Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 156950
Kline, P.J.
Carl Raybon appeals from convictions of murder and automobile theft. He contends the trial court erred in refusing to delete certain statements by the interrogating officer from the transcript of appellant’s custodial interrogation and in considering an inadmissible police report during the court trial on an alleged prior strike conviction. We affirm the convictions, but reverse the true finding on the prior conviction allegation and remand for a new sentencing hearing.
STATEMENT OF THE CASE
Appellant was charged by an amended information filed on February 5, 2009 with the murder of Patricia Brackins (Pen. Code, § 187, subd. (a)) and with unlawful driving or taking of Brackins’s vehicle (Veh. Code, § 10851, subd. (a)). It was alleged that appellant personally used a deadly and dangerous weapon, a hammer, in committing the murder (§ 12022, subd. (b)(1)), and that he had suffered two prior felony convictions, one in Colorado for second degree breaking and entering and the other in Georgia for burglary of a dwelling house. The latter prior conviction was alleged to be a serious felony within the meaning of section 667, subdivision (a)(1), and a strike within the meaning of sections 1170.12, subdivision (c)(1), and 667, subdivision (e)(1).
All further statutory references are to the Penal Code, unless otherwise indicated.
On February 18, 2009, the jury found appellant guilty of first degree murder and unlawful driving or taking of a vehicle, and found the deadly weapon allegation true. After a bifurcated trial on May 22, the court found the Georgia prior conviction was a strike. Appellant was sentenced to a total prison term of 57 years four months, to life: 25 years to life for the murder conviction, doubled due to the strike (§§ 1170.12, subd. (c)(1), 667, subd. (e)(1)); a consecutive one year for the weapon enhancement; a consecutive one year four months for the vehicle theft; and a consecutive five years for the prior conviction (§ 667, subd. (a)(1)).
STATEMENT OF FACTS
On August 4, 2006, at about 10:50 p.m., police officers responding to a call found the body of Patricia Ann Brackins face down on the bed in the bedroom of her residence on Ritchie Street in Oakland. There was a bag over her head and her body had begun to decompose. A hammer with a reddish-brown substance on it was lying on the bed near Brackins’s right hand. Subsequent testing determined that there was blood on the face of the hammer, with DNA consistent with the victim’s. DNA testing of biological material on the handle of the hammer indicated a major donor consistent with the victim’s profile, and another donor of less DNA that was consistent with appellant’s DNA profile. The police learned from Sylvester Graham, the person who had discovered Brackins’s body, that Brackins had a roommate named Carl, and they found a business card in appellant’s name in the residence. Graham told the officers that the victim’s black Mitsubishi was missing and upon investigation they determined that a black Mitsubishi registered to Brackins had recently been impounded.
An autopsy revealed blunt force trauma to Brackins’s head, a skull fracture, and six lacerations on the right side of her head. The cause of death was blunt force injury. A toxicology examination indicated that she had been under the influence of methamphetamine when she died. The plastic bag around her head was loose and not secured.
At about 10:00 a.m. on August 3, 2006, a San Pablo resident heard a loud crash and “burning rubber.” From his front porch, he saw a black Mitsubishi had run through the fence of the church parking lot and was trying to run through the gate of the locked parking lot. The car rammed the gate twice to get through, hit a stop sign pole, and crashed into another neighbor’s fence. The car took off again, then stopped in the middle of an intersection where the driver, yelling, got out and kicked and pulled to get rid of the piece of gate that had attached to the car when it went through the parking lot gate. The car ultimately crashed into a telephone poll.
San Pablo police officers who responded to the scene of the collision had to carry the driver, appellant, out of the roadway because he would not walk. They had him sit on the curb, where he began to flail around. Appellant was transported to the hospital and was nonresponsive until about 4:00 p.m., after which he was transported to the police station, booked, cited and released. Bloodstains from the driver’s side armrest and window sill of the Mitsubishi were tested and found to be consistent with appellant’s DNA profile. A bloodstain on an envelope and a dollar bill found in the car were consistent with Brackins’s DNA profile.
On August 23, San Francisco police officers conducting a premises check at a hotel due to complaints regarding illegal narcotics activity came across appellant, who said he was visiting a hotel guest. A computer check revealed an outstanding homicide warrant from Oakland, and Oakland police arrived and took appellant into custody.
Oakland Police Sergeants Louis Cruz and James Morris interviewed appellant at the police department on August 23. Appellant did not appear to be under the influence of alcohol or narcotics and his demeanor was “very somber.” He initially denied any involvement in Brackins’s death and said he only stole her car, but later admitted hitting Brackins on the head with a hammer. Cruz testified that during the interview appellant never said Brackins raised the hammer in a threatening way or hit him with it, never said he killed Brackins in self-defense, never said he was high on drugs and did not realize what he was doing, and never said he could not remember details of the event. Cruz acknowledged on cross-examination that he used subterfuge at one point in his interrogation of appellant, as he was allowed to do, by suggesting that from what he knew of Brackins, he could not see her picking up the hammer. Cruz did not know Brackins and had not talked to a member of her family or friend other than the neighbor who he spoke to when her body was discovered. At the time of the interrogation, Cruz knew there was overwhelming evidence that appellant committed the crime.
About an hour and a half into the interview, the officers began to record it. The tape was played for the jury. In the recorded portion of the interview, appellant told the police he had been using crack cocaine off and on since 1986. He met Brackins when he was doing electrical work for her property, she rented him her bottom apartment, and they developed an intimate relationship. At the end of July, beginning of August, appellant had been smoking crack for about two days. He called Brackins, who picked him up and gave him $40 to pay what he owed for drugs. At home, while Brackins went to the store, appellant took $600 from a drawer where he had sometimes seen Brackins put her wallet. When she returned, he mentioned he wanted to get high and she got frustrated. She tried to hold him back when he went to leave, and he “pushed her off” and said some “vulgar” things.
Appellant said they “[n]ever get in arguments or screamin’ or nothin’. And, um... you know, she grabbed a hammer and said, you know, ‘If you gonna go out the door, you gotta come through me.’ I just grabbed the hammer... just to throw it down, cuz.... At that point, you know, she just lunged at me with her right hand and I just pushed her down on the bed with my left hand. I mean I’d already grabbed the hammer. So after I pushed her down, you know she kind of lunged back up, and then I pushed her down by her back, and then I slipped and I go down. And the hammer hit her in the head, and she started bleedin’. She said, ‘Oh, shit.’... And I got scared. [¶]... [¶] And my only thought was that... I hit her on the head with this hammer... she’s gonna die from it. [¶]... [¶] She was tryin’ to get up again and I hit her with the hammer again... (inaud.) twice. [¶]... [¶] I stood there, and it seemed like forever... lookin’... lookin’ at (inaudible)... the blood. I wanted to stop the blood. I placed a bag over-a plastic bag over her head. [¶]... [¶] I tried to feel for a pulse. And I couldn’t cuz my hands were shaking. And then I saw the blood on my hands. [¶]... [¶] I took a towel, wiped my hands after taking money out a her wallet. Then I looked for the keys and I went in her pocket and got her keys. The car was still parked outside the gate. I locked the front gate to the front door and I went and got in the car. I went down to the liquor store. I drank the brandy, and then I went to Alameda. And I went... I went to... cop some drugs, some crack... then I went to Alameda.”
Appellant told the officers he thought he hit Brackins three times and he took about $128 from her wallet. He and Brackins had never hit each other before or had any arguments. He had never taken money from her to pay for drugs, although she had paid his drug debts.
After some discussion of where appellant went after Brackins’s death and the car crash in San Pablo (about which he remembered only drinking a bottle of brandy, feeling paranoid about police following him and blocking his way, and waking up in the hospital), the interview returned to the details of the killing. Appellant said Brackins confronted him with the hammer “in the room.” Asked if she knew he had taken her money, appellant said, “Possibly, I’m, I’m not sure.”
At this point, Sergeant Cruz told appellant that it was important for him to be completely honest about what happened, that from what he knew about Brackins, he did not believe she had picked up the hammer, and that he was afraid appellant was trying to make the events seem a little less bad. Appellant replied, “Honestly, I see it as she was gonna use it, or whatever. I mean... sh-she picked up the hammer. I don’t know where the hammer was. I... I imagine in the kitchen... cuz she picked it up. I took it from her.”
In response to further questions, appellant said Brackins had the hammer in her left hand, “not holdin’ it up, ” but “down.” She said, “You’re gonna have to come through me” while standing two or three steps inside the room with him standing at the corner of the bed. He moved toward the door and she hit him with her right hand; he took a step back and grabbed the hammer with his right hand; she lunged at him with her right hand and he pushed her down with his left arm. She hit the door and “bounced up off the door, ” he pushed her down on the bed and “that’s when we both went down, and the hammer hit her in the head.” Appellant was not sure which part of her head he hit the first time, but said the second and third times he hit her in the back of the head. The first time he hit her “hard enough to where I saw blood in her hair.” The second time was “[m]aybe a minute” later: Appellant said he was looking, thinking he had killed her, then he saw her arms “go like that” and he thought she was trying to get back up. He hit her two more times, then put a plastic grocery bag that was at the head of the bed on her head. He left the hammer on the bed. He took money from her wallet, which was underneath her.
Asked why he initially denied killing Brackins, appellant said he did not deny it, but “didn’t acknowledge it, ” because “[i]t’s still like a shock to me.” He said he had thought about turning himself in every day.
Defense
Appellant testified that he had been addicted to crack cocaine for about 22 years and also used alcohol, marijuana and prescription antidepressants. Appellant met Brackins when he was arranging to do electrical work for a renovation project at an apartment in her house. Brackins was looking for a tenant for the apartment and appellant lived there for about two months, after which Graham moved in also. Appellant and Brackins began a relationship and he eventually moved in with her. Appellant testified that he had seen Brackins be angry with Graham, Graham’s significant other and a neighbor’s young son, but before the day she died he and she had never argued and she had never been violent toward him. She would pay his drug debts when he used more crack than he could pay for.
On about August 1, 2006, appellant called Brackins and asked her to pick him up and bring $40 he needed. She did, but told him this was the last time she would do it and expressed her disappointment in him. At home, appellant heard Brackins leave the house and he smoked crack cocaine. After Brackins returned, she complained to him about his irresponsibility, blaming him for problems with work not getting done on the apartment and Graham not paying rent. She left again and appellant, wanting to get high again, looked in a drawer of their shared bureau for a shirt and noticed a bank envelope containing $600. Appellant believed this was money Brackins had been keeping for him after he cashed a $900 check from a client. Brackins returned and appellant told her he was going back out to get high. She started “ranting” about his irresponsibility and put up a hand to stop him from leaving. He went to the front door while she yelled and cursed at him. He was scared, having never had her argue with him like this.
Appellant headed back toward the back bedroom and saw Brackins approaching, waving a hammer about waist high and saying he would have to “go through her” if he was leaving. He thought she was going to hit him with the hammer and cursed at her in the hope she would tell him to leave. She continued yelling at him and as she raised the hammer, he grabbed it and pushed her into the door, trying to yank the hammer away from her. With appellant still trying to pull the hammer away from her, Brackins punched and “started swinging” at him. He pushed her toward the bed, trying to push her down. He was feeling very scared. He got control of the hammer and tried to push her away, she fell face down on the bed, still holding on to him, and as she fell, he hit her in the head with the hammer. She exclaimed, “Oh, shit” and tried to get back up, and he hit her “again and again.” Appellant testified that he did not remember how many times he hit her and that he thought he was punching her, not realizing he had the hammer in his hand. He saw blood on his hands and thought this was when he put the bag on her head. He did not mean to hit her in the head and remembered being scared at the time he did so, feeling he needed to defend himself. He did not mean to kill her. Appellant stole Brackins’s money, took her car and drove to Richmond to use more crack cocaine and try to “self-destruct, ” intending to “drive off a cliff or something.” He did not remember the car collision.
Appellant acknowledged on cross-examination that he did not tell the police that the money he took belonged to him, that he and Brackins pushed each other at the front door, that Brackins was waving the hammer and he thought she was going to hit him with it, that she punched and swung at him and would not let go of the hammer, that he thought he was punching her or that he felt the need to defend himself. He testified that at the time of the police interview he was scared and his mind was “everywhere, ” but also that he understood the officers’ questions and answered them “as best as I knew how.” Appellant acknowledged that there were exits from the bedroom other than the doorway where he struggled with Brackins. He did not know why he put the plastic bag over Brackins’s head. He took money from Brackins’s wallet to buy more drugs and used it to buy several hundred dollars worth of crack cocaine. He never called for help or called the police.
A psychiatrist testifying as an expert on the effects of drugs on the brain explained that a person under the effect of crack cocaine would be likely to misperceive reality, including perceiving danger that is not actually present, and likely to act impulsively. Long time users develop tolerance to the drug, needing more to achieve a given level of intoxication. This increases the side effects, including a more chronic state of misinterpreting reality, or psychosis, that can persist even when the person is not under the influence of cocaine, as well as jumpiness, anxiety, sleep problems and severe cravings. The expert testified that it is unlikely, though not impossible, for a person under the influence of crack cocaine to deliberate or act willfully. Combined use of cocaine and antidepressants causes a person to become “really agitated” and can make a person “exceedingly psychotic.”
Several of appellant’s friends and relatives testified that he was not an argumentative, aggressive or violent person.
DISCUSSION
I.
Prior to trial, appellant filed a motion to redact the tape and transcript of his police interview to exclude “impermissible and irrelevant opinion testimony of the interrogating [officers].” In particular, defense counsel asked the court to delete the following statements Sergeant Cruz made in questioning appellant about his assertion that Brackins had the hammer first:
“Here’s the thing. And listen to me carefully here, because this is very, very important, okay? Um... you know, we’ve come a long way from the beginning of this interview with you, you know? And you’re talkin’ very honestly about a very, very ugly thing. And I appreciate the enormous, enormous difficulty for you, talkin’ about this. But what I want to do here, is to present this thing honestly to the District Attorney, okay? I want to. And I tell you, Mr. Raybon... I’m havin’ a little bit of an issue with this lady-from what I know about this lady-because I’ve been with this... this man since the beginning of this case... pickin’ up a hammer, man. I... I don’t see it. And what I’m afraid of is you puttin’ somethin’ out there to... to try to make somethin’ that’s... that’s so ugly seem just a little bit less ugly-and now’s not the time for that. Now’s the time for total honesty, because that’s how you’re presenting yourself. Do... do you feel me on this, man? I don’t see her pickin’ up that hammer, dude.”
Defense counsel argued that these statements were “purely opinion testimony of the officer, ” not related to a particular question, not a statement by appellant and prejudicial in that the jury “may be biassed [sic] by the fact that the officer tells Mr. Raybon, ‘Well, I don’t believe your story.’ ” The court denied the motion to redact, explaining: “Well, the jury will decide. They’ll make the ultimate decision who they believe. Whether or not Mr.-or Sergeant Cruz expressed an opinion during the course of the interview is going to be something for them to make a decision. They’re going to hear the context of the statement. They’re going to decide whether or not it’s true. And if Mr. Raybon testifies, they’ll see him testify. He’s going to say what he’s going to say, and they’re going to look him in the eye and decide whether or not they believe what he says. And if they believe that what he says is she had the hammer, they’re going to decide accordingly. All right. It’s not going to have any-what Cruz says is pretty much-it’s just an officer expressing what he does in the course of interviewing and interrogating. So I’m going to deny it. I think it completes the context of the statement. It does.”
Appellant now contends the trial court’s refusal to delete the “improper opinion” of the police detective requires reversal of his conviction. He argues the statements about Brackins not picking up the hammer was “blatant speculation” because Sergeant Cruz was not present at the time of the events and did not know Brackins; violated the rule that witnesses cannot express an opinion on the guilt, innocence or credibility of the defendant; and were prejudicial because jurors often give police officers’ testimony more weight than civilian witnesses’ testimony.
“A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant.... [O]pinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.” (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.)
Appellant relies upon several cases involving opinions offered by police officers testifying at trial. People v. Torres, supra, 33 Cal.App.4th 37, 46-47, found a violation of the above rule where, at a trial for murder with a robbery special circumstance and attempted robbery, a police officer gave his own definition of “robbery” and testified, “That is what happened in this particular case.” (Id. at p. 44.) Torres held that “under the facts of this case, expressing the opinion the crimes were robberies was tantamount to expressing the opinion defendant was guilty of robbery and the first degree felony murder of [the victim].” (Id. at p. 48.) In People v. Brown (1981) 116 Cal.App.3d 820, a prosecution for selling heroin, a police officer testified to his opinion that the defendant was working as a “runner” in a drug transaction. This testimony was held improper because, since the jury was instructed that a “runner” was “necessarily as guilty as the person to whom he directed another for the purchase of heroin, ” the officer’s statement “was tantamount to an opinion that Brown was guilty of the charged crime.” (Id. at p. 829.) In People v. Sergill (1982) 138 Cal.App.3d 34, two police officers who testified for the defense about discrepancies between the eight-year-old victim’s trial testimony and her report to the police, stated on cross-examination that they believed the victim was truthful in her report. Sergill found this opinion testimony inadmissible because the veracity of individuals reporting crimes to the police was not sufficiently beyond common experience to be a valid subject for expert testimony, and the officers’ opinions as to the victim’s truthfulness was not helpful to understanding their testimony, as required for lay opinion testimony. (Id. at pp. 39-40.)
Here, by contrast, the statements appellant sought to have excluded were not opinion testimony nor indeed testimony at all. The jury heard these statements as part of appellant’s police interrogation and, as the trial court stated, Cruz’s statements were “just an officer expressing what he does in the course of interviewing and interrogating.” As indicated above, Cruz acknowledged on cross-examination that he used subterfuge during the interrogation when he suggested to appellant that he could not see Brackins picking up the hammer from what he knew of her, because in fact he did not know her and had not talked to her family or friends. The jury was thus clearly informed that the comments appellant sought to have excluded were simply an interview technique, an accusatory question intended to elicit information from appellant. The jury could not have understood Cruz’s statements to be his actual opinion that the victim would not have picked up the hammer because Cruz testified that he did not know the victim and had not learned about her from people who did know her. We find no error.
II.
The second prior conviction alleged in the information was a 1998 Georgia conviction for “burglary of a dwelling house.” Appellant contends the finding that this prior conviction was a “strike” must be reversed because the trial court relied upon an inadmissible police report. Recognizing that his attorney failed to object to the police report in the trial court, appellant argues he received ineffective assistance of counsel.
“ ‘In order for a prior conviction from another jurisdiction to qualify as a strike under the Three Strikes law, it must involve the same conduct as would qualify as a strike in California.’ ” (People v. Woodell (1998) 17 Cal.4th 448, 453.) First degree burglary is a serious felony within the ambit of California’s three strikes law. (§§ 1192.7, subd. (c)(18); 1170.12, subds. (b)(1), (c)(1); 667, subds. (d)(1), (e)(1).) Burglary of “an inhabited dwelling house” or “the inhabited portion of any other building” is burglary of the first degree. (§ 460.)
At the initial sentencing hearing, defense counsel argued that the Georgia conviction was not a strike because the Georgia charging document referred to entry into “the dwelling house of another, ” but did not indicate the dwelling was “inhabited” as required for a first degree burglary conviction in California. The court agreed that it wanted more evidence concerning whether the dwelling was inhabited or merely owned by the victim named in the Georgia accusation, and continued the hearing to allow the prosecutor to obtain reports concerning the conviction.
The subsequent hearing was held after the prosecutor obtained the Georgia police report. The arrest report stated, “Raybon was found with property belonging to Artha LEE of 3669B Vivian Ln. including a 12 GA shot Gun. He later admitted to burglarizing the house around 0730 hrs 120997.... [¶]... Officer LEE stopped RAYBON on Irwin Wy at Ida Dr. RAYBON had a 12 ga shotgun and a blue pillow case with him. Initially he said his name was Lee WALKER and he got the property from a relatives house. He later said that the relatives name was Lee WALKER. RAYBON directed us to 3669 Vivian Ln. He said his relative was Artha LEE after we found Artha LEE’s ID in his back pocket. At 3669 Vivian Wy I found the front door unlocked and called inside. I then searched the house for other suspects. [¶] We spoke with a neighbor, Mr. BRYANT, who recognized the shotgun as property of Artha LEE. BRYANT also said he didn’t recognize RAYBON as a friend or relative of Mr. LEE’s. [¶] BRYANT said LEE is a truck driver and is out of town. We contacted LEE’s ex-wife Celeste and she came to the scene. [¶] I advised RAYBON of his rights and he waived them. He confessed that he knew the front door would be unlocked. (An unknown BM named Joe told him this.) That at or about 0730 hours 120997 he went inside and stole the shotgun and other property we caught him with. RAYBON said “Joe” went into the house a week prior and stole a T.V. RAYBON said he had a cocaine habit (see report # 97033204) and that’s why he took the items. He said the reason he walked around in the neighborhood with the property was because he was going to return them.” The report then listed property found in appellant’s possession, including hair clippers, a razor, items of clothing, toiletries, and telephones.
Defense counsel argued that the police report did not establish anyone was living at the house, as opposed to owning it and keeping property there. The prosecutor argued that the report showed the house was inhabited because the neighbor told the police that the victim was temporarily out of town and that he did not recognize appellant; the victim’s ex-wife identified the property taken from the house; and the items recovered showed the house was the victim’s residence.
The court stated: “First off, somebody lived there. Either the owner or somebody else lived there. Because the defendant in this statement says his buddy went in there the week before and stole and they left the door unlocked, and he went in to get whatever he got. So there’s no question it’s an inhabited dwelling based on this report by itself. I think there’s no question that it’s a strike based upon the charges.” The court found the report sufficient to establish that people lived in the house and the conviction would be a strike under California law.
Appellant argues the police report was inadmissible to prove the nature of the Georgia conviction because the report was hearsay and contained multiple layers of hearsay. “[I]n determining the nature of a prior conviction, the court may look to the entire record of the conviction, ‘but no further.’ ” (People v. Trujillo (2006) 40 Cal.4th 165, 180, quoting People v. Guerrero (1988) 44 Cal.3d 343, 355.) “The ‘record of conviction’ includes the charging document and court records reflecting defendant’s admission, no contest plea, or guilty plea.” (People v. Gonzales (2005) 131 Cal.App.4th 767, 773.) The term “record of conviction” has been used “technically, as equivalent to the record on appeal (see People v. Abarca (1991) 233 Cal.App.3d 1347, 1350), or more narrowly, as referring only to those record documents reliably reflecting the facts of the offense for which the defendant was convicted.” (People v. Reed (1996) 13 Cal.4th 217, 223.) Reed held the preliminary hearing transcript was part of the record of conviction under either view “because the procedural protections afforded the defendant during a preliminary hearing tend to ensure the reliability of such evidence. Those protections include the right to confront and cross-examine witnesses and the requirement those witnesses testify under oath, coupled with the accuracy afforded by the court reporter’s verbatim reporting of the proceedings.” (Id. at p. 223.) Abarca held the transcript of a change of plea hearing was part of the record of conviction. (People v. Abarca, at p. 1350.)
The evidence used to prove the nature of a prior conviction must be both part of the record of conviction and admissible under the rules of evidence or other statutory limitations. (People v. Lewis (1996) 44 Cal.App.4th 845, 850-851.) Thus, a defendant’s admissions in a probation report may be used because they fall within an exception to the hearsay rule (Evid. Code, § 1220; People v. Garcia (1989) 216 Cal.App.3d 233, 237; People v. Williams (1990) 222 Cal.App.3d 911, 916), while statements by a victim, related in a probation report, do not come within such an exception and may not be used (People v. Williams, at pp. 917-918). Reed permitted use of witnesses’ statements in the preliminary hearing transcript because the transcript came within the hearsay exception for official records (Evid. Code, § 1280) and the statements were admissible as former testimony of unavailable witnesses (Evid. Code, § 1291). (People v. Reed, supra, 13 Cal.4th at p. 225.) Similarly, Abarca found the transcript of a change of plea hearing admissible as an official record (Evid. Code, § 1280) and the defendant’s statements in the transcript admissible because they were made in formal proceedings where he had the opportunity to challenge evidence against him. (People v. Abarca, supra, 233 Cal.App.3d at p. 1351.)
As indicated above, the trial court found the building involved in appellant’s prior conviction was inhabited based on appellant’s statement, related in the police report, that “his buddy went in there the week before and stole and they left the door unlocked.” Respondent asserts that this reliance on appellant’s admissions was proper, citing Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, footnote 6, for the proposition that “[s]tatements independently admissible, such as a party admission, contained in a police report are similarly admissible, despite their hearsay character.” Rupf, however, had nothing to do with proof of a prior conviction. It therefore provides no support for a conclusion that the police report is part of the record of conviction. Respondent cites no case finding a police report part of the record of conviction, and our research has disclosed none. To the contrary, in finding insufficient proof of a foreign drunk driving conviction in a Department of Motor Vehicles license suspension proceeding, a court observed, “In the criminal context, no case holds that police reports are part of ‘the record of conviction’ for purposes of proving prior serious felony convictions under Penal Code section 667, subdivision (a). (See People v. Reed[, supra, ] 13 Cal.4th 217.)” (Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1521, 1523.) Nothing in the record before us indicates that the police report concerning the Georgia conviction was lodged or admitted as an exhibit in the proceedings underlying the conviction so as to become part of the record on appeal (cf. People v. Abarca, supra, 233 Cal.App.3d at p. 1350), or that appellant was afforded procedural protections with respect to the report (cf. People v. Reed, supra, 13 Cal.4th at p. 223). In the absence of evidence that the police report was part of the Georgia record of conviction, the trial court erred in relying upon the police report to establish the nature of that conviction. Because the other evidence before the court did not establish that the Georgia conviction involved burglary of an inhabited dwelling, as required to ensure it involved “the same conduct as would qualify as a strike in California” (People v. Woodell, supra, 17 Cal.4th at p. 453), there is no evidence to support the true finding as to the Georgia conviction.
Turning to defense counsel’s failure to object to the police report, the standards governing a claim of ineffective assistance of counsel are familiar. “Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694; In re Wilson (1992) 3 Cal.4th 945, 950.) A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694; In re Jones (1996) 13 Cal.4th 552, 561.) [¶] Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel’s conduct from counsel’s perspective at the time. (In re Jones, supra, 13 Cal.4th at p. 561.) A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, 466 U.S. at p. 689.) Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. (Ibid.) Nevertheless, deference is not abdication; it cannot shield counsel’s performance from meaningful scrutiny or automatically validate challenged acts and omissions. (In re Jones, supra, 13 Cal.4th at pp. 561-562.)” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
As we have discussed, in the circumstances here, the police report was not admissible to prove the nature of appellant’s Georgia conviction. Given the dearth of precedent for viewing a police report as part of the record of conviction, defense counsel should have known this. Counsel’s failure to object could not have been a tactical choice, as she actively argued that the Georgia conviction was not a strike under California law. Had defense counsel objected, it is reasonably probable a more favorable result for appellant would have ensued because the prosecutor’s proof did not establish that the police report was part of the record of conviction. Since there was no other evidence that appellant’s prior burglary conviction involved entry into an inhabited dwelling as required by California law, the trial court would not have been able to find the prior conviction allegation true. Counsel’s failure to object to the use of the police report to prove the nature of the Georgia prior conviction constituted ineffective assistance of counsel requiring reversal of the true finding on the prior conviction allegation.
DISPOSITION
The true finding on appellant’s Georgia conviction is reversed and the matter remanded for a new sentencing hearing. In all other respects, the judgment is affirmed.
We concur: Haerle, J., Lambden, J.