People v. Denard: Foreign Convictions and the Least Adjudicate Elements Test.

A jury convicted Mr. Denard of breaking into an Ace Hardware store and purloining 15K worth of merchandise, a violation of California Penal Code section 459, second degree burglary.  Denard waived his right to a jury trial as to whether he had two prior "strike" convictions out of Florida.  The trial court found that Denard's Florida convictions for "burglary of a dwelling" and "second degree felony manslaughter" each qualified as "strikes" under California law and sentenced Denard accordingly.

A Second District panel reverses on the strike findings and remands for resentencing.  

The "burglary of a dwelling" conviction was evinced by an information, an order of conviction, an order of judgment, and a commitment order.  None of the evidence contained any factual basis for the conviction.  With no factual information, the issue became whether violating Florida's crime of "burglary of a dwelling" would necessarily constitute a violation of California's crime of residential burglary (a strike).  

The answer is "no".  Florida's crime encompasses a broader range of acts than California such that a person could commit Florida's crime of "burglary dwelling" without committing California's crime of "residential burglary".  So without any factual information within the record of conviction, the trial court's finding was not supported by substantial evidence.

However as to the Florida "second degree felony manslaughter", the people introduced not just the documents eluded to above as in the burglary case, but a policeman's affidavit of probable cause to arrest Denard for first degree murder and armed burglary.  Denard's lawyer did not object to their admission.

The panel holds that the trial court should not have considered the affidavit because it is not part of the "record of conviction", rather it was a non-judicial document containing multiple hearsay which was never incorporated into the record of conviction (distinguishing cases where a defendant stipulates to similar documents as providing the factual basis for his plea).  

Using the appellate court's discretion to consider a Constitutional violation despite a lack of objection in the trial court, the panel finds that Denard's Sixth Amendment rights were violated when the trial court considered the affidavit.  With the affidavit out, the remaining evidence only proved Denard was convicted of violating Florida's "second degree felony manslaughter", a crime which encompasses acts beyond those prohibited by California's voluntary manslaughter statute.  As with the burglary count, as there was no evidence Denard's manslaughter conviction was based upon facts which would have necessarily constituted a voluntary manslaughter had they happened in California, the trial court's finding is reversed for lack of substantial evidence.