Trujillo

I concur in the majority’s holding that the People may appeal from the judgment under section 1238, subdivision (a)(10) of the Penal Code (all further unlabeled statutory references are to this code).

I dissent, however, from the majority’s determination that the trial court correctly declined to consider defendant’s admission in the probation officer’s report that, “I stuck her with the knife.” Contrary to the majority, I conclude that a probation officer’s report is part of the “record of conviction” that a trial court may lawfully consider in determining whether a defendant’s prior conviction was a serious or violent felony within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)).

I.

To properly analyze this issue, I start by reviewing our most recent decisions on the matter. In People v. Reed (1996) 13 Cal.4th 217 [ 52 Cal.Rptr.2d 106 , 914 P.2d 184 ] (Reed), we noted prior decisions had not defined the phrase “record of conviction” so as to provide definitive guidance regarding what documents could be considered to determine the substance of a prior conviction and the applicability of a prior conviction sentence enhancement. (Id. at p. 223.) Reed did, however,…

*169 Opinion

Following a jury trial at which defendant was convicted of a felony, the court found an allegation that defendant had suffered a prior conviction for a violent felony within the meaning of the “Three Strikes” law “not to be a strike” and sentenced defendant to prison accordingly. Asserting that the trial court erred in finding that the alleged prior conviction was not a strike, the People appeal, relying upon Penal Code section 1238, subdivision (a), 1 which permits an appeal by the People from “[a]n order setting aside all or any portion of the indictment” (id., subd. (a)(1)), from “[a]n order or judgment dismissing or otherwise terminating all or any portion of the action” (id., subd. (a)(8)), and from “[t]he imposition of an unlawful sentence” (id., subd. (a)(10)). The Court of Appeal ruled that the People could appeal under section 1238, subdivision (a)(10), reversed the trial court’s order that the alleged prior conviction was not a strike, and remanded the case to the trial court for a retrial of the prior conviction allegation.

We agree with the Court of Appeal that the People may appeal from the judgment pursuant to section 1238, subdivision (a)(10) on the…

Following a jury trial at which defendant was convicted of a felony, the court found an allegation that defendant had suffered a prior conviction for a violent felony within the meaning of the "Three Strikes" law "not to be a strike" and sentenced defendant to prison accordingly. Asserting that the trial court erred in finding that the alleged prior conviction was not a strike, the People appeal, relying upon Penal Code section 1238, subdivision (a), [1] which permits an appeal by the People from "An order setting aside all or any portion of the indictment" (subd. (a)(1)), from "An order or judgment dismissing or otherwise terminating all or any portion of the action" (subd. (a)(8)), and from "The imposition of-an unlawful sentence" (subd. (a)(10)). The Court of Appeal ruled that the People could appeal under section 1238, subdivision (a)(10), reversed the trial court's order that the alleged prior conviction was not a strike, and remanded to the trial court for a retrial of the prior conviction allegation.

We agree with the Court of Appeal that the People may appeal from the judgment pursuant to section 1238, subdivision (a)(10) on the grounds that defendant's…