Filed 10/28/16
            CERTIFIED FOR PARTIAL PUBLICATION*



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION ONE


THE PEOPLE,                                  B260824

       Plaintiff and Respondent,             (Los Angeles County
                                             Super. Ct. No. YA088533)
       v.

CHADWICK VERNON LEARNARD,

       Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County. Alan B. Honeycutt, Judge. Affirmed in part,
reversed in part, and remanded with directions.
      Heather L. Beugen, under appointment by the Court of
Appeal, for Defendant and Appellant.



       * Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of the Factual Background and part I of the Discussion, pages 3–
12.
      Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney
General, for Plaintiff and Respondent.

                    _________________________________

       Chadwick Vernon Learnard appeals from the judgment
entered following a jury trial in which he was convicted of one
count of assault with a deadly weapon (Pen. Code,1 § 245, subd.
(a)(1), count 1) and one count of simple battery2 (§ 242, count 5).
The trial court found that appellant had suffered two prior
qualifying convictions under the “Three Strikes” law (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)), two prior serious felony
convictions (§ 667, subd. (a)), and two prior prison terms (§ 667.5,
subd. (b)). The court sentenced appellant to an aggregate term of
35 years to life in state prison.3




      1   Undesignated statutory references are to the Penal Code.
      2  The jury was unable to reach a verdict on count 2, assault
by means likely to produce great bodily injury. (§ 245, subd.
(a)(4).) The court found the jury was deadlocked and declared a
mistrial as to that count.
      3 The sentence consisted of an indeterminate term of 25
years to life on count 1, plus two five-year enhancements for the
two prior serious felony convictions. (§§ 667, subds. (a), (e)(2).)
On count 5, the court sentenced appellant to 180 days in county
jail with credit for time served.




                                  2
       We reverse the trial court’s determination that appellant’s
2002 conviction for aggravated assault constituted a serious
felony conviction and hence a strike based on the court’s reliance
on judicial fact-finding beyond the elements of the prior
conviction itself. Given that none of the documents in the record
of the prior conviction distinguished between assault with a
deadly weapon and assault by means likely to produce great
bodily injury, the trial court’s determination that the prior
conviction constituted a serious felony is unsupported by
substantial evidence. Accordingly, we remand the matter for
resentencing. In all other respects, we affirm.
                    FACTUAL BACKGROUND*
       On October 1, 2013, about 3:00 p.m., Luisina Hare and her
husband, Charles, drove to the Fantastic Cafe in Lomita to pick
up lunch. Their six-month-old son was in the backseat of the car.
As the Hares pulled into the restaurant’s parking lot, they saw
their friend Kari Lightfoot driving with her six-year-old son in
the car. Luisina parked near the back door of the restaurant, and
Lightfoot parked nearby leaving an empty parking space between
the two vehicles. Sitting in their vehicles with the windows
rolled down, the Hares chatted briefly with Lightfoot.
       Charles got out of the car, and as he walked toward the
restaurant, appellant emerged from the restaurant carrying a
skateboard. Appellant yelled several times at Charles, “ ‘I heard
you were talking shit.’ ” Charles looked up and saw appellant
approaching rapidly. Holding the skateboard at shoulder height



      * See footnote, ante, page 1.




                                 3
by its “trucks,”4 appellant struck a forceful blow to Charles’s face
with the end of the skateboard. Charles was able to turn his
head so that the skateboard struck his left cheek and the outer
part of his eye. The force of the blow knocked him into the front
of his car and he fell to the ground. As appellant continued his
attack, Charles curled up and covered his head with his arms.
       Luisina got out of her car and tried to stop the assault on
her husband by jumping on appellant’s shoulder and throwing
her arm around him. But appellant grabbed her face and shoved
her to the ground, ripping off her shirt. While Luisina was on the
ground appellant hit her a couple of times on her back with a
heavy object or his hand.
       Charles stood up and started punching appellant’s head
and body. Appellant fought back, and the two men traded blows.
Luisina went to the driver’s side of the car and tried to pop open
the trunk to get something she could use to stop the fight.
Appellant made a move toward the driver’s side of the Hares’
vehicle, and Charles put his hand on his pocket knife in case he
needed to use it. At this point, appellant said, “Oh, oh, what, you
got a gun?” He took a few steps backward, then turned and
walked away with the skateboard.
       Luisina called 911 and handed the phone to Charles, who
reported the incident. Charles declined medical attention, telling
the operator he only had a scratch on his face and was fine. But
Charles actually suffered several minor injuries from the attack,
including abrasions on both corners of his left eye, a cut on the
bridge of his nose, a cut lip, a scratch on his back, and abrasions

      4 The “trucks” of a skateboard are like a car’s axle: attached
to the bottom of the skateboard, they hold the wheels in place.




                                 4
on his upper chest, left knee, and left forearm. Luisina had an
abrasion on her right knee, as well as bruises on her upper back,
above her left eyebrow, and on her left arm and shoulder. None
of Luisina’s injuries was serious enough to require medical
attention.
        Shortly after the incident, sheriff’s deputies found
appellant in a nearby Laundromat hiding under a table and took
him into custody. As Deputies Thomas Phillips and Stephen
Capra were escorting appellant to their patrol car, Capra noticed
a skateboard that was propped against a traffic barrier in front of
the Laundromat. Aware that the victims had reported a
skateboard being used in the attack, Capra picked it up, and
appellant said, “ ‘Don’t fucking lose my skateboard.’ ”
        In the backseat of the patrol car, appellant became angry
about being detained and started yelling profanities at the
officers. Appellant was sweating profusely and turning red, and
demanded to know why he was “getting in trouble for socking . . .
up . . . a drug dealer.” Claiming he was simply protecting his
neighborhood, appellant declared, “ ‘Those people are dirty. They
were selling drugs.’ ” Appellant called Capra a “ ‘beaner,’ ” a
“ ‘punk-ass bitch,’ ” and a “ ‘child molester.’ ” Phillips described
appellant’s demeanor in the patrol car as “pretty amped up,
belligerent.” Appellant spat at Capra, hitting the Plexiglas shield
between the front and rear seats of the patrol car.
        At the station, appellant was placed in the booking cell, and
his demeanor became increasingly erratic. He alternated
between extreme anger and agitation to becoming emotional and
slumping against the wall crying. He paced the cell, frequently
punching his hand with his fist and slapping his hands against
the walls and the glass door of the cell. He removed his shirt and




                                 5
threw it on the floor. After filling out some paperwork, he threw
the pen against the wall so forcefully that the pen broke. He
ranted and raved, repeatedly yelling, “Why am I in trouble for
socking this guy up, protecting my neighborhood?”
                           DISCUSSION
   I. Admission of evidence of appellant’s postarrest
      conduct and demeanor
      Appellant contends the trial court abused its discretion in
admitting irrelevant and unduly prejudicial evidence of his
postarrest conduct and demeanor. We find no abuse of discretion,
but in any event conclude that any error in admitting such
evidence was harmless.
      Relevant background
      Over strenuous defense objection, the trial court admitted a
22-minute video without audio, which showed appellant in the
booking cell exhibiting extremely agitated and erratic behavior.
The defense also objected to admission of evidence that appellant
spat at Deputy Capra in the patrol car and that appellant called
him a “beaner,” a “punk-ass bitch,” and a “child molester” while
he was being transported to the police station.
      The court did not review the video, but relied on the district
attorney’s description of it as showing appellant “punching and
slamming his hands, both open and closed, against the booking
cage, walls, and counter.” The prosecutor further characterized
appellant’s behavior as “going off in the cell. At some point he is
handed a clipboard and something to write on, and within about
a minute he throws something at the cage and then starts
punching the glass door.” Defense counsel argued the tape was
highly prejudicial and irrelevant, demonstrating only that
appellant was angry about being in custody.




                                 6
       “Upon weighing the considerations under [Evidence Code
section] 352,” the trial court admitted the booking cell video,
finding it to be relevant and not unduly prejudicial.5 The court
declared that the video appeared “to be highly probative of the
demeanor of [appellant] at the time of the incident.” The court
concluded that appellant’s actions in the patrol car and his
demeanor in the booking cell helped to explain appellant’s
conduct and demeanor during the commission of a crime in which
he was “alleged to have set upon” total strangers for no apparent
reason.
       No abuse of discretion occurred
       We start with the basic proposition that all relevant
evidence is admissible, except as excluded by statute or the
constitution. (Evid. Code, § 351; see also Cal. Const., art. I, § 28,
subd. (d).) Relevant evidence is defined as evidence “having any
tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.” (Evid. Code,
§ 210.) “ ‘The test of relevance is whether the evidence tends
“logically, naturally, and by reasonable inference” to establish
material facts such as identity, intent, or motive.’ ” (People v.
Bivert (2011) 52 Cal.4th 96, 116–117; People v. Williams (2008)
43 Cal.4th 584, 633–634.)

      5 Because the trial court did not independently review the
video before it was shown to the jury, the court was not in a
position to properly weigh the potential prejudicial effect of its
contents. Although we agree with the trial court’s ruling that the
video was relevant and not unduly prejudicial based on our own
review of the recording, we observe that it would have been far
better practice for the trial court to conduct its 352 analysis on
the basis of an independent review of the evidence.




                                  7
      Even if relevant, a trial court has broad discretion to
exclude evidence “if its probative value is substantially
outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” (Evid. Code, § 352; People v. Lee (2011)
51 Cal.4th 620, 643.) We review the trial court’s rulings on the
admissibility of evidence, including those based on relevancy and
Evidence Code section 352, for abuse of discretion. (Lee, at
p. 643; People v. Hamilton (2009) 45 Cal.4th 863, 929–930 [“ ‘Our
review on this issue is deferential’ ”].) The mere fact that
reasonable people might disagree over the trial court’s decision
does not provide grounds for reversal. “[A] trial court does not
abuse its discretion unless its decision is so irrational or arbitrary
that no reasonable person could agree with it.” (People v.
Carmony (2004) 33 Cal.4th 367, 377.)
      Appellant argues that evidence of his postarrest
demeanor—his conduct in the police car and the video depicting
appellant in a violent rage and “going nuts in the booking cage”—
was irrelevant to any issue before the jury, and the trial court
abused its discretion in admitting it. To the contrary, evidence of
appellant’s postarrest conduct and demeanor was relevant to
counter the defense theory by showing appellant’s entire course
of conduct, from his agitated pacing inside the restaurant before
the assault6 to his agitation and rage in the patrol car and
booking cell immediately after the assault.


      6Video from inside the restaurant showed appellant pacing
back and forth moments before the unprovoked assault on
Charles. Although the video was not available to be shown to the




                                  8
      The prosecution sought to introduce evidence of appellant’s
postarrest conduct and demeanor to contradict the defense theory
that appellant was acting in self-defense and protecting his
neighborhood from drug dealers when he committed an
apparently senseless act of violence on a random stranger.
Evidence of appellant’s extreme agitation and erratic behavior
toward police immediately after he attacked complete strangers
with their infant at a restaurant was certainly relevant to rebut
the defense and establish the material facts of intent and motive.
Appellant’s conduct in the police car was inconsistent with a
person who had merely protected his neighborhood from drug
dealers and acted in self-defense. Moreover, the video evidence
from the booking cell within 30 minutes of the assault, combined
with evidence of appellant’s agitated state in the restaurant
before the offense, tended to show a continuing course of conduct
which contradicted the defense theory of the case.
      Although motive is not an element of a crime, it makes the
crime understandable and renders the inferences regarding
defendant’s intent more reasonable. (People v. Riccardi (2012)
54 Cal.4th 758, 815, overruled on other grounds in People v.
Rangel (2016) 62 Cal.4th 1192, 1216.) “ ‘ “[B]ecause a motive is
ordinarily the incentive for criminal behavior, its probative value
generally exceeds its prejudicial effect, and wide latitude is
permitted in admitting evidence of its existence.” ’ ” (People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1168.)



jury, the investigating officer who had seen it testified that
appellant “seemed a little agitated” just before he walked out of
the rear door to the parking lot.




                                 9
       As part of a continuing course of conduct which started in
the restaurant just before his encounter with the Hares,
appellant’s behavior immediately after the incident went a long
way to explaining his conduct during the confrontation. The
evidence was therefore relevant to proving a disputed fact that
was of consequence to an important issue the jury was called
upon to decide.
       Appellant further argues that the 22-minute video showing
“an extremely irate, irrational and violent” person was unduly
prejudicial. We might agree if the video actually depicted such
violence and unchecked rage. However, in our view, it does not.
Instead, the video shows a clearly agitated individual who
appears to be angry and upset about his situation. Appellant is
cooperative as police remove his belt and he enters the booking
cell. Appellant then becomes agitated, pacing back and forth,
and punching his left hand with his right fist. He slaps the wall,
the glass door, the window, and the counter with both hands
multiple times. He removes his shirt, and repeatedly throws it,
picks it up, and throws it again. Police hand him a clipboard
with paper and a pen. Appellant is again cooperative as he
appears to write on the paper and hand the clipboard back to
police. Then he throws the pen violently against the window of
the cell. Several times, appellant slumps against the wall, and
stands or sits quietly with his head in his hands before resuming
his agitated pacing.
       Contrary to appellant’s characterization, the video simply
does not depict a violent individual in an uncontrolled rage, but
rather, a person in a state of high emotion and agitation. Under
the prosecution’s theory, this behavior in the cell was part of a
continuing course of conduct that helped explain the assault on a




                                10
stranger who happened to cross appellant’s path. Accordingly,
we conclude the video was relevant to a material issue and not
unduly prejudicial. We cannot say that the trial court’s
admission of the evidence in this instance was so irrational or
arbitrary that no reasonable person could agree with it. (People
v. Carmony, supra, 33 Cal.4th at p. 377.)
      Any error was harmless
      Even were we to find the trial court abused its discretion in
admitting the evidence of appellant’s postarrest conduct and
demeanor, reversal would not be warranted. “Absent
fundamental unfairness, state law error in admitting evidence is
subject to the traditional Watson test: The reviewing court must
ask whether it is reasonably probable the verdict would have
been more favorable to the defendant absent the error.” (People
v. Partida (2005) 37 Cal.4th 428, 439; People v. Watson (1956)
46 Cal.2d 818, 836.)
      We find no reasonable probability of a more favorable
outcome had the trial court excluded the video evidence in this
case. Three witnesses testified to appellant’s unprovoked attack
on Charles with a skateboard. The jury also heard the 911 call in
which Charles reported appellant had hit him in the face with a
skateboard. Although relatively minor, Charles’s injuries were
consistent with being struck by a skateboard. Several times,
appellant admitted to “socking” Charles, and he acknowledged
the skateboard Deputy Capra picked up outside the Laundromat
belonged to him. Police found appellant hiding in a Laundromat
near the restaurant after the attack. Moments before the
assault, as he paced back and forth, appellant appeared agitated
on the restaurant video. Despite appellant’s claim that he was
protecting his neighborhood from drug dealers and had acted in




                                11
self-defense, there was no evidence the Hares were selling drugs,
and appellant suffered no injuries indicative of having had to
defend himself. In short, given the overwhelming demonstration
of appellant’s guilt, any error in admitting the evidence of
appellant’s postarrest conduct and demeanor was undeniably
harmless.
    II. The prior serious felony determination
        Appellant contends substantial evidence does not support
the trial court’s conclusion that his 2002 conviction for
aggravated assault constituted a serious felony and qualified as a
prior strike conviction under the Three Strikes law. We agree.
        Relevant background
        The information alleged two prior convictions under the
Three Strikes law: (1) a 2002 conviction for aggravated assault
following a guilty plea (§ 245, subd. (a)(1)); and (2) a 2012
conviction for criminal threats (§ 422). Appellant waived his
right to a jury trial and admitted he had suffered the two prior
felony convictions, while contending the assault conviction did
not constitute a serious or violent felony, and thus did not qualify
as a strike. The trial court reviewed what it described as the
“record of conviction” in the assault case, which included the
abstract of judgment, the information, the transcript from the
preliminary hearing, and the probation department’s
preconviction report. The trial court did not have before it the
transcript from appellant’s plea colloquy in the case.
        The notation in the abstract of judgment described the
offense as a violation of section 245, subdivision (a)(1), “Assault w
deadly wpn/GBI.” The information charged: “On or about
February 9, 2002, . . . the crime of assault with deadly weapon, by
means likely to produce GBI, in violation of Penal Code section




                                 12
245(a)(1), a Felony, was committed by [Defendant], who did
willfully and unlawfully commit an assault . . . with a deadly
weapon, to wit, [a] baseball bat, and by means of force likely to
produce great bodily injury.” (Italics added.)
      Defense counsel argued that because the information and
the abstract referred to the offense as both an assault with a
deadly weapon and an assault with force likely to produce great
bodily injury, it was impossible to determine whether appellant
had admitted an assault with a deadly weapon when he entered
his plea. Counsel further maintained that the testimony adduced
at the preliminary hearing had no bearing on what facts, if any,
appellant admitted as part of his guilty plea. Based on
appellant’s record of conviction, counsel argued it was not
possible to find beyond a reasonable doubt that appellant
admitted use of a deadly weapon at the time of his plea.
      The trial court determined the prior assault conviction
qualified as a strike. The court recognized that the reference in
the abstract of judgment to both a deadly weapon and great
bodily injury created some ambiguity, but noted that the
information “set[] out clearly that a baseball bat was used in the
assault under 245(a)(1).” The court further declared that both
the preliminary hearing transcript and the preconviction report
showed that appellant had used a deadly weapon.
      Former Penal Code section 245, subdivision (a)(1)
      When appellant pleaded guilty to aggravated assault in
2002, section 245, subdivision (a)(1) provided in relevant part:
“Any person who commits an assault upon the person of another
with a deadly weapon or instrument other than a firearm or by
any means of force likely to produce great bodily injury shall be
punished . . . .” Former section 245, subdivision (a)(1) thus




                                13
described alternative means of committing the same offense,
aggravated assault, within the same subdivision, and a jury could
convict without regard to whether the crime was committed by
means of a deadly weapon or by force likely to produce great
bodily injury.7 (People v. Aguilar (1997) 16 Cal.4th 1023, 1036–
1037 [violation of section 245, subdivision (a)(1) required proof of
two elements: “One, a person was assaulted, and two, the assault
was committed by the use of a deadly weapon or instrument or by
means of force likely to produce great bodily injury”]; People v.
Martinez (2005) 125 Cal.App.4th 1035, 1043; In re Mosley (1970)
1 Cal.3d 913, 919, fn. 5 [section 245 “define[d] only one offense, to
wit, ‘assault upon the person of another with a deadly weapon or
instrument or by any means of force likely to produce great bodily
injury’ ”].)
       Although use of a deadly weapon and great bodily injury
were interchangeable for purposes of conviction under former
section 245, subdivision (a)(1), under the Three Strikes law only
assault with a deadly weapon constitutes a serious felony.
(§§ 1192.7, subd. (c)(31), 667, subd. (d)(1), 1170.12, subd. (b)(1);
People v. Delgado (2008) 43 Cal.4th 1059, 1065 (Delgado).)
Accordingly, the mere fact of a conviction for aggravated assault
under former section 245, subdivision (a)(1) would be insufficient
to establish the prior conviction was a strike in any case in which


      7 In 2012, the Legislature amended section 245 by deleting
the phrase “or by any means of force likely to produce great
bodily injury” from subdivision (a)(1) and placing it in newly
enacted subdivision (a)(4) (Stats. 2011, ch. 183, § 1), thereby
separating the two ways in which an aggravated assault could
occur.




                                 14
the verdict or plea did not specify the precise means used to
commit the offense.
       Substantial evidence does not support the trial
       court’s finding that the prior conviction was a serious
       felony
       The prosecution is required to prove each element of an
alleged sentence enhancement beyond a reasonable doubt.
(Delgado, supra, 43 Cal.4th at p. 1065; People v. Miles (2008) 43
Cal.4th 1074, 1082.) Where, as here, the mere fact that a
defendant was convicted under a particular statute does not
establish the serious felony allegation, our Supreme Court has
held that the sentencing court may examine “the record of the
prior criminal proceeding to determine the nature or basis of the
crime of which the defendant was convicted.” (People v. McGee
(2006) 38 Cal.4th 682, 691 (McGee); People v. Trujillo (2006) 40
Cal.4th 165, 179; Delgado, at p. 1065.)
       A plea of no contest admits the elements of the crime, but
does not constitute an admission of any aggravating
circumstances. (People v. French (2008) 43 Cal.4th 36, 49.) “[I]f
the prior conviction was for an offense that can be committed in
multiple ways, and the record of the conviction does not disclose
how the offense was committed, a court must presume the
conviction was for the least serious form of the offense.
[Citations.] In such a case, if the statute under which the prior
conviction occurred could be violated in a way that does not
qualify for the alleged enhancement, the evidence is thus
insufficient, and the People have failed in their burden.”
(Delgado, supra, 43 Cal.4th at p. 1066.)
       We review the record in the light most favorable to the
judgment to determine whether it is supported by substantial




                               15
evidence. (Delgado, supra, 43 Cal.4th at p. 1067.) “In other
words, we determine whether a rational trier of fact could have
found that the prosecution sustained its burden of proving the
elements of the sentence enhancement beyond a reasonable
doubt.” (People v. Miles, supra, 43 Cal.4th at p. 1083; People v.
Ledbetter (2014) 222 Cal.App.4th 896, 900.)
       The trial court was permitted to draw reasonable
inferences from the records offered to prove appellant suffered a
prior serious felony conviction. (Delgado, supra, 43 Cal.4th at
p. 1066; People v. Henley (1999) 72 Cal.App.4th 555, 561.) But
the court here went beyond reasonable inference when it actually
weighed the evidence contained in those documents in order to
make its own factual determination about the nature of the
offense. In reaching its conclusion that the reference to a deadly
weapon (a baseball bat) established the crime as a serious felony,
the court simply disregarded references in both the information
and the abstract of judgment to assault by means of force likely
to produce great bodily injury. The court did the same with
respect to the conduct described at the preliminary hearing.
There, the victim testified that the defendant hit the victim’s left
shoulder as he struck the victim’s car with a baseball bat. But
the victim also testified that the defendant grabbed him with
both hands and tried “to tear [him] out of the car.” In concluding
that the conduct described constituted an assault with a deadly
weapon and thus a serious felony, the court again simply ignored
evidence that established an assault with force likely to produce
great bodily injury.
       Because the evidence presented by the prosecution
established appellant’s prior conviction could have rested on use
of a deadly weapon or force likely to produce great bodily injury,




                                 16
it was insufficient to prove appellant guilty of a prior serious
felony conviction beyond a reasonable doubt.8 Without further
evidence of the underlying circumstances, it must be presumed
that appellant’s conviction under former section 245,
subdivision (a)(1) was for the least serious form of the offense,
that is, assault by means of force likely to produce great bodily
injury. (Delgado, supra, 43 Cal.4th at p. 1066.)
       The trial court’s finding that appellant’s prior conviction for
aggravated assault constituted a serious felony lacked
substantial evidentiary support. We therefore conclude the court
erred in imposing sentence enhancements under section 667,




      8 The preconviction report also fails to provide substantial
evidence that the prior conviction involved use of a deadly
weapon. Citing the police report as its source, the preconviction
report sets forth only the defendant’s assault on the victim with a
baseball bat. But there is no way to determine whether the police
report itself recounted other conduct that was simply omitted
from the preconviction report. And there is no indication that the
facts recounted in the preconviction report formed the factual
basis for appellant’s plea. In the absence of any evidence that
appellant stipulated to or even acknowledged the facts as set
forth in the preconviction report in entering his plea, this
document has no relevance in determining the nature or basis of
the crime of which appellant was actually convicted. (See, e.g.,
McGee, supra, 38 Cal.4th at p. 706 [purpose of examination of
record of earlier criminal proceeding is “to ascertain whether that
record reveals whether the conviction realistically may have been
based on conduct that would not constitute a serious felony”];
People v. Denard (2015) 242 Cal.App.4th 1012, 1028, 1029.)




                                 17
subdivision (a) and the Three Strikes law.9 In light of our
decision on substantial evidence grounds, we need not address
appellant’s constitutional challenge to the sentence.




      9  Although “the double jeopardy clause does not bar retrial
of a prior conviction allegation after an appellate finding of
evidentiary insufficiency” (Monge v. California (1998) 524 U.S.
721, 734; People v. Seel (2004) 34 Cal.4th 535, 541), retrial of the
prior conviction allegation in this case is not warranted. In
considering whether a prior conviction is serious, the court’s
inquiry is limited to “a legal determination of the nature of
defendant’s prior convictions as established by the record of the
prior criminal proceedings.” (McGee, supra, 38 Cal.4th at p. 702.)
Accordingly, “ ‘the trier of fact may look to the entire record of the
conviction’ but ‘no further.’ ” (People v. Kelii (1999) 21 Cal.4th
452, 456–457.) The prosecution may not call witnesses to testify
about the facts of the prior offense, nor may the trial court
consider evidence outside of the record of conviction to make
findings about the defendant’s earlier conduct. (McGee, at
pp. 694, 706.) Here, after presenting all available documents
from the record of conviction the prosecution failed to carry its
burden of proving beyond a reasonable doubt that appellant’s
prior conviction should qualify as a strike. There is no reason to
conclude that another trial on the issue would produce a different
result. (Cf. People v. Roberts (2011) 195 Cal.App.4th 1106, 1133
[insufficient evidence to support strike finding does not preclude
retrial of strike allegation; “prosecution may present additional
evidence that is included within ‘the entire record of the
conviction’ to establish that the [prior] conviction constituted a
strike”].)




                                  18
                           DISPOSITION
       The trial court’s determination that the 2002 conviction for
assault with a deadly weapon or by means likely to produce great
bodily injury constituted a prior serious felony conviction and a
strike is reversed. The cause is remanded for resentencing. In
all other respects the judgment is affirmed.
       CERTIFIED FOR PARTIAL PUBLICATION.



                                          LUI, J.
We concur:



      CHANEY, Acting P. J.



      JOHNSON, J.




                                19
