Avery

Robert Derwin Avery (appellant) appeals from a judgment upon a court verdict finding him guilty of arson (Pen-Code, [1] § 451, subd. (b)). The trial court also found true the allegation that appellant was convicted of a serious felony in Texas within the meaning of the prior serious felony conviction enhancement provision (§ 667, subd. (a)(1)) and of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court granted appellant's subsequent motion to strike the Texas prior conviction and prior serious felony allegation and sentenced appellant to a prison term of eight years. [2] Appellant contends that he was denied the effective assistance of counsel because his trial counsel failed to show that his Texas prior conviction did not qualify as a strike or a prior serious felony. He also argues that the evidence is insufficient to prove that the Texas prior conviction constituted a strike. We conclude that appellant's contentions have merit and therefore set aside the court's finding of true on the Texas prior conviction and remand the cause to the trial court for resentencing.

In order to prove a claim of inadequate representation, a…