Best

Defendant Donald Leroy Best entered into a bargain whereby he pleaded guilty to the unlawful taking of a vehicle (Veh. Code, 10851, subd. (a)) in exchange for the dismissal of one count of making a terrorist threat (Pen. Code, § 422 [hereafter all references to undesignated sections are to the Penal Code]). He was to receive a sentence of either 16 or 32 months in state prison, depending upon whether the People were able to prove that an alleged prior conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) constituted a serious felony, and, therefore, a strike (§ 667, subds. (a), (b)-(i)). Following defendant’s waiver of a jury trial, the court found the prior conviction was a serious felony and imposed the 32-month sentence.

On appeal defendant contends the trial court erred in admitting into evidence, over his hearsay objection, the testimony contained in the transcript of the preliminary hearing of the prior conviction for the purpose of proving it was a serious felony. For reasons to follow, we agree.

Discussion

A violation of section 245, subdivision (a)(1), assault with a dangerous or deadly weapon, constitutes a serious felony (§ 667, subd. (a)) only…