Dеfendant appeals his conviction for robbery in the second degree, challenging the sentence that the trial court imposed. He argues that the trial court erred in using a previous California conviction to calculate his criminal history score and in imposing an excessive term of post-prison supervision. The state concedes that the court erred in imposing the term of post-prison supervision, but it argues that the trial court correctly relied on the California сonviction in calculating defendant’s criminal history score. We agree with defendant on both contentions and remand for resentencing.
Defendant was convicted of one count of robbery in the second degree. ORS 164.405. He has four prior person misdemeanor convictions, three of which he agrees propеrly were considered in the calculation of his criminal history score. The fourth is a California conviction for battery on an officer and emergency pеrsonnel. The California statute that defines that offense provides:
“When a battery is committed against the person of a peace officer, custodiаl officer, firefighter, emergency medical technician, mobile intensive care paramedics, lifeguard, traffic officer, or animal control officеr engaged in the performance of his or her duties, * * * and the person committing the offense knows or reasonably should know that the victim is a peace officer, custodial officer, firefighter, emergency medical technician, mobile intensive care paramedics, lifeguard, traffic officer, or animal control officer engaged in the performance of his or her duties, * * * the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jаil not exceeding one year, or by both such fine and imprisonment.”
Cal Penal Code § 243(b). Thus, the California statute requires proof that (1) defendant committed battery; (2) agаinst one of the persons listed in the statute; (3) while that person was engaged in the performance of his or her job duties; and (4) defendant knew or should have known that the victim was performing those job duties. The record below c< 'tains no information about the particulars of defendant’s C Ifornia conviction.
The state argued to the trial court that the California conviction properly could be considered in calculating defendant’s criminal history score under OAR 213-04-011(1), which provides:
“An out-of-state adult conviction shall be used to classify the offender’s criminal history if the elements of the offense would have constituted a felony or a Class A misdemeanоr under current Oregon law.”
According to the state, the California conviction would have constituted the Class A misdemeanor
“A person commits the crime of assaulting a public safety officer if the person intentionally or knowingly causes physical injury to the other person, knowing the other person to be a peace officer, corrections officer, youth corrеctions officer, parole and probation officer, emergency medical technician or firefighter, and while the other person is acting in the cоurse of official duty.”
ORS 163.208(1). The state argued that the elements are essentially identical to the California statute, requiring that (1) defendant caused physical injury; (2) to one of the persons listed in the statute; (3) while that person was engaged in the course of official duty; and (4) defendant acted knowingly or intentionally.
Defendant argued that the California crime is broader and more inclusive than the Oregon crime and that, under
State v. Golden,
On appeal, defendant argues that the trial court erred, because the two stаtutes are not identical and because the state faded to satisfy the evidentiary showing that Golden requires. The state argues that we need not address defendant’s contention, because, even if the California statute is not identical to the Oregon statute defining the elements of assaulting a public safety officer, it is identical to the elements of the Class A misdemeanor of assault in the fourth degree, which requires only that defendant “[i]ntentionally, knowingly or recklessly cause[ ] physical injury to another[.]” ORS 163.160. In any event, the state argues, the elements of the California statute and the Oregon statute defining the elements of assaulting a public safety officer are essentially identical.
We review the trial court’s classification of prior convictions for criminal history purposes for errors of law. ORS 138.222(4)(b);
State v. Graves,
In this case, as in
Golden,
the out-of-state statute is broader and more inclusive than the Oregon statute with which the trial court compared it. The California crime of battery upon an officer and emergency personnel broadly includes a “battery” against any of a list of nine public officials. The California statute defines “battery” to include “any willful and unlawful use of force or violence upon the pеrson of another.” Cal Penal Code § 242. The California courts have
construed that definition not to require proof of injury or bodily harm.
See, e.g., People v. Colantuono,
Thus, as in Golden, a violation of the California statutе does not necessarily constitute a violation of the Oregon statute. For example, defendant could have committed a battery that did not involve personal injury against an animal control officer. Although that conduct would constitute the California offense of battery upon an officer and emergency рersonnel, it could not constitute the Oregon offense of assaulting a public safety officer. As in Golden, therefore, it was incumbent on the state to demonstrate by way of the accusation instrument and the judgment that defendant’s California conviction in fact matched the elements of the Oregon offense that it asserted to the triаl court could be considered in calculating defendant’s criminal history score.
The state’s argument that defendant’s California conviction finds its match in ORS 163.160 is unavailing. That argument was not made to the trial court. Assuming that the state can assert it for the first time on appeal, the argument poses the same problem: One of the elements of fourth-degree assault is that the defendant cause “physical injury” to another. ORS 163.160(1). No such physical injury is required under the California statute.
Conviction affirmed; remanded for resentencing.