Filed 6/6/13 P. v. Anderson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.

BILLY DEWAYNE ANDERSON
Defendant and Appellant. 2d Crim. No. B238025 (Super. Ct. No. F423963) (San Luis Obispo County)

Billy Dewayne Anderson appeals a j udgment entered following retrial of his prior foreign state convictions and resent encing. We reverse and remand for further proceedings regarding the foreign stat e convictions, but otherwise affirm.
FACTS AND PROCEDURAL HISTORY On February 4, 2009, a jury convicted Anderson of assault with intent to commit rape during the commission of a burg lary, residential burglary, residential robbery (two counts), and assault likely to caus e great bodily injury. (Pen. Code, §§ 220, subd. (b), 459, 21 1, 245, subd. (a).) 1 In a separate proceeding, the trial court found that Anderson suffered four Washington state convic tions that were also serious felony and strike convictions within the meaning of sec tions 667, subdivision (a), 667, subdivisions (b)-(i), and 1170.12, subdivisions (a)-(d). The court sentenced Anders on to 137 years to life in prison. He appealed.

1 All statutory references are to the Penal Code.2 In an unpublished opinion, we conclude d that the record did not support the
trial court's conclusion that the Washington convictions (one grand theft conviction and three burglary convictions) were serious fel onies or strike convictions pursuant to California law. ( People v. Anderson (Dec. 20, 2010, B217514).) In particular, we decided that the record did not provide su fficient evidence that Anderson intended to permanently deprive the owners of their pr operty, as required by California but not Washington law. We remanded the matter for retrial regarding the prior convictions and resentencing. At the retrial, the prosecutor subm itted additional evidence regarding the four Washington convictions. Following argume nt by the parties, the trial court found each of the four convictions to be a serious felony and strike co nviction pursuant to California law. The court relied upon Washi ngton court orders of restitution as well as
Anderson's statement that th e purpose of one burglary was to purchase drugs, to support
the reasonable inference that Anderson intend ed to permanently de prive his burglary victims of their property. The court also not ed that the record di d not establish that Anderson had any type of rela tionship with his victims that would support the inference that "[he] was only borrowing" the property. The court then resent enced Anderson to the same sentence of 137 y ears to life in prison. Anderson appeals and contends that the admissible eviden ce on retrial does not establish that his four Washington convic tions constitute serious felonies or strikes pursuant to California law.
DISCUSSION Anderson argues that the evidence doe s not establish that he intended to permanently deprive his Washington theft and burglary victims of their property. He asserts that the evid ence upon which the trial court re lied is outside his record of conviction. A prior conviction from another jurisdic tion qualifies as a serious felony or a strike if the conviction wa s "for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony3 shall include a conviction in another jurisdicti on for an offense that includes all of the elements of the particular felony as define d in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192 .7." (§ 667, former subd. (d)(2); see also § 667, subd. (a)(1) [five-year enhancement for prior convic tion of any offense "c ommitted in another jurisdiction which includes all of the elemen ts of any serious fe lony"].) Our Supreme Court has summarized the effect of these stat utes as follows: "'In order for a prior conviction from another jurisdicti on to qualify as a strike under the Three Strikes law, it must involve the same conduct as would qua lify as a strike in California.'" ( People v. Woodell (1998) 17 Cal.4th 448, 453.) In dete rmining whether a felony conviction from another jurisdiction qualifies as a strike, we may "'. . . look to the entire record of the conviction' but . . ., 'no fu rther.' [Citation.]" ( Id. at p. 452.) The relevant inquiry in deciding whether a prior conviction qualifies as a serious felony fo r sentencing purposes
is limited to an examination of the record of the prior cr iminal proceeding to determine the nature of the crime of wh ich defendant was convicted. ( People v. Trujillo (2006) 40 Cal.4th 165, 179.) The theft statutes of Washington a nd California have different intent elements. ( People v. Riel (2000) 22 Cal.4th 1153, 1205-1206.) California's theft statute requires an intent to take property for such an extended time as to deprive the owner of a major portion of its value or enjoyment, or its "main value," whic h satisfies the common law requirement of an intent to permanently deprive the victim of his property. ( People v. Avery (2002) 27 Cal.4th 49, 55, 57.) In cont rast, the Washington theft statue does not include the common law requirement of an "int ent to 'permanently deprive' the owner of property." ( State v. Komok (1989) 113 Wash .2d 810, 817.) Grays Harbor County Burglary At the first trial, the prosecutor presented evidence of an information alleging that Anderson "'broke into the residence [located at 401 West Third, Aberdeen] and stole items of personal property.'" ( People v. Anderson , supra , B217514.) The prosecutor also presented a five-page judg ment and sentence form reflecting that Anderson pleaded guilty and that he was orde red to pay $100 restitu tion to Jack Foster.4 At retrial, the prosecutor presen ted additional documents, including the Washington prosecutor's affidavit in support of an arrest warrant and the prosecutor's written brief regarding sentencing. In e ach document, the pros ecutor stated that Anderson confessed to police officers, admitt ing that he burglari zed and took property
from the Foster residence to obtain money to buy drugs. Neither document constitutes a valid po rtion of the record of conviction. Anderson pleaded guilty "to the crime of Residential Burglary as charged in the Information," not to any crime described in the prosecutor's affidavit for an arrest warrant. The prosecutor's written argument rega rding sentence, filed in anticipation of a sentencing hearing to be held a week after Anderson's plea, also relies upon hearsay evidence and does not refl ect the facts upon which Anderson was convicted. ( People v.
Thoma (2007) 150 Cal.App.4th 1096, 1103 ["Bu t when appellant pleaded guilty, he was not asked to admit any of the facts stated in the [police report or arrest warrant affidavit]".) The police report containing Anderson's statements to arresting police officers also does not form part of the record of conviction. ( Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1521 ["In the criminal context, no case holds that police reports are part of 'the record of convic tion' for purposes of proving prior serious felony convictions under Penal Code section 667, subdivision (a)"].) Benton County Burglaries At the first trial, the prosecutor presented evidence of a two-count information, a four-page document entitled "Judgment and Senten ce Prison," and a "Statement of Defendant on Plea of Guilty." ( People v. Anderson , supra , B217514.) The information alleged that Anderson "'did enter or remain unlawfully in a residence'" and that the Diven and Ward residences were entered unlawfully. Anderson pleaded guilty
and admitted that he "'entered someone's resi dence and was involved in taking something from the residence.'" ( Ibid. ) At retrial, the prosecuto r presented the Washington prosecutor's affidavit in support of an arrest warrant and many ad ditional documents concerning Anderson's failure to make restitution. The arrest warra nt affidavit refers to police reports stating5 that Anderson admitted breaking into and stea ling credit cards and a firearm from Diven's residence, and marijuana from Ward's residence.
As discussed ante , statements in the affidav it for an arrest warrant and statements in police reports are outs ide the record of conviction. ( Draeger v. Reed , supra , 69 Cal.App.4th 1511, 1523 .) Anderson pleaded guilty to unlawfully entering a residence with intent to commit a crime as alleged in the in formation, not to allegations in a police report or arrest warrant application. Although the "Judgment and Sentence Prison" states that Anderson must pay $250 restitution to Diven, it does not expl ain whether the amount is for loss, damage, or injury to the property. Theft of Firearm Benton County At the first trial, the prosecutor pr esented evidence of the information, a "Statement of Defendant on Plea of Guilty," and a five-page "Judgment and Sentence" document. ( People v. Anderson , supra , B217514.) In the "State ment of Defendant on Plea of Guilty," Anderson admitted that he "stole a firearm" on "or about 9-22-95." ( Ibid. ) The "Judgment and Sentence" reflects that Anderson pleaded guilty on January 10, 1996. It also contains a finding of fact naming victims who are "entitled to
restitution" in amounts of $49,078.00 a nd $1,708.00 respectively. ( Ibid. ) On retrial, the prosecutor presented evid ence of the sentencing transcript of January 10, 1996. Foll owing Anderson's waiver of rights and entry of guilty plea, the Washington prosecutor stated th at the victims' residence "w as absolutely cleaned out, including the firearms that we re in the house." Anderson's attorney commented prior to sentencing that he would "like the chance just to review" re stitution with his client. He also requested a restitution hearing.
In People v. Anderson , supra , B217514, we decided th at the record did not indicate whether the restitution amounts orde red by the Washington court "bore any relationship to the value of the stolen firear m, or whether all of the named victims owned the firearm." In any event, the prosecutor 's statements made following the entry of Anderson's guilty plea are outside the record of conviction. ( People v. Thoma , supra ,6 150 Cal.App.4th 1096, 1102 [admissions made after acceptance of the plea do not reflect the facts upon which defe ndant was convicted].) The trial court erred by finding that Anderson's prior convictions qualified as serious felonies or strikes pursuant to Ca lifornia law. Accordingly, we reverse and remand for retrial regarding the prior convi ctions. The enhan ced sentence imposed pursuant to sections 667, subdivision (e)(2 )(A), 1170.12, subdivisi on (c)(2)(A), and 667, subdivision (a) is vacated. Th e judgment is otherwise affirmed.
NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.Michael L. Duffy, Judge
Superior Court County of San Luis Obispo

________________ ______________

Laini Millar Melnick, under appoin tment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney Gene ral, Scott A. Taryle, Supervising Deputy Attorney General, Michae l C. Keller, Deputy Attorney General, for Plaintiff and Respondent.