Saez

facts were not necessarily established by the conviction. Accordingly, we remand for resentencing. I.

FACTUAL AND PROCEDURAL

BACKGROUND

On May 6, 2007, Saez assaulted a female victim with a garrote—a wire weapon used for strangulation—on a San Francisco street in broad daylight.3 A witness called the police after seeing Saez “stomping” on the victim as she lay on the sidewalk. Officer James Barber located Saez near the scene and detained him. Saez volunteered that “[t]he bitch was already dead” and was bleeding from her mouth when he came across her.

3 Portions of the attack were captured by a security camera, and the footage was shown to the jury at trial.

2 Officer Barber found a homemade garrote in Saez’s jacket pocket. Saez’s jacket was bloodstained, and the garrote had hair and skin attached to it. Later DNA testing established that both the victim’s and Saez’s blood was on the jacket, and the victim’s blood was on the garrote. Officer Lynn Reilly found the victim where she had been assaulted. Officer Reilly described the victim as having “blood all over her face,” and she noticed blood on a garage door near the victim’s head. The officer testified that the victim was…

A jury found Jose Saez guilty of attempted murder and found true allegations that the crime was willful, deliberate, and premeditated, that he personally inflicted great bodily injury on the victim, and that he personally used a deadly weapon. 1 The trial court found he was the same person convicted of two prior crimes in Wisconsin (the identity finding), and *1181 after the jury found the convictions true, the court ruled that they were serious felonies and strikes.

On appeal, Saez raises four main categories of arguments. First, he contends the premeditation allegation was improperly tried because it had previously been dismissed under section 995. Second, he contends the premeditation, great-bodily-injury, and identity findings were not supported by sufficient evidence. Third, he contends the identity finding, even if supported by sufficient evidence, violated the Sixth Amendment. Finally, he contends the trial court’s determination that one of the Wisconsin convictions — -for false imprisonment while armed — was a strike violated state law and the Sixth Amendment.

We affirm in part and reverse in part. We sustain the attempted murder conviction, the…

Concurring.- — -I concur in the judgment. I agree the United States Supreme Court in Descamps v. United States (2013) 570 U.S. _ [ 186 L.Ed.2d 438 , 133 S.Ct. 2276 ] (Descamps) enunciated Sixth Amendment principles compelling the conclusion California’s approach to determining whether a prior conviction constitutes a “strike,” as reviewed and upheld in People v. McGee (2006) 38 Cal.4th 682 [ 42 Cal.Rptr.3d 899 , 133 P.3d 1054 ] *1210 (McGee), does not survive federal constitutional scrutiny. 1 I doubt, however, the record of conviction in connection with defendant’s plea to false imprisonment while armed is sufficient even under McGee and therefore conclude the reversal of the strike determination as to that conviction can be grounded on state law grounds, as well.

In People v. Guerrero (1988) 44 Cal.3d 343 [ 243 Cal.Rptr. 688 , 748 P.2d 1150 ], 2 our Supreme Court held a sentencing court can look at the entire record of conviction to determine whether a prior conviction can be used for enhancement purposes. The court declined, however, “to resolve such questions as what items in the record of conviction are admissible and for what purpose.” (People v. Guerrero, at p. 356, fn.…