Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. LF007272A William D. Palmer, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Joseph M. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
HILL, J.
Defendant was convicted of arson and assault, with multiple prior felony convictions. He contends the prosecutor engaged in misconduct that denied him a fair trial by suggesting during closing argument that defendant had the burden of establishing the fire was caused by accident. Defendant also contends substantial evidence does not support the trial court’s finding that one of his alleged prior felony convictions qualified as a prior serious felony conviction for sentencing purposes. We agree with the latter contention and remand for further sentencing proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted by a jury of one felony count of arson of an inhabited structure (Pen. Code, § 451(b)) and one misdemeanor count of assault (§ 240). The trial court found true allegations of multiple prior strike convictions, prior serious felony convictions and prior prison sentences.
All further statutory references are to the Penal Code, unless otherwise indicated.
Prosecution case
On August 7, 2007, defendant was living in a mobilehome with Elijah Voliva, Karen Voliva and Malinda Glazier. Shortly before midnight, Elijah borrowed defendant’s van and went to get cigarettes. After he left, Karen and defendant began arguing; defendant, who had been drinking, began hitting things in the house with a baseball bat. Karen took her purse and left the house; she drove to the corner and parked the car facing the mobilehome, waiting for Elijah to return. While Karen was gone, defendant woke Malinda and told her to get up “because he was burning that mother fucker down.” Malinda could smell smoke; she grabbed her cell phone and went outside. On the way out, she opened the door to Elijah and Karen’s room and saw flames on top of the bed and on the dresser. Once outside, she called 911.
Karen saw the flames from down the street and returned, finding Malinda on the cell phone calling 911 and defendant standing nearby. Karen asked defendant why he burned the house down. At some point, Malinda passed the cell phone to Karen and Karen spoke to the 911 operator. Either during that phone call or after it, defendant approached Karen and put a butcher knife to her stomach; she grabbed his wrist and said, “you don’t want to do that,” and he turned away.
That statement or question, or a portion of it, could be heard on the audiotape of the 911 telephone call.
An employee of the oil refinery across the street from the residence saw the fire and started rolling out the refinery’s fire hoses to try to extinguish it. He saw defendant in the street and told him he was going to try to put the fire out. Defendant told him to let it burn; defendant said, “It serves them right. He stole my car.” Elijah returned to the residence while the firefighters were trying to put the fire out. At some point, defendant left the scene on foot.
The fire investigator, Thomas Patlan, interviewed witnesses and examined the site of the fire to determine how it started. The site was difficult to investigate; the fire weakened the floor so there was a danger of falling through and being injured. Patlan concluded there were two points of origin: in Elijah and Karen’s bedroom and in the living room/dining room areas. Laboratory tests detected weathered gasoline (stored gasoline) in debris taken from the bedding in Elijah and Karen’s bedroom. Because of the two points of origin, Patlan concluded the fire was intentionally set. In his opinion, the fire was not caused by candles or an electrical problem.
Defense case
Defendant took the stand and denied starting the fire, knowing how it started, assaulting Karen with a knife, and telling anyone he was burning the house down. He testified that, on the night of the fire, Elijah, Karen, and Malinda were smoking cigarettes and crack cocaine in Karen and Elijah’s bedroom. Elijah borrowed defendant’s van to go get cigarettes; defendant gave Elijah his keys and $14 to buy defendant some cigarettes. Ten minutes later, Karen confronted defendant about giving Elijah money for drugs. Defendant was lying in bed and had no baseball bat. A few minutes later, Karen took her purse and left. Two minutes later, defendant started to smell smoke; he looked around and saw smoke coming out of Karen’s room. He looked in the room and saw smoke and flames. He woke Malinda and told her, “This mother fucker is burning down.” They went outside; Malinda, and Karen who had returned, called 911, then got in Karen’s car and drove off. Defendant felt abandoned. Because he was angry, he told the man at the refinery not to waste his time, to let “the damn thing burn down. They deserve it.” Defendant left on foot when the fire trucks arrived.
The defense attempted to discredit the investigation of the fire and to show the fire could have had an accidental cause. Defense counsel elicited testimony that Karen burned candles in the home, that all the occupants smoked in the house, that on the night of the fire the other occupants of the home were smoking crack cocaine and heating it with little butane heaters “like a little torch,” and that flammable liquids (including gasoline) were kept in containers in a cabinet outside the mobilehome. Defendant also attempted to show that the mobilehome and its electrical system were in poor condition.
In his rebuttal closing argument, the prosecutor acknowledged he had the burden of proof then twice asserted that, if defendant was going to claim the fire was accidental, he had to have evidence. Defendant objected, and the court reiterated that the prosecution had the burden of proof beyond a reasonable doubt. The court concluded the prosecutor’s next comment, “where is the defense investigator?” was proper as a response to defense counsel’s closing comments. Defendant contends the prosecutor’s statements constituted prejudicial prosecutorial misconduct. Additionally, defendant contends substantial evidence does not support the trial court’s finding that his 1968 prior conviction for burglary, which was a first degree burglary at the time, but which would not qualify as a first degree burglary under current law, constituted a prior serious felony conviction as defined in section 1192.7, subdivision (c)(18) (hereafter § 1192.7(c)(18)).
DISCUSSION
I. Prosecutorial Misconduct
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).) “In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1202.) Under state law, “[c]onduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct … only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (Morales, supra, 25 Cal.4th at p. 44.) “To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970 (Frye), disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The challenged portion of the prosecutor’s final argument is as follows:
“[MR. LACKIE, the prosecutor]: Now, it’s my burden to prove the Defendant guilty beyond a reasonable doubt. If Mr. Kang [defense counsel] wanted to he could sit back and do nothing. But if he’s making a claim like that, he has to have evidence to back it up that this fire was accidental. He has to have evidence.
“MR. KANG: And objection, Your Honor. The Defense has no burden in a criminal case.
“THE COURT: All right. Ladies and gentlemen, that is the correct statement. Go ahead.
“MR. LACKIE: He has to [have] evidence to back up his claims. You, as he said himself, are not allowed to speculate. Defense could have hired an arson investigator. Did you see one? No evidence. Do not speculate. Take the evidence that you have. That evidence points to the Defendant’s guilt. The fire was intentionally set.
“MR. KANG: There is improper shifting of the burden.
“THE COURT: All right. Ladies and gentlemen, the burden to prove beyond a reasonable doubt the guilt of the Defendant is solely with the People. So let’s keep it right there. Go ahead.
“MR. LACKIE: Where is the Defense arson investigator?
“MR. KANG: Again, this is improper.
“THE COURT: Counsel, let him go ahead please. It’s not improper. He’s commenting on your comments.”
In criminal actions, the prosecution must prove every element of the charged crime beyond a reasonable doubt. (§ 1096; People v. Wyatt (2008) 165 Cal.App.4th 1592, 1601.) In count 1 of the information, defendant was charged with a violation of section 451, subdivision (b), arson of an inhabited structure. The prosecution was required to prove defendant “willfully and maliciously set[] fire to or burn[ed] or cause[d] to be burned” an inhabited structure. (§ 451, subd. (b).) The theory of the defense was that defendant did not set fire to the mobilehome; rather, the fire started by some unknown accidental means. The defendant was not required to prove or produce evidence that the fire started by accident. The prosecution bore the burden of proving that defendant intentionally set the fire.
In People v. Cook (2006) 39 Cal.4th 566, the prosecution’s expert witness testified that the bullets that killed two of the murder victims came from the same gun. The defense theory was that two different guns had been used. In closing, the prosecutor addressed the defense theory, asking where the second gun was and stating that the defense could have called experts, but did not. (Id. at p. 607.) After the defense objected that the prosecutor was burden shifting, the trial court reminded the jury that the prosecutor had the burden of proof. The prosecutor acknowledged this burden, but again argued the defendant had a right to produce an expert who could have testified whether the bullets were consistent with two different guns having been used to kill the two victims. (Id. at p. 608.) After noting that “[a] prosecutor may make fair comment on the state of the evidence,” the court concluded the prosecutor’s statements were fair comment on the absence of evidence of a second gun. Moreover, the trial court had properly admonished the jury that the People bore the burden of proof. (Ibid.)
In Frye, the prosecutor summed up the defense experts’ testimony in closing argument, and observed that, while defense counsel had told the jury it would hear from a neuropsychologist, that expert had not testified. The prosecutor suggested the jury could reasonably infer that, if the neuropsychologist had had information helpful to the defense, she would have testified. The defendant contended these comments shifted the burden of proof to the defense in violation of due process. The court disagreed, finding the prosecutor’s comments proper. (Frye, supra, 18 Cal.4th at p. 973.)
“[T]he prosecutor’s remark was a comment on a weakness in defendant’s theory of the case, in no way suggesting defendant had the burden of proving his innocence. To the contrary. She told jurors the People had the burden of proof on each and every count. Moreover, the trial court instructed the jury defendant was presumed innocent until his guilt was proven, and that this presumption placed on the prosecution the burden of proving him guilty beyond a reasonable doubt. In light of the context of the prosecutor’s remarks, and the instructions, it is unlikely the jury was encouraged to draw any negative inferences from the prosecutor’s reference to the failure to call a defense witness alluded to in opening argument. [Citation.]” (Frye, supra, 18 Cal.4th at p. 973.)
The prosecutor may comment “‘on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses.’ [Citation.]” (People v. Turner (2004) 34 Cal.4th 406, 419.) “A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340.)
While prosecutor Lackie’s statements that defendant had to have evidence to back up his claim, if defendant was contending the fire was accidental, may have suggested defendant had some burden to produce evidence supporting that claim, any impropriety was cured by the admonition of the trial court and Lackie’s own statements. Lackie preceded his comments by acknowledging the People’s burden, stating that he had the burden of proof and defendant “could sit back and do nothing.” When defendant objected to Lackie’s comments, the court confirmed that defendant had no burden of proof and reiterated that the burden of proving defendant guilty beyond a reasonable doubt lay solely with the People.
The remainder of Lackie’s challenged statements, viewed in context, constituted permissible comment on the state of the evidence or defendant’s failure to introduce material evidence. Lackie observed that defendant could have hired an arson investigator, but did not; he argued the evidence that was presented – presumably the testimony of the People’s arson investigator – suggested the fire was intentionally set and pointed to defendant’s guilt. These arguments of the prosecutor were permissible comments on the lack of evidence contradicting the People’s evidence of the cause of the fire, and did not ascribe to defendant any duty or burden to produce evidence or prove his innocence. The prosecutor did not use deceptive or reprehensible methods to attempt to persuade the jury, nor did his statements deny defendant a fair trial. Because of the brevity of the prosecutor’s comments and the immediate reiteration of the proper burden of proof by the trial court, it is not reasonably likely the jury understood or applied the comments in an improper or erroneous manner. We conclude there was no prejudicial prosecutorial misconduct.
II. Prior serious felony conviction
The “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)) provides longer sentences for convicted felons who were previously convicted of a serious felony, as defined by section 1192.7, subdivision (c). A defendant with one or more such prior convictions (strikes) must be sentenced for the current offense under the Three Strikes law. (§ 667, subd. (f)(1).) Additionally, a defendant convicted of a serious felony who has one or more prior serious felony convictions is subject to a five-year enhancement for each such prior conviction. (Id., subd. (a)(1).)
The trial court found true allegations that defendant suffered a prior conviction of a felony, based on evidence of a 1968 conviction for “Burglary, with assault, First Degree.” It concluded the 1968 conviction qualified as a prior serious felony conviction under the Three Strikes law (§§ 667, subds. (c)-(j), 1170.12); it also imposed a five-year enhancement for a prior serious felony conviction, pursuant to section 667, subdivision (a)(1), based on that conviction. At the time of defendant’s current offense and at present, the definition of a “‘serious felony’” included “any burglary of the first degree.” (§§ 667, subd. (a)(4), 1192.7, subd. (c)(18).) The trial court concluded defendant’s 1968 first degree burglary conviction fell within that definition. Defendant, however, contends that, due to changes in the law, his 1968 conviction does not satisfy the current definition of first degree burglary, and therefore should not be considered to be a prior serious felony conviction as currently defined.
In 1968, at the time of defendant’s prior conviction, section 460 defined first and second degree burglary as follows:
“‘(1) Every burglary of an inhabited dwelling house, trailer coach..., or building committed in the nighttime, and every burglary, whether in the daytime or nighttime, committed by a person armed with a deadly weapon, or who while in the commission of such burglary arms himself with a deadly weapon, or who while in the commission of such burglary assaults any person, is burglary of the first degree. [¶] (2) All other kinds of burglary are of the second degree.’” (People v. Jackson (1985) 37 Cal.3d 826, 830, fn. 2 (Jackson).)
Legislation in 1976 eliminated the portions of section 460, subdivision (1), relating to being armed with a deadly weapon and assaulting any person; thereafter, the definition of first degree burglary included only burglary of an inhabited dwelling house, trailer coach, or building committed in the nighttime. (Stats. 1976, ch. 1139, § 206.5; Jackson, supra, 37 Cal.3d at p. 830, fn. 2.) Further amendments were made; under current law, first degree burglary is defined as “[e]very burglary of an inhabited dwelling house, vessel..., which is inhabited and designed for habitation, floating home..., or trailer coach..., or the inhabited portion of any other building.” (§ 460, subd. (a).) All other burglaries are of the second degree. (Id., subd. (b).) Thus, under current law, a burglary with assault would not qualify as a first degree burglary unless it occurred in one of the specified locations.
The People bear the burden of proving defendant’s prior conviction was for a serious felony. (People v. Towers (2007) 150 Cal.App.4th 1273, 1277.) The test on appeal is whether a reasonable trier of fact could have found that the prosecution sustained its burden. (Ibid.) “[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. [Citations.]” (People v. Delgado (2008) 43 Cal.4th 1059, 1066.)
The record of the 1968 conviction presented to the trial court did not include any of the facts of that offense, such as the structure, vehicle, or other location where the burglary occurred. The description in the abstract of judgment (“Burglary, with assault, First Degree”) suggests the burglary qualified as a first degree burglary because it involved an assault, rather than because of the nature of the location and the time when it occurred. There was no evidence to the contrary. Although in 1968 such conduct constituted a first degree burglary, under the current statute it would not. Defendant therefore argues there was insufficient evidence to show the 1968 conviction qualifies as a serious felony conviction for purposes of enhanced sentencing.
In 1982, Proposition 8 enacted section 667, which provided for a five-year sentence enhancement for repeat offenders who commit serious felonies; the term “‘serious felony’” was defined in section 1192.7. (Jackson, supra, 37 Cal.3d at pp. 830, 831.) At that time, the definition of serious felony included “‘burglary of a residence.’” (Ibid.) The defendant in Jackson had suffered a prior conviction of second degree burglary. At the time of his prior offense, second degree burglary included daytime residential burglaries and nonresidential burglaries. (Id. at p. 830, fn. 2.) The question the court considered was whether and when a second degree burglary could be a “‘burglary of a residence,’” for purposes of section 667. (Jackson, at p. 831.)
The court noted Proposition 8’s list of serious felonies was not limited to specific, discrete offenses. (Jackson, supra, 37 Cal.3d at p. 831.) Section 1192.7(c)(18) “describe[d] criminal conduct which [did] not correspond precisely to the elements of any then-existing criminal offense,” since there was no offense of “burglary of a residence.” (Jackson, at p. 832.) The court construed section 1192.7(c)(18) to refer not to a specific offense, but to the criminal conduct described; the definition would apply whenever the prosecution pled and proved that conduct. (Jackson, at p. 832.) Entry into a residence was alleged as part of the pleading of the section 667 enhancement, and the defendant had expressly admitted that allegation. (Jackson, at p. 835.) Defendant was therefore bound by that admission, which was sufficient to establish the section 667 serious felony enhancement. (Jackson, at pp. 836-837.)
In 1986, the definition of serious felony was amended. Instead of “burglary of a residence,” section 1192.7(c)(18) identified as a serious felony “burglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building.” (Stats. 1986, ch. 489, § 1.) This definition mirrored the definition of first degree burglary at that time. (Former § 460; Stats. 1982, ch. 1297, § 1.) In 1998, section 1192.7(c)(18) was amended again, to reflect the current definition of first degree burglary. In March 2000, section 1192.7(c)(18) was amended by Proposition 21 to its current form, which identifies as a serious felony any burglary of the first degree.
Section 1192.7(c)(18) then listed as a serious felony “burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building.” (Stats. 1998, ch. 936, § 13.5; § 460.)
In People v. Garrett (2001) 92 Cal.App.4th 1417 (Garrett), the defendant pled guilty to two burglaries and a vehicle theft that occurred in 1998, and the trial court found true allegations of five prior serious felony convictions, which were alleged as “‘burglary of an inhabited dwelling house.’” (Id. at pp. 1420-1421.) The trial court sentenced the defendant two months after the March 2000 passage of Proposition 21. The defendant contended that, because his prior residential burglary convictions were all second degree burglaries, they no longer qualified as serious felonies after the enactment of Proposition 21, which amended section 1192.7(c)(18) to list only first degree burglaries as serious felonies. (Garrett, at pp. 1421-1422.) The defendant argued that section 1192.7(c)(18) now defines serious felony burglaries in terms of the offense (first degree burglary) rather than the conduct, so the Jackson rationale no longer applies. He concluded the trial court had no need to look beyond the conviction itself (second degree burglary) or to determine whether the prior burglaries were residential in order to determine whether the prior convictions qualified as serious felony convictions. (Garrett, at pp. 1421-1422.)
The court rejected the defendant’s arguments. It looked at the language and history of the statute and its context in the statutory scheme in order to determine the intent behind the initiative measure. Proposition 21 expressed the intent of the People to “‘“ensure longer prison sentences and greater punishment”’” for repeat offenders. (Garrett, supra, 92 Cal.App.4th at p. 1425.) It changed section 1192.7(c)(18) “from a ‘complete[] “duplication [of] the definition of first degree burglary”’ [citation] into a reference to the crime by degree.” (Garrett, at p. 1431.) It did not, however, change section 1192.7(c)(18) to refer specifically to the code section defining first degree burglary. Consequently, the interpretation of the subdivision as referring not to a specific crime but to the criminal conduct described in the subdivision remained valid. (Garrett, at pp. 1431-1432.) The various changes in section 1192.7(c)(18) were made for clarification and to bring the language in line with the definition of first degree burglary, not to make a substantive change. (Garrett, at p. 1431.) Interpreting the post-Proposition 21 version of section 1192.7(c)(18) as excluding second degree residential burglaries “would be saying that the electorate before 2000 wanted all residential burglaries to add to the punishment of a recidivist, but in 2000, without saying so, changed its mind contrary to the stated intent in the ballot pamphlet and in previous case law.” (Garrett, at p. 1432.) The court rejected that interpretation. (Ibid.) The court affirmed the judgment, which treated the defendant’s residential burglary convictions as serious felony convictions because they fit the definition of first degree burglary at the time of the current offense, even though they were designated as second degree burglaries at the time of the prior convictions.
We address the flip side of the Garrett situation. Although defendant’s 1968 conviction of burglary with assault was designated as first degree under the version of section 460 in effect at that time, such a burglary would not fall within the current definition of first degree burglary unless it was committed in one of the residential locations specified in current section 460, subdivision (a). The record of defendant’s 1968 conviction does not indicate it involved one of those residential locations.
In People v. Kelii (1999) 21 Cal.4th 452 (Kelii), in determining that the court, rather than the jury, was to determine whether a prior felony conviction qualified as a serious felony under the Three Strikes law, the court stated: “Section 1192.7, subdivision (c), lists some felonies that are per se serious felonies, such as murder, mayhem, rape, arson, robbery, kidnapping, and carjacking. If a defendant's prior conviction falls into this group, and the elements of the offense have not changed since the time of that conviction, then the question whether that conviction qualifies as a serious felony is entirely legal.” (Kelii, at p. 456, italics added.) However, “‘[s]ometimes the definition of the qualifying prior conviction is not completely congruent with the definition of the crime of which the defendant has been convicted,” such as when the definition of serious felony included “‘“‘burglary of a residence,’”’” and no offense was specifically so defined in the Penal Code. (Kelii, at p. 456.) In such a case, determining whether a prior felony was serious includes a factual element. “In determining whether a prior conviction is serious, ‘the trier of fact may look to the entire record of the conviction’ but ‘no further.’ [Citation.]” (Ibid.) That factual inquiry is limited to an examination of court documents. (Ibid.)
It is “fair and reasonable … to look to the entire record of the conviction” to determine whether it was a serious felony. (People v. Guerrero (1988) 44 Cal.3d 343, 355.) It “furthers the evident intent of the people in establishing an enhancement … that refers to conduct, not a specific crime.” (Ibid.)
Kelii indicates that, when the definition of the qualifying prior conviction in section 1192.7, subdivision (c) is not congruent with the definition of the offense of which defendant was previously convicted, or where the elements of the offense have changed since defendant was convicted, the court must look beyond the title of the prior offense to determine whether it meets the definition of a serious felony set out in section 1192.7, subdivision (c). Although section 1192.7(c)(18) lists “any burglary of the first degree” as a serious felony, the definition of first degree burglary has changed since defendant’s conviction of that offense. The record of his conviction indicates he was convicted of burglary with assault; that offense is no longer classified as a first degree burglary.
From the time section 1192.7, subdivision (c), was added to the code until Proposition 21 was enacted, the only burglaries identified as serious felonies were residential burglaries, listed either as “burglary of a residence,” or “burglary of an inhabited dwelling house... or inhabited portion of any other building.” (Stats. 1986, ch. 489, § 1.) Proposition 21 changed the designation to “burglary of the first degree” at a time when first degree burglary included only burglary of specified inhabited buildings and other structures. The People have cited nothing in Proposition 21 or the history of section 1192.7 to indicate the amendment of section 1192.7(c)(18) by Proposition 21 was intended to make a substantive change in that definition, to expand it beyond residential burglaries. We could interpret the amendment to include nonresidential first degree burglaries as serious felonies only if we found that Proposition 21 was intended to suddenly make nonresidential first degree burglary convictions more than 30 years old qualify as serious felony convictions. Since Proposition 21 was concerned primarily with addressing an increase in juvenile crime, such an interpretation would not be reasonable. (Voter Information Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, p. 119.)
This interpretation is also consistent with section 668.5, which provides: “An offense specified as a prior felony conviction by reference to a specific code section shall include any prior felony conviction under any predecessor statute of that specified offense that includes all of the elements of that specified offense.” (Italics added.)
The evidence contained in the record of defendant’s 1968 conviction, as presented to the trial court, was insufficient to establish that the conviction qualified as a prior serious felony conviction pursuant to section 1192.7(c)(18). Consequently, the court’s finding that the 1968 burglary conviction constituted a prior serious felony conviction for purposes of the Three Strikes law and the section 667, subdivision (a)(1) enhancement must be reversed.
DISPOSITION
The sentence is vacated and the finding that defendant’s 1968 prior conviction of burglary constituted a prior serious felony as defined in section 1192.7(c)(18) is reversed. The matter is remanded for a retrial of the prior conviction allegation if the People so elect (People v. Barragan (2004) 32 Cal.4th 236, 239), or for a new sentencing hearing if the People do not go forward timely on the prior conviction allegation. The judgment is otherwise affirmed.
WE CONCUR: WISEMAN, Acting P.J., KANE, J.