Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC778589
Mihara, J.
A jury convicted defendant Cuong Manh Nguyen of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found true an allegation that he personally used a dangerous or deadly weapon in the commission of the offense (§§ 667, 1192.7). Allegations that he had suffered a prior serious felony strike conviction (§§ 667, subds. (a), (b)-(i), 1170.12) were also found true. The trial court committed him to state prison for a nine-year term. On appeal, he contends (1) the trial court prejudicially erred in denying his mistrial motion after a witness remarked, “I knew that [defendant] had some prior records-” and (2) there was insufficient evidence to support the finding that his 2002 conviction for violating section 245, subdivision (a)(1) was a prior serious felony conviction and therefore qualified as a strike. (§§ 667, subds. (a), (b)-(i), 1170.12). We reject the first contention but find merit in the second. Accordingly, we reverse and remand.
Further statutory references are to the Penal Code unless otherwise noted.
I. Factual Background
Defendant and the victim are brothers-in-law. The victim had been living with defendant and defendant’s wife for about a month when he intervened in an argument between them and was stabbed in the shoulder. A neighbor drove him to the hospital. Emergency room personnel did not believe his initial story that he had fallen and cut himself on a rock. After his brother and his neighbor urged him to tell the truth, the victim acknowledged that defendant had stabbed him. Hospital personnel summoned police, and defendant was arrested later that night.
II. Procedural Background
Defendant was charged by information with assault with a deadly weapon (§ 245, subd. (a)(1) [count 1]), exhibiting a deadly weapon other than a firearm (§ 417, subd. (a)(1) [count 2]), felony threats to commit a crime resulting in death or great bodily injury (§ 422 [count 3]), and misdemeanor battery (§§ 242, 243, subd. (a) [count 4]). It was further alleged that he personally used a dangerous or deadly weapon in the commission of the assault (§§ 667, 1192.7) and had suffered a prior serious felony strike conviction (§§ 667, subds. (a), (b)-(i), 1170.12).
During in limine motions, the district attorney expressed his intention to introduce at trial a statement the victim had given police at the hospital: “that he knew the defendant was on some type of probation and initially did not choose to call the police because he knew that he was on probation.” The district attorney explained that the statement was relevant to prove the victim’s state of mind. Defendant’s trial counsel objected: “I think the statement that he gave to the police of being uncooperative because he was worried about getting [defendant] in trouble is sufficient. I think the fact that [defendant is] on probation is unduly prejudicial and not very probative.” The court granted defendant’s motion, limiting the victim’s testimony to “the effect that he didn’t want to see the defendant get in trouble.”
On the first day of trial, the district attorney admonished the victim outside the presence of the jury to avoid any mention of defendant’s criminal record or probationary or parole status. “In your... report to the police you indicated that you knew that [defendant] was on probation or parole. You are not to mention that fact unless directly asked, but I will not ask you that fact. [¶] Did you understand? [¶] Do not mention probation or parole.” “If you thought he was on a warrant, do not mention that at all. [¶] Did you understand?” The victim responded, “Yes. I understand.”
The victim then took the stand and recounted his version of events. On cross-examination, defense counsel highlighted inconsistencies in the victim’s stories at the hospital, at the preliminary examination, and at trial.
On redirect, the district attorney asked the victim whether he had, before arriving at the hospital, separately told his neighbor, his wife, his mother, and his younger brother that defendant stabbed him. “Yes. That’s right. Yes, I did say that.” “Then when you went to the hospital, ” the district attorney continued, “you met with doctors?” “Yes, ” defendant replied. “Right.” “Did you tell the doctors that you had an accident and fell down?” “That’s right. Exactly. Yes.” “Why, ” the district attorney asked, “did you tell the doctors a lie?” In a rambling and largely non-responsive narrative reply, the victim explained, “The reason I say at that time, because the reason -- because if I tell the truth, police would come and police come and arrest [defendant] and nobody take care of [defendant’s] children. When I get there and the nurse saw the wound and the nurse wouldn’t believe from falling. The nurse asked me who took you to the hospital. And I said the neighbor. And the neighbor and my brother at that time -- he just arrived -- so the nurse talked to my neighbor and my brother. And they say to the nurse [defendant] stabbed me. And I say I told [my brother] -- [my brother] told me you have to tell the truth because they look at your wound and they would know what the wound come from, the stab or fall. That’s why at that time when that -- when that incident happened, I really feel sorry for the children. I knew that [defendant] had some prior records --.”
The district attorney interrupted the victim in mid-sentence: “Let me ask you a question. Okay. You said you initially told the doctors it was an accident, but they could tell that you were not telling the truth. Is that a yes? [¶] Then your brother... showed up and told you you need to tell the truth?” The victim responded, “And the neighbor too.” The district attorney then elicited testimony that the victim had lied, initially, to protect defendant.
Defendant’s trial counsel did not immediately object to the remark that defendant “had some prior records.” Only after the victim, his brother, and a police officer finished testifying, and after the jury had been dismissed for the day, did defense counsel raise an objection. “There was a motion in limine to keep out any record of my client’s criminal history. I know the court doesn’t recall it, I think the district attorney and I recall it, that the witness who was admonished in this courtroom in the beginning of trial not to mention anything about that, went ahead and did so and he said he had a -- he knows [defendant] had a criminal record. [¶] The district attorney quickly stopped it and went on and moved on to something else. [¶] I didn’t bring it up at the time because I didn’t want to focus the jury’s attention on it. But in an -- in an undue -- I’m going to ask for a mistrial at this time. And request that we start over.”
Emphasizing that the victim had not used the word “criminal, ” the district attorney argued, “I believe it was so quick that I purposely moved on to another subject that I don’t believe the jury would pay much attention to that if they even heard it.” Defense counsel responded, “I certainly wouldn’t suggest that the district attorney had anything to do with it. I think he went out of his way to make sure that it doesn’t happen. [¶] All I’m concerned [about] is my client’s right to a fair trial.”
The trial court denied the motion. “[A]s I understand it, the comment made by the witness was not responsive to a question the district attorney asked. It occurred so quickly, I didn’t hear it, but I feel certain if both counsel heard it, it did in fact happen. Whether or not any juror heard it or could even connect what it had to do with or what it meant, I don’t believe. So I don’t believe there is any prejudice to the defendant as a result of that. [¶] Therefore, I’ll deny the motion for mistrial....” The court then asked defendant’s trial counsel, “Anything further to put on the record this evening?” Defense counsel responded, “No. I think that’s it, Your Honor.”
The People presented two days of testimony from five witnesses and then rested. The defense presented only one witness, an expert on the cumulative and progressive effects of alcohol in the human body. Defendant did not testify.
The parties stipulated that defendant’s blood alcohol level at 11:45 p.m., more than four hours after the stabbing, was 0.22.
The jury returned a guilty verdict on the assault with a deadly weapon count and found the personal use allegation true. It acquitted defendant on counts 2 and 4 and reported that it was hopelessly deadlocked on count 3. The court declared a mistrial on count 3, and that count was later dismissed on the district attorney’s motion.
After a bifurcated trial on the prior conviction allegation, the jury found true “that prior to the commission of the offenses charged in count one, the defendant... was convicted of a felony offense, specifically assault with a deadly weapon, Penal Code section 245(a)(1), Superior Court, Santa Clara County....” The trial court then stated, “I’ll make an additional finding that the prior conviction which was found to be true includes all the elements of a... violent or serious felony as defined in Penal Code section[s] 667.5(c) and 1192.7(c). [¶] Further, I’ll find that the prior conviction contains all of the elements of a serious felony within the meaning of Penal Code section 667(a).”
At sentencing, the court selected the lower term of two years, doubled it “[s]ince the prior strike allegation was found to be true, ” and added a term of five years because “it was also proven that the defendant suffered a previous serious felony conviction.” Defendant filed a timely notice of appeal.
III. Discussion
A. Mistrial Motion
Defendant contends the denial of his mistrial motion was an abuse of discretion that “incurably prejudiced [his] right to a fair trial.” We disagree.
“[E]xposing a jury to a defendant’s prior criminality presents the possibility of prejudicing a defendant’s case and rendering suspect the outcome of the trial.” (People v. Harris (1994) 22 Cal.App.4th 1575, 1580 (Harris), italics added.) “A witness’s volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice.” (People v. Ledesma (2006) 39 Cal.4th 641, 683.) “Whether in a given case the erroneous admission of such evidence warrants granting a mistrial or whether the error can be cured by striking the testimony and admonishing the jury rests in the sound discretion of the trial court.” (Harris, at p. 1581.) “ ‘A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 565, internal citations omitted; People v. Williams (1997) 16 Cal.4th 153, 211.) “Whether a particular incident is incurably prejudicial requires a nuanced, fact-based analysis.” (People v. Chatman (2006) 38 Cal.4th 344, 369-370 (Chatman).) “A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555 (Bolden).) “It is only in the exceptional case that ‘the improper subject matter is of such a character that its effect... cannot be removed by the court’s admonitions.’ ” (People v. Allen (1978) 77 Cal.App.3d 924, 935 (Allen).) “The finding of exceptional circumstances depends upon the facts in each case.” (Ibid.)
Here, the record amply supports the trial court’s disbelief “whether... any juror heard [the prior records comment] or could even connect what it had to do with or what it meant....” The reference to “prior records” was buried in a rambling and largely non-responsive narrative answer, and it was so brief the judge missed it. As even defendant’s trial counsel was quick to acknowledge, “[t]he district attorney quickly stopped it and went on and moved on to something else.” Defense counsel did not immediately object and never requested an admonition-tactical decisions that in our view lend defendant’s implicit support to the trial court’s conclusion that the jury was unlikely to have credited and may not even have heard the remark.
The denial of a mistrial motion under similar circumstances was held a proper exercise of discretion in Bolden. In that case, a police officer testifying about the circumstances of defendant’s arrest for the murder of his girlfriend referred to “ ‘the Department of Corrections parole office located at-’ ” when asked how he had determined the defendant’s address. (Bolden, supra, 29 Cal.4th at p. 554.) As the California Supreme Court explained, “although the witness referred briefly to a parole office..., the witness’s answer was nonresponsive and the prosecutor interrupted before the answer was completed. It is doubtful that any reasonable jury would infer from the fleeting reference to the parole office that defendant had served a prison term for a prior felony conviction. The incident was not significant in the context of the entire guilt trial....” (Bolden, at p. 555.)
Here, as in Bolden, the victim’s fleeting remark was not significant in the context of the entire guilt trial. Even if some jurors caught it, they could not know whether the reference to “prior records” reflected an episode of youthful truancy, a minor traffic offense, an immigration violation, a family court matter, or something more serious. The prosecutor interrupted the victim in midsentence and changed the subject. There were no further allusions to defendant’s “prior records” during two days of testimony from six different witnesses, and certainly no specific reference to any “criminal history.” Because defendant did not testify, he was never subjected to impeachment by the establishment of a past felony conviction. On this record, we see no abuse of discretion in the trial court’s “fact-based” determination that the victim’s passing comment was not so “exceptional” that it “irreparably damaged” defendant’s opportunity to obtain a fair trial. (Bolden, supra, 29 Cal.4th at p. 555; Harris, supra, 22 Cal.App.4th at 1581 [where evidence of the defendant’s guilt was “overwhelming and undisputed, ” it was “not reasonably probable [he] would have obtained a more favorable result had the incidental remark about his parole status not been made”]; People v. Stinson (1963) 214 Cal.App.2d 476, 480-482 [police officer’s reference to the defendant’s “parole officer” did not require reversal where the trial record “point[ed] emphatically to defendant’s guilt, ” and the prosecution’s evidence, though circumstantial, was “tight and strong” and contradicted only by the defendant’s “wildly fantastic tale of his companion’s nocturnal purchasing tryst....”].)
The cases defendant cites do not compel a different conclusion. Taken as a whole, they stand for the unremarkable proposition that prejudice is more likely to be found in an “extremely close case” than in a case where the record “ ‘ “points convincingly to guilt.” ’ ” (Allen, supra, 77 Cal.App.3d at p. 935.) The two cases on which defendant most heavily relies, Allen and People v. Ozuna (1963) 213 Cal.App.2d 338 (Ozuna), are readily distinguishable.
Allen was “a close case in which the credibility of [each side’s]... witnesses were the key factors. The [defendant] was not arrested at the scene of the crime, no stolen goods were found in his possession, the gun was not found and the identification evidence by the victim and her husband was not convincing.” (Allen, supra, 77 Cal.App.3d at p. 938.) Under those circumstances, the denial of the defendant’s mistrial motion, after his accomplice’s mother unexpectedly testified that the defendant’s sister told her he was “on parole, ” required reversal, because it was reasonably probable a result more favorable to the defendant would have been reached had the prejudicial information not been divulged to the jury. (Allen, at pp. 934-935.)
Although Ozuna was not as close a case as Allen, “it [could not] be said the evidence of guilt was so strong as to preclude a finding of innocence.” (Ozuna, supra, 213 Cal.App.2d at p. 342.) The defendant was charged with the murder of his girlfriend. (Ozuna, at p. 339.) He was the only eyewitness, and he told the police the gun had accidentally fired. (Ozuna, at p. 340.) His first trial ended in a mistrial. (Ozuna, at p. 339.) At his second trial, a police officer testified that Ozuna had told him (after his arrest) that he was an “ex-convict.” (Ozuna, at p. 339.) Ozuna’s mistrial motion was denied, but the offending testimony was stricken, and the jury was admonished to disregard it. (Ozuna, at p. 340.) He did not testify at trial. He was convicted of voluntary manslaughter. (Ozuna, at pp. 339-341.) The Court of Appeal reversed, reasoning that “ex-convict” was “a hateful word” that could not be “unregistered” from the jurors’ minds by the court’s admonition. (Ozuna, at p. 342.)
While the Ozuna court took the position that jurors’ minds can never be cleansed of exposure to evidence that a criminal defendant was previously convicted of a crime (Ozuna, supra, 213 Cal.App.2d at p. 342), we cannot accept that this is invariably true. A trial court confronting a mistrial motion has the opportunity to engage in a “nuanced, fact-based analysis” (Chatman, supra, 38 Cal.4th at pp. 369-370) to determine whether the exposure is so “exceptional” that no admonition could possibly remove it (Allen, supra, 77 Cal.App.3d at p. 935) and the defendant’s “chances of receiving a fair trial have been irreparably damaged.” (Bolden, supra, 29 Cal.4th at p. 555.) We do not believe that, as a matter of law, every time a jury is improperly exposed to any evidence of a criminal defendant’s prior conviction, the trial will necessarily be rendered unfair and must invariably end in a mistrial. Instead, we think the trial court is in the best position to evaluate whether the exposure is amenable to remediation, and we should review the trial court’s resolution of this question under the deferential standard of review that applies to all other trial court rulings on mistrial motions.
Defendant insists that this case, like Allen and Ozuna, was a “close” one in which “the testimony of the two key witnesses (the only percipient witnesses) was both contradictory and internally inconsistent.” There was also, he claims, “substantial evidence pointing to the possibility of self-defense” and additional evidence that defendant and the victim “did not get along, ” that they were “punching and/or pushing each other [and] engaging in hand-to-hand fighting” before the stabbing occurred, that the victim was “not a peaceful person, ” and that he had been “kicked out of his own brother’s house for fighting.” All of this, defendant asserts, establishes “significant doubt as to [defendant’s] guilt.”
We are not persuaded. In our view, none of the testimony that defendant highlights “render[s] suspect the outcome of the trial.” (Harris, supra, 22 Cal.App.4th at p. 1580.) While the victim and defendant’s wife may have told different stories at different times about exactly what transpired that night, there was no evidence whatsoever to suggest that anyone other than defendant stabbed the victim. Defendant, his wife, and the victim were the only ones home at the time. Defendant had a knife in his hand. The victim saw defendant stab him. “Yes, I saw it.” “I saw his arm reaching over.” “He was holding the knife with the right hand and he reach over and stab me on my left shoulder.” “Yes, I saw it going into my shoulder.” “At that time [defendant’s wife] was screaming ‘Oh my God. Why did you stab him?’ And then she pulled the knife out.” That same night, the victim separately told his neighbor, his wife, his mother, and his brother that defendant had stabbed him. After initially prevaricating to protect defendant, he told doctors and police the same thing.
Although defendant’s wife testified that she did not see her husband stab the victim, her testimony did not absolve defendant. She testified that she heard a “very loud noise between from the frame of the door, very loud. And I look up, it’s nothing up there. When I look down, [my brother-in-law] got hurt. He have a knife with the blade knife stuck on his shoulder without the handle.” She claimed not to know how the knife got there. She conceded, however, that she had not thrown a knife at her brother-in-law, nor had she seen him stick himself with a knife. She readily conceded that “[t]here is only one other person in the vicinity that could have thrown the knife at him.” “Who is that only other person in the vicinity?” “My husband.”
Additional evidence supporting the conclusion that defendant stabbed the victim came from the officer who had taken a statement from defendant’s wife at the hospital. That officer testified that she reported scolding her husband immediately after the stabbing, telling him “it was wrong to stab [his brother-in-law].” We conclude that a reasonable juror confronted with the evidence presented here could draw only one conclusion: that defendant stabbed the victim. This case, unlike Allen or Ozuna, was not a close one.
Defendant asserts that there was “substantial evidence pointing to the possibility of self-defense.” The record does not support his claim. Defendant’s wife testified that the victim had no weapon. It can be inferred from her testimony that defendant and the victim pushed each other, but the totality of the evidence does not compel an inference that they were “fist fighting.” The victim unequivocally rejected any suggestion that he and defendant even argued. “Never happened.” When defendant’s trial counsel continued to suggest that an argument between the victim and defendant escalated into a fist fight, the victim responded, “I told you that did not happen. Don’t ask me anymore.” “Never happened.”
When the interpreter assisting defendant’s wife at the preliminary examination used the expression “fist-fighting, ” defendant’s wife corrected her in English: “Hand-fighting.” Asked who punched whom, she testified through the interpreter that “[b]oth of them were doing that.” At trial, the district attorney asked her, “Is it your testimony today they were not punching together, they’re only pushing each other?” She replied, “The punching and pushing with their -- by their own hands. So I don’t pay attention much, but the punch or hitting or -- all I do is put their hand on both each others.” The district attorney followed up, “So punching or pushing you see as the same thing?” She replied, “For me.”
Moreover, even if the two had engaged in shoving or fist-fighting, defendant would not have been justified in using deadly force against a non-lethal attack. (People v. Clark (1982) 130 Cal.App.3d 371, 380.) Additionally, as the Attorney General points out, once defendant displayed the knife, it was the unarmed victim-not defendant-who had the right to self-defense. (People v. Ross (2007) 155 Cal.App.4th 1033, 1056.) On this record, no reasonable juror could have accepted defendant’s claims of self-defense.
Relying on federal cases, defendant claims the trial court’s admission of “prior crimes evidence” violated his right to due process. We disagree. As the cases defendant cites establish, the admission of other crimes evidence violates due process “[o]nly if there are no permissible inferences the jury may draw from the evidence....” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920 (Jammal).) “Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’ [Citations.]” (Ibid.; see McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384.) We do not believe the victim’s fleeting reference to defendant having “some prior records” rises to the level of other crimes evidence. But even if we assume for the sake of argument that it does, its admission did not violate due process. As the district attorney explained during motions in limine, defendant’s probationary or parole status was relevant to prove the victim’s state of mind-his reason for not calling police, for lying to emergency room personnel about how he came to be injured, and for “changing his testimony at the preliminary hearing.” Because the jury could have drawn a permissible inference from the “past records” remark-that the victim lied to protect his brother-in-law-its admission did not violate due process. (Jammal, at p. 920.)
We reject defendant’s claim that the denial of his mistrial motion was an abuse of discretion that “incurably prejudiced [his] right to a fair trial.”
B. Prior Conviction
Defendant contends there was insufficient evidence to support the findings that his 2002 conviction qualified as a serious felony and as a strike. He argues that because section 245, subdivision (a)(1) describes two different crimes, only one of which unambiguously qualifies as a serious felony, the district attorney was required to prove how the crime was committed. Since the district attorney did not do so here, defendant contends, the trial court was required to presume the prior conviction was for the least serious form of the offense, which does not qualify as a serious felony and is therefore not a strike.
1. Background
To prove defendant’s prior serious felony conviction, the district attorney proffered testimony from the legal secretary in his office who downloaded information from the county’s Criminal Justice Information Control (CJIC) database-specifically, defendant’s “arrest and disposition history” in the earlier case and “mugshot profile” and “id sheets” from this and the earlier case. Those documents were admitted into evidence.
The printout of defendant’s “arrest and disposition history” identifies the “charge” against him as “PC 245(a)(1).” On the same line as “charge” is a column labeled “ENHC” with the notation “AADW” below it. The next line says “Disposition: Convicted.” This was the only evidence offered to prove the nature of the prior offense. No abstract of judgment was admitted into evidence.
2. Analysis
“The People must prove each element of an alleged sentence enhancement beyond reasonable doubt. [Citation.] Where... the mere fact that a prior conviction occurred under a specified statute does not prove the serious felony allegation, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue. [Citations.] [¶] A common means of proving the fact and nature of a prior conviction is to introduce certified documents from the record of the prior court proceeding..., including the abstract of judgment describing the prior offense. [Citations.]” (People v. Delgado (2008)43 Cal.4th 1059, 1065-1066 (Delgado).) “ ‘[The] trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction....’ [Citations.] [¶]... [¶] However, if 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.]” (Delgado, at p. 1066.)
“On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.” (Delgado, supra, 43 Cal.4th at p. 1067.)
Section 245, subdivision (a)(1) “makes it a felony offense to ‘commit[] an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.’ [Citation] [¶] ‘[A]ssault with a deadly weapon’ is a serious felony. (§ 1192.7, subd. (c)(31).) On the other hand, while serious felonies include all those ‘in which the defendant personally inflicts great bodily injury on any person’ (id., subd. (c)(8), italics added), assault merely by means likely to produce GBI, without the additional element of personal infliction, is not included in the list of serious felonies. Hence, ... a conviction under the deadly weapon prong of section 245(a)(1) is a serious felony, but a conviction under the GBI prong is not.” (Delgado, supra, 43 Cal.4th at p. 1065.)
Relying on People v. Rodriguez (1998) 17 Cal.4th 253 (Rodriguez) and People v. Banuelos (2008) 130 Cal.App.4th 601 (Banuelos), defendant argues that because “[t]he evidence is silent on how the 245(a)(1) assault was committed, ” and the “AADW” notation in the arrest and disposition history is “entirely ambiguous as to its meaning, ” the trial court was required to presume the conviction was for the least serious form of the offense, which does not qualify as a strike prior.
In Rodriguez, the California Supreme Court reversed a strike finding where the only evidence offered to prove the defendant’s serious felony prior was an abstract of judgment reflecting his plea of guilty to violating former section 245, subdivision (a) (now subdivision (a)(1)). In the space on the abstract of judgment form labeled “crime, ” the clerk had inserted the abbreviation “ ‘ “ASLT GBI/DLY WPN.” ’ ” (Rodriguez, supra, 17 Cal.4th at p. 261.) That description, the court explained, “accurately reflected the statutory language” but failed to indicate which prong of the statute defendant had been convicted under. The abstract was therefore insufficient to establish his conviction for a serious felony. (Rodriguez, at pp. 261-262.)
In Banuelos, the only relevant evidence offered to prove the nature of the prior offense was an abstract of judgment abbreviating the crime as “ ‘ASSAULT GBI W/DEADLY WEAPON.’ ” (Banuelos, supra, 130 Cal.App.4th at p. 605.) The court held that the notation was ambiguous. “Although the notation could be read to mean that the assault was committed both by means of force likely to produce great bodily injury and with a deadly weapon, it could also be construed as a shorthand description of the criminal conduct covered by section 245, subdivision (a)(1)-assault by means of force likely to produce great bodily injury or with a deadly weapon.” (Ibid.) Concluding that the language in the abstract could not be meaningfully distinguished from the language in the abstract in Rodriguez, the court reversed and remanded for resentencing. (Banuelos, at p. 608.)
In People v. Luna (2003) 113 Cal.App.4th 395 (Luna), disapproved in part in Delgado, supra, 43 Cal.4th at p. 1070, the court held that an abstract of judgment with the same notation (“ ‘ASSLT GBI W/DLY WPN’ ”) was sufficient evidence of a serious felony-a result the California Supreme Court disapproved in Delgado: “Any implication in Luna that... an abstract of judgment that contains ambiguous references to both prongs of [section 245, subdivision (a)(1)] can nonetheless be sufficient evidence of a serious felony, is... incorrect, and Luna will be disapproved to that extent.” (Delgado, at p. 1070, fn. 4; Luna, at p. 397.)
Here, as in Rodriguez and Banuelos, the shorthand “AADW” notation is ambiguous, in that it might reasonably be interpreted to refer either to one or to both forms of a section 245, subdivision (a)(1) offense. Given the additional A, the first two letters of the “AADW” notation could be interpreted to mean “aggravated assault.” Delgado uses that shorthand to describe either prong of the offense. (See Delgado, supra, 43 Cal.4th at p. 1069; see also People v. Aguilar (1997) 16 Cal.4th 1023, 1036-1037 [describing both section 245, subdivision (a)(1) crimes as “aggravated assault.”].) “AADW” could, thus, mean “aggravated assault with a deadly weapon, ” which would qualify the crime as a serious felony. But because the “AA” could also refer to the other form of aggravated assault, “AADW” could also mean “assault by means of force likely to produce great bodily injury and assault with a deadly weapon.” This could be interpreted to mean defendant was convicted under both prongs of the statute, or it could simply reflect the statutory language without revealing the nature of the conviction. (Banuelos, supra, 130 Cal.App.4th at p. 606.) We agree with defendant that the “AADW” notation here is “even more ambiguous” than the notations the Rodriguez and Banuelos courts found insufficient to prove prior convictions were serious felonies.
The Attorney General argues that although the additional “A” may have added some degree of ambiguity, it “could not have so complicated the abbreviation that it made it incomprehensible to the jury.” Relying on Delgado, the Attorney General contends that “[t]he reference to ‘AADW’ was clear enough to support the jury’s finding that the serious felony allegation was true.” We disagree.
Whether a prior conviction was a serious felony strike conviction is for the court-not the jury-to decide. (People v. McGee (2006) 38 Cal.4th 682, 709; People v. Kelii (1999) 21 Cal.4th 452, 456.) We do not believe the “AADW” notation was clear enough to support the trial court’s findings. In Delgado, the California Supreme Court rejected the defendant’s contention that “Asslt w DWpn” on the abstract of judgment was insufficient to prove his prior conviction occurred under the deadly weapon prong of section 245, subdivision (a)(1). (Delgado, supra, 43 Cal.4th at p. 1063.) There was-and could be-no dispute in that case that the notation stood for “ ‘assault with a deadly weapon.’ ” (Delgado, at p. 1069.) As the Delgado court explained, the description tracked “one, but only one, of the two specific, discrete, disjunctive, and easily encapsulated forms of aggravated assault set forth in section 245(a)(1).” (Ibid., italics added.) Delgado is, therefore, easily distinguished. As we have already noted, the “AA” notation here could refer to either species of aggravated assault. For that reason, it cannot be said here, as it was in Delgado, that the notation at issue refers to “one, but only one, of the two specific, discrete, disjunctive, and easily encapsulated forms of aggravated assault set forth in section 245(a)(1).” (Delgado, at p. 1069.)
We conclude there was insufficient evidence to support the findings that defendant’s prior conviction under section 245, subdivision (a)(1) was a serious felony conviction and a strike.
IV. Disposition
The judgment is reversed. The trial court is directed to vacate its true findings that defendant’s 2002 conviction was a serious felony conviction and a strike. Those allegations may be retried, at the election of the district attorney. If the allegations are again found true, the trial court shall reinstate the judgment. If the allegations are not found true, or are not retried, the trial court shall resentence defendant.
WE CONCUR: Elia, Acting P.J., McAdams, J.