back and forth moments before the unprovoked assault on 

Charles. Although the video was not available to be shown to the 
9

The prosecution sought to introduce evidence of appellant’s 

postarrest conduct and demeanor to contradict the defense theory 

that appellant was acting in self-defense and protecting his 

neighborhood from drug dealers when he committed an 

apparently senseless act of violence on a random stranger. 

Evidence of appellant’s extreme agitation and erratic behavior 

toward police immediately after he attacked complete strangers 

with their infant at a restaurant was certainly relevant to rebut 

the defense and establish the material facts of intent and motive. 

Appellant’s conduct in the police car was inconsistent with a 

person who had merely protected his neighborhood from drug 

dealers and acted in self-defense. Moreover, the video evidence 

from the booking cell within 30 minutes of the assault, combined 

with evidence of appellant’s agitated state in the restaurant

before the offense, tended to show a continuing course of conduct 

which contradicted the defense theory of the case.

Although motive is not an element of a crime, it makes the 

crime understandable and renders the inferences regarding 

defendant’s intent more reasonable. (People v. Riccardi (2012) 

54 Cal.4th 758, 815, overruled on other grounds in People v. 

Rangel (2016) 62 Cal.4th 1192, 1216.) “ ‘ “[B]ecause a motive is 

ordinarily the incentive for criminal behavior, its probative value 

generally exceeds its prejudicial effect, and wide latitude is 

permitted in admitting evidence of its existence.” ’ ” (People v. 

Samaniego (2009) 172 Cal.App.4th 1148, 1168.)

 

jury, the investigating officer who had seen it testified that 

appellant “seemed a little agitated” just before he walked out of

the rear door to the parking lot.
10

As part of a continuing course of conduct which started in 

the restaurant just before his encounter with the Hares, 

appellant’s behavior immediately after the incident went a long 

way to explaining his conduct during the confrontation. The 

evidence was therefore relevant to proving a disputed fact that 

was of consequence to an important issue the jury was called 

upon to decide.

Appellant further argues that the 22-minute video showing 

“an extremely irate, irrational and violent” person was unduly 

prejudicial. We might agree if the video actually depicted such 

violence and unchecked rage. However, in our view, it does not. 

Instead, the video shows a clearly agitated individual who 

appears to be angry and upset about his situation. Appellant is

cooperative as police remove his belt and he enters the booking 

cell. Appellant then becomes agitated, pacing back and forth, 

and punching his left hand with his right fist. He slaps the wall, 

the glass door, the window, and the counter with both hands

multiple times. He removes his shirt, and repeatedly throws it, 

picks it up, and throws it again. Police hand him a clipboard 

with paper and a pen. Appellant is again cooperative as he 

appears to write on the paper and hand the clipboard back to 

police. Then he throws the pen violently against the window of 

the cell. Several times, appellant slumps against the wall, and 

stands or sits quietly with his head in his hands before resuming 

his agitated pacing.

Contrary to appellant’s characterization, the video simply 

does not depict a violent individual in an uncontrolled rage, but 

rather, a person in a state of high emotion and agitation. Under 

the prosecution’s theory, this behavior in the cell was part of a 

continuing course of conduct that helped explain the assault on a 
11

stranger who happened to cross appellant’s path. Accordingly, 

we conclude the video was relevant to a material issue and not 

unduly prejudicial. We cannot say that the trial court’s 

admission of the evidence in this instance was so irrational or 

arbitrary that no reasonable person could agree with it. (People 

v. Carmony, supra, 33 Cal.4th at p. 377.)

Any error was harmless

Even were we to find the trial court abused its discretion in 

admitting the evidence of appellant’s postarrest conduct and 

demeanor, reversal would not be warranted. “Absent 

fundamental unfairness, state law error in admitting evidence is 

subject to the traditional Watson test: The reviewing court must 

ask whether it is reasonably probable the verdict would have 

been more favorable to the defendant absent the error.” (People 

v. Partida (2005) 37 Cal.4th 428, 439; People v. Watson (1956) 

46 Cal.2d 818, 836.)

We find no reasonable probability of a more favorable 

outcome had the trial court excluded the video evidence in this 

case. Three witnesses testified to appellant’s unprovoked attack 

on Charles with a skateboard. The jury also heard the 911 call in 

which Charles reported appellant had hit him in the face with a 

skateboard. Although relatively minor, Charles’s injuries were 

consistent with being struck by a skateboard. Several times, 

appellant admitted to “socking” Charles, and he acknowledged 

the skateboard Deputy Capra picked up outside the Laundromat 

belonged to him. Police found appellant hiding in a Laundromat 

near the restaurant after the attack. Moments before the 

assault, as he paced back and forth, appellant appeared agitated 

on the restaurant video. Despite appellant’s claim that he was 

protecting his neighborhood from drug dealers and had acted in 
12

self-defense, there was no evidence the Hares were selling drugs, 

and appellant suffered no injuries indicative of having had to 

defend himself. In short, given the overwhelming demonstration

of appellant’s guilt, any error in admitting the evidence of 

appellant’s postarrest conduct and demeanor was undeniably 

harmless.

II. The prior serious felony determination

Appellant contends substantial evidence does not support 

the trial court’s conclusion that his 2002 conviction for 

aggravated assault constituted a serious felony and qualified as a 

prior strike conviction under the Three Strikes law. We agree.

Relevant background

The information alleged two prior convictions under the 

Three Strikes law: (1) a 2002 conviction for aggravated assault

following a guilty plea (§ 245, subd. (a)(1)); and (2) a 2012 

conviction for criminal threats (§ 422). Appellant waived his 

right to a jury trial and admitted he had suffered the two prior 

felony convictions, while contending the assault conviction did 

not constitute a serious or violent felony, and thus did not qualify 

as a strike. The trial court reviewed what it described as the 

“record of conviction” in the assault case, which included the 

abstract of judgment, the information, the transcript from the 

preliminary hearing, and the probation department’s 

preconviction report. The trial court did not have before it the 

transcript from appellant’s plea colloquy in the case. 

The notation in the abstract of judgment described the 

offense as a violation of section 245, subdivision (a)(1), “Assault w 

deadly wpn/GBI.” The information charged: “On or about 

February 9, 2002, . . . the crime of assault with deadly weapon, by 

means likely to produce GBI, in violation of Penal Code section
13

245(a)(1), a Felony, was committed by [Defendant], who did 

willfully and unlawfully commit an assault . . . with a deadly 

weapon, to wit, [a] baseball bat, and by means of force likely to 

produce great bodily injury.” (Italics added.)

Defense counsel argued that because the information and 

the abstract referred to the offense as both an assault with a 

deadly weapon and an assault with force likely to produce great 

bodily injury, it was impossible to determine whether appellant

had admitted an assault with a deadly weapon when he entered 

his plea. Counsel further maintained that the testimony adduced 

at the preliminary hearing had no bearing on what facts, if any,

appellant admitted as part of his guilty plea. Based on 

appellant’s record of conviction, counsel argued it was not 

possible to find beyond a reasonable doubt that appellant 

admitted use of a deadly weapon at the time of his plea.

The trial court determined the prior assault conviction 

qualified as a strike. The court recognized that the reference in 

the abstract of judgment to both a deadly weapon and great 

bodily injury created some ambiguity, but noted that the 

information “set[] out clearly that a baseball bat was used in the 

assault under 245(a)(1).” The court further declared that both 

the preliminary hearing transcript and the preconviction report 

showed that appellant had used a deadly weapon.

Former Penal Code section 245, subdivision (a)(1)

When appellant pleaded guilty to aggravated assault in 

2002, section 245, subdivision (a)(1) provided in relevant part: 

“Any person who commits an assault upon the person of another 

with a deadly weapon or instrument other than a firearm or by 

any means of force likely to produce great bodily injury shall be 

punished . . . .” Former section 245, subdivision (a)(1) thus 
14

described alternative means of committing the same offense, 

aggravated assault, within the same subdivision, and a jury could 

convict without regard to whether the crime was committed by 

means of a deadly weapon or by force likely to produce great 

bodily injury.7 (People v. Aguilar (1997) 16 Cal.4th 1023, 1036–

1037 [violation of section 245, subdivision (a)(1) required proof of 

two elements: “One, a person was assaulted, and two, the assault 

was committed by the use of a deadly weapon or instrument or by 

means of force likely to produce great bodily injury”]; People v. 

Martinez (2005) 125 Cal.App.4th 1035, 1043; In re Mosley (1970) 

1 Cal.3d 913, 919, fn. 5 [section 245 “define[d] only one offense, to 

wit, ‘assault upon the person of another with a deadly weapon or 

instrument or by any means of force likely to produce great bodily 

injury’ ”].)

Although use of a deadly weapon and great bodily injury

were interchangeable for purposes of conviction under former 

section 245, subdivision (a)(1), under the Three Strikes law only 

assault with a deadly weapon constitutes a serious felony. 

(§§ 1192.7, subd. (c)(31), 667, subd. (d)(1), 1170.12, subd. (b)(1); 

People v. Delgado (2008) 43 Cal.4th 1059, 1065 (Delgado).) 

Accordingly, the mere fact of a conviction for aggravated assault 

under former section 245, subdivision (a)(1) would be insufficient 

to establish the prior conviction was a strike in any case in which 

7 In 2012, the Legislature amended section 245 by deleting 

the phrase “or by any means of force likely to produce great 

bodily injury” from subdivision (a)(1) and placing it in newly 

enacted subdivision (a)(4) (Stats. 2011, ch. 183, § 1), thereby 

separating the two ways in which an aggravated assault could 

occur.
15

the verdict or plea did not specify the precise means used to 

commit the offense.

Substantial evidence does not support the trial 

court’s finding that the prior conviction was a serious 

felony

The prosecution is required to prove each element of an 

alleged sentence enhancement beyond a reasonable doubt. 

(Delgado, supra, 43 Cal.4th at p. 1065; People v. Miles (2008) 43

Cal.4th 1074, 1082.) Where, as here, the mere fact that a 

defendant was convicted under a particular statute does not 

establish the serious felony allegation, our Supreme Court has 

held that the sentencing court may examine “the record of the 

prior criminal proceeding to determine the nature or basis of the 

crime of which the defendant was convicted.” (People v. McGee

(2006) 38 Cal.4th 682, 691 (McGee); People v. Trujillo (2006) 40 

Cal.4th 165, 179; Delgado, at p. 1065.)

A plea of no contest admits the elements of the crime, but 

does not constitute an admission of any aggravating 

circumstances. (People v. French (2008) 43 Cal.4th 36, 49.) “[I]f 

the prior conviction was for an offense that can be committed in 

multiple ways, and the record of the conviction does not disclose 

how the offense was committed, a court must presume the 

conviction was for the least serious form of the offense. 

[Citations.] In such a case, if the statute under which the prior 

conviction occurred could be violated in a way that does not 

qualify for the alleged enhancement, the evidence is thus 

insufficient, and the People have failed in their burden.” 

(Delgado, supra, 43 Cal.4th at p. 1066.)

We review the record in the light most favorable to the 

judgment to determine whether it is supported by substantial 
16

evidence. (Delgado, supra, 43 Cal.4th at p. 1067.) “In other 

words, we determine whether a rational trier of fact could have 

found that the prosecution sustained its burden of proving the 

elements of the sentence enhancement beyond a reasonable 

doubt.” (People v. Miles, supra, 43 Cal.4th at p. 1083; People v. 

Ledbetter (2014) 222 Cal.App.4th 896, 900.)

The trial court was permitted to draw reasonable 

inferences from the records offered to prove appellant suffered a 

prior serious felony conviction. (Delgado, supra, 43 Cal.4th at 

p. 1066; People v. Henley (1999) 72 Cal.App.4th 555, 561.) But 

the court here went beyond reasonable inference when it actually 

weighed the evidence contained in those documents in order to 

make its own factual determination about the nature of the 

offense. In reaching its conclusion that the reference to a deadly 

weapon (a baseball bat) established the crime as a serious felony, 

the court simply disregarded references in both the information 

and the abstract of judgment to assault by means of force likely 

to produce great bodily injury. The court did the same with 

respect to the conduct described at the preliminary hearing. 

There, the victim testified that the defendant hit the victim’s left 

shoulder as he struck the victim’s car with a baseball bat. But 

the victim also testified that the defendant grabbed him with 

both hands and tried “to tear [him] out of the car.” In concluding 

that the conduct described constituted an assault with a deadly 

weapon and thus a serious felony, the court again simply ignored 

evidence that established an assault with force likely to produce 

great bodily injury.

Because the evidence presented by the prosecution 

established appellant’s prior conviction could have rested on use 

of a deadly weapon or force likely to produce great bodily injury, 
17

it was insufficient to prove appellant guilty of a prior serious 

felony conviction beyond a reasonable doubt.8 Without further 

evidence of the underlying circumstances, it must be presumed 

that appellant’s conviction under former section 245, 

subdivision (a)(1) was for the least serious form of the offense, 

that is, assault by means of force likely to produce great bodily 

injury. (Delgado, supra, 43 Cal.4th at p. 1066.)

The trial court’s finding that appellant’s prior conviction for 

aggravated assault constituted a serious felony lacked 

substantial evidentiary support. We therefore conclude the court 

erred in imposing sentence enhancements under section 667, 

8 The preconviction report also fails to provide substantial 

evidence that the prior conviction involved use of a deadly 

weapon. Citing the police report as its source, the preconviction

report sets forth only the defendant’s assault on the victim with a 

baseball bat. But there is no way to determine whether the police 

report itself recounted other conduct that was simply omitted 

from the preconviction report. And there is no indication that the 

facts recounted in the preconviction report formed the factual 

basis for appellant’s plea. In the absence of any evidence that 

appellant stipulated to or even acknowledged the facts as set 

forth in the preconviction report in entering his plea, this 

document has no relevance in determining the nature or basis of 

the crime of which appellant was actually convicted. (See, e.g.,

McGee, supra, 38 Cal.4th at p. 706 [purpose of examination of 

record of earlier criminal proceeding is “to ascertain whether that 

record reveals whether the conviction realistically may have been 

based on conduct that would not constitute a serious felony”]; 

People v. Denard (2015) 242 Cal.App.4th 1012, 1028, 1029.)
18

subdivision (a) and the Three Strikes law.

9 In light of our 

decision on substantial evidence grounds, we need not address

appellant’s constitutional challenge to the sentence.

9 Although “the double jeopardy clause does not bar retrial 

of a prior conviction allegation after an appellate finding of 

evidentiary insufficiency” (Monge v. California (1998) 524 U.S. 

721, 734; People v. Seel (2004) 34 Cal.4th 535, 541), retrial of the 

prior conviction allegation in this case is not warranted. In 

considering whether a prior conviction is serious, the court’s 

inquiry is limited to “a legal determination of the nature of 

defendant’s prior convictions as established by the record of the 

prior criminal proceedings.” (McGee, supra, 38 Cal.4th at p. 702.) 

Accordingly, “ ‘the trier of fact may look to the entire record of the 

conviction’ but ‘no further.’ ” (People v. Kelii (1999) 21 Cal.4th 

452, 456–457.) The prosecution may not call witnesses to testify 

about the facts of the prior offense, nor may the trial court 

consider evidence outside of the record of conviction to make 

findings about the defendant’s earlier conduct. (McGee, at 

pp. 694, 706.) Here, after presenting all available documents 

from the record of conviction the prosecution failed to carry its 

burden of proving beyond a reasonable doubt that appellant’s

prior conviction should qualify as a strike. There is no reason to 

conclude that another trial on the issue would produce a different 

result. (Cf. People v. Roberts (2011) 195 Cal.App.4th 1106, 1133 

[insufficient evidence to support strike finding does not preclude 

retrial of strike allegation; “prosecution may present additional 

evidence that is included within ‘the entire record of the 

conviction’ to establish that the [prior] conviction constituted a 

strike”].) 
19

DISPOSITION

The trial court’s determination that the 2002 conviction for 

assault with a deadly weapon or by means likely to produce great 

bodily injury constituted a prior serious felony conviction and a 

strike is reversed. The cause is remanded for resentencing. In 

all other respects the judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

LUI, J.

We concur:

CHANEY, Acting P. J.

JOHNSON, J.