People v. Valentine CA2/3

Filed 11/19/20 P. v. Valentine CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B298709

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA415000)
v.

EDWIN LYNN VALENTINE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Noah P. Hill, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
 Defendant and appellant Edwin Lynn Valentine appeals
from a judgment entered following our remand for resentencing.
In Valentine’s prior appeal, we affirmed his two-count conspiracy
conviction but remanded for the trial court to reconsider whether
his 1986 assault conviction qualified as a strike in light of People
v. Gallardo (2017) 4 Cal.5th 120 (Gallardo). On remand, the trial
court reviewed the underlying plea proceedings from the 1986
conviction, as well as the preliminary hearing transcript, and
determined that the prior conviction was a strike. As a result,
the trial court maintained the Three Strikes Sentence previously
imposed.
Valentine now appeals from that judgment, contending
that the trial court erred in relying on the preliminary hearing
transcript, and the evidence was insufficient to support the trial
court’s conclusion that the 1986 conviction was a strike. We
disagree. As we discuss, Valentine unambiguously pled guilty in
1986 to assault with a deadly weapon. Thus, even if the trial
court erred in considering the preliminary hearing transcript—an
issue we do not reach—its conclusion that the 1986 assault
conviction was a strike was supported by substantial evidence.
We therefore affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Because this appeal involves only the question of whether a
prior conviction qualifies as a strike, we do not summarize the
trial evidence, which is described in our prior opinions. (People v.
Vantuinen et al. (Nov. 30, 2018, B261581) [nonpub. opn.]

2
(Vantuinen II); People v. Vantuinen et al. (May 11, 2017,
B261581) [nonpub. opn.] (Vantuinen I).)1
1. Conviction and Sentence
In October 2014, a jury found Valentine guilty of one count
of conspiracy to commit residential burglary (count 1; Pen. Code,
§§ 182, 459),2 and one count of conspiracy to receive stolen
property (count 2; §§ 182, 496.) The conspiracy charges arose
from Valentine’s involvement in a burglary ring targeting
residential homes whose occupants had placed “vacation holds”
on their Los Angeles Times delivery service. (Vantuinen II,
supra, B261581.)
In June 2015, the trial court found Valentine had suffered
two prior strike convictions, namely a 1982 robbery conviction
and a 1986 aggravated assault conviction in violation of section
245, subdivision (a)(1). The trial court therefore sentenced
Valentine to two terms of 25 years to life in prison under the
Three Strikes law for each count, but stayed sentence on count
one pursuant to section 654.3

1
On January 6, 2020, this court granted Valentine’s motion
to take judicial notice of the record on appeal, this court’s docket,
and this court’s prior opinions.
2
All further undesignated statutory references are to the
Penal Code.
3
The trial court also struck six prison priors pursuant to
section 1385, finding the indeterminate term imposed was
sufficient punishment for the crimes committed.

3
 2. Prior appeals
On May 11, 2017, in an unpublished opinion, we affirmed
Valentine’s judgment of conviction but reversed his Three Strikes
sentence, concluding the prosecution failed to establish that
Valentine’s 1986 assault conviction was necessarily for assault
with a deadly weapon (which qualifies as a strike) as opposed to
assault by force likely to cause great bodily injury (which does
not).4 (Vantuinen I, supra, B261581.) In so concluding, we
explained that the trial court engaged in impermissible fact-
finding by relying on police reports and the preliminary hearing
testimony from the 1986 conviction to conclude there was
“ ‘ample evidence’ ” supporting an assault with a deadly weapon.
(Ibid.) We therefore remanded the matter to the trial court for
retrial, pointing out that Valentine, absent waiver, was entitled
to a jury trial on the issue. (Ibid.)
The People petitioned for review. The California Supreme
Court granted the People’s petition, but deferred briefing pending
resolution of Gallardo, supra, 4 Cal.5th 120. (Vantuinen II,
supra, B261581.) After Gallardo was decided, the Supreme
Court transferred the matter back to us with directions to vacate
our prior opinion and reconsider the cause in light of Gallardo.
(Vantuinen II, supra, B261581.)
On November 30, 2018, we vacated Vantuinen I and filed a
second opinion in which we concluded that “Gallardo confirms
that our original analysis was correct in all respects but one, i.e.
the proper ‘next steps’ to be taken when a matter is remanded to
correct the error present[ed] here.” (Vantuinen II, supra,

4
Valentine did not dispute that his prior 1982 robbery
conviction constituted a strike. (Vantuinen I, supra, B261581.)

4
B261581.) Consistent with Gallardo, we determined the matter
should be remanded to allow the trial court (as opposed to a jury)
to determine the nature of the offense, but noted that the court’s
inquiry should be limited to “the record of the prior plea
proceeding” and what Valentine “necessarily admitted in
entering his 1986 plea.” (Vantuinen II, supra, B261581.)
3. Hearing on remand
On remand, the trial court reviewed the plea colloquy from
Valentine’s 1986 assault conviction, observing that, unlike the
defendant in Gallardo, Valentine had specifically agreed to allow
the court that took his plea to consider the preliminary hearing
transcript to determine if there was a factual basis for the plea.
The court then reviewed the preliminary hearing transcript, and
found that it established Valentine “used a bottle to toss at the
victims, missing the victim [sic] and striking the windshield and
shattering it. So the assault was with a deadly weapon.” The
trial court further noted that during Valentine’s prior plea
hearing, he pled guilty to the charges in the conjunctive,
admitting both theories of liability under section 245, subdivision
(a)(1)—that is, assault with a deadly weapon and assault by force
likely to cause great bodily injury. Accordingly, the trial court
again found that the 1986 assualt conviction was a strike, and
thus it reimposed the original Three Strikes sentence.
DISCUSSION
Valentine contends the trial court engaged in
impermissible judicial factfinding, in violation of his Sixth
Amendment rights and California law, by considering the
preliminary hearing testimony in determining the nature of his
prior conviction, and the evidence was otherwise insufficient to
prove the 1986 conviction was for assault with a deadly weapon.

5
Therefore, Valentine urges, the true finding on the prior
conviction must be reversed and the matter remanded. We
conclude the evidence was sufficient.
1. Applicable legal principles
To qualify as a strike, a prior conviction must be either a
violent felony listed in section 667.5, subdivision (c), or a serious
felony listed in section 1192.7, subdivision (c). (§§ 667, subd. (d)
& 1170.12, subd. (b).) The People are required to prove all
elements of a sentence enhancement beyond a reasonable doubt.
(People v. Miles (2008) 43 Cal.4th 1074, 1082; People v. Hudson
(2018) 28 Cal.App.5th 196, 203.)
“ ‘On review, we examine the record in the light most
favorable to the judgment to ascertain whether it is supported by
substantial evidence. In other words, we determine whether a
rational trier of fact could have found that the prosecution
sustained its burden of proving the elements of the sentence
enhancement beyond a reasonable doubt.’ [Citation.]” (People v.
Hudson, at p. 203, quoting People v. Delgado (2008) 43 Cal.4th
1059, 1067; People v. Miles, at p. 1083.) If the prior offense is one
that could be committed in multiple ways and the record of
conviction does not disclose how the offense was committed, we
“presume the conviction was for the least serious form of the
offense.” (People v. Miles, at p. 1083; People v. Delgado, at
p. 1066; People v. Cortez (1999) 73 Cal.App.4th 276, 280.)
In 1986, when Valentine pled guilty in the previous case,
section 245, former subdivision (a)(1), provided that aggravated
assault could be committed in two different ways—either by
means likely to produce great bodily injury, or by use of a deadly
weapon other than a firearm. (People v. Delgado, supra, 43
Cal.4th at p. 1063; People v. Hudson, supra, 28 Cal.App.5th at

6
p. 203.) Only the latter form of the offense is a serious felony for
purposes of the Three Strikes law. (Gallardo, supra, 4 Cal.5th at
p. 23; Hudson, at p. 203.)5
Previously, California trial courts were allowed to
determine whether a prior conviction qualified as a “strike” by
looking to the entire record of conviction, including the
preliminary hearing transcript. (Gallardo, supra, 4 Cal.5th at
p. 125–126, 129–130; see People v. McGee (2006) 38 Cal.4th 682;
People v. Saez (2015) 237 Cal.App.4th 1177, 1199 (Saez).)
However, based on a line of United States Supreme Court
precedents beginning with Apprendi v. New Jersey (2000) 530
U.S. 466 and ending with Descamps v. United States (2013) 570
U.S. 254 and Mathis v. United States (2016) 579 U.S. __ [136 S.Ct
2243], our Supreme Court held in Gallardo that this procedure
was no longer permissible.
In Gallardo, as here, the prior conviction at issue was a
violation of section 245, former subdivision (a)(1). To determine
whether the offense was for assault with a deadly weapon or
assault with force likely to produce great bodily injury, the
Gallardo trial court relied on the victim’s testimony at the
preliminary hearing that the defendant had used a knife.
(Gallardo, supra, 4 Cal.5th at pp. 125–126.) After considering
the federal authorities mentioned ante, Gallardo held that this
was improper. It explained: “[A] court considering whether to
impose an increased sentence based on a prior qualifying
conviction may not determine the ‘nature or basis’ of the prior

5
Section 245, subdivision (a), was amended in 2011 to
separate the two forms of the offense into different subdivisions
of section 245. (Gallardo, supra, 4 Cal.5th at p. 125, fn. 1.)

7
conviction based on its independent conclusions about what facts
or conduct ‘realistically’ supported the conviction. [Citation.]
That inquiry invades the jury’s province by permitting the court
to make disputed findings about ‘what a trial showed, or a plea
proceeding revealed, about the defendant’s underlying conduct.’
[Citation.] The court’s role is, rather, limited to identifying those
facts that were established by virtue of the conviction itself—that
is, facts the jury was necessarily required to find to render a
guilty verdict, or that the defendant admitted as the factual basis
for a guilty plea.” (Id. at p. 136.)
Accordingly, Gallardo concluded the trial court had
“engaged in a form of factfinding that strayed beyond the bounds
of the Sixth Amendment. Defendant had entered a plea of guilty
to assault under a statute that, at the time, could be violated by
committing assault either with a ‘deadly weapon’ or ‘by any
means of force likely to produce great bodily injury.’ [Citation.]
Defendant did not specify that she used a deadly weapon when
entering her guilty plea. The trial court’s sole basis for
concluding that defendant used a deadly weapon was a transcript
from a preliminary hearing at which the victim testified that
defendant had used a knife during their altercation. Nothing in
the record shows that defendant adopted the preliminary hearing
testimony as supplying the factual basis for her guilty plea.”
(Gallardo, supra, 4 Cal.5th at p. 136.)
2. Reliance on the preliminary hearing transcript
At the 1986 plea proceeding, the prosecutor asked
Valentine, “The court must find that there is a factual basis for
your plea. [¶] Is it agreeable with you that the judge may read
the preliminary hearing transcript and the probation reports to

8
determine if there is a factual basis for your plea?” Valentine
responded affirmatively, and defense counsel joined.
On remand, the trial court recognized its task was to
resolve the question of whether the prior constituted a strike
“strictly on the record of the plea,” and acknowledged it could not
“become a factfinder.” However, it then pointed to Gallardo’s
observation that “[n]othing in the record [in that case] show[ed]
that defendant adopted the preliminary hearing testimony as
supplying the factual basis for her guilty plea.” (Gallardo, supra,
4 Cal.5th at p. 136.) In the instant case, in contrast, Valentine
and his counsel agreed that the court could read the preliminary
hearing transcript and the probation reports to determine if there
was a factual basis for the plea. Therefore, the trial court
reasoned, “the bottom line is . . . that it is incorporated in the plea
itself that the preliminary hearing provides the factual basis for
the plea, which is what the Gallardo case was lacking.” The
court then concluded the witnesses’ testimony at the preliminary
hearing showed Valentine committed assault with a deadly
weapon.
The People argue that the trial court was correct. They
assert: “Where, as in the instant case, a defendant adopts the
preliminary hearing transcript as establishing the factual basis
of his or her plea during the plea hearing, a subsequent court
evaluating whether that conviction qualifies as a serious or
violent felony under the Three Strikes law may examine the
preliminary hearing transcript to determine the nature or basis
of the prior conviction.” In support, the People point to
Gallardo’s observation that Gallardo had not adopted the
preliminary hearing testimony as supplying the factual basis for
her plea. From this, the People reason that the converse must be

9
true: where a defendant does adopt the preliminary hearing
transcript as the factual basis for his or her plea, the court may
consider undisputed evidence contained therein without violating
the Sixth Amendment.
Valentine, on the other hand, contends that the trial court’s
reliance on the preliminary hearing transcript violated his Sixth
Amendment rights. He contends that Gallardo did not hold a
court may rely on a preliminary hearing transcript under these
circumstances. He did not, in the 1986 proceeding, agree or
admit that the preliminary hearing transcript established he
committed an assault with a deadly weapon, nor did he admit
that every piece of evidence adduced at the preliminary hearing
was true. Further, he asserts, even if reliance on the preliminary
hearing transcript was proper, the evidence presented at his
preliminary hearing was “at times ambiguous and conflicting”
and was insufficient to establish beyond a reasonable doubt that
he pled to assault with a deadly weapon.
Gallardo’s reference to the fact that the defendant there
had not adopted the preliminary hearing testimony as supplying
the factual basis for her plea may implicitly suggest that, had she
done so, the result would have been different. But Gallardo did
not expressly hold that a court may evaluate the evidence in a
preliminary hearing transcript under such circumstances, nor did
it explain what portion or portions of the transcript could be
considered, or what type of stipulation would be sufficient to
allow such reliance. The People cite no published, post-Gallardo
California case so holding.6

6
The People cite Saez, supra, 237 Cal.App.4th 1177, a pre-
Gallardo case, for the proposition that a trial court may consider
materials that the defendant has stipulated provide the factual

10
 However, we need not reach the issue of whether, and
under what circumstances, a court may rely on a preliminary
hearing transcript where a defendant has stipulated that it may
be considered as the factual basis for his or her plea. As we
explain post, the transcript of the 1986 plea proceeding, by itself,
conclusively demonstrates that Valentine pled to assault with a
deadly weapon. Thus, even assuming arguendo that the trial
court erred by relying upon the preliminary hearing transcript,
any error was harmless beyond a reasonable doubt. (Chapman v.

basis for a plea. But this is not what Saez held. Saez considered
whether a trial court correctly found a defendant’s prior
Wisconsin conviction qualified as a strike under California law.
To prove the Wisconsin prior was a strike, the People offered a
copy of the Wisconsin complaint, which contained an “affidavit of
probable cause” that included an officer’s sworn statements
regarding the prior crime. (Saez, at pp. 1193, 1196.) Saez had
stipulated “ ‘to the facts in the criminal complaint for basis of the
plea.’ ” (Id. at pp. 1192, 1198.) On appeal, Saez argued that the
trial court’s reliance on the officer’s statements was error under
California law, i.e., People v. McGee, supra, 38 Cal.4th 682, and
also violated his Sixth Amendment rights. (Saez, at p. 1191.)
Saez rejected the first contention, but agreed with the second.
Under McGee, the trial court could properly consider the
affidavit, which was part of the record of conviction. (Saez, at
pp. 1195–1198.) But, under Descamps, the court’s reliance on the
affidavit violated the Sixth Amendment. (Saez, at p. 1198.)
Saez’s “stipulation to the complaint as the factual basis of his
plea” did not “constitute a waiver of Sixth Amendment rights or
an admission as to those additional facts.” (Id. at p. 1206.) It
“was not tantamount to a finding that the facts in the affidavit of
probable cause were true beyond a reasonable doubt or to an
admission that those facts were true.” (Id. at p. 1207, fn. 21.)
Thus, Saez does not assist the People’s argument.

11
California (1967) 386 U.S. 18, 24; see People v. French (2008)
43 Cal.4th 36, 52–53 [applying Chapman standard to Sixth
Amendment violation]; People v. Selivanov (2016) 5 Cal.App.5th
726, 763 [Apprendi error is subject to Chapman harmless error
analysis].)
3. The transcript of the plea proceeding provides sufficient
evidence that Valentine’s 1986 conviction was a strike
At the start of the 1986 plea proceeding, the prosecutor
informed Valentine: “You are charged in information number
A537338, in two counts. [¶] Each count charges a violation of
Penal Code section 245(a)(1), a felony, assault with a deadly
weapon and by means of force likely to produce great bodily
injury.” The prosecutor advised Valentine of, and obtained his
waivers of, his rights to a jury or court trial, to confrontation, and
against self-incrimination. The following colloquy then
transpired:
“[Prosecutor]: In count 1, to the allegation that on or about
May 29, 1986, in the county of Los Angeles, you violated Penal
Code section 245(a)(1), a felony, assault with a deadly weapon or
by means of force likely to produce great bodily injury and that
you willfully and unlawfully committed an assault upon Darrell
Russell with a deadly weapon, to wit, beer bottle, and by means of
force likely to produce great bodily injury, how do you plead?
“[Valentine]: Guilty.
“[Prosecutor]: To count II, that on or about May 29, 1986,
in the county of Los Angeles, you violated Penal Code section
245(a)(1), a felony, in that you did willfully and unlawfully
commit an assault upon Arch Hobgood with a deadly weapon, to
wit, a beer bottle, and by means of force likely to produce great
bodily injury, how do you plead?

12
 “[Valentine]: Guilty.” (Italics added.)
Valentine urges that the record of the prior plea proceeding
failed to establish he pled guilty to assault with a deadly weapon.
We disagree.
As noted, the trial court on remand concluded that
Valentine had pled guilty to both types of conduct prohibited by
section 245, former subdivision (a)(1), and expressly admitted
assaulting one of the victims with a deadly weapon, i.e., a beer
bottle. This was correct. Valentine expressly pled guilty to
assault with a deadly weapon. And, he specifically admitted the
assaults were “with a deadly weapon, to wit, a beer bottle.” His
plea and admissions thus conclusively established that his
convictions were for assault with a deadly weapon, a strike. (See
Gallardo, supra, 4 Cal.5th at p. 136 [trial court may rely upon
facts that “defendant admitted as the actual basis for a guilty
plea”]; In re Scott (2020) 49 Cal.App.5th 1003, 1021 [“[T]he
Gallardo court stated repeatedly that—even after Descamps and
Mathis—sentencing courts may rely on undisputed facts
admitted by the defendant”], review granted on a different point,
Aug. 12, 2020, S262716; People v. Feyrer (2010) 48 Cal.4th 426,
442–443, fn. 8 [“the prosecutor, by obtaining defendant’s plea of
no contest to the offense of assault by means of force likely to
produce great bodily injury, and his admission of the allegation of
inflicting great bodily injury, ensured that defendant’s current
conviction would thus qualify” as a strike in a future case].)
Unlike in Gallardo, where the defendant did “not specify
that she used a deadly weapon when entering her guilty plea,”
(Gallardo, supra, 4 Cal.5th at p. 136), the converse is true here:
Valentine expressly admitted his use of a deadly weapon. And,
his admission was not a gratuitous comment unrelated to an

13
element of the offense; use of a deadly weapon was an element of
the crime. (See In re Scott, supra, 49 Cal.App.5th at p. 1021
[conc. opn. of Dato, J.] [whether a court may rely on a defendant’s
gratuitous comments in a plea colloquy to establish facts beyond
the necessary elements of the crime presents a difficult
question].)
That Valentine also pled guilty to assault by means of force
likely to produce great bodily injury does not cast doubt on the
validity of his plea to assault with a deadly weapon; as a matter
of law, the two offenses are not mutually exclusive. In sum, the
trial court properly considered Valentine’s 1986 plea and
admissions, which were by themselves sufficient to prove the
nature of the prior offense. No violation of the Sixth Amendment
or California law is apparent.
Valentine argues that the information charged both forms
of the offense. When taking the plea to count 1, the prosecutor at
one point used the disjunctive “or” in describing the offenses. The
minute order reflecting his plea simply stated he pled to violating
“245.A1.” The abstract of judgment referred to both prongs of the
offense, listing “PC 245(a)(1) ADW GBI.” These records,
Valentine asserts, do not establish he necessarily pled to assault
with a deadly weapon rather than assault by means likely to
produce great bodily injury, or that he pled to both offenses.7
Further, he argues, during the original sentencing hearing the

7
Valentine also points out that on remand, t]he trial court
acknowledged there was “ ‘ambiguity in which theory really
satisfies the factual basis of the plea.’ ” But the court concluded,
“I think it can satisfy both . . . as long as it satisfies the strike
rule offense I think the strike is valid.” We discern no ambiguity
in the plea.

14
court observed that in the 1986 case, the prior robbery was not
charged as a serious felony, suggesting the parties understood it
did not constitute a strike. But we are not here concerned with
whether the abstract or the minute order, by themselves, were
ambiguous or would have been sufficient. And, under Gallardo,
the trial court could not draw the inferences Valentine suggests
from the record. Valentine’s argument simply ignores the
transcript of the plea proceeding, which unequivocally
demonstrates he pled guilty to assault with a deadly weapon, in
addition to assault by means of force likely to cause great bodily
injury.
The authorities Valentine cites do not compel the
conclusion he seeks. People v. Rodriguez (1998) 17 Cal.4th 253,
held that an abstract of judgment, which showed that the
defendant pled guilty to violating section 245, subdivision (a)(1),
and contained the notation “ ‘ASLT GBI/DLY WPN,’ ” proved only
the least adjudicated elements of the offense and was insufficient,
by itself, to prove the defendant pled guilty to a serious felony.
(Rodriguez, at pp. 261–262.)
In People v. Cortez, supra, 73 Cal.App.4th 276, a case
decided by this division, the defendant pled guilty to discharging
a firearm from a motor vehicle. To prove that offense was a
strike, the People had to show the defendant personally used a
firearm or a weapon. But they offered only the fact of the plea,
which disclosed nothing about how the crime was committed.
(Id. at pp. 278–280.) Since the defendant could have been
convicted as an accomplice, this was insufficient. (Id. at pp. 280,
282–283.) “Something more than Cortez’s bare guilty plea to the
prior charged offense was required, and it was the People’s
burden to produce such additional evidence. For example, at the

15
time the guilty plea in the prior proceeding was taken,
appropriate factual admissions could have been solicited . . . .”
(Id. at p. 283.)
In People v. Banuelos (2005) 130 Cal.App.4th 601, to prove
a violation of section 245, subdivision (a)(1) was a serious felony,
the People offered an abstract of judgment showing the defendant
pled to “ ‘ASSAULT GBI W/DEADLY WEAPON.’ ” (Banuelos, at
pp. 605–606.) This notation was ambiguous; although it could be
read to mean the assault was committed both by means of force
likely to produce great bodily injury and with a deadly weapon, it
could also be construed as merely a shorthand descripton of the
criminal conduct covered by section 245. (Banuelos, at p. 606; see
also People v. Jones (1999) 75 Cal.App.4th 616, 631–634
[documents indicating only that defendant was convicted of
federal bank robbery, where the crime could have been
committed in a way that did not qualify as a serious felony, was
insufficient].)
These authorities do not assist Valentine. Unlike in
Rodriguez, the People did not offer the mere fact Valentine was
convicted of violating section 245, subdivision (a)(1). Unlike in
Banuelos, the evidence did not consist only of an ambiguous
abstract of judgment. At the plea proceeding, Valentine did not
plead simply to a generic violation of section 245, subdivision
(a)(1). In short, the “something more” required by Cortez was
present here: evidence Valentine expressly pled to the assault
with a deadly weapon form of the offense, plus an admission that
he used a deadly weapon. The evidence was sufficient.
Finally, Valentine points out that we twice previously
determined the trial court violated the Sixth Amendment by
relying on the preliminary hearing evidence, and “there is no

16
basis to reach a different conclusion now.” On this point, we
disagree.
In our previous opinions (Vantuinen I and II), we noted
that the prosecutor had disagreed with defense counsel’s
characterization of Valentine’s plea as “ambiguous” as to the
nature of the prior conviction, but that he also had argued that
the trial court was “ ‘entitled to look behind . . . the information
and the plea to the facts underlying the conviction’ ” to
“ ‘substantiate this [was] an assault with a deadly weapon.’ ”
(Vantuinen II, supra, B261581) We then observed that “the trial
court conducted the inquiry suggested by the prosecutor,” and
“relying on the police reports and the preliminary hearing
testimony . . . concluded ‘there is ample evidence supporting
assault with a deadly weapon, to wit, beer bottle.’ ” (Vantuinen
II, supra, B261581, italics added; Vantuinen I, supra, B261581,
italics added.) We formed no conclusions, however, as to what
was or was not established by and through the plea colloquy
itself. Instead, we merely determined that the trial court’s sole
reliance on the police reports and preliminary hearing to make
evidentiary findings was inconsistent with the Sixth
Amendment—as interpreted in Descamps v. United States, supra,
570 U.S. 254, and subsequently, Gallardo.8 (Vantuinen II, supra,
B261581; Vantuinen I, supra, B261581.)
During the resentencing proceedings in this case, in
contrast, the trial court squarely focused on the plea colloquy.

8
Indeed, as acknowledged by both parties during briefing in
the prior appeal, the 1986 plea colloquy was not admitted into
evidence during the 2015 sentencing proceedings; thus it was not
a part of our record on appeal.

17
Our review of that record confirms that Valentine pled guilty to a
strike offense. Accordingly, we uphold the trial court’s decision to
maintain the Three Strikes sentence previously imposed upon
Valentine.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

DHANIDINA, J.

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