People v. Ortiz CA1/5

Filed 10/15/13 P. v. Ortiz CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A136117 v. (San Francisco City and County CHRISTOPHER LEE ORTIZ, Super. Ct. No. 217471) Defendant and Appellant.

Christopher Lee Ortiz was convicted by jury of first degree residential burglary (Pen. Code, § 459).1 In a bifurcated trial, the jury also found true an allegation that Ortiz had suffered a prior “strike” conviction (§ 667, subds. (b)–(i)) in the state of Texas, which was a serious felony under section 667, subdivision (a). Ortiz challenges only the sufficiency of the evidence to support the finding that his Texas conviction met the elements of a strike conviction under California law. The Attorney General agrees that the evidence submitted by the prosecution was insufficient, as do we. We therefore remand for retrial of the strike prior allegation. I. BACKGROUND Ortiz was charged by amended information with two counts of first degree residential burglary (§ 459), one count of felony receiving stolen property (§ 496), and

1 All statutory references are to the Penal Code unless otherwise indicated.

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one misdemeanor charge of obstructing or delaying a peace officer (§ 148).2 The information also alleged Ortiz had suffered two prior felony convictions in the state of Texas for which he had been imprisoned. (§ 667.5, subd. (b).) The information alleged that one of the prior Texas convictions qualified as a sentence enhancing strike under the three strikes law (§§ 667, subds. (d), (e), 1170.12, subds. (b), (c)), and was a serious felony under section 667, subdivision (a)(1). On May 9, 2012, a jury returned a guilty verdict on one of the two burglary charges and made a true finding that the offense was first-degree residential burglary.3 The following day, jury trial was held on the prior conviction allegations, and the jury found the allegations to be true.4 The prosecution introduced documentary evidence showing Ortiz had entered a plea of guilty to second degree felony burglary in Texas in 1998. The evidence adduced to establish the prior conviction consisted of a waiver of rights and plea form admitting a burglary of a habitation, a grand jury indictment which alleged Ortiz “intentionally and knowingly enter[ed] a habitation without the effective consent of . . . the owner thereof, and therein attempted to commit and committed theft,” and the minute order of the judgment and sentence for burglary of a habitation. These documents showed that Ortiz violated section 30.02 of the Texas Penal Code, second degree felony burglary of a habitation, and was sentenced to five years in the Texas Department of Criminal Justice Institutional Division. Defense counsel then moved for reconsideration of the court’s finding on the foreign strike prior on the basis that it did not qualify as a strike under California law.