Encinas

Dispositive of this appeal is our conclusion the district attorney failed to prove appellant’s alleged prior conviction of assault on a peace officer (Pen. Code § 245, subd. (c); statutory references are to the Penal Code) was committed with a deadly weapon or instrument (rather than by means likely to produce great bodily injury) thus constituting a “serious felony” (§ 1192.7, subd. (c), cl. (11)) and satisfying the requirements of both section 667, subdivisions (b)-(i) (the three strikes statute) and section 667, subdivision (a)(1) (the five-year enhancement statute). Accordingly, we reverse the trial court’s true findings concerning these allegations.

Procedural Background

An information charged appellant with felony assault (§ 245, subd. (a)(1)) and alleged he had a felony conviction of assault on a peace officer (§ 245, subd. (c)) which qualified as a “strike” (§ 667, subds. (b)-(i)) and five-year “serious felony” (§ 667, subd. (a)(1)). Appellant pleaded pot guilty and denied the allegations.

Trial was by jury and appellant was found guilty. He moved to dismiss the allegations and the trial court denied the motion. In a court trial, the allegations were found…