Mr. Learnard was charged with, and convicted of assault with a deadly weapon, a "strike" offense under California law. Additionally, the jury found Learnard had two previous felony convictions. The trial court found both of Learnard's two prior felonies were "strike" offenses and accordingly sentenced Learnard to 35 years to life. Learnard appealed.
The Second District reverses the trial court's finding as to one of the prior felony convictions and remands for resentencing.
The prior felony conviction at issue is for violating former Penal Code section 245(a)(1). At the time of Learnard's conviction, 245(a)(1) was a divisible statute that proscribed "assault with a deadly weapon or by any means of force likely to cause great bodily injury [GBI]". Since felony assault with a deadly weapon is a "strike" offense while felony "assault by any means of force likely to cause [GBI]" is not a strike, simply knowing someone has a prior felony 245(a)(1) conviction isn't dispositive. So the issue here is whether the evidence in front of the trial judge was sufficient for it to have found that Learnard's 245(a)(1) was for an assault with a deadly weapon.
In such cases, the court is permitted to examine the "record of conviction" and determine whether the record evinces which of the two types of assault the defendant committed. Here the State introduced four items from the record in Learnard's previous 245(a)(1) conviction: [1] the abstract of judgment, [2] the information to which he pleaded, [3] the transcript of the preliminary examination, and [4] a preconviction report from the probation department.
Both the abstract of judgment and the information describe Learnard's offense as assault "with a deadly weapon, to wit, baseball bat, and by means of force likely to produce great bodily injury." The preliminary examination transcript showed the victim testified that Learnard hit the victim with a baseball bat and grabbed him by the hands and tried to tear the victim out of the car. The probation report, citing the police report, describes an assault with a baseball bat.
As to the first two documents, the panel finds it a wash. Because the allegation is stated in the conjunctive, it provides no evidence either way as to which theory Learnard pleaded. The preliminary hearing is also inconclusive. It provides evidence to support an assault with a deadly weapon (hitting with the bat) and also evidence to support an assault by means of force (putting hands on the victim). As the reviewing court is prohibited from resolving factual issues, the preliminary examination transcript cannot be said to constitute substantial evidence.
Finally, the probation report is found to have no relevance in determining the basis of the conviction as it is simply inadmissible hearsay plucked from a police report. In sum, since all of the relevant documents were ambiguous as to which type of assault Learnard pleaded, there was insufficient evidence to support the trial court's finding, and the case is remanded for resentencing.
By my calculation, Learnard's sentence should go from 35-life to 13 years.
[As an aside, 245(a)(1) is no longer a divisible statute. The two types of assaults were separated; 245(a)(1) is now assault with a deadly weapon, while assault by force likely to cause GBI is now 245(a)(4).]
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