The opinion
BAXTER, J., Concurring and Dissenting.
I concur in the majority’s holding that the People may appeal from the judgment under section 1238, subdivision (a)(10) of the Penal Code (all further unlabeled statutory references are to this code).
I dissent, however, from the majority’s determination that the trial court correctly declined to consider defendant’s admission in the probation officer’s report that, “I stuck her with the knife.” Contrary to the majority, I conclude that a probation officer’s report is part of the “record of conviction” that a trial court may lawfully consider in determining whether a defendant’s prior conviction was a serious or violent felony within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)).
I.
To properly analyze this issue, I start by reviewing our most recent decisions on the matter. In People v. Reed (1996) 13 Cal.4th 217 [ 52 Cal.Rptr.2d 106 , 914 P.2d 184 ] (Reed), we noted prior decisions had not defined the phrase “record of conviction” so as to provide definitive guidance regarding what documents could be considered to determine the substance of a prior conviction and the applicability of a prior conviction sentence enhancement. (Id. at p. 223.) Reed did, however, explain that the phrase may *182 be used either “technically, as equivalent to the record on appeal [citation], or more narrowly, as referring only to those record documents reliably reflecting the facts of the offense for which the defendant was convicted.” (Ibid.) Without deciding which definition ought to control, Reed held that a preliminary hearing transcript falls within “even the narrower definition” of record of conviction because the procedural protections afforded the defendant during such a hearing “tend to ensure the reliability of such evidence.” (Ibid.) With respect to another category of evidence offered in that case—certain out-of-court witness statements contained in a probation officer’s report—Reed declined to decide whether the report itself was part of the record of conviction and instead found the statements in the report should have been excluded as inadmissible hearsay. (Id. at p. 230.)
In rejecting the admissibility of the statements at issue, consisting of the probation officer’s narration of facts drawn from sources other than the defendant, Reed distinguished the type of statement involved here: “The report fragment does not identify the declarant or declarants from whose statements the probation officer drew his factual summary. There is no evidence the excerpt was based on defendant’s own admissions to the officer, so as to fall within the hearsay exception for party admissions. (Evid. Code, § 1220; see People v. Garcia (1989) 216 Cal.App.3d 233, 237 [ 264 Cal.Rptr. 662 ] [defendant’s admission contained in probation report]; People v. Abarca [(1991) 233 Cal.App.3d 1347, at p. 1351 [ 285 Cal.Rptr. 213 ]] [defendant’s admission contained in transcript of change-of-plea hearing].) Nor does any other exception to the hearsay rule appear applicable.” (Reed, supra, 13 Cal.4th at p. 230 , italics added.)
In People v. Woodell (1998) 17 Cal.4th 448 [ 71 Cal.Rptr.2d 241 , 950 P.2d 85 ] (Woodell), the defendant contended the record of conviction cannot include an appellate opinion prepared after a defendant’s conviction and sentencing, because such a document would not be a record leading to imposition of judgment. (Id. at pp. 454-455.) Woodell disagreed, finding that the record of conviction is not limited to “trial court documents,” but also “includes appellate court documents at least up to finality of the judgment.” (Id. at p. 455.)
Earlier this year, we reiterated “the relevant inquiry in deciding whether a particular prior conviction qualifies as a serious felony for California sentencing purposes is limited to an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted.” (People v. McGee (2006) 38 Cal.4th 682, 691 [ 42 Cal.Rptr.3d 899 , 133 P.3d 1054 ] (McGee), italics added.) In McGee , we held a defendant has no federal constitutional right to have a jury decide whether a prior out-of-state conviction constitutes a qualifying felony for purposes of a California sentencing statute. (Id. at p. 687.)
*183 There can be no dispute that a probation officer’s report, which properly belongs in the record on appeal in a criminal proceeding, meets the technical definition of “record of conviction” to which Reed referred. (Reed, supra, 13 Cal.4th at p. 223 .) For the reasons below, such a report also falls within Reed’s narrower concept of the term because it “reliably reflect[s] the facts of the offense for which the defendant was convicted” (ibid.) and additionally qualifies under McGee as a document properly included in the record of the prior proceeding from which the “nature or basis of the crime” can be determined (McGee, supra, 38 Cal.4th at p. 691 ).
Significantly, probation officers’ reports are highly relevant to a number of important judicial and correctional determinations regarding defendants convicted of crimes. Such reports “are used by judges in determining the appropriate length of a prison sentence and by the Department of Corrections and Rehabilitation ... in deciding upon the type of facility and program in which to place a defendant, and are also used in deciding whether probation is appropriate.” (Cal. Rules of Court, rule 4.411(d) (all further rule references are to these rules); see § 1203, subds. (b), (g).) Judges also refer to such reports in deciding whether and to what extent restitution fines and costs should be assessed against a defendant. (Rule 4.411.5(a)(11); § 1203, subds. (b)(2)(C), (g).)
Given the important purposes these reports serve, the California Rules of Court provide a detailed list of the information that must be included, including information pertaining to “[t]he facts and circumstances of the crime.” (Rule 4.411.5(a)(2).) Additionally, the reports shall include “[a]ny statement made by the defendant to the probation officer, or a summary thereof, including the defendant’s account of the circumstances of the crime.” (Rule 4.411.5(a)(4), italics added.) To promote reliability and transparency of the fact-gathering process, the rules explicitly mandate that “[t]he source of all information shall be stated. Any person who has furnished information included in the report shall be identified by name or official capacity unless a reason is given for not disclosing the person’s identity.” (Rule 4.411.5(c); see also rule 4.411.5(a)(2).) At their sentencing hearings, defendants have the opportunity to challenge the accuracy of the report and to correct any misstatements, including admissions attributed to them. (People v. Monreal (1997) 52 Cal.App.4th 670, 680 [ 60 Cal.Rptr.2d 737 ]; People v. Garcia, supra, 216 Cal.App.3d at p. 237 .)
Thus, a probation officer’s report—with its recitation of the facts and circumstances of the defendant’s crime and its inclusion of any admissions made by the defendant—properly serves to inform official decisions regarding the appropriate punishment, restitution fines, correctional facility, and rehabilitative programs for the defendant based on the nature of his crime and *184 other factors. In light of this sanctioned use, it makes no sense whatsoever to find that the same report cannot be considered, in a subsequent criminal proceeding, as a document that “reliably reflects] the facts of the [prior] offense for which the defendant was convicted” (Reed, supra, 13 Cal.4th at p. 223 ), or as a document in the record of the prior criminal proceeding from which the “nature or basis of the [prior] crime” can be determined (McGee, supra, 38 Cal.4th at p. 691 ).
Despite the obvious importance and factual reliability of a probation officer’s report, the majority holds in this case that the “record of the prior conviction” includes only those documents in the record that contain information aired in trial court proceedings prior to the point of “conviction,” which in the majority’s view is the point at which the trial court here “accepted” defendant’s negotiated guilty plea. (Maj. opn., ante, at p. 179.) Pursuant to this understanding, the majority regards the record of conviction as properly excluding “postconviction” documents, such as a probation officer’s report, that reflect information and evidence formally brought to the trial court’s attention after acceptance of the plea, but before sentencing and before conclusion of the trial court proceedings. (Ibid.)
I have no quarrel with the proposition that a defendant’s guilty plea, on which a sentence has not yet been imposed, constitutes a conviction for purposes of imposing an enhanced sentence. (See People v. Rhoads (1990) 221 Cal.App.3d 56, 58-60 [ 270 Cal.Rptr. 266 ] [addressing a Health and Safety Code enhancement]; see also People v. Laino (2004) 32 Cal.4th 878, 895-898 [ 11 Cal.Rptr.3d 723 , 87 P.3d 27 ] [defendant’s plea of guilty to a domestic violence felony, even when followed by a dismissal of the defendant’s case after his successful completion of a state diversion program, constitutes a prior conviction under the Three Strikes law].)
But the question here is not whether a defendant’s guilty plea, standing alone, has legal significance as a prior conviction for purposes of the Three Strikes law. Rather, the issue is whether a trial court may assess the serious or violent nature of the offense for which the defendant was convicted based on the defendant’s own admissions in an official report that is prepared after his plea of guilty but before entry of a judgment on that plea.
A trial court that initially accepts or approves of a defendant’s negotiated guilty plea to an offense retains broad discretion at the sentencing phase to withdraw that prior approval and negate the plea’s effect as a conviction. 1 *185 (People v. Johnson (1974) 10 Cal.3d 868, 873 [ 112 Cal.Rptr. 556 , 519 P.2d 604 ].) In this regard, evidence concerning the offense at issue, whether contained in a probation officer’s report or otherwise presented to the trial court by the time of the sentencing hearing, may be highly relevant to whether the defendant’s plea may stand as a valid conviction. For instance, it has been held that a trial court’s reading of a probation officer’s report after the entry of a defendant’s negotiated plea of guilty contributed to a sufficient factual basis for the plea and supported the trial court’s denial of the defendant’s motion to withdraw his plea. (People v. Watts (1977) 67 Cal.App.3d 173, 181-182 [ 136 Cal.Rptr. 496 ] [also finding grand jury transcripts provided a sufficient factual basis].) In a similar vein, when trial counsel stipulates to a factual basis for a negotiated plea, but appellate counsel claims the plea lacks an adequate factual basis, the appellate court may review the probation report to see if it establishes a factual basis for the plea. (People v. Mickens (1995) 38 Cal.App.4th 1557 , 1564—1565 [ 45 Cal.Rptr.2d 633 ].) Because a court may rely on facts disclosed in a probation officer’s report for the critical purpose of validating the defendant’s plea and resulting conviction, it follows that a court should be able to rely on the defendant’s uncontradicted admission of facts in such a report for the additional purpose of determining the nature or basis of the pleaded offense.
Notably, the majority’s cramped view is at odds with Woodell, supra, 17 Cal.4th 448 , which specifically held that “appellate opinions, in general, are part of the record of conviction that the trier of fact may consider in determining whether a conviction qualifies under the sentencing scheme at issue.” (Id. at p. 457.) Although the majority attempts to distinguish Woodell from the situation here, Woodell rejected the notion that the record leading to imposition of judgment could not include a document prepared after a conviction and sentencing. (Id. at pp. 454-455.) Today’s decision—which categorizes a probation officer’s report as a “postconviction” document that is not part of the record of conviction because it is prepared after the defendant pleads guilty, even though his trial proceedings have not concluded—would seem to require disapproval of Woodell’s holding that the record of conviction may include a judicial opinion and other appellate documents written after the trial proceedings but before a judgment becomes final.
Finally, although the majority’s rule happens to aid the defendant in this particular case, other defendants may suffer from the rule’s effect of unduly *186 limiting the documents comprising a record of conviction. For instance, what if a probation officer’s report contains information favorable to a defendant and shows the prior felony conviction should not be considered a strike? Under the majority’s analysis, a trial court would be barred from admitting and considering such information, even though the balance of the record of conviction otherwise supports a finding that the prior felony was serious or violent. There appears no legal, logical, or public policy reason to limit a trial court’s review to such misleadingly incomplete information. (See Woodell, supra, 17 Cal.4th at p. 456 [noting similar concern in the context of appellate opinions].)
II.
As an additional justification for its conclusion that a defendant’s admission of facts in a probation officer’s report is outside the record of conviction, the majority states: “Permitting a defendant’s statement made in a postconviction probation officer’s report to be used against him to establish the nature of the conviction would . . . creat[e] harm akin to double jeopardy and forc[e] the defendant to relitigate the circumstances of the crime.” (Maj. opn., ante, at p. 180, relying on People v. Guerrero (1988) 44 Cal.3d 343, 355 [ 243 Cal.Rptr. 688 , 748 P.2d 1150 ].) This reasoning is devoid of merit.
In People v. Melton (1988) 44 Cal.3d 713 [ 244 Cal.Rptr. 867 , 750 P.2d 741 ], the defendant in a capital case argued that evidence of prior criminal activity that previously had been subject to a plea bargain should not have been admitted at the penalty phase. Melton concluded, however, that “one is not placed ‘twice in jeopardy for the same offense’ when the details of misconduct which has already resulted in conviction and punishment, or in dismissal pursuant to a plea bargain or for witness unavailability, are presented in a later proceeding on the separate issue of the appropriate penalty for a subsequent offense.” (Id. at p. 756, fn. 17; see also Monge v. California (1998) 524 U.S. 721, 724 [ 141 L.Ed.2d 615 , 118 S.Ct. 2246 ] [double jeopardy clause does not extend to noncapital sentencing proceedings]; People v. Monge (1997) 16 Cal.4th 826 [ 66 Cal.Rptr.2d 853 , 941 P.2d 1121 ] (lead opn. of Chin, J.) [state and federal double jeopardy principles do not bar retrial of prior conviction allegations].) As another court summarized, “when a plea bargain calls for striking an enhancement, that merely means the enhancement cannot be used to enhance the current conviction. The plea bargain does not bar the use of the facts underlying the stricken enhancement in sentencing on a subsequent conviction. [Citations.]” (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1527 [ 86 Cal.Rptr.2d 134 ].) Given these settled legal principles, it is difficult to comprehend the majority’s double jeopardy concerns in the context of this case.
*187 Setting aside the fact this case involves a recidivist sentencing scheme that does not subject a defendant to double jeopardy for the same offense, and also setting aside the legal point that double jeopardy principles are in any event inapplicable in the noncapital sentencing context (Monge v. California, supra, 524 U.S. at p. 724 ), it remains unclear how the harm perceived by the majority could be implicated by consideration of a probation officer’s report, but not also by consideration of a preliminary hearing transcript (Reed) or an appellate opinion (Woodell). The majority’s discussion on this point is vague, and no meaningful distinction appears.
III.
The Three Strikes law makes clear the Legislature’s intent “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (§ 667, subd. (b).) A probation officer’s report is reasonably and logically viewed as part of the record of a defendant’s prior conviction because: (1) a probation officer’s report is an official document that is designed to include the facts and circumstances of the crime; (2) the rules governing the preparation of such reports, coupled with the opportunity afforded defendants to challenge misstatements in the reports, contribute to the reliability of the information contained therein; and (3) a trial court in a negotiated plea case retains broad discretion at a sentencing hearing to affirm or withdraw its prior approval of a plea bargain based on facts disclosed in a probation officer’s report and other information subsequently coming to light. Given the nature and content of a probation officer’s report, as well as the role such a report may play in the specific context of a negotiated plea, I can only conclude that a probation officer’s report properly is considered part of the record of the prior conviction for purposes of a serious or violent felony determination.
That said, I do not take issue with the decisional law recognizing that a trial court may consider the matters contained in a probation officer’s report only to the extent the matters are relevant and otherwise admissible under the normal rules of evidence. In this regard, the majority does not contest the determination in People v. Monreal, supra, 52 Cal.App.4th 670 , that a defendant’s admission in a probation officer’s report is admissible in a sentencing hearing under Evidence Code sections 1220 (party admission exception to the hearsay rule) and 1280 (public employee record exception). (People v. Monreal, supra, 52 Cal.App.4th at pp. 676-678; see also Reed, supra, 13 Cal.4th at p. 230 .) Neither do I.
*188 In sum, I strongly disagree with the majority’s determination that the trial court properly declined to consider defendant’s statement in the probation officer’s report that, “I stuck [the victim] with the knife.” Because defendant’s admission was reflected in an official document that properly belongs in the record of the prior conviction, and because the admission was admissible in court under Evidence Code sections 1220 and 1280,1 would affirm the Court of Appeal’s judgment remanding the matter to the trial court for a retrial on the prior conviction allegation.
Chin, J., and Corrigan, I., concurred.
A trial court’s withdrawal of approval “is permitted, for example, in those instances where the court becomes more fully informed about the case [citation], or where, after further consideration, the court concludes that the bargain is not in the best interests of society. [Citation.]” (People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1338 [ 62 *185 Cal.Rptr.2d 220 ].) Consistent with this broad discretion, the trial court in the prior proceeding at issue declined to rule on the People’s motion to dismiss the count charging assault with a deadly weapon and to strike the knife use allegation at the same time it accepted defendant’s plea. Instead, the court took the People’s motion under submission and indicated it would make its ruling at the time of sentencing.