People v. Saez

Filed 6/18/15, see concurrence, Banke, J.

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

A138786

v.

JOSE SAEZ, (San Francisco County

Super. Ct. No. 206048)

Defendant and Appellant.

A jury found Jose Saez guilty of attempted murder and found true allegations that

the crime was willful, deliberate, and premeditated, that he personally inflicted great

bodily injury on the victim, and that he personally used a deadly weapon.1 The trial court

found he was the same person convicted of two prior crimes in Wisconsin (the identity

finding), and after the jury found the convictions true, the court ruled that they were

serious felonies and strikes.2

On appeal, Saez raises four main categories of arguments. First, he contends the

premeditation allegation was improperly tried because it had previously been dismissed

1

The attempted murder charge and the premeditation allegation were brought under

Penal Code sections 187, subdivision (a) and 664. The great-bodily-injury allegation was

brought under Penal Code section 12022.7, subdivision (a), and the deadly-weapon

allegation was brought under Penal Code section 12022, subdivision (b)(1). Saez was

also convicted of a misdemeanor count of possession of drug paraphernalia brought under

Health and Safety Code section 11364, subdivision (a) and acquitted of a felony count of

receiving or buying stolen property brought under Penal Code section 496, subdivision

(a), neither of which is at issue in this appeal. Further statutory references are to the

Penal Code unless otherwise indicated.

2

The prior Wisconsin convictions were alleged to be serious felonies and strikes under

sections 667, subdivisions (a)(1), (d), and (e) and 1170.12, subdivisions (b) and (c).

1

under section 995. Second, he contends the premeditation, great-bodily-injury, and

identity findings were not supported by sufficient evidence. Third, he contends the

identity finding, even if supported by sufficient evidence, violated the Sixth Amendment.

Finally, he contends the trial court’s determination that one of the Wisconsin

convictions—for false imprisonment while armed—was a strike violated state law and

the Sixth Amendment.

We affirm in part and reverse in part. We sustain the attempted murder

conviction, the great-bodily-injury and identity findings, and one of the strike

determinations. But we reverse the premeditation finding because premeditation was

improperly re-alleged after the allegation was dismissed under section 995. And we

reverse the determination that the conviction for false imprisonment while armed

constituted a strike. Although this determination comported with People v. McGee

(2006) 38 Cal.4th 682 (McGee), it was incompatible with the more recent United States

Supreme Court decision in Descamps v. United States (2013) 570 U.S. __, 133 S.Ct.

2276 (Descamps), which makes clear that the Sixth Amendment prohibits a court from

increasing a criminal sentence based on facts related to a prior conviction when those

facts were not necessarily established by the conviction. Accordingly, we remand for

resentencing.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

On May 6, 2007, Saez assaulted a female victim with a garrote—a wire weapon

used for strangulation—on a San Francisco street in broad daylight.3 A witness called the

police after seeing Saez “stomping” on the victim as she lay on the sidewalk. Officer

James Barber located Saez near the scene and detained him. Saez volunteered that “[t]he

bitch was already dead” and was bleeding from her mouth when he came across her.

3

Portions of the attack were captured by a security camera, and the footage was shown to

the jury at trial.

2

Officer Barber found a homemade garrote in Saez’s jacket pocket. Saez’s jacket

was bloodstained, and the garrote had hair and skin attached to it. Later DNA testing

established that both the victim’s and Saez’s blood was on the jacket, and the victim’s

blood was on the garrote.

Officer Lynn Reilly found the victim where she had been assaulted. Officer Reilly

described the victim as having “blood all over her face,” and she noticed blood on a

garage door near the victim’s head. The officer testified that the victim was unconscious

and there was a “gurgling, labored breathing sound coming from her mouth, and there

was blood that appeared to be coming out of her left ear.” Sergeant Carolyn Lucas, who

was also at the scene, testified that the victim was “either unconscious or barely

conscious.”

The victim was taken to the hospital. The attending trauma surgeon, Jan

Horn, M.D., testified that when the victim was admitted she had lacerations on her neck,

tongue, and fingers, and blood around her nostrils and mouth. She also had fractured

bones near her eye socket and cheek, which were consistent with having had her face

“stomped” on. Dr. Horn explained that the lacerations on the victim’s neck were not very

deep, although the victim needed stitches for a wound on one of her fingers. The victim

remained in the hospital for two days, during which time she was kept under continuous

monitoring and received supplemental oxygen because swelling in her throat threatened

to “compromise . . . her ability to breathe.” She did not testify at trial, and no evidence

was presented about her recovery after she left the hospital.

A felony complaint charged Saez with one count of attempted murder and alleged,

in relevant part, that the crime was willful, deliberate, and premeditated, that he

personally inflicted great bodily injury, and that he personally used a deadly weapon.

After a preliminary hearing, the magistrate found there was sufficient evidence of

premeditation and great bodily injury but insufficient evidence of use of a deadly

weapon.

The People subsequently filed an information that included the charge of

attempted murder with the same accompanying allegations of premeditation, personal

3

infliction of great bodily injury, and, despite the magistrate’s ruling, personal use of a

deadly weapon. The information also added an allegation that Saez was previously

convicted in Wisconsin of armed robbery, a serious felony.

Saez filed a motion under section 995 to dismiss the attempted-murder count and

its accompanying allegations. The trial court denied the motion as to the attempted-

murder count and deadly-weapon and great-bodily-injury allegations but granted it as to

the premeditation allegation. The minute order, however, incorrectly reported that the

section 995 “[m]otion is denied.” And despite the court’s ruling, the second amended

information (the operative version) included the premeditation allegation. That version

also added an allegation that another prior conviction in Wisconsin, for false

imprisonment while armed, was also a serious felony.

A jury found Saez guilty of attempted murder and found true the allegations that

the crime was willful, deliberate, and premeditated, that he personally inflicted great

bodily injury, and that he personally used a deadly weapon. The trial court found that he

was the person who had suffered the two prior convictions in Wisconsin, the jury found

the prior convictions true, and the court determined that they were serious felonies and

strikes. After denying his motion to strike the prior convictions under People v. Superior

Court (Romero) (1996) 13 Cal.4th 497 (Romero motion), the court sentenced Saez to a

total term of 39 years to life in prison, comprised of terms of 25 years to life for

premeditated attempted murder as a third strike,4 three years for infliction of great bodily

injury, one year for use of a deadly weapon, and five years each for the two prior

convictions of serious felonies.5

4

Two abstracts of judgment appear in the record, and the more recent one, filed on

May 24, 2013, incorrectly states that Saez was sentenced to 39 years to life for the

attempted murder instead of 25 years to life. The abstract of judgment prepared after

Saez is resentenced should not repeat this error.

5

The five-year terms were imposed under section 667, subdivision (a)(1). Saez also

received a concurrent term of six months in county jail for the conviction of possession of

drug paraphernalia.

4

II.

DISCUSSION

A. The Premeditation Allegation Was Improperly Tried Because It Had

Previously Been Dismissed by a Judge Other Than the Trial Judge.

Saez contends his conviction for attempted premeditated murder cannot be

sustained because the premeditation allegation was dismissed and not properly re-

alleged.6 We agree.

The premeditation allegation had an unusual procedural history. As mentioned

above, a magistrate found sufficient evidence of premeditation at the preliminary hearing.

The original information was then filed, and Saez brought a motion under section 995 to

dismiss parts of it, arguing there was insufficient evidence that the attempted murder was

premeditated, the garrote was a deadly weapon, or the victim sustained great bodily

injury. At a hearing on the motion, Judge Cynthia Lee ruled, “The [section] 995 [motion]

as to . . . premeditation and deliberation will be granted. The [motion] as to the

[allegation under section] 12022.7 [infliction of great bodily injury] and the [allegation

under section] 12022[, subdivision (b])(1) [using a deadly weapon] is denied.”

Notwithstanding Judge Lee’s oral ruling granting the motion as to the premeditation

allegation, a minute order incorrectly reported that the section 995 “[m]otion is denied.”

Over three years later, the People filed a first amended information that included a

premeditation allegation. At a subsequent hearing before a different judge, Judge Anne-

Christine Massullo, and with new counsel appearing for both sides, Saez’s trial counsel

remarked that his notes showed the count of receiving or buying stolen property had been

stricken at the preliminary hearing. He did not, however, mention the premeditation

allegation. Judge Massullo reviewed the charges and noted there had been a section 995

motion. Apparently relying on the erroneous minute order, the court clerk then

incorrectly stated, “There was a [section] 995 [motion] on March 9th of [20]09. That was

6

Saez alternatively argues that his trial counsel rendered ineffective assistance of counsel

by not objecting to the re-allegation of premeditation. We need not reach this issue, as

the Attorney General does not contend that the re-allegation claim was forfeited by any

failure to object, and we consider that claim on the merits.

5

denied.” Judge Massullo asked the parties about the substance of the section 995 motion,

and Saez’s counsel replied, “I’m going to shorten this. I knew there was a [section] 995

[motion]. I thought from [prior] counsel’s notes on the information that it said stricken,

that that was granted as [to the stolen-property count], so it’s my mistake.”7 Saez’s

counsel then waived formal arraignment on the first amended information, and no motion

was made to dismiss any portion of it.

Before trial, the People filed a final, second amended information that still charged

Saez with premeditated attempted murder. Again, Saez’s trial counsel waived formal

arraignment, and no motion was made to dismiss any portion of this version of the

information.

Saez argues that the premeditation allegation was wrongly tried because the

People “were not free to simply disregard [Judge Lee’s] ruling,” which was binding on

Judge Massullo unless and until it was overturned. He is right. A trial court “generally

has the authority to correct its own prejudgment errors.” (In re Alberto (2002)

102 Cal.App.4th 421, 428.) “Different policy considerations, however, are operative if

the reconsideration is accomplished by a different judge[, and] . . . the general rule is just

the opposite: the power of one judge to vacate an order made by another judge is

limited.” (Id. at p. 427, italics added.) “For one superior court judge, no matter how well

intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of

another superior court judge [improperly] places the second judge in the role of a one-

judge appellate court,” and thus “an order ‘ “ ‘ “made in one department during the

progress of a cause can neither be ignored nor overlooked in another department . . .

.” ’ ” ’ ” (Id. at pp. 427-428.)

This principle was applied in In re Kowalski (1971) 21 Cal.App.3d 67. In that

case, a first judge denied the defendant’s section 995 motion. But a second judge later

granted a renewed section 995 motion after declaring a mistrial. Effectively reinstating

7

In fact, the section 995 motion was also granted as to the count of receiving or buying

stolen property. As mentioned above, however, Saez was ultimately acquitted of that

count.

6

the case, the first judge then set a new trial date and fixed bail on the belief that the

second judge “had acted in excess of jurisdiction in granting the motion under section

995” after it had previously been denied. (Id. at pp. 69-71; see also In re Alberto, supra,

102 Cal.App.4th at pp. 428-429 [discussing Kowalski].) The Court of Appeal stated that,

in the absence of changed circumstances “hav[ing] a significant bearing on the question

whether [the] defendant was indicted or committed without probable cause,” the second

judge’s granting of the section 995 motion “was an abuse of discretion and was error

[because it overturned the first judge’s denial of the section 995 motion], but it was not a

jurisdictional error.” (Kowalski, at pp. 70-71.) As a result, since the People never

appealed the ruling dismissing the case and “permitted it to become final,” that ruling

remained binding on the first judge. (Id. at p. 71.) And once the second judge dismissed

the case, the first judge no longer had jurisdiction and the subsequent “orders setting a

new trial date and fixing bail”—which were the only orders still subject to appellate

review—“were void.” (Ibid.)

In light of this authority, we agree with Saez that Judge Massullo lacked the ability

to permit the information to be amended to re-allege premeditation. Judge Lee’s ruling

established that Saez was “committed without reasonable or probable cause” supporting

the premeditation allegation, and it dismissed the allegation. (§ 995, subd. (a)(2)(B); see

also Huynh v. Superior Court (1996) 45 Cal.App.4th 891, 894-895 [premeditation

allegation subject to dismissal under section 995 for lack of evidence at preliminary

hearing].) To avoid the effects of this ruling, the People could have either appealed it

(see § 1238, subd. (a)(1)) or filed a new accusatory pleading that would have required a

new preliminary hearing (see Anderson v. Superior Court (1967) 66 Cal.2d 863, 864,

867), but they did neither. As a result, the reinstatement of the premeditation allegation

through amendment of the information was improper.

Nor does this case “fall within either of two narrow lines of cases that appear to

authorize one trial judge to reconsider an issue already decided by a colleague: one,

where the first judge is unavailable [citation], or two, where the first order was made

through inadvertence, mistake, or fraud.” (In re Alberto, supra, 102 Cal.App.4th at

7

p. 430.) Indeed, there is no suggestion in the record that a reconsideration of Judge Lee’s

ruling was even sought or intended, as the clerk’s error in describing the outcome of the

section 995 motion suggested that the premeditation allegation had never been dismissed.

In sum, Judge Lee’s ruling remained binding on subsequent superior court judges in the

case.

The Attorney General does not try to distinguish In re Kowalski, supra,

21 Cal.App.3d 67 or otherwise explain why Judge Lee’s ruling was not binding. Instead,

she characterizes the problem as simply a “procedural error of neglecting to amend future

versions of the information to reflect an earlier binding order” and argues that “[s]uch

limited error is not reversible per se.” She primarily relies on People v. Letner and Tobin

(2010) 50 Cal.4th 99 (Letner), in which the defendants contended that the trial court

erroneously denied their section 995 motions to dismiss certain charges and special-

circumstance allegations after the magistrate declined to hold them to answer on those

charges and allegations. (Id. at p. 138.) Our state Supreme Court determined that error in

the denial of a section 995 motion is not “ ‘jurisdictional in the fundamental sense’ ” and

therefore “ ‘require[s] reversal only if [a] defendant can show that he was deprived of a

fair trial or otherwise suffered prejudice as a result of the error.’ ” (Id. at pp. 139-140.)

The court concluded that the defendants had failed to establish prejudice because even

assuming insufficient evidence of the charges and allegations was presented at the

preliminary hearing, sufficient evidence was presented at trial. (Id. at p. 140.)

This reasoning might control if the only problem here was that the premeditation

allegation was tried even though sufficient evidence of it was not first presented at the

preliminary hearing. Article I, section 14 of the California Constitution provides,

“Felonies shall be prosecuted as provided by law, either by indictment or, after

examination and commitment by a magistrate, by information.” And under section 1009,

“[a]n indictment or accusation cannot be amended so as to change the offenses charged,

nor an information so as to charge an offense not shown by the evidence taken at the

preliminary examination.” Although Letner, supra, 50 Cal.4th 99 never mentions these

provisions, it suggests that a failure to present evidence at the earlier stage does not in

8

and of itself require reversal when an allegation is made in a charging document and

successfully tried, even though probable cause was never established at the preliminary

hearing.8

But the problem here was not that the section 995 motion was wrongfully denied,

thereby allowing the premeditation allegation to proceed without sufficient evidence of it

having been presented. Instead, the error lies in the reinstatement of the premeditation

allegation after it had been dismissed because the section 995 motion was granted. Even

if we could consider this error harmless in the Letner sense (i.e., the jury found

premeditation even though probable cause for it was not established at the preliminary

hearing), we nonetheless conclude it was prejudicial because it resurrected an allegation

whose dismissal the prosecution never properly challenged and that never should have

been tried.9

8

Several decisions of the Courts of Appeal that did not involve section 995 motions have

nonetheless relied on the requirement that evidence first be presented at a preliminary

hearing to reverse convictions where probable cause was not established at the earlier

stage without regard to whether sufficient evidence of those charges was later introduced

at trial or whether the defendants had actual notice of the facts supporting them. (See,

e.g., People v. Peyton (2009) 176 Cal.App.4th 642, 652-656 [new charge improperly

added to information after defendant waived preliminary hearing on original charges];

People v. Graff (2009) 170 Cal.App.4th 345, 351, 361, 363-365 [magistrate did not hold

defendant to answer for charge based on particular incident; trial court erred by allowing

jury to convict based on that incident, which amounted to constructive amendment of

information]; People v. Burnett (1999) 71 Cal.App.4th 151, 164-165, 170, 177-178

[conviction reversed because it could have been based on incident of which no evidence

was presented at preliminary hearing].)

9

We observe that Letner, supra, 50 Cal.4th 99 renders it pointless to argue on appeal that

a section 995 motion was erroneously denied based on lack of probable cause: either

substantial evidence will support the jury’s finding, in which case the denial will be

found harmless, or it will not, in which case reversal will be required anyway. Although

defendants have the option to challenge the denial of a section 995 motion by a pretrial

petition for a writ of prohibition, such a writ is generally only permitted when the motion

is filed within 60 days of arraignment. (§§ 999a, 1510.) We see no reason to extend

Letner to the circumstances present here and further insulate from review rulings that

permit prosecutions to proceed without probable cause.

9

The Attorney General also argues that the error was not prejudicial because the

premeditation finding did not affect the length of Saez’s sentence. We cannot agree.

Prejudice is not measured merely by the length of a sentence, and in any event, the

dismissal of the premeditation finding here does affect the length of Saez’s sentence. On

the first point, a finding of premeditation can have significant consequences and be

prejudicial regardless of the term imposed, such as in parole determinations. (See, e.g.,

In re Hunter (2012) 205 Cal.App.4th 1529, 1539-1540 [discussing denial of parole based

on inmate’s refusal to admit planning crime despite plea to first degree murder].) On the

second point, although the premeditation finding did not affect the length of the sentence

imposed by the trial court, it does affect the sentence that will be imposed as a result of

the conclusions reached in this opinion. When the trial court sentenced Saez, he faced a

sentence of at least 25 years to life for the attempted murder regardless of whether the

premeditation allegation was found true because the crime constituted a third strike. (See

§§ 664, subd. (a), 667, subd. (e)(2)(A)(ii), 667.5, subd. (c)(12).) But in part II.D. below,

we conclude that one of the strike determinations must be reversed. With only one prior

strike, Saez now faces a shorter sentence for attempted murder as a result of the reversal

of the premeditation finding. (See §§ 664, subd. (a), 667, subd. (e)(1).)

Having concluded that the premeditation finding cannot be sustained, we turn to

discuss the appropriate remedy. Saez acknowledges that the normal remedy would be to

reverse the premeditation finding and remand for resentencing. (See, e.g., People v.

Arias (2010) 182 Cal.App.4th 1009, 1012, 1021-1022.) He argues, however, that his

later trial counsel’s failure to appreciate that the premeditation allegation had been

dismissed prevented him from “achiev[ing] a favorable plea bargain” because he faced a

reduced sentence as a result of Judge Lee’s ruling, and he might have agreed to a plea

agreement if the premeditation allegation were clearly off the table. According to him,

“[t]he only feasible remedy is therefore to reverse the [attempted-murder] conviction in

its entirety, with instructions to re-arraign [him] on an Information that omits the

allegation of premeditation” and the charge of receiving or buying stolen property. But

the premeditation allegation was off the table as soon as the section 995 motion was

10

granted, as the parties (and their original counsel) presumably understood. Thus, at that

time, Saez had and ignored the same incentive to plea bargain that he now argues would

have prompted him to seek a deal. Furthermore, there is no evidence that a plea bargain

was offered, in the works, or likely. Accordingly, while we reverse the premeditation

finding, we decline to set aside his conviction for attempted murder.

B. Sufficient Evidence Supports the Finding that the Victim Suffered

Great Bodily Injury.

Saez contends insufficient evidence was presented that the victim suffered great

bodily injury. We reject this contention with little difficulty.10

Under section 12022.7, subdivision (a), “[a]ny person who inflicts great bodily

injury on any person other than an accomplice in the commission of a felony or attempted

felony shall be punished by an additional and consecutive term of imprisonment in the

state prison for three years.” Great bodily injury is defined as “a significant or substantial

physical injury,” but it need not be permanent or cause lasting bodily damage.

(§ 12022.7, subd. (f); People v. Escobar (1992) 3 Cal.4th 740, 749-750.) “Proof that a

victim’s bodily injury is ‘great’—that is, significant or substantial within the meaning of

section 12022.7—is commonly established by evidence of the severity of the victim’s

physical injury, the resulting pain, or the medical care required to treat or repair the

injury.” (People v. Cross (2008) 45 Cal.4th 58, 66.) “[D]etermining whether a victim

has suffered physical harm amounting to great bodily injury is not a question of law for

the court but a factual inquiry to be resolved by the jury. ” (Id. at p. 64.)

To evaluate a claim of insufficient evidence, “ ‘we review the whole record to

determine whether . . . [there is] substantial evidence to support the verdict . . . such that a

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

[Citation.] In applying this test, we review the evidence in the light most favorable to the

10

Saez also argues the trial court erred by admitting Officer Reilly’s testimony that the

victim was unconscious because it was improper lay opinion about a medical condition.

We need not resolve this issue because substantial evidence supports the jury’s finding

regardless of the victim’s state of consciousness.

11

prosecution and presume in support of the judgment the existence of every fact the jury

could reasonably have deduced from the evidence.’ ” (People v. Manibusan (2013)

58 Cal.4th 40, 87.)

Here, ample evidence was presented that the victim suffered great bodily injury.

To begin with, there was evidence of considerable bleeding: Officer Reilly testified that

the victim “had blood all over her face” and coming from her ear, Dr. Horn observed

blood around her nostrils and mouth, and there was blood on the garage door near her

head. And it is significant that many of the victim’s injuries were to her head, an

obviously vulnerable area. Dr. Horn testified that the victim had lacerations on her neck

and tongue, as well as fractures to the bones near her eye socket and cheek. Finally, the

victim was kept in the hospital for two days to be monitored and receive oxygen, further

permitting the inference that her injuries were significant. In sum, sufficient evidence

was presented to support the jury’s finding that the victim’s injuries were serious and

substantial.

C. Sufficient Evidence Supports the Identity Finding.

Saez argues insufficient evidence supports the trial court’s finding that he is the

person who was convicted of the Wisconsin offenses. We disagree.

The operative information alleged that Saez was convicted in 1983 in Wisconsin

of armed robbery and false imprisonment while armed. Trial on the prior convictions

was bifurcated. Before the jury considered whether the prior convictions were true, the

trial court held a hearing to determine whether Saez was the person named in the prior-

conviction records. At that hearing, Officer Reilly testified that when Saez was booked,

she obtained from him a Wisconsin identification card and a California benefits card,

which he acknowledged were his. Both cards listed his name as Jose A. Saez, with a

birth date of February 22, 1960. The Wisconsin card identified an address of 500 East

Garfield Avenue, Milwaukee, Wisconsin.

The People introduced certified copies of documents pertaining to the Wisconsin

convictions. Documents from the armed robbery conviction identified a defendant

named Jose Antonio Saez with a birth date of February 22, 1960, and an address of

12

425 E. Garfield, Milwaukee, Wisconsin. Documents from the false-imprisonment

conviction identified a defendant named Jose Antonio Saez with a birth date of

February 22, 1960, and an address of 425 E. Garfield Avenue, Milwaukee, Wisconsin.

Saez’s trial counsel argued that this evidence failed to prove that Saez was the

person convicted of the Wisconsin crimes because the records did not include fingerprints

or photographs of the defendant. Counsel argued it was possible two different men

named Jose Saez lived on the same street in Milwaukee. The trial court responded, “If it

were not for the middle name, the Court might agree with you, and the date of birth,

but . . . having someone who lives on Garfield, despite the address [number], with the

same date of birth and the same middle name” was too much of a “coincidence.” The

court found that the same name, same birth date, and address on the same Milwaukee

street established that Saez was the same Jose Antonio Saez who had been convicted of

the Wisconsin offenses.

“[T]he question of whether the defendant is the person who has suffered [a] prior

conviction shall be tried by the court without a jury,” and the defendant’s identity must be

proven beyond a reasonable doubt. (§ 1025, subd. (c); see People v. Monge (1997)

16 Cal.4th 826, 833-834.) We review the record in the light most favorable to the trial

court’s finding to determine whether there is substantial evidence to support the

conclusion that Saez was the person who suffered the Wisconsin convictions. (See

People v. Manibusan, supra, 58 Cal.4th at p. 87.)

Saez argues that Jose Antonio Saez is a common name and the fact he has the

same name and birth date as the person convicted in Wisconsin is insufficient evidence

that he and the person convicted in Wisconsin are one and the same.11 We are not

persuaded. “[I]n the absence of countervailing evidence, . . . identity of person may be

presumed, or inferred, from identity of name.” (People v. Mendoza (1986)

183 Cal.App.3d 390, 401, italics omitted [sufficient evidence defendant was person who

11

We decline Saez’s invitation to search for this name on various websites to determine

how common it is, as no such evidence was presented to the trial court.

13

suffered prior convictions where first and last names were the same, even though middle

names spelled differently].) The identity of birth dates is also highly significant. (See

People v. Towers (2007) 150 Cal.App.4th 1273, 1286.) And, although the house

numbers of the addresses on East Garfield Street varied, we agree with the trial court that

coincidence is not a reasonable explanation for the identical names, birth dates, and

streets.

Saez also argues that either “a fingerprint []or a photograph of the Milwaukee

Saez . . . was required” before the trial court could find he was the person who suffered

the Wisconsin convictions. He provides no authority for this position, however, and we

are aware of none. (See People v. Sarnblad (1972) 26 Cal.App.3d 801, 805-806

[“photographic or fingerprint evidence . . . not necessary” to prove prior conviction where

defendant had “sufficiently uncommon” name].) We conclude that sufficient evidence

supported the court’s finding.

D. The Trial Court’s Reliance on the Wisconsin Record of Conviction in

Determining that the Conviction for False Imprisonment While Armed Was

a Strike Violated the Sixth Amendment.

Saez maintains that the trial court’s determination that his conviction for false

imprisonment while armed constituted a strike was improper for two reasons. He first

contends the determination violated our state Supreme Court’s decision in McGee, supra,

38 Cal.4th 682, which establishes limits on a sentencing court’s ability to consider the

record of a prior conviction in making a strike determination. He alternatively contends

the determination violated his Sixth Amendment rights under principles recognized by

the United States Supreme Court in its 2013 decision in Descamps, supra, 133 S.Ct.

2276. We disagree with his first contention but agree with his second.

1. Additional facts.

After the trial court determined that Saez was the person named in both sets of

prior-conviction records, it so instructed the jury and directed it to consider whether the

prior convictions were true. Over Saez’s objection, records from both convictions were

admitted. After deliberation, the jury found the prior convictions to be true.

14

Saez filed a Romero motion to strike the priors and a sentencing brief. In both

documents, he assumed the prior convictions constituted strikes and did not offer any

argument otherwise. The People then submitted a sentencing brief in which they argued

that both of the Wisconsin convictions qualified as strikes. In particular, they argued that

the false-imprisonment conviction qualified as a serious felony under section 1192.7,

subdivision (c)(8), which makes “any felony in which the defendant personally uses a

firearm” a serious felony.12 “[A]nticipat[ing] that defense counsel [would] argue that the

Wisconsin prior conviction[] [did] not, despite the descriptions of the facts . . . , include

all of the elements” of a serious felony under section 1192.7, subdivision (c)(8), the

People argued that the trial court could properly consider the “ ‘entire record of

conviction.’ ”

The exhibit of records from the false-imprisonment conviction was comprised of

the judgment of conviction, the judgment roll, and the criminal complaint. The judgment

of conviction reflects that in 1983, after a guilty plea, the Wisconsin trial court found

Saez guilty of “False Impris. While Armed” under Wisconsin Statutes sections 939.63,

subdivision (1)(a)(4) and 940.30, a felony, for a crime committed on January 17, 1983.

The judgment also shows that after the same plea, he was convicted of “Reckless Use of

Weapon,” a misdemeanor, under Wisconsin Statutes section 941.20, subdivision (1)(c),

for a crime also committed on January 17, 1983.

The judgment roll, which states at the top that the relevant offenses were “false

imprisonment while possessin[g] a dangerous weapon” and “reckless use of weapon,”

reflects that the Wisconsin trial court found the complaint stated probable cause for

further proceedings. (Capitalization omitted.) A preliminary hearing was held, during

which the court found “probable cause to hold [Saez] for further proceedings,” and he

was “given [a] copy of the information.” The entry for a hearing a couple months later

12

Saez challenges the sufficiency of the evidence to support the trial court’s

determination that the armed-robbery conviction was a strike only on the basis of the trial

court’s identity finding (see section II.C., above), and we therefore do not further discuss

the records pertaining to that conviction.

15

states: “Statement by defense counsel that defendant wishes to enter a plea of guilty as to

all counts. Over objection by both counsel, defendant still wishes to enter a plea of

guilty. Defendant sworn and examined as to his plea, advised of his constitutional rights

and of the maximum penalty. Defendant waives all his rights and pleads guilty, Court

finds defendant guilty as charged in the Information as to each count.” An entry for the

subsequent sentencing hearing states, “All parties stipulate to the facts in the criminal

complaint for basis of the plea.” Neither a transcript of any of these hearings nor an

information appears in the exhibit of records.

Finally, the complaint charged Saez with a count of “False Imprisonment While

Poss. a Dangerous Weapon,” stating, “[O]n January 17, 1983, at or about the 500 block

of South 2nd Street, City of Milwaukee, [Saez] did intentionally, while possessing a

dangerous weapon, to wit: a .38 caliber revolver[,] restrain [the victim] without his

consent and with knowledge that he had no lawful authority to do so, contrary to

Wisconsin Statutes sections 940.30 and 939.63(1)(a)(4).” The complaint also charged

Saez with a count of “Reckless Use of Weapon,” stating, “[O]n January [sic] at or about

the 500 block of South 2nd Street, City of Milwaukee, [Saez] did intentionally point a

firearm at [the same victim], contrary to Wisconsin Statutes section 941.20(1)(c).”

The complaint included a police officer’s sworn statement, which we will refer to

as the affidavit of probable cause. The officer stated he observed Saez

“grab the [victim] . . . by the arm and pull [the victim] toward him . . . [and]

then . . . remove what was subsequently observed to be a .38 caliber Smith

and Wesson handgun revolver from the inner front portion of [his] pants

whereupon . . . [he] point[ed] said handgun at the chin of [the victim]

whom [he] was restraining by holding on to [the victim]’s arm with his

hand whereupon . . . [he], while still holding on to [the victim]’s arm and

pointing the above stated handgun at [the victim]’s body, pull[ed the victim

down the street and] . . . into a vacant lot.”

At the sentencing hearing in this case, the trial court announced its tentative

decision to deny the Romero motion and find that Saez had “two prior strike

convictions.” It pointed to “[t]he callous manner in which [the attempted murder] was

executed” to explain why it was “not inclined to strike the prior strikes but impose the

16

sentence required by law based on his two prior strike convictions.” Saez’s trial counsel

argued the Romero motion, but he did not contend that the two prior convictions were not

strikes. The court then denied the motion and imposed the sentence, including a term of

25 years to life for the attempted murder “with two prior strike convictions” and “two

five-year enhancements for each of the prior . . . strike offenses.” The court did not

discuss on the record its basis for concluding the Wisconsin convictions were strikes.

2. The fact of Saez’s Wisconsin conviction of false imprisonment

while armed does not by itself establish that the crime was a

serious felony under California law.

California’s Three Strikes law requires criminal sentences to be increased when a

defendant has been convicted of one or more prior serious or violent felonies, or

“strikes.” (People v. Vargas (2014) 59 Cal.4th 635, 638; §§ 667, subds. (b)-(i), 1170.12,

subds. (a)-(d).) A qualifying strike includes “[a] prior conviction in another jurisdiction

for an offense that, if committed in California, is punishable by imprisonment in the state

prison . . . if the prior conviction in the other jurisdiction is for an offense that includes all

of the elements of a particular . . . serious felony as defined in subdivision (c) of Section

1192.7.” (§ 667, subd. (d)(2).) In turn, section 1192.7, subdivision (c) lists many

offenses that constitute “serious felonies” and includes “any felony in which the

defendant personally uses a firearm.”13 (§ 1192.7, subd. (c)(8).) As we will discuss,

13

The operative information in this case did not identify the particular category of serious

felony into which the Wisconsin conviction for false imprisonment was alleged to have

fallen. In their sentencing brief below, the People argued this prior conviction was a

serious felony only because it involved personal use of a firearm, although other

categories of serious felonies potentially applied. (See, e.g., § 1192.7, subd. (c)(23) [“any

felony in which the defendant personally used a dangerous or deadly weapon”].) We

note that if a prior crime “may qualify as a serious felony” in more than one way, “[t]he

better practice” is to allege in the information the specific category or categories into

which it falls, but Saez raises no claim of error in this regard (which would be waived).

(People v. Thomas (1986) 41 Cal.3d 837, 843.) We thus confine our analysis to whether

the Wisconsin crime qualified as a serious felony under section 1192.7, subdivision

(c)(8).

17

whether Saez’s Wisconsin conviction for false imprisonment while armed constitutes a

strike cannot be determined by the simple fact of the conviction alone but instead turns

on whether the conviction documents prove that he was convicted of personally using a

firearm in the commission of that crime.

In California, “[f]alse imprisonment is the unlawful violation of the personal

liberty of another.” (§ 236.) False imprisonment is a felony—i.e., punishable by

imprisonment in state prison as required by section 667, subdivision (d)(2)—only if it is

“ ‘ “effected by violence, menace, fraud, or deceit.” ’ ” (§ 237, subd. (a); People v. Islas

(2012) 210 Cal.App.4th 116, 122-123.) Saez’s conviction for false imprisonment while

armed was under two statutes, which are identical in relevant part to their 1983 versions.

The first makes it a felony for someone to “intentionally confine[] or restrain[] another

without the person’s consent and with knowledge that he or she has no lawful authority to

do so.” (Wis.Stat. § 940.30.) The second permits a criminal sentence to be increased

“[i]f a person commits a crime while possessing, using or threatening to use a dangerous

weapon.” (Wis.Stat. § 939.63, subd. (1).)

Saez recognizes that false imprisonment under Wisconsin Statutes section 940.30

includes all of the elements of false imprisonment under section 236,14 but he argues that

a conviction under Wisconsin Statutes sections 939.63, subdivision (1) and 940.30 does

not necessarily establish a serious felony under section 1192.7, subdivision (c). We agree

because the conviction fails to establish four necessary elements. First, it does not

establish use. A defendant can be convicted under Wisconsin Statutes section 939.63 for

merely possessing a dangerous weapon, but under California law “use” of a weapon

requires more. (People v. Bland (1995) 10 Cal.4th 991, 996-997 [“use of a firearm

connotes something more than a bare potential for use” and requires “conduct which

14

The converse is not true. For example, Wisconsin law requires the specific “intention

to confine or restrain another,” whereas false imprisonment under section 236 is a general

intent crime. (Geitner v. State (1973) 59 Wis.2d 128, 133; People v. Fernandez (1994)

26 Cal.App.4th 710, 717.)

18

produces a fear of harm or force by means or display of a firearm in aiding the

commission of” a crime]; In re Pritchett (1994) 26 Cal.App.4th 1754, 1757

[distinguishing between “possession” and “personal[] use[]”].) Second, the conviction

does not establish personal use, because it is possible to be convicted of being armed

under Wisconsin Statutes section 939.63 as an aider and abettor. (See State v. Ivy (1984)

119 Wis.2d 591, 596-600 [discussing aider-and-abettor liability for robbery while

armed].) Third, the conviction does not establish use of a firearm, because Wisconsin

Statutes section 939.63 encompasses all dangerous weapons. Finally, the conviction does

not establish that the false imprisonment was a felony under California law, that is,

“effected by violence, menace, fraud, or deceit.” (§ 237, subd. (a).)

Because the simple fact of the conviction does not establish these elements, the

only way to determine whether they are met is by looking to the record of the prior

conviction. The California and United States Supreme Courts have diverged on the limits

of a sentencing court’s ability to review the record of a prior conviction in determining

whether the conviction can be used to increase a sentence under a statutory sentencing-

enhancement scheme. In McGee, supra, 38 Cal.4th 682, our state Supreme Court

approved sentencing courts’ ability to do so under California’s Three Strikes law. But in

Descamps, supra, 133 S.Ct. 2276, the United States Supreme Court signaled that the

Sixth Amendment imposes restrictions on such review beyond those recognized in

McGee. As we will now discuss, the trial court’s reliance on the Wisconsin record of

conviction to find the conviction was a strike comported with McGee but violated the

Sixth Amendment under Descamps.

3. The trial court’s reliance on the record of the prior conviction

was proper under McGee.

In McGee, supra, 38 Cal.4th 682, our state Supreme Court discussed the principles

governing a sentencing court’s ability to look to the record of a prior conviction in

making a strike determination. (Id. at p. 706.) It explained that the inquiry “is a limited

one and must be based upon the record of the prior criminal proceeding, with a focus on

the elements of the offense of which the defendant was convicted. If the enumeration of

19

the elements of the offense does not resolve the issue, an examination of the record of the

earlier criminal proceeding is required in order to ascertain whether that record reveals

whether the conviction realistically may have been based on conduct that would not

constitute a serious felony under California law. [Citation.] The need for such an inquiry

does not contemplate that the court will make an independent determination regarding a

disputed issue of fact relating to the defendant’s prior conduct [citation], but instead that

the court simply will examine the record of the prior proceeding to determine whether

that record is sufficient to demonstrate that the conviction is of the type that subjects the

defendant to increased punishment under California law.” (Ibid., italics omitted.)

We agree with Saez that the missing serious-felony elements not established by

the fact of his prior conviction for false imprisonment while armed cannot be met without

relying on the police officer’s statement in the affidavit of probable cause from the

Wisconsin record. There is no evidence that Saez pleaded guilty to being armed while

committing false imprisonment under anything but the possession prong of Wisconsin

Statutes section 939.63. The complaint charged him with possessing a dangerous

weapon, not using or threatening to use one. And although we cannot be absolutely sure

of the actual count to which Saez pleaded guilty since the information is not in the record,

there is no indication that the information contained a charge different from the

complaint. Moreover, the top of the judgment roll notes the offense was false

imprisonment while possessing a dangerous weapon. (See People v. Miles (2008)

43 Cal.4th 1074, 1091-1092 [appropriate to rely on judgment’s description of offense

even though prior conviction was “ ‘as charged in the First Count of the Indictment’ ”

and indictment not in evidence].)

We recognize that Saez also pleaded guilty to the separate charge of reckless use

of a dangerous weapon. The 1983 version of the statute under which he was convicted of

this crime made anyone who “[i]ntentionally points a firearm at or toward another” guilty

of a misdemeanor. (Wis.Stat. § 941.20, subd. (1)(c).) This conviction thus establishes

use of a firearm. (See People v. Granado (1996) 49 Cal.App.4th 317, 322, 328 [personal

use of a firearm under section 12022.5 includes pointing firearm at victim]; see also

20

People v. Briceno (2004) 34 Cal.4th 451, 463, fn. 10 [section 1192.7, subdivision (c)(8)’s

“personal use of a firearm” language “corresponds to” that in section 12022.5].) But the

conviction does not necessarily establish personal use of a firearm because a defendant

can be convicted as an aider and abettor under Wisconsin Statutes section 941.20,

subdivision (1)(c). (See State v. Ivy, supra, 119 Wis.2d at pp. 596-600.) And, although

recklessly pointing a weapon at someone during a crime qualifies as using menace to

effect the crime,15 the conviction does not establish that Saez recklessly used the gun as

part of the same event giving rise to the false-imprisonment conviction. For all we know

from the simple fact of the convictions, Saez committed two different offenses on the

same day.

Thus, the affidavit of probable cause is the only part of the record of conviction

that demonstrates the necessary elements, and we therefore turn to consider whether the

trial court could properly rely on it under McGee, supra, 38 Cal.4th 682. Saez argues that

the police officer’s statements in the affidavit were inadmissible hearsay and that the

affidavit was not part of the “ ‘entire record of conviction’ ” because he did not admit any

particular facts within the affidavit and did not adopt it as the basis for his plea until after

the plea hearing. (Quoting People v. Reed (1996) 13 Cal.4th 217, 226.) We are not

persuaded.

We first reject Saez’s hearsay argument.16 “The normal rules of hearsay generally

apply to evidence admitted as part of the record of conviction to show the conduct

underlying the conviction.” (People v. Woodell (1998) 17 Cal.4th 448, 458.) But here,

relying on the police officer’s statements to determine the basis of the conviction did not

15

See People v. Matian (1995) 35 Cal.App.4th 480, 485 [reviewing cases in which

menace-related convictions for felony false imprisonment upheld based on “evidence the

defendant used a deadly weapon to effect the false imprisonment”]; CALCRIM No. 1240

[defining menace for purposes of felony false imprisonment as “a verbal or physical

threat of harm, including use of a deadly weapon,” brackets omitted].

16

While we question whether Saez properly preserved his hearsay argument, we will

nevertheless consider it because the Attorney General does not argue it was forfeited, and

Saez alternatively contends that the failure to object on hearsay grounds constituted

ineffective assistance of counsel.

21

implicate hearsay concerns because the statements were not being considered for the truth

of their assertions. (See id. at pp. 458-459 [“statements in [North Carolina appellate]

opinion regarding defendant’s use of . . . weapon” during prior crime admissible “for the

nonhearsay purpose of determining the basis of the conviction,” italics added].) When

the trial court made its strike determination, what mattered was not whether it was true,

as the police officer stated in the affidavit, that Saez removed a .38 caliber Smith and

Wesson handgun from his pants and pointed it at the victim while restraining him. What

mattered was whether those statements evinced the basis of the false-imprisonment

conviction. While in many cases statements contained in charging documents might be

useful only to show the basis of the charge, rather than the basis of the conviction, here

the statements help to demonstrate the basis of the conviction because Saez explicitly

stipulated that the criminal complaint, which included the affidavit, was the factual basis

for his guilty plea. The officer’s statements therefore could be used to demonstrate the

basis of the conviction, regardless of whether Saez “did precisely those things” they

described.17 (Id. at p. 460; Trujillo, supra, 40 Cal.4th at p. 180.)

Turning to whether the affidavit was part of the record of conviction, we do not

hesitate to conclude it was. Under People v. Reed, supra, 13 Cal.4th 217, “the trier of

fact may look to the entire record of conviction ‘but no further,’ ” preventing the

prosecution from “ ‘relitigat[ing] the facts behind the record.’ ” (Id. at p. 226, italics

omitted.) Saez argues that the affidavit was not part of the record of conviction because

he did not admit any particular facts within it and only adopted it as the basis for his plea

after the plea hearing. But this argument misreads the applicable case law, none of which

17

Because we conclude that the statements were not introduced for the truth of the matter

asserted, we do not decide whether they were admissible on any other basis, including as

adoptive admissions. (See People v. Trujillo (2006) 40 Cal.4th 165, 179-180 (Trujillo)

[defendant’s statements in postconviction probation report could not be considered an

adoptive admission that conviction was based on use of knife, especially since knife

allegation was dismissed as part of plea deal]; People v. Thoma (2007) 150 Cal.App.4th

1096, 1103 [testimony at preliminary hearing about nurse’s statement describing victim’s

injuries not admissible as adoptive admission for purpose of proving that defendant had

caused great bodily injury].)

22

holds that anything that occurs after the conviction is immaterial in determining the

conviction’s basis. True enough, Trujillo, supra, 40 Cal.4th 165 concluded that

statements made by the defendant in a postconviction probation report were not part of

the record of conviction because such after-the-fact remarks shed no light on the

conviction’s basis. (Id. at p. 180; see also People v. Roberts (2011) 195 Cal.App.4th

1106, 1127-1128 [holding postplea statements inadmissible to prove strike].) But unlike

the probation report’s statements in Trujillo, the statements in the affidavit here were part

of the complaint and made long before the plea was entered, and Saez stipulated to the

complaint as the basis of the conviction. Although that stipulation occurred after the

conviction, we see no reason this timing undercuts reliance on the preconviction affidavit

statements as “reflect[ing] the facts upon which [the defendant] was convicted.”

(Trujillo, at p. 180.) In conclusion, nothing in McGee, supra, 38 Cal.4th 682 or other

state cases addressing reliance on prior-conviction records prevented the trial court from

relying on the affidavit statements to conclude that Saez’s Wisconsin conviction for false

imprisonment while armed involved his personal use of a firearm and was therefore a

strike under California law.18

4. The trial court’s reliance on the Wisconsin record of conviction

violated the Sixth Amendment under the principles recognized in

Descamps.

Since we are unable to conclude that the trial court exceeded its authority to

consider the record of the prior conviction under McGee, supra, 38 Cal.4th 682, we turn

to whether the strike determination must be reversed because of the Sixth Amendment

18

Under different circumstances, we would agree with the concurring opinion both that

the police officer’s statements were not part of the entire record of conviction and that the

statements were inadmissible hearsay. Saez pleaded guilty to the information, which, as

the concurring opinion correctly points out, superseded the complaint. Thus, the

complaint did not bear on the basis of the conviction—until Saez stipulated to it as the

factual basis for his plea. Once he did, the officer’s statements became evidence of the

basis of the conviction and were admissible for that nonhearsay purpose, whatever

principles might have otherwise barred reliance on them.

23

principles announced by the United States Supreme Court in Descamps, supra, 133 S.Ct.

2276. We conclude that it must.

The Sixth Amendment confers a constitutional right on defendants to have a jury

determine, “[o]ther than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum.” (Apprendi v. New Jersey (2000)

530 U.S. 466, 490 (Apprendi).) Saez contends that this right was violated when the trial

court relied on the record of the false-imprisonment conviction, specifically the police

officer’s statements in the affidavit of probable cause, in finding that the conviction was a

strike.

We recognize that for years trial courts in California have been allowed to

determine whether a prior conviction qualifies as a strike by looking to the “entire record

of conviction.” (People v. Reed, supra, 13 Cal.4th at p. 226; People v. Guerrero (1988)

44 Cal.3d. 343, 355.) But in Descamps, supra, 133 S.Ct. 2276, the United States

Supreme Court pointed out the constitutional problems in doing so. We therefore turn to

discuss Descamps, and we begin by recounting the cases leading up to it.

Apprendi, supra, 530 U.S. 466 held that the Sixth and Fourteenth Amendments

require any fact,“[o]ther than the fact of a prior conviction,” that increases a penalty for a

state crime beyond the prescribed statutory maximum to be submitted to a jury and

proved beyond a reasonable doubt.19 (Id. at pp. 476, 488-490.) The exception for the

fact of a prior conviction was based on Almendarez-Torres v. United States (1998)

523 U.S. 224 (Almendarez-Torres), in which the high court approved the increase of a

defendant’s sentence based on prior convictions where those convictions were not alleged

in the indictment but “the certainty that procedural safeguards attached to any ‘fact’ of

prior conviction, and the reality that [the defendant] did not challenge the accuracy of that

‘fact’ in his case, mitigated the due process and Sixth Amendment concerns otherwise

implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the

19

For the sake of simplicity, the following discussion is phrased in terms of what the

Sixth Amendment requires and omits references to the Fourteenth Amendment that

would otherwise be appropriate.

24

maximum of the statutory range.” (Apprendi, at p. 488.) Although noting that it was

“arguable that Almendarez-Torres was incorrectly decided,” the court declined to “revisit

it . . . [and decided] to treat the case as a narrow exception to the general rule” it

announced. (Apprendi, at pp. 489-490.)

The next major decision for our purposes is Shepard v. United States (2005)

544 U.S. 13 (Shepard), which involved sentencing under the Armed Career Criminal Act

(ACCA), a federal statute that, like California’s Three Strikes law, allows the use of prior

convictions to enhance sentences. (18 U.S.C. § 924, subd. (e).) At issue was whether the

defendant’s prior conviction of burglary in Massachusetts after a guilty plea was for a

“violent felony” under the ACCA, which “makes burglary a violent felony only if

committed in a building or enclosed space (‘generic burglary’), not in a boat or motor

vehicle.” (Shepard, at pp. 15-16.) The Massachusetts burglary statute under which the

defendant was convicted included boats and cars (id. at p. 17), and the record of

conviction was silent on the factual basis for the plea, “there being no plea agreement or

recorded colloquy in which [the defendant] admitted the generic fact” of committing

burglary in a building or enclosed space. (Id. at p. 25 (plur. opn. of Souter, J.).) The

government urged that the sentencing court should be permitted to rely on “reports

submitted by the police with applications for issuance of the complaints” to find that the

defendant had pleaded guilty to generic burglary. (Id. at p. 17.)

The United States Supreme Court rejected the government’s position, holding that

under the ACCA a sentencing court is “generally limited to examining the statutory

definition, charging document, written plea agreement, transcript of plea colloquy, and

any explicit factual finding by the trial judge to which the defendant assented.” (Shepard,

supra, 544 U.S. at p. 16.) Characterizing the issue as one “of statutory interpretation,”

the court found no reason to upset Taylor v. United States (1990) 495 U.S. 575.

(Shepard, at p. 23.) In Taylor, the high court had “held that the ACCA generally

prohibits the [sentencing] court from delving into particular facts disclosed by the record

of conviction, thus leaving the court normally to ‘look only to the fact of conviction and

the statutory definition of the prior offense,’ ” but it “recognized an exception to this

25

‘categorical approach’ only for ‘a narrow range of cases where a jury [in a State with a

broader definition of burglary] was actually required to find all the elements of’ the

generic offense” because “ ‘the indictment or information and jury instructions show[ed]

that the defendant was charged only with a burglary of a building, and that the jury

necessarily had to find an entry of a building to convict . . . .’ ” (Shepard, at p. 17,

quoting Taylor, at p. 602.)

In Part III of Shepard, a four-justice plurality expressed the view that Sixth

Amendment jurisprudence “provide[d] a further reason to adhere to the demanding

requirement that any sentence under the ACCA rest on a showing that a prior conviction

‘necessarily’ involved (and a prior plea necessarily admitted) facts equating to generic

burglary.” (Shepard, supra, 544 U.S. at p. 24 (plur. opn. of Souter, J.).) The plurality

rejected the suggestion that it would be permissible, in the case of a prior plea, to “make a

disputed finding of fact about what the defendant and state judge must have understood

as the factual basis of” that plea, which would “rais[e] the concern underlying [People v.]

Jones [(1999) 526 U.S. 227]20 and Apprendi[, supra, 530 U.S. 466]: the Sixth and

Fourteenth Amendments guarantee a jury standing between a defendant and the power of

the State, and they guarantee a jury’s finding of any disputed fact essential to increase the

ceiling of a potential sentence. While the disputed fact here can be described as a fact

about a prior conviction, it is too far removed from the conclusive significance of a prior

judicial record, and too much like the findings subject to Jones and Apprendi, to say that

Almendarez-Torres[, supra, 523 U.S. 224] clearly authorizes a judge to resolve the

dispute.” (Shepard, at p. 25 (plur. opn. of Souter, J.).) While the plurality did not

conclusively determine that such factfinding would violate the Sixth Amendment, it

stated that “[t]he rule of reading statutes to avoid serious risks of unconstitutionality”

20

In Jones v. United States, supra, 526 U.S. 227, the high court held that a federal

carjacking statute “defined three distinct offenses,” not “a single crime with a choice of

three maximum penalties, two of them dependent on sentencing factors exempt from the

requirements of charge and jury verdict,” in part to avoid the Sixth Amendment concerns

the latter interpretation would raise. (Id. at pp. 229, 240, 243, fn. 6.)

26

supported its determination that the ACCA did not permit such a procedure. (Id. at

pp. 25-26 (plur. opn. of Souter, J.).) Writing separately, Justice Thomas concurred in the

judgment on the basis that Apprendi would preclude the sentencing court from any

factfinding whatsoever. (Id. at p. 28 (conc. opn. of Thomas, J.).)

A year after Shepard, supra, 544 U.S. 13, our state Supreme Court decided

McGee, which reiterated that “a review and interpretation of documents that are part of

the record of the prior criminal proceeding” is permitted in making strike determinations.

(McGee, supra, 38 Cal.4th at p. 685.) The McGee defendant argued that his strike

determination violated the federal Constitution because a judge, not a jury, “is entrusted

with the responsibility” of reviewing the prior record of conviction to make such

determinations. (McGee, at pp. 685-686.) The McGee court concluded that the

exception for “ ‘the fact of a prior conviction’ ” encompassed facts related to recidivism

and that Apprendi, supra, 530 U.S. 466 did not preclude a court from conducting “the

inquiry required (and permitted) . . . under California law.” (McGee, at pp. 686, 706-707,

italics omitted.) Although acknowledging that Shepard “may suggest that a majority of

the high court would view the legal issue presented in the case before us as presenting a

serious constitutional issue,” our state Supreme Court stated that “the high court’s

decision did not purport to resolve that issue,” which “was resolved as a matter of

statutory interpretation,” and did “not provide the type of clear resolution of the issue that

would justify overturning the relevant California precedents.” (McGee, at p. 708.) It

further stated, “We recognize the possibility that the United States Supreme Court, in

future decisions, may extend the Apprendi rule . . . . But because in our view there is a

significant difference between the nature of the inquiry and the factfinding involved in

the type of sentence enhancements at issue in Apprendi and its progeny as compared to

the nature of the inquiry involved in examining the record of a prior conviction to

determine whether that conviction constitutes a qualifying prior conviction for purposes

of a recidivist sentencing statute, we are reluctant to assume, in advance of such a

decision by the high court, that the federal constitutional right to a jury trial will be

interpreted to apply in the latter context.” (McGee, at p. 709.) In other words, McGee

27

concluded that a trial court’s examination of the record of a prior conviction fell, at least

for the time being, within Apprendi’s prior-conviction exception. (Ibid.)

In mid-2013, the United States Supreme Court handed down Descamps, supra,

133 S.Ct. 2276, an eight-to-one decision explaining that the Sixth Amendment bars a

sentencing “court’s finding of a predicate offense . . . if it [goes] beyond merely

identifying a prior conviction.” (Id. at p. 2288.) As did Shepard, supra, 544 U.S. 13,

Descamps involved a determination under the ACCA whether a prior conviction under a

state burglary statute was a conviction for generic burglary, which requires an unlawful

entry. (Descamps, at p. 2282.) The district court had found that the prior conviction was

such a conviction by reviewing the transcript of the plea hearing, which showed that the

defendant had not objected to the prosecutor’s proffer that the crime involved an

unlawful entry. (Ibid.) The Court of Appeals for the Ninth Circuit affirmed, holding

“that when a sentencing court considers a conviction under . . . [a] statute that is

‘categorically broader than the generic offense[,]’ . . . [it] may scrutinize certain

documents to determine the factual basis of the conviction.” (Id. at pp. 2282-2283.)

The eight-justice majority of the United States Supreme Court concluded that this

kind of factfinding was impermissible under the ACCA. It explained the procedure

required by that statute as follows. First, a sentencing court must determine whether the

statute under which a defendant was previously convicted is “ ‘divisible,’ ” that is, one

that “sets out one or more elements of the offense in the alternative,” or “ ‘indivisible,’ ”

that is, “one not containing alternative elements.” (Descamps, supra, 133 S.Ct. at

p. 2281.) If the statute is indivisible, the “ ‘categorical approach’ ” limits the inquiry to a

comparison of the elements of the original statute and the generic crime, and “only if the

statute’s elements are the same as, or narrower than, those of the generic offense” can an

enhancement be imposed under the ACCA. (Ibid.) If, however, a statute is divisible, the

“ ‘modified categorical approach’ . . . permits sentencing courts to consult a limited class

of documents, such as indictments and jury instructions, to determine which alternative

formed the basis of the defendant’s prior conviction. The court can then do what the

categorical approach demands: compare the elements of the crime of conviction

28

(including the alternative element used in the case) with the elements of the generic

crime.” (Ibid.) The high court explained that the modified categorical approach “merely

helps implement the categorical approach when a defendant was convicted of violating a

divisible statute. The modified approach thus acts not as an exception, but instead as a

tool. It retains the categorical approach’s central feature: a focus on the elements, rather

than the facts, of a crime.” (Id. at p. 2285.) Because the California burglary statute under

which the Descamps defendant had been convicted was indivisible, the sentencing court’s

determination, based on the plea transcript, that the previous conviction involved

unlawful entry contravened the ACCA. (Id. at pp. 2285-2286.)

Descamps explained that one reason “for establishing [its] elements-centric,

‘formal categorical approach’ ” was to avoid the “Sixth Amendment concerns that would

arise from sentencing courts’ making findings of fact that properly belong to juries.”

(Descamps, supra, 133 S.Ct. at p. 2287.) In doing so, it discussed the “Sixth Amendment

underpinnings” of its insistence that sentencing courts focus on the elements, not the

underlying facts, of prior convictions. We quote this discussion at length because of its

critical importance in resolving the issue before us:

“We have held that ‘[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.’

[Citation.] Under [the] ACCA, the court’s finding of a predicate offense

indisputably increases the maximum penalty. Accordingly, that finding

would (at the least) raise serious Sixth Amendment concerns if it went

beyond merely identifying a prior conviction. Those concerns, we

recognized in Shepard, [supra, 544 U.S. 13] counsel against allowing a

sentencing court to ‘make a disputed’ determination ‘about what the

defendant and state judge must have understood as the factual basis of the

prior plea,’ or what the jury in a prior trial must have accepted as the theory

of the crime. [Citations.] Hence our insistence on the categorical approach.

[But] the Ninth Circuit’s ruling flouts our reasoning—here, by extending

judicial factfinding beyond the recognition of a prior conviction. Our

modified categorical approach merely assists the sentencing court in

identifying the defendant’s crime of conviction, as we have held the Sixth

Amendment permits. But the Ninth Circuit’s reworking authorizes the

court to try to discern what a trial showed, or a plea proceeding revealed,

29

about the defendant’s underlying conduct. [Citation.] And there’s the

constitutional rub. The Sixth Amendment contemplates that a jury—not a

sentencing court—will find such facts, unanimously and beyond a

reasonable doubt. And the only facts the court can be sure the jury so found

are those constituting elements of the offense—as distinct from amplifying

but legally extraneous circumstances. [Citation.] Similarly, as Shepard

indicated, when a defendant pleads guilty to a crime, he waives his right to

a jury determination of only that offense’s elements; whatever he says, or

fails to say, about superfluous facts cannot license a later sentencing court

to impose extra punishment. [Citation.] So when the District Court here

enhanced Descamps’[s] sentence, based on his supposed acquiescence to a

prosecutorial statement (that he ‘broke and entered’) irrelevant to the crime

charged, the court did just what we have said it cannot: rely on its own

finding about a non-elemental fact to increase a defendant’s maximum

sentence.”

(Descamps, at pp. 2288-2289.)

Our state Supreme Court has yet to consider how the Sixth Amendment principles

discussed in Descamps, supra, 133 S.Ct. 2276 affect its decision in McGee, supra,

38 Cal.4th 682 not to extend Apprendi, supra, 530 U.S. 466 to “the inquiry involved in

examining the record of a prior conviction to determine whether that conviction

constitutes a qualifying prior conviction for purposes of a recidivist sentencing statute.”

(McGee, at p. 709.) Few decisions from the Courts of Appeal have analyzed Descamps

either. The most extensive consideration appears in People v. Wilson (2013)

219 Cal.App.4th 500 (Wilson). In Wilson, the defendant had previously pleaded no

contest to proximately causing bodily injury while driving while intoxicated and to gross

vehicular manslaughter while intoxicated. (Id. at p. 506.) Relying on a preliminary-

hearing transcript, which revealed a factual dispute about whether Wilson or his

girlfriend had been steering at the time of the crash killing another passenger, the trial

court concluded that the prior conviction for gross vehicular manslaughter had involved

“personal infliction of great bodily injury” and was therefore a serious felony. (Id. at

pp. 505-509; § 1192.8, subd. (a).)

Our colleagues in the Sixth District concluded that the trial court’s strike finding

“violated both state and federal law.” (Wilson, supra, 219 Cal.App.4th at p. 509.) The

30

Wilson court first found that the strike finding violated California law by pointing to

McGee’s statement that reviewing a record of a prior conviction to determine “ ‘the

nature or basis’ of the prior offense . . . ‘does not contemplate that the court will make an

independent determination regarding a disputed issue of fact relating to the defendant’s

prior conduct.’ ” (Wilson, at p. 510, italics in original, quoting McGee, supra, 38 Cal.4th

at pp. 691, 706.) It observed that in McGee, the defendant “admitted to specific conduct

satisfying the elements of robbery under California law,” permitting the trial court there

to determine that the “prior convictions ‘realistically [could not] have been based on

conduct that would not constitute a serious felony under California law.’ ” (Wilson, at

p. 511.) In contrast, the defendant in Wilson had “admitted [only] the element of

proximately causing [the other passenger]’s death” by pleading to the vehicular

manslaughter count, and the prior record showed that he disputed whether there had been

personal infliction. (Id. at pp. 511-512, italics omitted.) The Court of Appeal concluded

that “the prior conviction ‘realistically [could] have been based on conduct that would not

constitute a serious felony’ ” and “[t]he sentencing court could only resolve the relevant

factual dispute by weighing the evidence and discrediting [the] defendant’s statements.”

(Id. at p. 512.) As a result, the trial court’s strike determination was impermissible under

McGee. (Wilson, at pp. 512-513.)

Wilson then held that the trial court’s determination also violated the Sixth

Amendment. (Wilson, supra, 219 Cal.App.4th at p. 515.) Interpreting Descamps, supra,

133 S.Ct. 2276 to include a holding by “a majority of the United States Supreme

Court . . . that a sentencing court’s finding of priors based on the record of conviction

implicates the Sixth Amendment under Apprendi[, supra, 530 U.S. 466],” Wilson

concluded that the trial court was “precluded . . . from finding the facts—here in

dispute—required to prove a strike prior based on the gross vehicular manslaughter

offense.” (Wilson, at p. 515.) As had the trial court in Descamps, the trial court in

Wilson had “looked beyond the facts necessarily implied by the elements of the prior

conviction.” (Wilson, at p. 515.) The Court of Appeal found it significant not only that

there were no “admissions—factual or otherwise—made by Wilson on the record of the

31

prior conviction” but also that “Wilson explicitly contested the key fact at issue[, and] . . .

the sentencing court was necessarily required to weigh the credibility of various

witnesses and statements. The . . . court could not have increased Wilson’s sentence

without ‘ “mak[ing] a disputed” determination’ of fact—a task the United States Supreme

Court specifically counseled against.” (Id. at pp. 515-516, quoting Descamps, at

p. 2288.)

In holding that the strike determination violated the Sixth Amendment, Wilson

made clear, however, that it was “not consider[ing] . . . whether the broader application of

Apprendi[, supra, 530 U.S. 466] and Descamps[, supra, 133 S.Ct. 2276] to California’s

sentence enhancement scheme would leave intact the kinds of findings—e.g., those not

concerning the facts of a defendant’s prior conduct—heretofore endorsed under

California law.” (Wilson, supra, 219 Cal.App.4th at p. 516.) Wilson held “only that

federal law prohibits what McGee[, supra, 38 Cal.4th 682] already proscribed: A court

may not impose a sentence above the statutory maximum based on disputed facts about

prior conduct not admitted by the defendant or implied by the elements of the offense.”

(Wilson, at p. 516.)

This case raises the issue that Wilson, supra, 219 Cal.App.4th 500 left for another

day: whether a strike determination that does not run afoul of McGee, supra, 38 Cal.4th

682 may nevertheless violate the Sixth Amendment. Descamps, supra, 133 S.Ct. 2276

makes clear that it can. (See People v. Manning (2014) 226 Cal.App.4th 1133, 1141 &

fn. 3 [approach allowing consideration of conduct underlying prior conviction to make

strike determinations “may no longer be tenable” after Descamps].) Descamps declared

that the Sixth Amendment prohibits “a sentencing court [from] ‘mak[ing] a disputed’

determination ‘about what the defendant and state judge must have understood as the

factual basis of the prior plea.’ ” (Descamps, at p. 2288.) This prohibition arises because

“[a] guilty plea ‘admits every element of the crime charged,’ ” but no more. (People v.

Wallace (2004) 33 Cal.4th 738, 749; People v. Hoffard (1995) 10 Cal.4th 1170, 1177; see

also Trujillo, supra, 40 Cal.4th at p. 176 [explaining that California case law originally

limited proof of a strike to “ ‘matters necessarily established by the prior conviction’ ”].)

32

Here, Saez admitted to the elements of false imprisonment while armed and of

reckless use of a dangerous weapon by pleading guilty to those crimes. But he did not

admit, or waive his Sixth Amendment rights regarding, the additional facts on which the

strike finding was contingent: that he personally used a firearm and that the reckless use

of a firearm occurred in the course of the false imprisonment. Nor did his stipulation to

the complaint as the factual basis of his plea constitute a waiver of Sixth Amendment

rights or an admission as to those additional facts. Under Wisconsin law, both now and

at the time of Saez’s plea, a sentencing court accepting a guilty plea must “[m]ake such

inquiry as satisfies it that the defendant in fact committed the crime charged.” (Wis.Stat.

§ 971.08, subd. (1)(b).) The Wisconsin Supreme Court has explained that “[t]he purpose

of [this] inquiry is to insure the accuracy of the plea by determining whether the facts, if

proved, constitute the offense charged and whether the defendant’s conduct does not

amount to a defense.” (Edwards v. State (1971) 51 Wis.2d 231, 236, italics added.) This

standard does not require that the evidence establishing the plea’s factual basis “be

admissible at trial or that it be sufficient to convict beyond a reasonable doubt.” (Ibid.)

Nor is a defendant required to admit to the truth of the facts supporting the plea. (See,

e.g., State v. Garcia (1995) 192 Wis.2d 845, 856-858 [discussing pleas under North

Carolina v. Alford (1970) 400 U.S. 25, which permits acceptance of no contest pleas even

if defendants maintain their innocence].) The prior-conviction records here do not

include the transcript of the prior sentencing hearing or any other information about the

stipulation except the bare statement in the judgment roll that “[a]ll parties stipulate[d] to

the facts in the criminal complaint for basis of the plea.” There is no evidence that the

prosecutor recited the factual basis for the plea or that Saez specifically admitted to any

of the facts in the complaint beyond the elements of the crimes. Accordingly, we cannot

conclusively say that Saez admitted to personally using a firearm or to pointing a firearm

at the victim to effect the false imprisonment.21 (See People v. French (2008) 43 Cal.4th

21

We need not and do not decide whether a trial court could violate the Sixth

Amendment by relying on a defendant’s prior admission of a non-elemental fact in

making a strike determination. Suffice it to say, Saez’s stipulation here to the complaint

33

36, 51 [defense counsel’s stipulation to factual basis of plea did not amount to stipulation

that facts were true]; People v. Roberts, supra, 195 Cal.App.4th at pp. 1121-1122

[defendant did not admit to “prosecutor’s recital of the factual basis” underlying his

Alford plea by not objecting to that recital]; cf. People v. Sample (2011) 200 Cal.App.4th

1253, 1260, 1262, 1264-1265 [defendant’s failure to object to prosecutor’s recital of

factual basis constituted admission]; People v. Sohal (1997) 53 Cal.App.4th 911, 914-916

[sufficient admission where defense counsel agreed prosecution capable of producing

evidence proving factual basis recited].)

We recognize that the Sixth Amendment discussion in Descamps, supra, 133 S.Ct.

2276 was not an unequivocal holding, and we are accordingly hesitant to conclude—

without first hearing from our state Supreme Court—that Descamps has “undermine[d]”

McGee, supra, 38 Cal.4th 682. (People v. Flores (2007) 147 Cal.App.4th 199, 211; see

Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) But we are bound

by rulings of the United States Supreme Court on matters of federal law. (People v.

Bradley (1969) 1 Cal.3d 80, 86; People v. Superior Court (Williams) (1992)

8 Cal.App.4th 688, 702-703.) And while Descamps did not explicitly overrule McGee,

Descamps’s discussion of the Sixth Amendment principles applicable when prior

convictions are used to increase criminal sentences is clear and unavoidable and was

adopted by eight of the nine justices on the high court. Under these unusual

circumstances, we are compelled to apply those constitutional principles here.

We also understand the difficulty facing trial courts tasked with making strike

determinations under evolving legal standards, particularly when these determinations

concern prior convictions from other jurisdictions. But this much is clear: when the

elements of a prior conviction do not necessarily establish that it is a serious or violent

felony under California law (and, thus, a strike), the court may not under the Sixth

Amendment “ ‘make a disputed’ determination ‘about what the defendant and state judge

as the factual basis for his plea was not tantamount to a finding that the facts in the

affidavit of probable cause were true beyond a reasonable doubt or to an admission that

those facts were true.

34

must have understood as the factual basis of the prior plea,’ or what the jury in a prior

trial must have accepted as the theory of the crime.” (Descamps, supra, 133 S.Ct. at p.

2288.) Thus, we conclude that the trial court acted in contravention of the Sixth

Amendment by necessarily relying on the police officer’s statements in the Wisconsin

record of conviction to increase Saez’s sentence.22

E. The Identity Finding Did Not Violate the Sixth Amendment.

Finally, Saez argues that the Sixth Amendment prohibited the trial court from

finding he was the person named in both sets of prior-conviction records, an issue we

need reach only as to the robbery conviction since we reverse the false-imprisonment

strike determination for a different reason. We conclude that this finding did not violate

the Sixth Amendment.

Under section 1025, a defendant is entitled to have a jury determine “whether or

not the defendant has suffered the prior conviction,” except that “the question of whether

the defendant is the person who has suffered the prior conviction shall be tried by the

court without a jury.” (§ 1025, subds. (b), (c).) In People v. Epps (2001) 25 Cal.4th 19,

our state Supreme Court explained that “[t]he right, if any, to a jury trial of prior

conviction allegations derives from sections 1025 and 1158, not from the state or federal

Constitution.” (Epps, at p. 23, citing Apprendi, supra, 530 U.S. at p. 490 [discussing the

exception under Almendarez-Torres, supra, 523 U.S. 224].) Epps explained that section

22

In concluding that the Sixth Amendment was violated here, we do not accept Saez’s

suggestion that the specific approach described in Descamps, supra, 133 S.Ct. 2276 for

establishing prior convictions under the ACCA is necessarily required in determining

strikes under California’s Three Strikes law. The divisible/indivisible approach discussed

in Descamps springs in large part from the ACCA’s focus on the elements of the prior

conviction: unlike the Three Strikes law, the ACCA prohibits consideration of the

conduct underlying the conviction. (See generally Descamps, at pp. 2283-2288.) We can

conceive of situations in which an examination of the record could establish that elements

of a strike were found true beyond a reasonable doubt in the prior proceeding even

though the underlying statute was “indivisible” in the Descamps sense. For example, if

Saez’s conviction for reckless use of a firearm had followed a jury trial and the record of

conviction showed that no aiding-and-abetting instructions were given, we think it

unlikely that a determination that the prior conviction involved personal use of a firearm

would violate the Sixth Amendment even under Descamps’s rationale.

35

1025, subdivision (c) “creates a specific exception for the question of identity” from the

broader issue whether a defendant “ ‘has suffered the prior conviction,’ ” which a

defendant otherwise has a right—but only a California statutory right—to have a jury

determine. (Epps, at p. 25.)

Although Epps did not rule on the specific issue raised here, it clearly assumes the

identity issue is included in the exception under Almendarez-Torres, supra, 523 U.S. 224.

(People v. Epps, supra, 25 Cal.4th at pp. 23, 25; see also People v. Towne (2008) 44

Cal.4th 63, 81-82 [suggesting, in rejecting claim under Apprendi, supra, 530 U.S. 466,

that “simple fact of a prior conviction” includes “whether the defendant is the person who

was convicted”].) And relying on Epps, two Courts of Appeal have rejected the same

claim that there is a federal constitutional right under Apprendi to a jury trial on the issue

of identity. (People v. Garcia (2003) 107 Cal.App.4th 1159, 1164-1165; People v.

Belmares (2003) 106 Cal.App.4th 19, 27-28.)

Saez acknowledges that under existing law, the trial “court had no choice but

to . . . determine whether [he] was the person named in the prior convictions,” but he

appears to argue that Descamps, supra, 133 S.Ct. 2276 undermined the above precedent

and established that a jury must determine the issue of identity. As discussed above,

Descamps indicates the unconstitutionality of the determination that Saez’s false-

imprisonment conviction was a strike because it required a factual finding about what the

basis of his plea was understood to be. But we do not perceive, and Saez does not

explain, how Descamps can be read to undo the exception under Almendarez-Torres,

supra, 523 U.S. 224, which our state Supreme Court has interpreted to encompass the

issue of identity. We therefore conclude that Saez had no federal constitutional right to

have the jury decide the identity issue.

III.

DISPOSITION

The finding that the attempted murder was willful, deliberate, and premeditated is

reversed, as is the trial court’s determination that the Wisconsin conviction for false

36

imprisonment while armed constitutes a strike, and the matter is remanded for

resentencing. The judgment is otherwise affirmed.

_________________________

Humes, P.J.

I concur:

_________________________

Dondero, J.

People v. Saez (A138786)

37

Banke, J.

I concur in the judgment. I agree the United States Supreme Court in Descamps v.

United States __ U.S. __ [186 L.Ed.2d 438, 133 S.Ct. 2276] (Descamps) enunciated Sixth

Amendment principles compelling the conclusion California’s approach to determining

whether a prior conviction constitutes a “strike,” as reviewed and upheld in People v.

McGee (2006) 38 Cal.4th 682 [42 Cal.Rptr.3d 899, 133 P.3d 1054] (McGee), does not

survive federal constitutional scrutiny.1 I doubt, however, the record of conviction in

connection with defendant’s plea to false imprisonment while armed is sufficient even

under McGee and therefore conclude the reversal of the strike determination as to that

conviction can be grounded on state law grounds, as well.

In People v. Guerrero (1988) 44 Cal.3d 343 [243 Cal.Rptr. 688, 748 P.2d 1150],2

our Supreme Court held a sentencing court can look at the entire record of conviction to

determine whether a prior conviction can be used for enhancement purposes. The court

declined, however, “to resolve such questions as what items in the record of conviction

are admissible and for what purpose.” (People v. Guerrero, 356, fn. 1.)

The high court took up this task in People v. Reed (1996) 13 Cal.4th 217

[52 Cal.Rptr.2d 106, 914 P.2d 184] (Reed), considering whether preliminary hearing

transcripts and a probation report excerpt were part of the record of the prior conviction.

It held the preliminary hearing transcripts were part of the record, but the testimony was

subject to objection on hearsay grounds unless sufficient exceptions applied. The court

concluded they did. (Id. at pp. 223-230.) The court did not decide whether the probation

report excerpts were part of the record, because even if they were, the statements in

question were double hearsay as to which insufficient exceptions applied. (Id. at p. 230;

see also People v. Thoma (2007) 150 Cal.App.4th 1096, 1103 (Thoma) [police officer’s

1

Indeed, in Descamps the Supreme Court rejected, in part on Sixth Amendment

grounds, an approach to analyzing prior convictions strikingly similar to the approach

reaffirmed in McGee. (Compare Descamps, supra, 133 S.Ct. at pp. 2282-2283 & McGee,

supra, 38 Cal.4th at pp. 706-707.)

2

Disapproved on another ground in People v. Miles (2008) 43 Cal.4th 1074,

1094, footnote 14 [77 Cal.Rptr.3d 270, 183 P.3d 1236].

1

preliminary hearing testimony as to nurse’s description of victim’s injuries inadmissible

hearsay].)

Our Supreme Court next addressed the scope of the record of conviction in

People v. Woodell (1998) 17 Cal.4th 448 [71 Cal.Rptr.2d 241, 950 P.2d 85] (Woodell),

considering whether an appellate opinion was part of the record. Among other issues, the

court was required to address Reed’s conclusion that absent an exception, a sentencing

court may not consider hearsay in the record. (Woodell, at pp. 457-461.)

The court began by reaffirming “[t]he normal rules of hearsay generally apply to

evidence admitted as part of the record of conviction to show the conduct underlying the

conviction,” citing Reed. (Woodell, supra, 17 Cal.4th at p. 458.) However, judicial

pronouncements, said the court, may be considered for a limited nonhearsay purpose.

“[B]ecause the ultimate question is, of what crime was the defendant convicted, another

way to decide this question is to look to a court ruling, including an appellate opinion, for

the nonhearsay purpose of determining the basis of the conviction.” (Id. at p. 459.) Reed

was different, explained the court, because “the probation officer’s report did not

necessarily speak for the court, so hearsay statements within that report had to meet an

exception to the hearsay rule to be admissible. By contrast, an appellate opinion is a

judicial statement and can help determine the nature of the crime of which the defendant

had been convicted.” (Ibid.)

The court cautioned, however, that the hearsay rule may apply even to an appellate

opinion, and the trial court must “carefully consider whether the opinion as a whole,

including any factual statements, is probative on whether the conviction was based on a

qualifying theory.” (Woodell, supra, 17 Cal.4th at p. 460.) “For example, if the opinion

refers to facts in a fashion indicating the evidence was disputed and the factual issue

unresolved, that reference would have little, if any tendency, to show the basis of the

conviction.” (Ibid.) If, however, the opinion refers to “facts as established” or to specific

findings by the trier of fact, these statements “would be highly probative on the nature of

the conviction.” (Ibid.) In short, even an appellate opinion cannot be admitted “to show

exactly what the defendant did while committing the previous crime” without violating

2

the hearsay rule, and is admissible only for the limited purpose of determining “whether

the defendant was convicted” of a qualifying crime. (Ibid., italics added.)

In People v. Trujillo (2006) 40 Cal.4th 165 [51 Cal.Rptr.3d 718, 146 P.3d 1259]

(Trujillo), the court directly addressed the issue it had deferred in Reed, whether an

excerpt from a probation officer’s report was part of the record of conviction. The court

concluded the postconviction report, which included admissions by the defendant that he

had stabbed the victim, was not part of the record. “A statement by the defendant

recounted in a postconviction probation officer’s report does not necessarily reflect the

nature of the crime of which the defendant was convicted. . . . Once the court accepted

his plea, defendant could admit to the probation officer having stabbed the victim without

fear of prosecution, because he was clothed with the protection of the double jeopardy

clause from successive prosecution for the same offense. [Citation.] Defendant’s

admission recounted in the probation officer’s report, therefore, does not describe the

nature of the crime of which he was convicted and cannot be used to prove that the prior

conviction was a serious felony.” (Trujillo, at p. 179.) The court distinguished such

reports from preliminary hearing transcripts (Reed) and appellate court opinions

(Woodell), which may be considered, although the court once again warned appellate

opinions may not be probative and must be examined on a case-by-case basis. (Trujillo,

at pp. 180-181; see also People v. Roberts (2011) 195 Cal.App.4th 1106, 1124-1127

[125 Cal.Rptr.3d 810] (Roberts) [the defendant’s statements during sentencing which

immediately followed plea, not part of record of conviction]; Thoma, supra,

150 Cal.App.4th at p. 1101 [where the defendant was not asked during plea to admit

victim’s injuries, defense counsel’s mere acknowledgment of receipt of presentencing

probation report recounting victim’s statement did not constitute adoptive admission by

the defendant so as to avoid hearsay rule].)

The majority opinion concludes Woodell renders the police officer’s probable

cause statement imbedded in the Wisconsin criminal complaint admissible for the

nonhearsay purpose of determining the basis of defendant’s false imprisonment while

3

armed conviction. In my view, however, the record provided for this 1983 conviction by

plea is insufficient under Reed and Trujillo.

As the majority recounts, the record provided for this conviction consists solely of

a criminal pleading designated a “complaint” and the clerk’s minutes of the hearings in

the case.

The clerk’s minutes, alone, raise serious concerns about this record. The minutes

of the hearing at which defendant pleaded guilty say nothing about the basis for the plea.

Rather, the minutes up to and including the day he entered a guilty plea reflect that two

months after defendant was bound over for trial following a preliminary hearing, and on

what appears to be the continued date for trial, defendant announced he wished to enter a

guilty plea over the objection of counsel. Defendant was then “sworn and examined as to

his plea, advised of his constitutional rights and of the maximum penalty.” He thereafter

waived all his rights and pleaded guilty, and was thereupon found guilty by the court “as

charged in the Information as to each count.”

It is only the minutes of the next hearing, when the case was called for sentencing,

that there is any reference at all to a factual basis for “the plea.” In this regard, the clerk’s

minutes of the sentencing hearing state in pertinent part: “Assistant District Attorney

William Molitor present in Court for the State. [A]nd advised Court he is filing with the

Court Certified copies with reference to the Habitual Criminality charge. Court accepts

certified record, made part of the record, and orders the Habitual Criminality charge

incorporated with all other charges. All parties stipulate to the facts in the criminal

complaint for basis of the plea. Statement by Assistant District Attorney Wm. Molitor as

to sentencing.”

While it is likely the stipulation recited in the minutes of the sentencing hearing

pertained to the guilty plea taken at the prior hearing, it is not entirely clear. Possibly, it

pertained to a plea reflected in the certified record proffered for sentencing purposes.

(See Descamps, supra, 133 S.Ct. at p. 2289 [the meaning of “often aged” documents

submitted to show nature of prior conviction will “often be uncertain”].)

4

Further, the clerk’s minutes of the prior hearing, when defendant was convicted,

reflect he pleaded and was found “guilty as charged in the Information” (italics added).

Yet, the minutes of the subsequent sentencing hearing state the parties stipulated to the

“facts in the criminal complaint for the basis of the plea” (italics added).

Under Wisconsin law, “[t]he criminal complaint is statutorily defined as a ‘written

statement of the essential facts constituting the offense charged.’ It functions as a

pleading, which acts to confer both subject matter and personal jurisdiction upon the

court.” (9 Wis. Prac., Criminal Practice & Procedure (2d ed. 2015) § 1:11, fn. omitted.)

As in California, “[t]he complaint is the initial charging document in a felony case and

precedes the information.” (9 Wis. Prac., Criminal Practice & Procedure, supra, § 13:2,

fn. 1.) “The information is the final charging document of a felony proceeding. It is

drafted by the district attorney after the preliminary examination or after the defendant’s

waiver of the preliminary examination.” (Id. § 13:2; see also Wis. Stat. Ann.

§ 971.01(1).) Thus, filing an information is an important, separate, statutorily-required

step in the Wisconsin criminal process. (State v. Woehrer (1978) 83 Wis.2d 696, 699

[266 N.W.2d 366]; State v. May (Wis. Ct. App. 1980) 100 Wis.2d 9, 11 [301 N.W.2d

458].) The information need only contain a basic recitation of the statutes violated; it

need not contain or repeat the factual specificity of the complaint. (9 Wis. Prac.,

Criminal Practice & Procedure, supra, § 13:3.) Wisconsin courts also recognize that a

later-filed information supersedes previous complaints or informations in terms of setting

the scope of a criminal prosecution. (See State v. Badzinski (2014) 352 Wis.2d 329, 334

[843 N.W.2d 29].)

Here, the clerk’s minutes show defendant was initially arraigned on the

“complaint” and the court found, at that time, “probable cause to hold defendant for

further proceedings.” A preliminary hearing was held a week later, following which the

court found probable cause to continue holding defendant and bind him over for trial.

Defendant was also, at this time, arraigned on the “Information” and entered a not guilty

plea. Thus, it appears defendant, indeed, pleaded guilty “as charged” in the Information,

which, under Wisconsin law, superseded the complaint.

5

It therefore appears the United States Supreme Court’s statement in Descamps is

apt—that “when a defendant pleads guilty to a crime, he waives his right to a jury

determination of only that offense’s elements; whatever he says, or fails to say, about

superfluous facts [i.e., facts alleged in the superseded Wisconsin complaint but likely not

repeated in the information] cannot license a later sentencing court to impose extra

punishment.” (Decamps, supra, 133 S.Ct. at p. 2288) The federal circuit courts, in turn,

have uniformly concluded underlying criminal pleadings that have been superseded or

amended cannot be used to determine the character of the charge to which the defendant

actually pleaded. (United States v. Martinez (8th Cir. 2014) 756 F.3d 1092, 1096-1098

[discussing circuit court cases and holding sentencing court erred in considering

allegations in superseded indictment to which the defendant did not plead guilty]; see

also United States v. Castleman (2014) __ U.S. __ [188 L.Ed.2d 426, 134 S.Ct. 1405,

1414] [when modified categorical approach is permissible, sentencing court may

“consult[] the indictment to which [the defendant] pleaded guilty in order to determine

whether his conviction did entail the elements necessary” to qualify as an enhancing

prior].) Thus, one could fairly conclude the initial complaint is not properly part of the

record of the prior Wisconsin conviction at all. (Cf. McGee, supra, 38 Cal.4th at p. 687

[characterizing amended Nevada information as “[t]he relevant charging document].)

In any case, the supposedly pivotal stipulation to the facts in the criminal

complaint was a postconviction statement by defense counsel. As such, it appears highly

problematic under Trujillo. (See Roberts, supra, 195 Cal.App.4th at pp. 1124-1127 [the

defendant’s statements during sentencing which immediately followed plea, not part of

record of conviction].) By the time counsel made this stipulation, defendant “was clothed

with the protection of the double jeopardy clause from successive prosecution for the

same offense” and could stipulate to anything without compunction. (Trujillo, supra,

40 Cal.4th at p. 179.)

The record of conviction further suffers from the fact the officer’s probable cause

statement embedded in the complaint—supplying the alleged factual basis of the plea—is

hearsay. I do not agree the holding of Woodell applies to allow resort to this statement

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for the limited nonhearsay purpose of determining the basis of the conviction. Rather, I

think this case is governed by Reed.

In my view, untested allegations of a probable cause statement imbedded in an

initial criminal complaint are much more like preliminary hearing testimony (discussed in

Reed) than a court ruling or appellate opinion setting forth established facts or undisputed

factual findings (discussed in Woodell). Indeed, I do not see how the Supreme Court’s

discussion in Woodell, explaining and justifying the limited nonhearsay purpose for

which a court ruling or appellate opinion can be admitted, pertains to an officer’s

probable cause statement in an initial charging document. Moreover, I see little

distinction between an officer’s stand alone probable cause statement submitted to a

prosecutor—which appears not to be part of the record of conviction under California law

(see McGee, supra, 38 Cal.4th at pp. 694 [inquiry as to basis of prior conviction is

“ ‘limited to examining court documents’ ”], 707-708 [distinguishing Shepard v. United

States (2005) 544 U.S. 13 [161 L.Ed.2d 205, 125 S.Ct. 1254] and noting it involved

police reports and complaint applications, documents “arguably distinguishable” from

sworn preliminary hearing testimony and plea colloquies])—and a probable cause

statement imbedded in an initial charging document that is superseded by an information

filed after a preliminary hearing. Given the indication that our high court does not view

probable cause statements as commensurate even with preliminary hearing testimony

governed by Reed, it seems highly unlikely the court would find such unsworn statements

as being in the same universe as court rulings and appellate opinions governed by

Woodell.

While the majority imply Woodell can be broadly applied to any item in a record

of conviction, I do not think that is the case. The court expressly approved Reed’s

hearsay analysis; indeed, it said “[t]he normal rules of hearsay generally apply to

evidence admitted as part of the record of conviction.” (Woodell, supra, 17 Cal.4th at

p. 458.) Further, the court’s explanation and justification for the limited nonhearsay

purpose it endorsed focused on the special character of judicial rulings and the

confidence that can be reposed in them to accurately recite “established” or “undisputed”

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facts. (Id. at pp. 459-460.) The same cannot be said of an officer’s summary probable

cause statement, just as it cannot be said of an officer’s, or any other witness’s, testimony

at a preliminary hearing. (See Reed, supra, 13 Cal.4th at p. 224 [rejecting argument

preliminary hearing testimony could be considered for nonhearsay purpose of showing

basis of conviction].)

To the extent the probable cause statement in the complaint recounted the police

officer’s own observations, the hearsay problems might be resolved by the official record

exception. However, the prosecution made no showing in that regard. (See Woodell,

supra, 17 Cal.4th at p. 464 [proponent of hearsay evidence related to a prior conviction

“bears the burden of showing the applicability of at least one” exception to hearsay rule].)

Thus, in my view, the record of conviction proffered in connection with

defendant’s conviction for false imprisonment while armed is insufficient even under

California law. First, the pivotal stipulation that the facts alleged in the complaint formed

the basis for the plea—even assuming it pertained to the guilty plea in question and

assuming the superseded complaint was part of the record of conviction—occurred after

defendant was convicted and therefore is not part of the record under Trujillo. Second,

the probable cause statement embedded in the Wisconsin complaint—providing the facts

referenced in the stipulation—is, under Reed, inadmissible hearsay for which an

exception was not established.

_________________________

Banke, J.

A138786, People v. Saez

8

Trial Court: San Francisco County Superior Court

Trial Judge: Honorable Anne-Christine Massullo

Counsel for Appellant: Ozro William Childs, under appointment by the First

District Appellate Project

Counsel for Respondent: Kamala D. Harris, Attorney General, Dane R. Gillette,

Chief Assistant Attorney General, Gerald A. Engler,

Senior Assistant Attorney General, Catherine A. Rivlin,

Supervising Deputy Attorney General, Hanna Chung,

Deputy Attorney General

9