Reed

I concur in the judgment. After review, I have found no reversible error or other defect.

I also largely concur in the opinion prepared for the court by Justice Werdegar. On one point, however, I must part company. I would go further and expressly disapprove People v. Castellanos (1990) 219 Cal.App.3d 1163 [ 269 Cal.Rptr. 93 ]; People v. Goodner (1990) 226 Cal.App.3d 609 [ 276 Cal.Rptr. 542 ]; and People v. Gonzales (1994) 29 Cal.App.4th 1684 [ 35 Cal.Rptr.2d 450 ]. As Justice Werdegar’s analysis makes plain, they are erroneous and mischievous.

This case concerns the admissibility of hearsay evidence to prove that a criminal defendant’s prior conviction was for a “serious felony” within the meaning of Penal Code sections 667, subdivision (a), and 1192.7, subdivision (c). Over defendant’s hearsay objection, the prosecution introduced two pieces of evidence from the record of defendant’s prior assault conviction to show that in the prior crime defendant personally used a dangerous or deadly weapon (Pen. Code, § 1192.7, subd, (c)(23)): portions of the preliminary hearing transcript and a short excerpt from the probation officer’s report. We conclude the preliminary hearing transcript excerpts were not inadmissible hearsay because they came within the former-testimony exception to the hearsay rule (Evid. Code, § 1291). The probation report fragment, however, was inadmissible because it contains hearsay that has not been shown to be within any exception to the hearsay rule (Evid. Code, § 1200).

Facts

Defendant was charged with several crimes, including second degree robbery, a serious felony. (Pen. Code, §§ 211, 212.5,1192.7, subd. (c)(19).) 1 The information further alleged he had been convicted of two prior…

This case concerns the admissibility of hearsay evidence to prove that a criminal defendant's prior conviction was for a "serious felony" within the meaning of Penal Code sections 667, subdivision (a), and 1192.7, subdivision (c). Over defendant's hearsay objection, the prosecution introduced two pieces of evidence from the record of defendant's prior assault conviction to show that in the prior crime defendant personally used a dangerous or deadly weapon (Pen. Code, § 1192.7, subd. (c)(23)): portions of the preliminary hearing transcript and a short excerpt from the probation officer's report. We conclude the preliminary hearing transcript excerpts were not inadmissible hearsay because they came within the former-testimony exception to the hearsay rule (Evid. Code, § 1291). The probation report fragment, however, was inadmissible because it contains hearsay that has not been shown to be within any exception to the hearsay rule (Evid. Code, § 1200).

Defendant was charged with several crimes, including second degree robbery, a serious felony. (Pen. Code, §§ 211, 212.5, 1192.7, subd. (c)(19).) [1] The information further alleged he had been convicted of two…