McCaw

In 1999, defendant Michael Garrett McCaw entered into a plea bargain in New York in which he pleaded guilty to attempted third degree robbery. In 2011, defendant was convicted of attempted manslaughter in California. The trial court found that defendant’s 1999 New York conviction for attempted third degree robbery qualified as a serious felony and a strike under California law, and enhanced defendant’s sentence accordingly. We have twice reversed the recidivism findings. In a third trial of the recidivism allegations, the court determined that the plea colloquy in connection with the New York conviction demonstrated that the New York offense qualified as a serious felony and strike under California law.

We again reverse. It is undisputed that the elements of attempted third degree robbery under New York law do not correspond to the elements of robbery as defined in California law. The trial court’s finding in the third recidivism trial that the conduct underlying defendant’s New York conviction would constitute attempted robbery in California constitutes the type of judicial factfinding prohibited under the Supreme Court’s interpretation of the Sixth Amendment in…