Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F3111
BUTZ, J.Defendant Stephen John Albrich pleaded guilty to attempted carjacking. (Pen. Code, §§ 215, subd. (a), 664.) The trial court sentenced defendant to 19 years in state prison based upon a finding that his prior Oregon conviction for robbery in the third degree (Or. Rev. Stat., § 164.395 (1992)) was a serious felony under California’s three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant contends his “June 1991 Multnomah County, Oregon conviction for third degree robbery does not qualify as a prior conviction of a serious felony.”
Undesignated statutory references are to the Penal Code.
We agree and shall affirm the current conviction but reverse the judgment, vacate defendant’s sentence and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
We omit the facts surrounding defendant’s current conviction because they are not relevant to resolving this appeal.
In May 2006, the People filed an information charging defendant with attempted carjacking (§§ 215, subd. (a), 664--count 1), assault with a deadly weapon (§ 245, subd. (a)(1)--count 2), possession of a firearm by a felon (§ 12021, subd. (a)(1)--count 3), illegal possession of ammunition (§ 12316, subd. (b)(1))--count 4), receipt of stolen property (§ 496, subd. (a)--count 5), unlawful driving or taking of a vehicle (§ 10851, subd. (a)--count 6), receiving a stolen motor vehicle (§ 496d, subd. (a)--count 7), drawing or exhibiting a firearm (§ 417, subd. (a)(2)-- count 8), and resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1)--count 9).
The information also alleged enhancements to counts 1 through 7 under the three strikes law for three prior serious felony convictions. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) The alleged prior convictions occurred in Oregon. Two were for second degree robbery and one was for third degree robbery. The issue of defendant’s prior convictions was tried to the court after defendant pleaded guilty to count 1 and admitted a firearm enhancement (§ 12022.53, subd. (b)), an enhancement that was added to the information when defendant entered his plea.
At trial, the People dismissed one of the three alleged strikes and proceeded to trial on the remaining two. The People presented the following evidence in support of the strike allegations: (1) the relevant Oregon statutes; (2) defendant’s “Petition to Plead Guilty,” executed in Multnomah County, Oregon, on May 31, 1991; (3) an “Information of District Attorney” in the District Court of the State of Oregon for Multnomah County, charging defendant with committing second degree robbery on April 2, 1991; (4) an “Order Entering Plea of Guilty Pursuant to Petition Filed,” executed May 31, 1991, in Multnomah County, Oregon, and entering defendant’s plea of guilty to the “lesser, included offense” of third degree robbery; (5) an indictment issued out of the Circuit Court of the State of Oregon for Multnomah County, on April 11, 1991, accusing defendant of the crime of robbery in the second degree; and (6) a “Judgment of Conviction and Sentence,” entered on June 20, 1991, in Multnomah County, Oregon, convicting defendant of third degree robbery.
Having considered the evidence and the relevant Oregon statutes, the trial court found true the strike allegation related to defendant’s 1991 conviction for third degree robbery, and found insufficient evidence to support the strike allegation for defendant’s 1996 conviction. Defendant appeals the trial court’s ruling on his 1991 conviction.
DISCUSSION
Defendant argues that the charge of robbery in the third degree under Oregon law does not constitute a serious or violent felony under the three strikes law. We agree.
The three strikes law provides in pertinent part: “[A] prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) Because defendant’s current offense occurred in 2006, the validity of an out-of-state prior felony conviction as a strike is determined by comparing the applicable California statute as it existed on March 8, 2000 (§§ 667.1, 1170.125), with the law of the foreign state applicable on “the date of that prior conviction” (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1)).
Thus, a prior conviction in another jurisdiction qualifies as a strike if it was for an offense that: (1) is punishable by imprisonment in state prison if committed in California; and (2) includes all the elements of the particular felony as defined in section 667.5, subdivision (c), or section 1192.7, subdivision (c). (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2).)
To make this determination, the trier of fact may look to the entire record of conviction. (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262; People v. Myers (1993) 5 Cal.4th 1193, 1201 (Myers).) The record that may be examined includes “a change of plea form executed by the defendant in the previous conviction [citation], the charging documents and no contest plea reflected in a minute order [citation], a complaint and [In re Tahl (1969) 1 Cal.3d 122] forms admissions [citation], a reporter’s transcript of the defendant’s guilty plea together with the information [citation], a probation report [citation], and a preliminary hearing transcript [citation].” (People v. Henley (1999) 72 Cal.App.4th 555, 560 (Henley).) The record also includes appellate court opinions affirming the conviction. (People v. Woodell (1998) 17 Cal.4th 448, 455.)
The court may consider “evidence found within the entire record of the foreign conviction” only to the extent it is “not precluded by the rules of evidence or other statutory limitation.” (Myers, supra, 5 Cal.4th at p. 1201.) “A document is admissible to prove a prior conviction only if the facts asserted are admissible under the rules of evidence, including hearsay rules. [Citations, fn. omitted.] Thus, the courts have recognized that a defendant’s admissions in a court document are admissible because the defendant’s statements fall within a hearsay exception.” (People v. Lewis (1996) 44 Cal.App.4th 845, 852-853 (Lewis).) Defendant’s statements to the probation officer in his probation report are likewise admissible. (Id. at p. 853.) By comparison, statements in a probation report made by persons other than the defendant have been held inadmissible. (Ibid.)
The indictment may be used to establish the facts of the underlying criminal conduct if the defendant pleads guilty to the charges in the indictment. (People v. Hayes (1992) 6 Cal.App.4th 616, 624.) The indictment, however, may not be sufficient. Where, as here, a defendant does not plead guilty to the charges as stated in the indictment, but rather, pleads guilty to a lesser included offense, we cannot rely on the charging document as a factual basis for finding the prior conviction to be a serious felony under California law. (People v. Jones (1999) 75 Cal.App.4th 616, 634, citing People v. Reynolds (1989) 211 Cal.App.3d 382, 389-390.)
Thus, here, the only evidence from which the court could have determined the facts of the prior conviction consisted of defendant’s Petition to Plead Guilty, executed in Multnomah County, Oregon, on May 31, 1991, the Order Entering Plea of Guilty Pursuant to Petition Filed, executed May 31, 1991, in Multnomah County, Oregon, and the Judgment of Conviction and Sentence, entered on June 20, 1991, in Multnomah County, Oregon.
We cannot turn to the information or the indictment in this case to supply any missing information. Defendant was charged with robbery in the second degree but was convicted of robbery in the third degree. Thus, we are unable to conclude the indictment is a reliable source of information as to the underlying facts of the charge for which defendant was convicted.
When the record does not disclose the facts of the offense actually committed, the court will presume the prior conviction “rested only on the least statutory elements necessary for a conviction.” (Myers, supra, 5 Cal.4th at p. 1200.) Thus, the comparison is between the least offense punishable under the statute and the offenses categorized in the three strikes law.
Here, we must examine the Oregon statute in the abstract to determine whether robbery in the third degree is a serious felony.
Robbery in the third degree was defined under Oregon law in 1991 by Oregon Revised Statutes, section 164.395 (1992). The language of Oregon Revised Statutes, section 164.395 makes clear that, unlike Penal Code section 211, section 164.395 does not require that the force used to take property be directed at the person in possession of the property:
“(1) A person commits the crime of robbery in the third degree if in the course of committing or attempting to commit theft the person uses or threatens the immediate use of physical force upon another person with the intent of:
“(a) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
“(b) Compelling the owner of such property or another person to deliver the property or to engage in other conduct which might aid in the commission of the theft.
“(2) Robbery in the third degree is a Class C felony.” (Or. Rev. Stat., § 164.395, subd. (1)-(2) (1992), italics added.)
The California Supreme Court noted this material difference in People v. Nguyen (2000) 24 Cal.4th 756 (Nguyen), where the court considered whether the visitor to a business could be the victim of robbery if force was used against the visitor to take property from the business. (Id. at pp. 758-759.) The Supreme Court reaffirmed that under section 211, “in order to constitute robbery, property must be taken from the possession of the victim by means of force or fear.” (Id. at p. 761.)
Our Supreme Court explained how this approach differs from that in the Model Penal Code, which defines robbery “to include the use of force or fear against any person during the commission of a theft . . . . [¶] . . . The Model Penal Code makes no mention of the taking of property in the possession of another, as does Penal Code section 211. Rather, a defendant commits robbery within the definition of the Model Penal Code if, in the course of committing a theft, the defendant inflicts, threatens to inflict, or puts any person in fear of immediate serious bodily injury.” (Nguyen, supra, 24 Cal.4th at p. 763.) The Supreme Court then catalogued those state statutes that have adopted the Model Penal Code approach, including Oregon Revised Statutes, section 164.395. (Id. at p. 764, fn. 4.)
Accordingly, regardless of whether the record before us may resolve the issue of asportation, the use of force, and defendant’s intent, nothing in the record establishes against whom defendant used force when committing the theft for which he was convicted in Oregon in 1991. As a result, this offense does not qualify as a strike under California law.
Having resolved defendant’s appeal on this ground, we need not address defendant’s remaining arguments. We therefore reverse the judgment and remand this case for retrial on the issue of defendant’s 1991 Oregon prior conviction. (Henley, supra, 72 Cal.App.4th at p. 566.)
DISPOSITION
We affirm defendant’s conviction for attempted carjacking and the firearm enhancement. The judgment is reversed to the extent it is based on a finding that defendant suffered a prior serious felony conviction, to wit: defendant’s 1991 Oregon conviction for third degree robbery. The district attorney shall have 30 days after the remittitur is filed in the trial court in which to give notice of intent to seek retrial of the prior conviction allegation. If the district attorney gives such notice, the court shall conduct further proceedings in accordance with this opinion. If the district attorney fails to give such notice, the court shall resentence defendant based on his conviction for attempted carjacking and his admission of the firearm enhancement.
We concur: DAVIS, Acting P.J., RAYE, J.