NOT TO BE PUBLISHED

Super. Ct. No. CRF060983

SCOTLAND, P. J.

A jury convicted defendant Roberto Louis Barron of two counts of attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a); further section references are to the Penal Code unless otherwise specified), two counts of assault with a firearm (§ 245, subd. (a)(2)), and one count of possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)), and the jury found personal use of a firearm allegations to be true (§§ 12022.5, subd. (a), 12022.53, subd. (b)).

The trial court found that defendant had two prior serious felony convictions (strikes). Applying the three strikes law, the court sentenced defendant to an aggregate state prison term of 109 years to life, comprised of consecutive terms of 27 years to life for each of the attempted murder counts plus 10 years for each of the firearm enhancements; a consecutive term of 25 years to life for being a convicted felon in possession of a firearm; and two consecutive terms of five years for the status of having the two prior strikes. Imposition of sentence on the assault with a firearm convictions was stayed pursuant to section 654.

On appeal, defendant contends the court erred in finding that his prior conviction in Colorado for felony menacing was a strike and that there is an error in the abstract of judgment. We will reverse that strike finding, remand for resentencing, and order corrections to the abstract of judgment.

FACTS

After defendant absconded on bail, bounty hunters hired by a Colorado bail agency to find him determined that he was staying in a West Sacramento motel. They went to the motel, obtained a room key from the manager, then pounded on the door defendant’s room, yelling “bail enforcement agents.” Hearing movement inside, one of the bounty hunters opened the door, which was blocked with furniture.

Seeing a person by the bed raise what appeared to be his “gun hand, ” the bounty hunter yelled “gun” and hit the ground. Hearing a gunshot and seeing a muzzle flash, they retreated downstairs to call 9-1-1.

Defendant surrendered peacefully to the police in the motel room. He was unarmed, but there was gunshot residue on his hand, a bullet hole in the wall between the motel room door and window, and an expended casing next to the bed.

DISCUSSION

I

The People alleged that defendant had four strikes within the meaning of sections 667 and 1192.7, i.e., a California robbery conviction in 1973 (§ 211), a Colorado first degree burglary conviction in 1983 (Colo. Rev. Stat. § 18-4-202), a Colorado felony menacing conviction in 2001 (Colo. Rev. Stat. § 18-3-206), and a Colorado robbery conviction in 2001 (Colo. Rev. Stat. § 18-4-301).

The trial court ruled the California robbery conviction and the Colorado felony menacing conviction are strikes.

Defendant challenges only the ruling on the Colorado felony menacing conviction. For reasons that follow, we agree with him that the conviction does not fall within the statute enumerating the offenses that constitute strikes.

A prior conviction is a strike only if it is listed in section 1192.7, subdivision (c) as a serious or violent felony. “The lists of serious and violent felonies include both specific, enumerated crimes and descriptions of criminal conduct. [Citations.]” (People v. Ruiz (1999) 69 Cal.App.4th 1085, 1089.) For example, “any felony in which the defendant personally uses a firearm” is a serious felony. (§ 1192.7, subd. (c)(8).)

“[F]or purposes of the three strikes law, to count as a strike, a prior foreign criminal conviction must be for an offense that, had it been committed in California, would have been a felony. [Citations.]” (People v. Warner (2006) 39 Cal.4th 548, 559.)

In determining whether a prior conviction is a strike, “the trier of fact [may] look to the entire record of the conviction” but may look “no further.” (People v. Guerrero (1988) 44 Cal.3d 343, 355.) The record of the conviction includes all relevant documents found in the court file of the prior conviction. (People v. Castellanos (1990) 219 Cal.App.3d1163, 1172.) Hearsay evidence is inadmissible unless the statements fall under an exception to the hearsay rule. (People v. Reed (1996) 13 Cal.4th 217, 230.)

“[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 serious felony nature of the prior conviction depends upon the particular conduct that gave rise to the conviction, the record is insufficient to establish that a serious felony conviction occurred.” (People v. Miles (2008) 43 Cal.4th 1074, 1083.)

Colorado Revised Statutes, section 18-3-206, defines felony menacing as follows: “(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed: [¶] (a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or [¶] (b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon, ” which includes a firearm whether loaded or unloaded.

The record of defendant’s felony menacing conviction in 2001 is sparse. The charging document states that defendant “by threat and physical action and by use of a deadly weapon, to wit: FIREARM, did unlawfully, feloniously and knowingly place and attempt to place JESUS AMAYA in fear of imminent serious bodily injury; in violation of 18-3-206 C.R.S.” The record contains an affidavit supporting the arrest warrant, but this is inadmissible hearsay.

Unless the record of the Colorado crime of felony menacing establishes that it was based on conduct that would constitute a felony in California, the fact that defendant used a firearm in committing the Colorado crime does not make it a strike by virtue of section 1192.7, subdivision (c)(8), which applies when the defendant “uses a firearm” in the commission of “any felony.” (Italics added.)

As we will explain, the record of the Colorado felony menacing conviction does not support a finding that it was based on conduct that would have been a felony in California. Thus, the holding in People v. Reynolds (1991) 232 Cal.App.3d 1528, 1534-1535 (hereafter Reynolds), upon which the trial court relied in finding the Colorado felony menacing conviction is a strike, does not apply.

The California felony most analogous to felony menacing is a criminal threat. (§ 422.) To prove a section 422 violation, “the prosecution must establish (1) that the defendant had the specific intent that his statement would be taken as a threat (whether or not he actually intended to carry the threat out), and (2) that the victim was in a state of ‘sustained fear.’ The prosecution must additionally show that the nature of the threat, both on ‘its face and under the circumstances in which it is made, ’ was such as to convey to the victim an immediate prospect of execution of the threat and to render the victim’s fear reasonable.” (People v. Garrett (1994) 30 Cal.App.4th 962, 966-967.)

Felony menacing is a general intent crime (People v. Crump (Colo. 1989) 769 P.2d 496, 498-499); “it is not necessary to prove actual subjective fear on the part of the victim.” (People v. District Court (Colo. 1996) 926 P.2d 567, 571.) Since there is no evidence supporting a finding of a specific intent to cause fear, the felony menacing conviction does not contain all of the elements of a criminal threat.

The People argue that defendant’s felony menacing conviction is the equivalent of felony assault with a deadly or dangerous weapon, assault with means likely to produce great bodily injury (§ 245, subd. (a)(1)), or assault with a firearm (§ 245, subd. (a)(2)). We disagree.

In California, “[a]ssault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury. [Citation.]” (People v. Miceli (2002) 104 Cal.App.4th 256, 269.) An apparent ability to injure does not satisfy the actus reus of assault; the crime of assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.)

Because the Colorado felony menacing statute does not require the present ability to injure the victim (People v. McPherson (Colo. 1980) 200 Colo. 429, 433 [619 P.2d 38, 41]), it does not, on its face, constitute assault as defined in California.

The menacing display of a firearm may support a finding of a present ability to injure (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1437-1438), but the presence of a firearm does not inevitably elevate a threat into an assault. Absent evidence a defendant tried to use the gun as a club or bludgeon, the defendant cannot be convicted of assault with an unloaded firearm; this is so because the People must prove the defendant had the present ability to inflict violent injury. (People v. Rodriguez (1999) 20 Cal.4th 1, 10-11.)

Thus, in California, assault is not committed by a person merely pointing an unloaded gun at another person in a threatening manner. (People v. Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3.) However, under Colorado law, if the defendant makes a threat with an unloaded firearm that places the victim in reasonable fear for his or her safety, the defendant has committed felony menacing, regardless of whether he has the present ability to injure the victim. (See People v. Hines (Colo. 1989) 780 P.2d 556, 558 [under the felony menacing statute “[a] deadly weapon includes a firearm, whether loaded or unloaded”].)

Defendant’s Colorado plea agreement defines a deadly weapon as being “a firearm, whether loaded or unloaded[.]” Since there is no evidence that the firearm was loaded or that defendant had some other present ability to injure his victim, his Colorado conviction for felony menacing does not come within the California definition of felony assault.

Because (1) defendant had felony convictions before the felony menacing offense in 2001, and (2) he personally used a firearm to commit felony menacing, the People argue that defendant committed the crime of being a convicted felon in possession of a firearm (§ 12021, subd. (a)) when he engaged in felony menacing. However, defendant’s prior felony convictions were neither an element of his felony menacing conviction nor alleged in the information. Thus, we decline the Attorney General’s invitation to apply a prior conviction that was not alleged and proved.

In sum, defendant’s Colorado felony menacing conviction does not constitute a conviction for a felony under California law. Thus, section 1192.7, subdivision (c)(8), defining as a strike, “any felony in which the defendant personally uses a firearm, ” does not apply.

II

The court imposed $600 in restitution fines. However, the abstract of judgment shows the imposition of $1,000 in restitution fines (§§ 1202.4, subd. (b), 1202.45) were imposed. The parties agree that this error must be corrected.

We shall order the trial court to correct this error when it prepares a new abstract upon resentencing.

III

The recent amendments to section 4019 do not operate to modify defendant’s entitlement to credit, as he was committed for a serious and violent felony (attempted murder), and had a prior conviction for a serious felony (robbery). (§§ 4019, subds. (b)(1), (2) & (c)(1), (2), 2933.1, 1192.7, subds. (c)(9), (19), 667.5, subds. (c)(9), (12).)

DISPOSITION

The true findings that defendant’s 2001 Colorado conviction for felony menacing (Colo. Rev. Stat. § 18-3-206) is a serious felony and a strike are reversed, and the matter is remanded to the trial court for resentencing and for correction of the abstract of judgment. The judgment is otherwise affirmed.

We concur: SIMS, J. RAYE, J.