Winters

A person violates Penal Code section 245, subdivision (a)(1) (hereafter section 245(a)(1)) by “commit[ting] an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury . . . .” (All statutory references are to the Penal Code unless otherwise specified.) The issue presented in this case is whether a prior section 245(a)(1) conviction for an assault not involving a deadly weapon or instrument other than a firearm qualifies as a “serious felony” under section 1192.7, subdivision (c)(31) (hereafter section 1192.7(c)(31)) and thus constitutes a “strike” under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12). We reject the People’s contention that every violation of section 245(a)(1), including the type of assault involved here, is a “serious felony” pursuant to section 1192.7(c)(31) and hold that the trial court correctly determined that Otis Winters’s prior conviction did not qualify as a strike. Accordingly, we affirm the judgment.

Factual and Procedural Background

The district attorney charged Winters with selling or furnishing a controlled narcotic substance and…