Filed 9/30/16 P. v. Schaar CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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


        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070279
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MF010998A)
                   v.

DAVID WILLIAM SCHAAR,                                                                    OPINION
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush and Colette M. Humphrey, Judges.

         Tutti Hacking, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda E.
D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-

         *Before    Levy, Acting P.J., Peña, J. and McCabe, J.†
         †Judge ofthe Merced Superior Court assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
                                      INTRODUCTION
       Pursuant to a plea agreement, appellant David William Schaar pled no contest to
one count of violating Penal Code1 section 69, resisting arrest, and admitted suffering a
prior conviction for violating section 243, subdivision (d) (section 243(d)), battery, but
reserved the right to contest whether the prior conviction constituted a strike offense for
purposes of sentencing. At sentencing, the trial court found the prior conviction to be a
strike and imposed double the low term for the section 69 offense pursuant to section
667, subdivision (e).
       Schaar contends, and the People concede, insufficient evidence supports the trial
court’s finding the prior conviction constituted a strike. Schaar also requests this court to
independently review the documents produced in response to a motion made pursuant to
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We reverse the finding that
the prior conviction constitutes a strike and remand for resentencing.
                      FACTUAL AND PROCEDURAL SUMMARY
       On February 21, 2014, Schaar was charged in count 1 with violating section 67,
offering a bribe to an executive officer; in count 2 with violating section 422, making
criminal threats; in count 3 with violating section 69, resisting arrest; and in count 4 with
violating Health and Safety Code section 11357, subdivision (a), possession of
concentrated cannabis. Count 2 was subsequently dismissed pursuant to section 995.
       On April 23, 2014, Schaar filed a Pitchess motion seeking personnel records of the
arresting officer pertaining to incidents of falsification of information, omission of
information in reporting investigations, dishonesty in reporting investigations, conduct
unbecoming an officer, and use of excessive force. The People filed opposition to the
motion.



       1References   to code sections are to the Penal Code unless otherwise specified.


                                                2.
       At a hearing on the Pitchess motion held on May 15, 2014, the trial court indicated
it would review the personnel records for “dishonesty only.” At the conclusion of the in
camera hearing, the trial court stated it had reviewed the personnel file and “[t]here is
nothing in the file that’s responsive to this motion.”
       On July 3, 2014, Schaar entered into a plea agreement. In exchange for pleading
no contest to a felony violation of section 69 and admitting a prior conviction for
violating section 243(d), the remaining charges and allegations would be dismissed. As
to the prior conviction, Schaar admitted suffering the conviction, but reserved the right to
contest “whether or not it’s a strike.”
       In September 2014, Schaar filed a motion to withdraw his plea. The motion
alleged Schaar had not been informed of the consequences of his plea when he pled to the
prior offense in 2010, and Schaar now wished to withdraw his current plea wherein he
admitted the prior offense. The transcript of the 2010 plea hearing reflected Schaar pled
to a felony offense of violating section 243(d).
       The People filed opposition to the motion. The People noted there was no
language indicating Schaar was an aider and abettor to the section 243(d) offense. The
People asserted this fact, combined with the plea to a section 243(d) offense, was
sufficient to put Schaar on notice he was pleading to a serious felony. The People
maintained the offense was a serious felony and, therefore, a strike offense, even though
there was no allegation that Schaar personally inflicted serious bodily injury on the
victim.
       At the September 18, 2014, sentencing hearing, the trial court denied the motion to
withdraw the plea stating, “I don’t think it’s mandated that the defendant be advised at
the time he’s taking the plea that it is a strike.” The trial court also noted the factual basis
for the 2010 plea was the police reports, which the trial court had reviewed. Based upon
the police reports and Schaar’s plea in 2010, the trial court found the prior conviction to
be a strike.

                                               3.
       Schaar was sentenced to double the low term for the section 69 offense pursuant to
section 667, subdivision (e). Various fines and fees were imposed. Schaar was awarded
489 days of custody credits.
       Schaar filed a notice of appeal on October 14, 2014, and requested a certificate of
probable cause, which was granted.
                                       DISCUSSION
       Schaar contends the evidence is insufficient to prove his 2010 conviction was for a
serious or violent felony and therefore a strike conviction. The People concede the
evidence is insufficient and request the matter be remanded for further proceedings.
       Schaar also asks this court to independently review the personnel records
produced in response to his Pitchess motion. The People have no objection to our
independent review of the Pitchess documents.
I.     Insufficient Evidence of Prior Strike
       When a defendant is convicted of a felony offense and it is pled and proven that he
or she previously had been convicted of a serious or violent felony, sentencing “proceeds
under the Three Strikes law.” (People v. Superior Court (Romero) (1996) 13 Cal.4th
497, 505.) As relevant to Schaar’s appeal, section 667.5, subdivision (c)(8) provides that
a violent felony for purposes of three strikes sentencing includes any “felony in which the
defendant inflicts great bodily injury on any person other than an accomplice which has
been charged and proved as provided for in section 12022.7, 12022.8, or 12022.9.”
Section 1192.7, subdivision (c)(8) specifies that serious felonies include “any felony in
which the defendant personally inflicts great bodily injury on any person, other than an
accomplice.”
       A violation of section 243(d) is not specifically included in the list of serious or
violent felonies in sections 667.5 and 1192.7. To establish a prior conviction for
violating section 243(d) as a serious or violent felony for purposes of three strikes



                                              4.
sentencing, the People were required to show that Schaar personally inflicted the serious
bodily injury, rather than aided and abetted, and that the victim was not an accomplice.
(People v. Bueno (2006) 143 Cal.App.4th 1503, 1508.)
        If a defendant admits a conviction constitutes a conviction for a serious or violent
offense for purposes of three strikes, that admission can be used in subsequent
proceedings. (People v. Bueno, supra, 143 Cal.App.4th at p. 1509.) Schaar made no
such admission at the time he pled to the section 243(d) offense in 2010.
        To ascertain the nature of a prior conviction, the trial court “may look to the entire
record of the conviction, ‘but no further.’” (People v. Trujillo (2006) 40 Cal.4th 165,
180.) Evidence other than the “record of conviction” may not be used to prove a prior
conviction was a serious or violent felony. (People v. Scott (2000) 85 Cal.App.4th 905,
913.)
        The record of conviction includes the charging documents, court records reflecting
a defendant’s guilty or no contest plea, and transcripts of the preliminary hearing and
sentencing hearing. (People v. Gonzales (2005) 131 Cal.App.4th 767, 773.) Police
reports are not part of the record of conviction. (Draeger v. Reed (1999) 69 Cal.App.4th
1511, 1521.) The accuracy of information in a police report is not subject to judicial
notice. (People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17.) It was error for the trial
court to rely upon evidence other than the record of conviction to establish the nature of
the prior conviction. (People v. Scott, supra, 85 Cal.App.4th at p. 913.)
        The trial court also erred in relying upon the lack of any indication in the 2010
plea transcript that Schaar abetted and aided another individual to conclude Schaar must
have personally inflicted great bodily injury on the victim. The court in Bueno rejected
the use of the absence of an allegation of aiding and abetting to establish that a defendant
personally inflicted great bodily injury on someone other than an accomplice. (People v.
Bueno, supra, 143 Cal.App.4th at p. 1510.)



                                              5.
       The record reflects the People failed to produce competent evidence establishing
Schaar’s 2010 conviction for violating section 243(d) constituted a strike offense. The
trial court consequently erred in determining the 2010 conviction was a strike for
purposes of three strikes sentencing, and we reverse the finding.
II.    Retrial on Remand
       Having concluded there was no competent evidence establishing the 2010
conviction constituted a strike conviction, the matter will be remanded for resentencing.
On remand, the People may retry the issue of whether the 2010 conviction constitutes a
strike conviction for purposes of three strikes sentencing. Retrial is not barred when a
prior conviction allegation is reversed for insufficient evidence. (Monge v. California
(1998) 524 U.S. 721, 728; People v. Barragan (2004) 32 Cal.4th 236, 239.)
III.   Pitchess Review
       At the Pitchess hearing, the trial court noted it had reviewed the personnel record
of the officer and determined there were no documents responsive to the motion. We
have independently reviewed the documents reviewed by the trial court in response to the
Pitchess motion and reach the same conclusion. (People v. Mooc (2001) 26 Cal.4th
1216, 1228.)
                                      DISPOSITION
       The true finding that Schaar’s 2010 conviction for violating section 243(d) was a
serious or violent felony for purposes of three strikes sentencing is reversed for
insufficiency of the evidence. The matter is remanded to the trial court for resentencing
and further proceedings consistent with this opinion. In all other respects, the judgment
is affirmed.




                                             6.
