Banuelos

A jury convicted appellant Abel Banuelos of making a criminal threat under Penal Code section 422 and of resisting a peace officer under section 69. The trial court sentenced appellant to state prison after finding during a bifurcated proceeding that he had been convicted of a prior serious felony within the meaning of the “Three Strikes” law (§ 1170.12), which also triggered the five-year enhancement provision of section 667, subdivision (a). Appellant argues that the judgment must be reversed because (1) the evidence was insufficient to prove that he made a criminal threat; (2) the court erroneously declined jury instructions defining lawful arrest; and (3) the record was insufficient to demonstrate that the prior conviction qualified as a serious felony. We agree with the last contention.

FACTS AND PROCEDURAL HISTORY

DISCUSSION

A., B.

C. Proof that Prior Assault was a “Serious Felony”

Appellant was sentenced to prison for 11 years, consisting of the three-year upper term on the criminal threats count, doubled under the Three Strikes law, plus a five-year enhancement under section 667, subdivision (a). Both the “strike” and the five-year enhancement were based on a…