P. v. Freeman
Filed 8/8/06 P. v. Freeman CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. TODD FREEMAN, Defendant and Appellant. | D046251 (Super. Ct. No. SCD171858) |
APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed.
Following remand from this court, the trial court conducted a bench trial to determine whether Todd Freeman's 1994 Washington burglary conviction qualified as a prior serious or violent felony within the meaning of the "Three Strikes" Law. (Pen. Code,[1] §§ 667, subds. (b)-(i), 1170.12.) In part based on averments contained in a prosecutor's affidavit of probable cause, the court found the prior Washington conviction qualified as a strike and imposed its original three-strikes sentence of four years, which it calculated by doubling the two-year middle term. Freeman again appeals, contending the trial court committed structural reversible error by denying him his state and federal constitutional rights to a jury trial on the truth of the prior conviction allegations. He further contends that constitutional double jeopardy considerations barred retrial of the Washington serious or violent felony conviction and strike allegations. Finally, Freeman contends the court violated his due process rights by admitting the prosecutor's affidavit of probable cause into evidence for purposes of proving the residential nature of his prior Washington conviction. We affirm.
DISCUSSION[2]
I. Right to Jury Trial
Freeman contends that he was deprived of his constitutional right to a jury trial on the determination of whether his Washington burglary conviction qualifies as a strike under California law; that the determination relates to an element of the functional equivalent of a single greater crime within the meaning of People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326 and thus under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) the matter must be proved beyond a reasonable doubt to a jury. The People respond that under Apprendi, there is no federal right to a jury trial of
" 'the fact of a prior conviction,' " which should encompass factual components of the nature of the prior offense. Citing People v. Kelii (1999) 21 Cal.4th 452, 457, they argue resolution of these factual components involves "the type of inquiry traditionally performed by judges as part of the sentencing function." They further contend that assuming Freeman had a right to jury trial on the allegations of his prior conviction, he waived that right because his express jury trial waiver made during the initial proceedings in the trial court remained in effect after remand.
A. Waiver
We first address and reject the People's waiver argument. Analogizing this case to People v. Smith (2005) 132 Cal.App.4th 924, and distinguishing People v. Solis (1998) 66 Cal.App.4th 62 (Solis), the People maintain the record shows Freeman, by his strategy to attack the adequacy of the Washington conviction by excluding the prosecutor's affidavit, had no intention to withdraw his jury trial waiver before the second trial or go through the process of a jury trial after the court ruled on the propriety of admitting that document. We reject the contention.
Solis explains that, " ' "The right of trial by jury in cases at law, whether in a civil or criminal case, is a high and sacred constitutional right in Anglo-Saxon jurisprudence, and is expressly guaranteed by the United States Constitution. A stipulation for the waiver of such a right should therefore be strictly construed in favor of the preservation of the right." ' " (Solis, supra, 66 Cal.App.4th at pp. 65-66.) The Constitution requires a defendant to personally waive his jury trial right in open court. (Id. at p. 67, fn. 3, citing Cal. Const., art. I, § 16; see People v. Hinton (2006) 37 Cal.4th 839, 873-874 [criminal defendant must be admonished and the court must secure an express waiver of the right to jury trial]; People v. Masterson (1994) 8 Cal.4th 965, 969 [in a criminal case, only the defendant personally may waive a jury trial].) In Solis, the defendant was convicted in a first trial of certain drug offenses after waiving a jury trial on the matter. (Solis, supra, 66 Cal.App.4th at pp. 64-65.) On appeal, Division Three of the Fourth District Court of Appeal found insufficient probable cause to support a search warrant for evidence supporting some of the offenses and granted the defendant's suppression motion as to those, but remanded the matter for the trial court to reconsider the defendant's suppression motion as to other offenses. (Id. at p. 64.) The trial court reconsidered the matter, denied the suppression motion and found the defendant guilty of the remaining offenses. (Id. at p. 65.) The defendant thereafter unsuccessfully raised his right to a jury trial on the remaining offenses, arguing a new waiver was necessary upon retrial. (Ibid.)
On its second review, the court of appeal concluded the defendant's first jury trial waiver applied only to his first trial, and reversed the convictions resulting from his second trial as in violation of his constitutional rights. (Solis, supra, 66 Cal.4th at p. 67.) It relied on out-of-state authority including U.S. v. Lee (6th Cir. 1976) 539 F.3d 606, which held that when a reviewing court finds error in the conduct of a trial and reverses with directions for a new trial, a litigant would not be bound by his or her previous jury trial waiver. (Solis, at p. 66, citing Lee, supra, 539 F.3d at p. 608.) Quoting Lee, the court of appeal reasoned that a defendant waiving his right to jury trial in one case could not be presumed to be aware of a possible later trial to which his waiver would apply, and indeed, it would be reasonable to suppose that such a defendant, facing a second trial, would not submit the matter to the same judge who convicted him in the first for reasons of possible bias. (Solis, at pp. 66-67.)
In People v. Smith, supra, 132 Cal.App.4th 924, the court of appeal declined to apply Solis to a situation where a defendant's first trial results in a mistrial, holding that "as long as a second trial comes about as the result of a mistrial rather than a reversal on appeal, the defendant's consent to a court trial continues in effect unless the defendant timely moves to withdraw it." (Id. at p. 936.) The court explained its conclusion was compelled by the rule that a defendant's consent to a court trial continues through all proceedings until the court's jurisdiction is broken by the taking of an appeal, unless
the defendant withdraws that consent in a timely manner. (Id. at pp. 934-935, citing U.S. v. Mortensen (9th Cir. 1988) 860 F.3d 948, 950 & Zemunski v. Kenny (D.Neb. 1992) 808 F.Supp.703, affd. Zemunski v. Kenney (8th Cir. 1993) 984 F.2d 953.) Its holding also flowed from "rational presumptions about scope of defendant's consent to waive his jury trial rights" in that a defendant consents to have the court hear and decide the entire case, and that a mistrial merely interrupts the proceeding to which defendant had already agreed. (Smith, supra, 132 Cal.App.4th at p. 936.) "Unlike other circumstances in which it might be argued that the defendant did not consent to a second court trial, the completion of a court trial following a mistrial in no manner exceeds the scope of defendant's original consent. At the other end of the spectrum, it is not reasonable to presume that when a defendant originally consents to a court trial he is agreeing that if he is convicted and prevails on appeal, he will submit to another court trial by the same tribunal that has already found him guilty." (Ibid.) The Smith court found the defendant there belatedly sought to withdraw his consent to a jury trial because he took no action to do so until the appeal in that case, and his silence on the issue in open court despite his counsel's acknowledgment of the issue was "strong evidence that he in fact reconsidered his jury trial waiver and reached an informed and voluntary decision not to withdraw it before the second trial." (Id. at p. 935.)
The People seek to compare this case to Smith, arguing the record shows Freeman did not intend to withdraw his jury trial waiver before the second trial. But this argument misunderstands the basis for Smith's holding. They acknowledge that unlike Smith, this case involves a situation where retrial was ordered after appellate intervention, however, they maintain it is different because Freeman was not retried on substantive charges and was not tried before the same judge who heard the first trial. We are unpersuaded. The appellate intervention in this case ended the trial court's jurisdiction, and likewise the continuity of Freeman's consent to a court trial. Thus, at the time of remand, Freeman's original waiver did not remain in place for him to withdraw. For the reasons expressed in Solis, we will not presume he would submit to another court trial on the prior conviction allegations even if it might come before another judge.
B. Freeman Had No Right to Jury Trial on Whether His Washington Prior was a Strike
We turn to Freeman's contention that under Apprendi, supra, 530 U.S. 466 he had a right to a jury determination of whether his prior Washington burglary conviction meets the definition of a serious felony under California law, i.e., whether the Washington record of conviction establishes Freeman entered an inhabited dwelling with the intent
to commit a theft or felony. (§§ 459, 460, subd. (a), 667, subd. (a)(4), 1192.7, subd. (c)(18).) Both parties agree that the issue presented by Freeman's jury trial argument was before the California Supreme Court in People v. McGee (2006) 38 Cal.4th 682 (McGee), which was decided on May 22, 2006. Applying McGee, Freeman's contention fails.
In McGee, the defendant was charged with various offenses, and the charging document alleged he had two prior Nevada robbery convictions that qualified as "strikes" under California's Three Strikes law. (McGee, supra, 38 Cal.4th at pp. 687-688.) The parties agreed that the elements of robbery under Nevada law differed in two respects from the elements of robbery under California law: In Nevada, robbery required only general criminal intent whereas California requires specific intent to permanently deprive another person of property, and it was sufficient under Nevada law (but not California law) that the taking be accomplished by fear of future injury to the person or property of anyone in the company of the victim at the time of the offense. (Id. at p. 688.) The defendant contended he had a federal constitutional right to have a jury inquire into the record of his Nevada convictions to determine whether they involved conduct that would not constitute robbery under California law. (Id. at pp. 688-689.) Relying on Apprendi, supra, the court of appeal agreed with the defendant, but concluded denial of a jury trial in that case was harmless beyond a reasonable doubt. (Id. at pp. 690-691.)
The California Supreme Court reviewed Apprendi as well as its prior decisions in People v. Wiley (1995) 9 Cal.4th 580, People v. Kelii (1999) 21 Cal.4th 452 and People v. Epps (2001) 25 Cal.4th 19, and disagreed with the court of appeal. Based on the California Legislature's response to Wiley, it found clear legislative intent that a jury "play a very limited role" in determining prior offense allegations, requiring the court, not a jury, to examine the records of prior convictions to determine whether the conviction qualified under the applicable sentence enhancement provision. (McGee, supra, 38 Cal.4th at p. 690.) The court declined to characterize the inquiry at hand as calling for the court to make a determination of disputed issues of fact regarding the defendant's conduct at the time of commission of the prior offense; rather, it characterized the inquiry as a "legal determination of the nature of defendant's prior convictions as established by the record of prior criminal proceedings." (Id. at pp. 702, 706.) The court explained that this merely required the court to examine court documents: "California law specifies that in making this determination, the inquiry is a limited one and must be based upon the record of the prior criminal proceeding, with a focus on the elements of the offense of which the defendant was convicted. If the enumeration of the elements of the offense does not resolve the issue, an examination of the record of the earlier criminal proceeding is required in order to ascertain whether that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law. [Citation.] The need for such an inquiry does not contemplate that the court will make an independent determination regarding a disputed issue of fact relating to the defendant's prior conduct [citation], but instead that the court simply will examine the record of the prior proceeding to determine whether that record is sufficient to demonstrate that the conviction is of the type that subjects the defendant to increased punishment under California law. This is an inquiry that is quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court." (Id. at p. 706.) The court reiterated its observation in Kelii that such an inquiry " ' "is the type of inquiry traditionally performed by judges as part of the sentencing function." ' " (Id. at p. 707.)
Under McGee, Freeman did not have a federal constitutional right to have a jury determine whether his Washington record revealed his prior conviction qualified as a serious felony. We therefore reject his argument that the court's denial of a jury trial on that issue constituted structural error requiring reversal. II. Retrial of Freeman's Prior Conviction Allegation was not Barred by Double Jeopardy
Pointing to this court's conclusion that the record of his prior Washington conviction was insufficient to permit the trial court to base its finding that the prior constituted a strike, Freeman contends retrial of the strike allegation following this court's reversal violates double jeopardy principles. He concedes the United States and California Supreme Courts have held that retrial of strike allegations is not prohibited by double jeopardy protections as recognized in Monge v. California (1998) 524 U.S. 721 and People v. Barragan (2004) 32 Cal.4th 236. However, he maintains these decisions have been undermined by Apprendi, supra, 530 U.S. 466 and Sattazahn v. Pennsylvania (2003) 537 U.S. 101 and are no longer viable.
Freeman's contention is premised on a misunderstanding of our prior holding in this case. As we noted in our prior unpublished opinion (People v. Freeman, supra, D043083), based upon Freeman's admission in a 1997 California case that his Washington conviction was a strike prior, the trial court had refused to allow Freeman to litigate whether the Washington conviction constituted a strike under California law, finding he could not "collaterally attack the admission of the strike now." The court had reasoned: "Once he makes that admission to the prior case, it's a strike prior in California for all time unless he collaterally – unless he attacks the prior through a habeus corpus petition." We concluded the trial court had effectively determined Freeman's 1997 admission collaterally estopped him from challenging the strike allegation, which was error absent any prior litigation of the issue. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 [doctrine of collateral estoppel requires that the issue to be estopped must have been actually litigated in the former proceeding].) Because Freeman had pleaded guilty and there had been no presentation of his case to a court or jury, collateral estoppel did not apply to prevent Freeman from litigating whether his prior offense constituted a strike under California law. It was under those circumstances that this court reversed the trial court's finding, which was based merely upon Freeman's 1997 admission and consequently without any supporting evidence, and specifically remanded the matter under People v. Monge (1997) 16 Cal.4th 826 to allow Freeman an opportunity to litigate the issue.
This is not a situation where the People, using all of its resources, failed to present sufficient evidence to support a finding that the Washington burglary conviction qualified as a prior strike conviction. Under the circumstances here, where our reversal of the trial court's finding on Freeman's strike prior was ultimately based on its erroneous reliance on Freeman's prior admission under inapplicable collateral estoppel principles, double jeopardy does not apply. Mere trial error does not invoke the Double Jeopardy clause. (Lockhart v. Nelson (1988) 488 U.S. 33, 39-40; Burks v. U.S. (1978) 437 U.S. 1, 15.) In Lockhart, the court explained that "a reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary 'trial errors' as the 'incorrect receipt or rejection of evidence.' [Citation.] While the former is in effect a finding 'that the government has failed to prove its case' against the defendant, the latter 'implies nothing with respect to the guilt or innocence of the defendant,' but is simply 'a determination that [he] has been convicted through a judicial process which is defective in some fundamental respect.' " (Lockhart, 488 U.S. at p. 40, quoting Burks, 437 U.S. at pp. 13-15.) The conclusion in our prior unpublished opinion – that the court erred in considering Freeman's admission, and without it there was no evidence to base the trial court's finding – is squarely within the circumstances presented in Lockhart and Burk. (Lockhart, at p. 40 ["It appears to us to be beyond dispute that this is a situation described in Burks as reversal for "trial error" – the trial court erred in admitting a particular piece of evidence, and without it there was insufficient evidence to support a judgment of conviction"].) For these reasons, Freeman's double jeopardy arguments fail. If we were to reach Freeman's arguments as to the viability of California Supreme Court authority clearly permitting retrial of prior conviction allegations (People v. Monge, supra, 16 Cal.4th 826, Monge v. California, supra, 524 U.S. 721, 734 and People v. Barragan, supra, 32 Cal.4th 236, 239, 253) we would nevertheless reject them. These cases and others establish that double jeopardy protections are generally inapplicable to sentencing proceedings. (E.g., Monge v. California, at p. 734 ["[T]he Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context"].) It is not our province to anticipate possible future treatment of these decisions by the United States Supreme Court. Until those precedents are overruled, we are bound to follow them. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III. Admission of Affidavit of Probable Cause
In determining whether Freeman's prior Washington burglary conviction met the definition of a serious felony under California law, the trial court considered an affidavit of probable cause in which a Washington prosecuting attorney summarized police reports reciting statements made to police by the victim who told them he had arrived home to find items missing from his house, and heard the burglar in his house.[3] Over counsel's hearsay objection, the court ruled the affidavit was admissible under Evidence Code section 1221 as an adoptive admission.[4] Freeman contends the trial court erred by considering that document because (1) a statement offered as an adoptive admission is not admissible as part of the record of conviction and (2) admission of the affidavit violated his rights of confrontation and cross-examination under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), as well as his due process rights under Shepard v. U.S. (2005) 544 U.S. 13 (Shepard).
The People concede that absent the prosecutor's affidavit, the evidence would be insufficient to establish whether Freeman's Washington prior constitutes a strike. However, they maintain the affidavit is an official record and the factual assertions therein amounted to adoptive admissions because Freeman had agreed the affidavit could be considered by the Washington court to establish a factual basis for his guilty plea. Alternatively, they argue the affidavit was used for the non-hearsay purpose of establishing the basis of Freeman's prior conviction and thus did not implicate any confrontation rights. The People further argue constitutional confrontation rights are not implicated absent a jury trial right on the nature of Freeman's prior conviction.
We quickly dispose of Freeman's confrontation clause argument. The United States Supreme Court has stated that "the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination." (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 52 [plurality opn.], see also California v. Green (1970) 399 U.S. 149, 157; Barber v. Page (1968) 390 U.S. 719, 725; Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1134-1135; People v. Hammon (1997) 15 Cal.4th 1117, 1127-1128; People v. Johnson (2004) 121 Cal.App.4th 1409, 1411 [probation revocation proceedings are not "criminal prosecutions" to which the Sixth Amendment or Crawford applies].) Freeman's argument that admission of the prosecutor's affidavit violated Crawford, supra, 541 U.S. 36, is based on the premise, now rejected in McGee, supra, 38 Cal.4th 682, that he was entitled to a jury trial on the question of whether his prior Washington conviction qualified as a strike under California law. Because Freeman's constitutional right to a jury trial is not implicated in the sentencing proceeding at issue, no right of confrontation arises.
Nor do we agree the court's consideration of the prosecutor's affidavit violated Freeman's due process rights under Shepard, supra, 544 U.S. 13. Freeman maintains Shepard, considered with Apprendi and its progeny, requires us to reconsider the holdings of People v. Guerrero (1988) 44 Cal.3d 343, People v. Reed (1996) 13 Cal.4th 217 (Reed), and People v. Woodell (1998) 17 Cal.4th 448 (Woodell), which hold that a trier of fact determining the truth of a prior conviction allegation involving the character of the defendant's conduct as well as the nature of his crime may look to the entire record of the conviction, including not only the trial court record, but also the appellate court record and the appellate opinion. (See Woodell, at pp. 451, 456-457.)
In our view, Shepard's application to this question was resolved by the California Supreme Court in McGee. In addressing the defendant's contention as to his jury trial right, the McGee court explained that the United States Supreme Court in Shepard addressed a limited issue under the federal Armed Career Criminal Act (ACCA) (18 U.S.C. § 924(e)), namely "whether . . . a sentencing court may look to police reports or complaint allegations in determining whether a guilty plea in an earlier criminal proceeding formed the basis for a conviction of 'generic' burglary, qualifying the defendant for a minimum 15-year prison sentence under the ACCA." (McGee, supra, 38 Cal.4th at p. 707.) It observed that the Shepard majority held " 'a later court was generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.' " (Ibid., quoting Shepard, supra, 544 U.S. at p. 16.) In rejecting the assertion that the sentencing court could properly consider all the documents in the prior record of conviction, the Shepard majority reasoned, " 'While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones [v. United States (1999) 526 U.S. 227] and Apprendi, to say that Almendarez-Torres [v. United States (1998) 523 U.S. 224] clearly authorizes a judge to resolve the dispute. The rule of reading statutes to avoid serious risks of constitutionality, see Jones, supra, at [p.] 239, . . . therefore counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea . . . .' " (McGee, 38 Cal.4th at p. 707, quoting Shepard, 544 U.S. at pp. 25-26.)
McGee rejected the notion that Shepard's holding compelled a conclusion under Apprendi (as Freeman argues here) that a California trial court should be likewise limited in its consideration of the record of conviction in the context of this case: "Although the Shepard decision may suggest that a majority of the high court would view the legal issue presented in the case before us as presenting a serious constitutional issue, the high court's decision did not purport to resolve that issue. The issue before the high court in Shepard was resolved as a matter of statutory interpretation, and the court did not purport to decide whether a state is constitutionally precluded from permitting a court to conduct the kind of examination of the record of a prior criminal proceeding that occurred in the case before us in determining whether a conviction constitutes a qualifying prior conviction for purposes of enhancement under a state sentencing statute. Accordingly, we believe that Shepard fails to establish the validity of the court of appeal's application of Apprendi." (McGee, 38 Cal.4th at p. 708, fn. omitted.) McGee correctly emphasized that Shepard involves solely a matter of statutory interpretation; indeed, the court in Shepard merely declined to expand its prior interpretation of the ACCA in Taylor v. United States (1990) 495 U.S. 575, where it had concluded section 924, subdivision (e) of the ACCA "mandates a formal categorical approach" permitting the sentencing court look at statutory definitions, indictments, informations, jury instructions, and the like, in determining the nature of the defendant's prior convictions, but "not to the particular facts underlying those convictions." (Taylor v. United States, 495 U.S. at pp. 600-602, see also People v. Lewis (2001) 25 Cal.4th 610, 660.) The court's interpretation of the ACCA is not binding here. (See People v. Gonzales (2005) 131 Cal.App.4th 767, 775.) Shepard's limited holding convinces us to reject Freeman's argument that it compels reversal here.
We therefore turn to Freeman's contention that the prosecutor's affidavit is inadmissible because the statements made therein are hearsay not falling within the adoptive admissions exception to the hearsay rule.[5] Freeman's sole argument challenging the admission of the prosecutor's affidavit under this exception is that his plea was entered under North Carolina v. Alford (1970) 400 U.S. 25 (adopted in the state of Washington in State v. Newton (1976) 552 P.2d 682, 687), similar to a "West plea" in California (People v. West (1970) 3 Cal.3d 595), which, he asserts, is not an admission of guilt.[6]
The California Supreme Court's recent decision in McGee has impacted our analysis of this issue. As stated, the court in McGee made it clear that the relevant inquiry under the circumstances presented here – where the trial court is called upon to determine whether a defendant's earlier conviction qualifies as a serious felony for California sentencing purposes – is not a factual determination about the defendant's conduct, but a "legal determination of the nature of the defendant's prior convictions as established by the record of the prior criminal proceedings." (McGee, supra, 38 Cal.4th at pp. 702, 706.) Thus, following McGee, we need not decide whether the statements in the prosecutor's affidavit fall within an exception to the hearsay rule because, similar to the appellate opinion in Woodell, supra, 17 Cal.4th 448, the statements were admitted for the nonhearsay purpose of determining whether Freeman's Washington conviction was based on a residential burglary so as to bring it within the definition of a serious felony under California law. Under these circumstances, we cannot say the trial court abused its discretion in admitting and considering the prosecutor's affidavit of probable cause in determining the nature of Freeman's prior conviction.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
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[1] All statutory references are to the Penal Code unless otherwise indicated.
[2] The factual and procedural background before remand is recited in our opinion on Freeman's prior appeal. (People v. Freeman (Nov. 2, 2004, D043083) [nonpub. opn.].) We have granted the parties' joint request to take judicial notice of the record from the prior appeal. (Evid. Code, §§ 452, subd. (d), 459.) Because the issues in this case are limited to sentencing issues not involving the underlying facts of Freeman's current conviction, it is not necessary to engage in a recitation of those facts. We will set out relevant procedural history in connection with our discussion of the issues.
[3] The affidavit, which indicates it was based on reports received from the Everett Police Department, reads in part: "Officers were summoned to 2506 Rucker, where Robert Glover had returned home and found his house had been burglarized of a pocket TV, jewelry, a camera, rare coins, clothing and other items. He had heard the burglar banging around in the basement when he came in but first assumed it was a family member until he found the missing item and realized no one was home but himself. [¶] Officers determined the point of entry was a broken window in the basement that bordered on an alley. The window had been stuffed with a pink fiberglass insulation bat [sic] which the suspect would have crawled over upon entry and exit. He had arrived home at approximately 8:40 p.m."
[4] Evidence Code section 1221 provides: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." In part, the court reasoned: "When [Freeman] signed the change of plea form indicating that they could use the statement, the affidavit in support . . . of probable cause as a basis for the change of plea, he did by his words or conduct manifest his adoption of that recitation of the facts. And there are sufficient facts contained in the affidavit, coupled with the change of plea form, to conclude that he did in fact commit a residential burglary in Washington, which by definition is a strike in the state of California."
[5] To determine whether a foreign prior conviction involved conduct that satisfies all of the elements of the comparable California serious felony offense, a court may consider the entire record of conviction in the prior criminal proceeding, but may go no further than that. (McGee, supra, 38 Cal.4th at pp. 691-692; Woodell, supra, 17 Cal.4th at p. 453; see also People v. Guerrero, supra, 44 Cal.3d at p. 355.) Apart from the suggestion in the caption of his argument, Freeman does not meaningfully argue that the affidavit of probable cause is not part of the record of conviction for purposes of the trial court's determination. Indeed he did not argue that precise point in the trial court below, and on appeal he concedes that under Washington law, the material relied upon by the trial court to determine the existence of the factual basis for the plea is made part of the record. (State v. Newton (1976) 552 P.2d 682, 685-686 [factual basis for plea may come from any source the trial court finds reliable, and whatever material relied upon by the court must be made part of the record].) Freeman's main challenge is to the court's evidentiary ruling that the recitations of fact within the affidavit were adoptive admissions for purposes of Evidence Code section 1221. We limit our discussion to whether the prosecutor's affidavit was properly admitted over Freeman's hearsay objection.
[6] An Alford/Newton plea allows a defendant to plead guilty in order to take advantage of a plea bargain even if he or she is unable or unwilling to admit guilt. (State v. Newton, supra, 552 P.2d at p. 687, citing Alford, supra, 400 U.S.at p. 31.) Even
where a defendant does not admit guilt, Washington law (CrR 4.2(d)) requires that the trial court find a factual basis supporting the plea. (State v. Zhao (Wash. 2006) 137 P.3d 835.) The factual basis requirement does not mean the trial court must be convinced beyond a reasonable doubt that defendant is in fact guilty, there must only be sufficient evidence, from any reliable source, for a jury to find guilt. (State v. Zhao, at p. 840.) Thus, in entering into an Alford/Newton plea, the defendant acknowledges there is sufficient evidence to support his conviction.