PEOPLE v. ESTRADA

Appellant’s Petition for Review

Cal.January 28, 2016

Bi k GS ,S 0 a3 fod d oe inpA SUPREME COURT FILED IN THE SUPREME COURT OF THE STATE OF CALIFORNIA JAN 2-8 2016 Frank A. McGuire Clerk THE PEOPLE OF THE STATE OF CALIFORNIA,_ ) ) No. Deputy Plaintiff and Respondent, ) ) (Court of Appeal No. V. ) B260573) ) MARIO R. ESTRADA, ) (Los Angeles County Superior ) Court No. GA025008) Defendant and Appellant. ) ) PETITION FOR REVIEW JONATHANB. STEINER Executive Director * RICHARD LENNON Staff Attorney (State Bar No. 73556) CALIFORNIA APPELLATE PROJECT 520 S. Grand Ave., 4th Floor _. Los Angeles, CA 90071 Telephone: (213) 243-0300 Fax: (213) 243-0303 Email: rick@lacap.com Attorneys for Appellant/Petitioner A R E E R Sa L R R D Ye co pi e aeti ce oy TABLE OF CONTENTS Page(s) PETITION FOR REVIEW .. 0...eccece nent e ne eens ] QUESTION PRESENTED FOR REVIEW .......eeetenet e eae 2 STATEMENT OF THE CASE ....... 0.0.0.0 c ceceeeeeens 3 STATEMENT OF FACTS ......... 0.0. ceeene eee e nena 4 NECESSITY FOR REVIEW AND ARGUMENT........... 000002 ee eee eee eee 5 A. A Proper Review of the Record of Conviction Does Not Support the Trial Court’s Finding That Appellant Was Armed with a Firearm During Commission of His Current Offense of Possession of a Firearm by aFelon .............. 0.002 c eee eee 7 l. The Nature of the Inquiry .................. 020 eee 7 a. Statutory Construction Demonstrates that the Eligibility Finding Is Meant to be Determined Under the Full Guerrero Test.................. 10 b. Appellate Applications of Guerrero to Eligibility Determinations ........... 0.00. ee eee eee ee 19 2. Under a Complete Application of the Guerrero Rule, The Record of Conviction Does Not Support a Finding that Appellant’s Conviction Was Based on Facts Establishing “Arming,” and the Trial Court Improperly MadeIndependentFactual Findings to Conclude that ItDid .... 2. eeee eee 28 CONCLUSION...26eeeeseee ee eee. 29 WORD COUNT CERTIFICATION .................00000.re30 OPINION .. 2...0cenceeee eben ete ae 31 TABLE OF AUTHORITIES Page(s) STATE CASES People v. Bartow (1996) 46 Cal.App.4th 1573 2.2...teen e eens 8 People v. Berry (2015) 235 Cal.App.4th 1417 ........... 00.00.02 eee, 9,10, 11, 15, 16, 19, 20, 26, 27 People v. Blackburn (1999) 72 Cal.App.4th 1520 ............eeeeee eee 8 People v. Blakely (2014) 225 Cal.App.4th 1042 2.0.2...eee 10, 21, 22, 24, 27 People v. Bradford (2014) 227 Cal.App.4th 1322 ......... 0.0.0... e eee eee 9, 10, 11, 17, 20, 21, 26, 27 People v. Brimmer(2014) 230 Cal.App.4th 782 2...eeeeee eee 21 People v. Castellanos (1990) 219 Cal.App.3d 1163 2.2.0...ceenes tees 8 People v. Cervantes (2014) 225 Cal.App.4th 1007... 0...tenet eee 21 People v. Dill (1990) 218 Cal.App.3d 372 2...eccentnet eens 8 People v. Elder (2014) 227 Cal.App.4th 1308 2.0...cceee tte eee 21 - People v. Garcia (1989) a OS oo 216 Cal.App.3d 233 2...ceeee eee eens 8 People v. Goodner (1991) 226 Cal.App.3d 609 ......... 0.0ceceenn n ees 8 il Page(s) People v. Guerrero (1988) 44 Cal.3d 343 oo.eetteen e ete eens . passim People v. Guilford (2014) 228 Cal.App.4th 651 2.0.0.2eeeee eee 21 People v. Hicks (2015) 231 Cal.App.4th 275. 0...cence eee 9,21 People v. Johnson and Machado (2015) 61 Cal.4th 674 2...ccccee een 8, 12, 13, 17, 27 People v. McGee (2006) 38 Cal.4th 682 0.0...ceeeens 8, 13, 15, 18, 23, 24 People v. Myers (1993) 5 Cal.4th 1193 2...eeeeee 13 People v. Oehmigen (2015) 232 Cal.App.4th 1...eeeee eee 9, 10, 20, 21, 26, 28 People v. Osuna (2014) 225 Cal.App. 4th 1020 2.00...eeeene 21,27 People v. Park (2013) 56 Cal.4th 782 200eceee tent n tenn n teens 16 People v. Reed (1996) 13 Cal.4th 217 20.ceetent eens 8 People v. Scott (2014) 58 Cal. 4th 1415 2...cecenee ee 12, 13 People v. Superior Court (Martinez)(2014) Oo 225 Cal.App.4th 979 0.0...etenet eee nes 21 People v. Trujillo (2006) 40 Cal.4th 165 0.0...cetees 14, 24, 25, 26, 27 iil Page(s) People v. Weidert (1985) 39 Cal.3d 836 20... cecenee teens 12, 13, 16 People v. White (2014) 223 Cal.App.4th 512. 00...eeeeens 21 ’ People v. Wilson (2013) 219 Cal.App.4th 500 2.0...ceeeeteens 13, 15, 23 People v. Woodell (1998) 17 Cal.4th 448 0.0.ceteen tenes 8, 13, 24, 25 Teal v. Superior Court (2014) 60 Cal.4th 595. 2.2... eee eeeaeeee eee nen eee eee 3 STATE STATUTES Penal Codesections: Se3 03,5, 6, 11,17 1170.12 2...eeeeeooobb bbb bt betne ence, 3,17 LITO1262cceeeee eee t eens passim 3 29800 .........--205.obencree 22 CALIFORNIA RULES OF COURT Rule: 8.500enne nee eee tenes It iv IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, |) ) Plaintiff and Respondent, ) No. ) V. ) (Court of Appeal No. ) B260573) MARIO R. ESTRADA, ) ) (Los Angeles County Superior Defendant and Appellant. ) Court No. GA025008) ) PETITION FOR REVIEW TO: THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA Pursuant to rule 8.500 (a)(1) of the California Rules of Court, appellant, Mario Estrada, requests that this Court review the published opinion of the Court of Appeal, Second Appellate District, Division Eight, which affirmed the trial court’s denial of his post-judgment, Proposition 36 petition, seeking recall of his third “strike” sentence and resentencing to a second“strike” sentence. A copy of the Court of Appeal’s opinion, filed December 23, 2015, is attached hereto as “Opinion.” Nopetition for rehearing was filed. QUESTION PRESENTED FOR REVIEW Under Proposition 36 which provides for the possibility of re-sentencing for defendants not convicted ofa current serious offense, can a court review the transcripts of the defendant’s preliminary hearing, and make findings of fact that the defendant engaged in conduct which disqualifies him from Proposition 36, even though those findings were not madeatthe timebythetrier of fact, nor were those findings necessary to explain the conviction? STATEMENT OF THE CASE In 1996, appellant was convicted on his plea of grand theft person (Pen. Code, § 487, subd (c).) Based on his admission that he had two qualifying “strike” prior convictions (Pen. Code, §§ 667, 1170.12), he was sentenced under the Three Strikes Law to an indeterminate term of twenty-five-years-to-life. (CT' 7, 21) Following the November, 2012, enactment of Proposition 36 by the voters, appellant filed a petition for recall of the third “strike” sentence. (CT 1-2) Followingits review ofthe transcript of defendant’s preliminary hearing, the court denied the petition on thebasis of its factual finding that appellant was armed with a firearm in the commission of the offense, an excluding factor under Proposition 36. (Pen. Code, §§ 667, subd. (c)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) (CT 159- 175) Appellant timely filed a Notice of Appeal from the denial of his post-judgment, statutory motion. (CT 176) The appeallies. (Pen. Code, § 1237; Teal v. Superior Court (2014) 60 Cal.4th 595.) 1/ The record on appeal consists of a single volumeof a Clerk’s Transcript, which will hereinafter be referred to as “CT,” and a single volumeof an Augmented Reporter’s Transcript, which will hereinafter be referred to as “ART.” 3 STATEMENT OF FACTS Appellant entered a Radio Shack store, was showna car stereo by a salesman, and offered to buy it. When the salesmanstarted to “ring up” the purchase, appellant instead ordered the salesman to give appellant the cash that was in the register. After the salesman did so, appellant left the store. (CT 64-70) NECESSITY FOR REVIEW AND ARGUMENT Review is necessary in this case both to settle an important question of law which affects large numbersof cases and to address a split in the opinions of the lower appellate courts. Proposition 36, passed by the voters in the election held November6, 2012, amended the Three Strikes Law to provide for second “strike,” i.e., doubled sentencing, for defendants whosecurrent offense is neither violent nor serious and whoare not otherwise excluded from benefitting from the statute underspecific statutory criteria. The initiative amended Penal Codesections 667, subdivision (e)(2) and 1170.12, subdivision (c)(2), by adding subdivision (C) to provide that a defendant with two or moreprior “strikes” must be sentenced as a second“striker” under subdivisions (c)(1) and (e)(1), rather than subdivisions (c)(2) and (e)(2), unless the current offense is a violent or serious offense or an enumerated excluded offense or unless the prior strike offense is an enumerated excluded offense. Among the excluded current offenses is one in which the defendant was armed with a weapon during the commissionofthe offense.” Theinitiative also added section 1170.126 to provide that defendants previously sentenced underthe Three Strikes Law to a life sentence, who would have qualified under 2/ Penal Code section 667, subd. (e)(2)(C)(iii) provides: “During the commission of the current offense, the defendant used a firearm, was armed with a oo. firearm or deadly weapon,or intended to cause great bodily injury to another person.” . (See also section 1170.12, subd. (c)(2)(C) (iii) [containing substantively identical language].) the initiative for a second “‘strike” sentence, can file a motion to recall that sentence with the court that sentenced him, be appointed counsel, and obtain a re-sentencing. In the instant case, appellant had been charged with a numberof offenses occurring on three separate days in 1995. Concerningthe incidentat the Radio Shack store, he was charged with armed robbery, grand theft person,false imprisonment and burglary,all alleged to have been accompanied byappellant’s use of a gun. (CT 123-132, 148-157) However, appellant pled guilty only to the grand theft charge and the other charges as wellas the arming anduse allegations were dismissed. (/bid.) Nevertheless, the court here, after reviewing the reporter’s transcript of testimony presentedat appellant’s preliminary hearing, made the finding that appellant was armed, which precluded him from recall and resentencing undersection 1170.126 becausehis crime fel] within Penal Code sections 667, subdivision (e)(2)(C)(iii), and 1170.12, subdivision (c)(2)(C)(iii) (hereinafter referred to as “subdivision (i1i)”), which exclude a defendantfrom eligibility if, “[dJuring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon,or intended to cause great bodily injury to another person.” On appeal,appellant argued that, instead of determining the “nature”of defendant’s actualconviction, the court improperly reviewed thetrial record lookingfor evidence of arming, and made its own factual finding that appellant was armed during the commission of the offense. The Court of Appeal rejected this argument,ruling that the © lower court could review anything thatfell within the “record of conviction” to make a factual finding that was not pled or proven below andthat was wholly unnecessary to the conviction. (Slip. Opn., at p. 6.) And, in doing so, the Court “distinguished” another Court of Appeal opinion that held otherwise, finding that that opinion was applicable only if the factual finding was “wholly unrelated” to the conviction, which the finding here was not. (Slip. Opn., at p. 7.) For the reasons that follow, appellant urges this Court to grant review ofthis decision, and hold that a proper review of the record of conviction does not support a finding that defendant’s conviction was for an offense during the commission of which appellant was armed. A. A Proper Review of the Record of Conviction Does Not Support the Trial Court’s Finding That Appellant Was Armed with a Firearm During Commission of His Current Offense of Possession of a Firearm by a Felon 1. The Natureof the Inquiry Prior to its amendmentby Proposition 36, the Three Strikes Law provided that a third strike sentence could be imposedif the defendant had suffered at least two prior convictions for crimes that qualified as serious felonies. It further designated some specific crimes asserious felonies and provided that some conduct could make other, unlistedcrimes,serious felonies, andtherefore, “strikes.” These conduct-basedfactors that rendered otherwise non-serious offenses “strikes” included such things as whether’ ~ the building burglarized was a residence (which atthe time was not an element of any 7 crime) or whether the defendant personally inflicted great bodily injury on a non- accomplice. Because these facts were not required for the conviction itself, the question arose as to how trier of fact could find that a prior conviction factually qualified as a serious felony, “strike,” when the judgment of conviction itself did not establish thatfact. In People v. Guerrero (1988) 44 Cal.3d 343, this Court held that the trier of fact could look behind the judgment of conviction to determine whether the crime was a serious felony based upon a non-elemental fact. Guerrero limited the inquiry to review of only the record of conviction (no new evidence maybe presented) to determine the narrow issue of whether the conviction was for qualifying conduct. (/d. at p. 345; People v. McGee (2006) 38 Cal.4th 682, 691 [relevant inquiry is what is the nature or basis of the crime of conviction]; People v. Woodell (1998) 17 Cal.4th 448, 459 [“the ultimate question is, of what crime wasthe defendant convicted”].)’ With the passage of Proposition 36, for the most part, a third strike sentence may only be imposedifthe current felony being sentencedisitself serious. (See People v. Johnson and Machado (2015) 61 Cal.4th 674, 680-681.) Proposition 36, however, also 3/ An extensive body of case law developed concerning what documents and materials were properly includedin the “entire record” of a prior conviction (See e.g., People v. Bartow (1996) 46 Cal.App.4th 1573 [transcripts of testimony]; Peoplev. ~~Goodner(1991)226Cal-App.3d609[admissions]; Peoplev. Garcia (1989)216° Cal.App.3d 233 [probation report}; People v. Blackburn (1999) 72 Cal.App.4th 1520 ~ [preliminary hearing transcript where prior conviction was by plea]; People v. Castellanos (1990) 219 Cal.App.3d 1163; People v. Reed (1996) 13 Cal.4th 217 [witnesses barred]; People v. Dill (1990) 218 Cal.App.3d 372 [out-of-state records]; People v. Woodell, supra, 17 Cal.4th 448 [appellate opinion].) added subdivision (iii) with new conduct-based factors that could render a non-serious offense subject to a third strike sentence. And,it further provided that prisoners serving third strike sentences for non-serious offenses maypetition to have their sentences recalled and reduced. (/d. at pp. 679-680; Pen. Code, § 1170.126, subd.(b).) The first decision thata trial court must make uponreceiving a Proposition 36 recall petition is whether the petitioner is eligible for resentencing. (Pen. Code, § 1170.126, subd. (f); see also People v. Bradford (2014) 227 Cal.App.4th 1322, 1336- 1337.) This includes findingthatthe sentence is not imposed for any offense excluded by subdivision (iii). (Pen. Code, § 1170.126, subd.(e).) Because the exclusionary language of subdivision(iii) refers, not to statutory violations or enhancements, but to specific facts that render an otherwise eligible crime ineligible, the finding under subdivision (iii) “is not limited by a review ofthe particular statutory offenses and enhancements of which petitioner was convicted.” (People v. Bradford, supra, 227 Cal.App.4th at p. 1332.) Rather,it is a determination analogousto that madein the Guerrero circumstance, and thus, the same rulesare apt. (/d. at pp. 1337-1338; see also People v. Berry (2015) 235 Cal.App.4th 1417, 1427; People v. Ocehmigen (2015) 232 Cal.App.4th 1; People v. Hicks (2015) 231 Cal.App.4th 275.) ___ Many appellate courts reviewing section 1170.126eligibility determinations have used the rules in the Guerrero line of cases. Several, including the court here, applied only that part of the Guerrero rule limiting the evidence to be considered to that foundin the record of conviction without also limiting the nature of the inquiry to discerning the significance ofthe conviction and what conductthe conviction represents. (See e.g. People v. Blakely (2014) 225 Cal.App.4th 1042, 1048-1049.) This partial application of the Guerrero rule inappropriately grants the trial court powers not included in the recall statute and does not apply Proposition 36 as written. Both the languageofthe statute and basic rules ofstatutory construction lead to the conclusion that the full Guerrero rulethat limits both the records that may be consideredandthe nature ofthe inquiry being made must be applied in making theeligibility finding. a. Statutory Construction Demonstrates that the Eligibility Finding Is Meantto be Determined Underthe Full Guerrero Test Penal Code section 1170.126 creates a multi-step process for reduction of sentences for qualified defendants. The first of these is a determinationofeligibility, the secondis the determination ofsuitability, and the last is the determination of the appropriate determinate term if the defendant is both eligible and suitable for a reduction of his or her sentence. (See Pen. Code, § 1170.126, subd. (f); People v. Bradford, supra, 227 Cal.App.4th at pp. 1336-1337; People y Berry, supra, 235 Cal.App.4th at pp. 1420- 1421, 1424-1425.) As to thefirst inquiry, the court has nodiscretion; eligibility is a question oflaw. (See People V. Berry,supra, 235 CalApp.4th at pp. 1420-1421: People v. Oehmigen, supra, 232 Cal.App.4th at p. 7 [eligibility is not a question of fact; it is a question of law based upon properly consideredfacts in the record of conviction]; see also Peoplev. 10 Bradford, supra, 227 Cal.App.4th 1322, 1336-1340 [similarly noting that Prop. 36 eligibility determination does not involve a discretionary determinationby thetrial court or an “evidentiary hearing,” but rather a Guerrero-type inquiry based onthesettrial record].) Section 1170.126 does not give much guidance on how theeligibility determination is to be made. It merely states that the determination is to be made onthe basis ofthe petition, and that the petition shall state all the current felonies upon which the third strike sentences are being served andall of the prior felonies that were alleged and proved as “strikes.” (Pen. Code, § 1170.126, subds. (d) & (f).) It additionally provides that a defendantis eligible if his “current sentence was not imposed for any of the offenses appearing in” Penal Code sections 667 subdivision (e)(2)(C)(i) to (411), and 1170.12, subdivision (c)(2)(C)(i) to (iii), and his priors are not listed in subdivision (iv) of those sections. (Pen. Code, § 1170.126, subd.(e).) This summary treatment suggests that the eligibility determination was meantto be straight-forward and based uponestablished facts. (See People v. Bradford, supra, 227 Cal.App.4th at p. 1337 [contrast between thebrief outline for eligibility determination and the extended discussion ofsuitability procedures demonstrates no hearing on y,- supra;235-Cal-App-4thatp-— ——-- 1420 [an inmateis eligible if his “convictions and related factual findings” warrantit; thereafter, court may expand inquiry and makefactual findings to exercise discretion 1] based on dangerousness]; see also People v. Johnson and Machado, supra, 6 Cal.4th at p. 692, [“reasonable explanation for the information required to besetforth in the petition is found by considering what has been proved and what remains to be proved... There are other facts and circumstances relevant to the decision whetherto resentence the inmate, but these other facts and circumstances mustbe established in the resentencing proceeding;they are not established based onthepetitionfor resentencing.” [emphasis added].) It further suggests an expectation that existing law would be used to makethe determination. (See People v. Scott (2014) 58 Cal. 4th 1415, 1425 [body enacting statute is deemed to be aware of existing law and to have enacted statute in light thereof]; People v. Weidert (1985) 39 Cal.3d 836, 844 [“The enacting body is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted. [Citations] This principle applies to legislation enacted by initiative. [Citations]’’].) Proposition 36 was not written ina vacuum. Atthe time ofits enactment in 2012, Guerrero had been the law for 24 years. Thus, for nearly a quarter of a century, California law had provided a mechanism for determination of conduct-based factors as they applied to the Three Strikes Law. (See People v. Guerrero, supra, 44 Cal.3d 343.) Thus, when Proposition 36 included conduct-based exclusionary factors and provided that those factors would apply retrospectively as well as prospectively, and further provided that the retrospective application would be based upon the offense underlying the current sentence, it must be deemedto have intended that the long-standing Guerrero rule apply 12 to the retrospective determination of conduct-based disqualifying factors. (See Peoplev. Scott, supra, 58 Cal.4th at p. 1425; People v. Weidert, supra, 39 Cal.3d at p. 844; see also People v. Johnson and Machado,supra, 61 Cal.4th at pp. 690-694 [interpreting the statute based upon thehistorical operation of the Three Strikes Law].) That rule encompasses more than simply a limitation of the evidence to be reviewed. It includes a limitation of the nature of the inquiry. The inquiry is not a new factfinding endeavor. Rather,it is a determination of what facts underlay the already established conviction. (See People v. McGee, supra, 38 Cal.4th at 706; People v. Wilson (2013) 219 Cal.App.4th 500, 510.) The Guerrero rule does not permit a court to look to the entire record of conviction and find new facts based upon the evidence there. (/bid.) As this Court stated in Guerrero, a review ofthe record of the prior conviction doesnot allow a “relitigation”of the circumstancesof the crime. (People v. Guerrero, supra, 44 Cal.3d at p. 355.) Whatis relevant from the record of convictionis that evidence which shows the nature of defendant’s conduct underlying the conviction. (People v. Woodell, supra, \7 Cal.4th at p. 459.) Thus, to determine whether a conviction encompassesrelevant conduct, the court’s inquiry is limited to identifying the “basis of the crime of which the defendant was convicted” (People v. McGee, supra, 38 Cal.4th at record ofthe prior proceedings. (Ibid. [relevant inquiry is whatis the nature or basis of the conviction]; see also People v. Woodell, supra, 17 Cal.4th at pp. 454-461; People v. 13 Myers (1993) 5 Cal.4th 1193, 1198-1201; People v. Guerrero, supra, 44 Cal.3d at p. 355. [We“allowthetrier [of fact] to look to the record of the conviction—butno further—.. .: it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago... ”’].) This Court reiterated this view in People v. Trujillo (2006) 40 Cal.4th 165, 179- 180. There, the defendant had prior convictions for inflicting corporal injury and assault. At issue was whether he used a weapon in committing the former offense such that the offense would qualify as a “strike.” In the prior case, the defendanthad pled guilty to the charge and an allegation that he had used a weapon wasstricken. However, the defendant had told the probation officer in a post-plea interview that he had stabbed the victim with a knife. The prosecutor sought to use this admission as proofthat the defendant had used a deadly weapon. (People v. Trujillo, supra, 40 Cal.4th at pp. 179-180.) This Court held that the statement could not be used becausethe statementdid notreflect “the facts of the offense for which [the defendant] was convicted.” (Jd. at p. 180.) This Court further explained: “A statement by the defendant recounted in a postconviction probation officer’s report does not necessarily reflect the nature ofthe crime ofwhich the defendant was convicted. In the present case, for example, the prosecution did not attempt to prove that defendant used a knife and, a—instead,e teredinto bargain i n which it dismissed the allegation that defendant used a deadly or dangerous weapon and committed an assault with.a deadly weapon. The.prosecution could not have compelled oo. defendantto testify, and thus could not have used defendant's subsequent admission that he stabbed the victim to convict him. Oncethe court accepted his plea, defendant could admitto the probation officer having 14 stabbed the victim without fear of prosecution, because he was clothed with the protection of the double jeopardy clause from successive prosecution for the same offense. [Citation omitted] Defendant’s admission recounted in the probation officer's report, therefore, does not describe the natureofthe crime ofwhich he was convicted and cannot be used to provethat the prior conviction wasfor a seriousfelony.” (Ibid.; emphasis added.) Therefore, under Guerrero, the record of conviction is not “evidence” from which the court can make new findings of unadjudicated facts. Rather, the record is used as “evidence” of what facts were already foundasreflected by the conviction. Thatis, the inquiry is not as to what additional factual findings the evidence may have supported,but rather, whatfactual findings were made to support the conviction. (See People v. Berry, supra, 235 Cal.App.4th at p. 1427 [court’s inquiry mustfocus on the evidence underlying the offense of conviction,“not on assessing what other offenses might also have been supported by the evidentiary record” (emphasis original)].) Thus, where a case involves factual disputes that the trier of fact did not have to resolve to reach its verdict, a court cannot later makefindings of such disputedfacts to determinethat the crime involved conduct makingit a serious felony. (See People v. McGee, supra, 38 Cal.4th at 706; People v. Wilson (2013) 219 Cal.App.4th 500, 510.) Rather, the court must determinethe nature of the conviction - whether the conduct on which the conviction wasbasedclearly satisfied the requirements ofa serious felony. (People v. McGee, supra, 38 Cal.4th at 706.) Therefore, the court is not making factual finding “based upon disputed facts about prior conduct not admitted by the defendantor implied by the elementsof the offense.” (People v. Wilson, supra, 219 Cal.App.4th at p. 15 516 [explaining why the Guerrero rule does not operate in a mannerthat could offend the federal constitution].) Use of this complete Guerrero rule that limits the inquiry to the nature of the conviction, and nothing more, best comports with the language of Penal Code section 1170.126, subdivision (e). Subdivision (e) provides that an inmate “‘is eligible for resentencing if: .. . (2) The inmate’s current sentence was not imposedfor any offenses appearing in . . . [subdivision (iii)].” (Emphasis added).* Asthe court in Berry putit, subdivision (e) “details which inmatesare “eligible” for resentencing, based upon what they were sentencedfor originally.” (People v. Berry, supra, 235 Cal.App.4th at p. 1424 [emphasis original].) A sentence is only imposed upon a conviction. Thus, based upon the plain language of Penal Code section 1170.126, the conviction must control the inquiry. (See People v. Park (2013) 56 Cal.4th 782, 796 [look first to the language ofthe statute itself to determine its meaning; People v. Weidert, supra, 39 Cal.3d at p. 843 [if statutory languageis clear rely on it]; People v. Berry, supra, 235 Cal.App.4th at Pp. 1424-1427 [“inquiry must focus on the evidence underlying the offense for which the defendant was previously convicted” not “what other offenses might also have been supported.”at p. ~ 4/7 Althoughthis structure is odd in the context of subdivision (iii), which’ starts off with “during the commission ofthe current offense,” it is most reasonably read to require that “an inmates current sentence was not imposed for any offenses, [during the commission of which]” the defendant engaged in disqualifying conduct. 16 1427, emphasis original].) Furthermore, this interpretation that limits the inquiry to finding what conductthe conviction reflects rather than permitting a finding of new additional facts comports more closely with the statute’s apparent intent to apply identical rules prospectively and retrospectively, except that retrospective application can be denied upon a finding of dangerousness. (See People v. Johnson and Machado, supra,6} Cal.4th at p. 691.) As this Court noted in Johnson and Machado,“exceptfor the resentencing statute's provision granting the trial court authority to deny resentencingif reducing the sentence would pose a dangerto the public, the resentencing statute’s exceptionsto the new sentencing rules are the same factors that exclude a defendant from being sentenced pursuant to Proposition 36’s more lenient provisions. [Citation] This parallel scheme suggests that the sentencing rules are intended to be identical except in that one respect.” (/bid.) For prospective applications, the conduct-based exclusionary factors must be pleaded and proved beyonda reasonable doubt. (Pen. Code, §§ 667, subd. (e)(2)(C), 1170.12, (c)(2)(C).) Practical and fairness concernsrequire that retrospective application not involve new mini-trials on the previously uncharged conduct-based exclusions, and Penal Code section 1170.126 does not state a new pleading and proof requirement while supra, 227 Cal.App.4th at pp. 1332-1334, 1336-1339.) But, the absence of anew pleading and proof requirement does not meanthat the statute anticipates that new facts 17 may be found based upon the old record. In fact, as noted above, the contrary conclusion is suggested by the fact that eligibility is to be based upon the crime of conviction, which in turn, is based upon only that which was previously pleaded and proved. Application of the full Guerrero rule provides parity between prospective and retrospective applications by requiring the retrospective application to be based only upon conduct that was implicitly pleaded and proved beyond a reasonable doubt, rather than upon additional findings made on a limited record undera lesser standard of proof. The court determining eligibility may look beyond the mere elements of the offense to find that the conviction reflects disqualifying conduct, and thereby keep the conduct-based exceptions applicable retrospectively, but must do so based only upon conductthatis demonstrated by the conviction in light of the charges, the evidence, and the findings of the trier of fact at the initial proceedings. The court should look for what can be said to have already been pleaded and proved. (People v. McGee, supra, 38 Cal.4th at p. 706 [the court does not make “an independent determination regarding a disputed issueof fact relating to the defendant’s prior conduct”; the determination is not directed at the conduct itself, it is “a determination of the nature orbasis of the prior conviction.”’].) Therefore, considering the languageofthe statute, the historical context of the Three Strikes Law and its approachto findings of non-elemental, conduct-based factors in past convictions, and the goal of having retrospective application parallel prospective application, except where unreasonable dangerousnessis found, the statute must be read 18 to anticipate the application of the complete Guerrero rule. Therefore, the court considering the Penal Code section 1170.126 petition is not free to make new findings of fact not reflected by the prior conviction, but rather must make the factual finding of what facts the actual conviction reasonably reflect based uponthe state of the record in the underlyingtrial. b. Appellate Applications of Guerrero to Eligibility Determinations In People v. Berry, supra, 235 Cal.App.4th 1417, the court applied the Guerrero rules in an appeal from a Proposition 36 eligibility determination and demonstrated the scope and nature of the inquiry in this context. In Berry, the defendant had pleadedguilty to one count of possession of a fraudulent check. The evidenceat the preliminary hearing and in the Probation Officer’s Report included evidence that the defendant had a firearm in the trunk of his car and that he had goneto the trunk while he wasin possession of the fraudulent check. Based uponthis evidence, the defendant had been additionally charged with a weapon possession count, which was dismissed when he pleaded guilty. (/d. at pp. 1421-1423.) In ruling on the defendant’s Proposition 36 petition, the trial court had looked at the “record of conviction” including the preliminary hearing transcript and the Probation Officer’s Report and based upon this “evidence” independently found that the defendant had been armed with a weapon during the commission of the check possession offense. (/d. at p. 1423.) The appellate court reversed, holding that the trial court had improperly 19 madefindings of fact and relitigated the circumstances of the offense instead of determining the nature of the conviction. (/d. at pp. 1425-1428.) In so doing, the Berry court noted the difference between the Proposition 36 eligibility and discretionary resentencing determinations. Fore/igibility, the court looks only to the offenses on which sentence was imposed. (/d. at pp. 1424-1425.) And, the “inquiry must focus on the evidence underlying the offense for which the defendant was previously convicted”not “what other offenses might also have been supported.” (/d.at p. 1427 [emphasis original]; see also People v. Bradford, supra, 227 Cal.App.4th at pp. 1337-1340 [similarly noting that Prop. 36 eligibility determination does not involve an “evidentiary hearing,” but rather a Guerrero-type inquiry based onthesettrial record]; People v. Oehmigen, supra, 232 Cal.App.4th at p. 7 [eligibility is not a question offact; it is a question of law based upon properly consideredfacts in the record of conviction].) In line with this rule, the court in the instant case should not have madea factual finding that appellant was armed with a firearm when he committed the grand theft crime to which he pled. Appellant had been charged with robbery and false imprisonment by violence but those charges had been dismissed when hepled to a single charge of grand theft, as had been the allegations of arming and gun use. Armingis not an element of grand theft. Moreover, although the Court of Appeal here opined that one could be armed and commit a grand theft without therein also committing a robbery (slip opn., at pp. 6-7), it is hard to see how one can be armed in the commissionofa grand theft without that 20 arming being the causeofthe force orfear that would elevate the crime to a robbery. Other courts,like the one in the instant case, assessing Proposition 36 eligibility under subdivision(iii), have relied on the Guerrero rules requiring the trial court to make the decision basedonly uponthe record of conviction and no additional evidence. (See Ibid.; People v. Oehmigen, supra, 232 Cal.App.4th 1; Peoplev. Hicks, supra, 231 Cal.App.4th 275; People v. Brimmer (2014) 230 Cal.App.4th 782; People v. Guilford (2014) 228 Cal.App.4th 651; People v. Elder (2014) 227 Cal.App.4th 1308; Peoplev. Bradford , supra, 227 Cal.App.4th at p. 1332; People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979; People v. Cervantes (2014) 225 Cal.App.4th 1007; People v. Osuna (2014) 225 Cal.App. 4th 1020; People v. White (2014) 223 Cal-App.4th 512.) But, many have been vague as to whetherthe otherlimitations of the Guerrero line of cases apply, and the court here simply held that the lower court can makeany factual determination as long asit is not “wholly unrelated”to the crime for which the defendant was convicted. (Slip opn at p. 7.) In People v. Blakely, supra, 225 Cal.App.4th 1042,the court affirmatively stated that only the recordlimitation aspect ofthe Guerrero rule applied in the Proposition 36 context. There, the court reversedthetrial court’s finding that the defendant was armed with a firearm during the commission ofhis offense of felon in possession of a weapon. The reversal was required by the appellate court’s inability to determine whether the finding had been madeonthebasis of admissible portions of the record of conviction. 21 (Id. at pp. 1048-1049.) In the course of resolving the appeal, the Blakely court reached several additional issues. It first held that not all violations of Penal Code section 29800 (former section 12021) are ineligible for a Proposition 36 recall. The court found that a felon in constructive possession of the weapon could beeligible if the weapon was not on his person or available for use. (/d. at pp. 1051-1057.) The court further found that the determination of whether the defendant was armed had to be made based uponreliable and admissible portions of the record of conviction as defined by the Guerrero line of cases. Ud. at pp. 1062-1063.) The Blakely court, however, rejected the argumentthat the determination the trial court must make based uponthe record of conviction be limited to a finding of the nature of the conviction without independently finding additional disputed facts based upon the established record. (Jd. at pp. 1062-1063.) It seemingly did so based uponits conclusion that the Apprendiline of cases was not applicable to the recall situation. Appellant does not here challenge the conclusion that Apprendi does not require pleading and proofoftheeligibility factors. But, it does not follow therefrom that the Guerrero rule should not be applied in full, or that the court ruling on eligibility should be able to make new findings of fact unrelated to the basis of the conviction. The Guerrero tule is not based upon Apprendi. It is the California rule and was developed before Apprendi. Moreover, attempts to make Apprendi and the federal constitution applicable 22 to it have been repeatedly rejected based upon the fact that the rules were being applied to priors, which are excepted from the Apprendi rule. (See People v. McGee, supra, 38 Cal.4th at pp. 695-702.) The California Guerrero rule has its own genesis and independently precludes newlitigation of facts related to a prior conviction. In addition to rejecting the notion that the federal constitution required California to changeits rule on how priors were determined to be “strikes,” this Court in McGee explained that the nature of the inquiry under the Guerrero rule does not in any way implicate the jury’s factfinding process because whatthe trial court determines under Guerrero is only “the nature or basis”of the prior conviction and the conduct upon which that conviction was based. (/d. at p. 706; see also People v. Wilson, supra, 219 Cal.App.4th at p. 516 [Guerrero rule does not offend the federal constitution because the court does not make findings of disputed facts].) Thus, this Court has madeclear that California’s rule, not the federal constitution, requires the limited nature of the inquiry. The requirements that the inquiry be limited to a determination of the nature or basis of the crime of which the defendant was convicted and that it be based only upon the record of the proceedings of the conviction were adopted as a practical and fair means of assessing whether a conviction reflects an offense that encompasses conduct not required by the elements of the crimeitself. “Sucha rule is both fair and reasonable. To allow thetrier of fact to look to the entire record of the conviction is certainly reasonable: it promotes the efficient administration ofjustice and, specifically, furthers the evident intent of the people in establishing an enhancementfor ‘burglary of a 23 residence’ -- a term that refers to conduct, not a specific crime. To allow the trier to look to the record of the conviction -- but no further-- is also fair: it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedytrial.” (People v. Guerrero, supra, 44 Cal.3d at p. 355 [original emphasis in italics; additional emphasis in bold].) Thus, by applying only half of the California, Guerrero, rule and permitting the lower court to make new findingsoffact, the Blakely court, and otherslike the court in the instant case allowing the same,not only grants the court discretionary powerthat the statute does notanticipate, but violates California’s own concepts of fairness. (See Jbid.; People v. McGee, supra, 38 Cal.4th at p. 691.) It does violenceto the statutory scheme created by Proposition 36 to read it to incorporate only part of the Guerrerorule. The analysis of the court here overlooks the numerouscases from this Court that explain the limitations on whatconstitutes the “record of conviction.” This Court has clarified that what may be considered in proving a prior was for a seriousfelonyis in part determined by understanding the relevant inquiry. That inquiry is only the “nature of the conviction.” And, this limitation on the inquiry is based upon the proscription of “relitigation.” (See People v. Woodell, supra, 17 Cal.4th at p. 459; People v. Trujillo, supra, 40 Cal.4th at 179-181.) In Woodell, this Court held that the appellate opinion could be considered a part of the record of convictionfor purposes ofdeciding whether a prior felony convictionwas for conduct that would renderit serious. In so doing, this Court made very clearthat 24 expanding the record of conviction to include the opinion was permissible and did not allow relitigation of facts. It explained that the issue wasthe natureofthe prior conviction and that opinions, while potentially available for resolution of the issue, were not necessarily sufficient or relevant to resolve it. Rather they were but one relevant resource. (People v. Woodell, supra, 17 Cal.4th at p. 457.) The court further clarified that, “[b]ecause the nature of the conviction is at issue, the prosecution is not allowed to go outside the record of conviction to ‘relitigate the circumstances of a crime committed years ago. . .’[Citation]” (/d. at p. 459 [italics original emphasis; bold added emphasis].) Thus, the limited nature of the inquiry as well as the limitation on the records used to resolve it combineto precluderelitigation of the old offense. Similarly in Trujillo, this Court ruled that even a defendant’s admissions in a probation report, which would be an exception to the hearsay rule, were not part of the record of conviction for purposes of deciding whetherthe crime to which the defendant had pleaded guilty was a “strike” because they did not reflect the nature ofthe conviction. ° (People v. Trujillo, supra, 40 Cal.4th at pp. 179-180.) Because the inquiry is the nature of the conviction, statements made after it could not “reflect the facts upon which [the defendant} was convicted.” (/d. at p. 180.) The Trujillo court further noted that this holding was consistent with Guerrero’s limitation to the record of conviction. “The reason for this limitation wasto ‘effectively bar the prosecution from re/itigating the circumstances of a crime committed years ago 25 and thereby threatening the defendant with harm akin to double jeopardy and denial of speedytrial.’ [Citation to Guerrero] Permitting a defendant's statement made in a postconviction probation officer’s report to be used against him to establish the nature of the conviction wouldpresent similar problems, creating harm akin to double jeopardy and forcing the defendantto relitigate the circumstancesof the crime.” (People v. Trujillo, supra, 40 Cal.4th at p. 180 [emphasis added].) Thus, the commentbythe appellate court here that, whena trial court determining Proposition 36 eligibility makes new findings offact that were notpart of the prior conviction, such factfinding is not relitigation within the meaning of the Guerrero line of cases, is an improperinterpretation of Guerrero and its progeny. Moreover, it is factually incorrect. Litigation is a contest as to facts. If the judge determiningeligibility finds new facts that were never before at issue, based upon a different standard of proof, he is relitigating the matter. The relitigation is just being done based upon limited evidence- the record of conviction, but it is relitigation nonetheless. And,relitigation at the eligibility phase is not what Penal Code section 1170.126 can reasonably read to permit. (See People v. Berry, supra, 235 Cal.App.4th pp. 1424-1427; People v. Bradford, supra, A trial judge using the record of conviction as evidence from which it-can make an 26 independentfinding of fact, that may even be contrary to the verdict,’is relitigating the conviction in violation of California’s notions of fairnes s. (See People v. Guerrero, supra, 44 Cal.3d at p. 355; People v. Trujillo, supra, 40 Cal.4th at p. 180.) Penal Code section 1170.126 anticipates such factfinding for the seco nd phase ofruling on the recall petition where the court is exercising discretion. (See P eople v. Berry, supra, 235 Cal.App.4th pp. 1424-1427; People v. Bradford, supra, 227 Cal.App.4th at pp. 1337- 1340; see also People v. Johnson and Machado, supra, 61 C al.4th at p. 692.) Penal Code section 1170.126 only grants the court discretion with re spectto a finding of a defendant’s suitability for resentencing based upon his risk of dangerousness. Written as it is with reference to a defendant’s conviction andsentenceas th e basis for determining eligibility, and in light of the history of the “Three Strikes Law”andretrospective determinationsof“strikes” based upon non-elementa l conduct,it is clear that the complete Guerrero rule should apply to the eligibility det ermination. Yet, so far, only the Berry court appears to have adoptedthis interpretation most completely. Thus this Court should now, based upon a comp lete statutory construction analysis, hold that the statute intends the useofthe entire Gu errero rule, and that, under such an interpretation, appellant here could not be found to have been armed. S In Blakely and Osuna,the same courtnoted in footnotes that su ch a problem mightarise, but because those facts were not pre sentedin those cases, the court declined to give an advisory opinion thereon. (See People v. B lakely, supra, 225 Cal.App.4th at p. 1063, fn. 9; People v. Osuna, supra, 225 Cal. App.4th at p. 1038, fn. 6.) 27 2. Under a Complete Application of the Guerrero Rule, The Record of Conviction Does Not Support a Finding that Appellant’s Conviction Was Based on Facts Establishing “Arming,” and the Trial Court Improperly Made Independent Factual Findings to Concludethat It Did Thetrial court here engagedin judicial fact-finding to resolve factual questions not required by the verdict. They were factual questionsthat required legal findings of existence and “availability” of a weapon that were not a part of the elements of the offense, which required only that appellant have taken property from another without any force or fear. While there was testimonyat the preliminary hearing that appellant committed an armed robbery (CT 64-70), appellant’s plea wassolely to grand theft, a crime that does not include any element of force or fear or arming or use of a gun. Thus,his plea did not admit anything that could have supported a finding of arming or use of a gun. Hence, nothing in the record that supports the “conviction” provides any evidence that appellant had a gun available for offensive or defensive use. Theeligibility question is a question of law, not fact. (People v. Oehmigen, supra, 232 Cal.App.4th at p. 7.) Only those facts that must have been foundbythetrier of fact or established by appellant’s plea in order to support the conviction, not merely those that and both thetrial court and the appellate court erred in readingthe preliminary hearing transcript and finding that appellant had a gun that was available for his immediate use. 28 CONCLUSION This Court should therefore grant review in this matter to settle the important question of law concerning whethera trial court can make factual findings that do not explain or support the limited conviction established by appellant’s plea. This Court should hold that these courts erred in making their own factual findings that appellant was armed with a firearm and thusineligible for relief under Penal Code section 1170.126. Asaresult, this Court should reverse the finding that appellant wasineligible for a recalls of his sentence pursuant to Penal Code section 1170.126 and the denial of appellant’s Proposition 36 recall petition. Dated: January 25, 2016 Respectfully submitted, CALIFORNIA APPELLATE PROJECT JONATHANB. STEINER Executive Director gla % ¢;Hn(ne) RICHARD B. LENNON Staff Attorney Attorneys for Appellant 29 WORD COUNT CERTIFICATION People v. Mario R. Estrada I certify that this document was prepared on a computer using Corel Word perfect, andthat, according to that program, this document contains 7, 249 words. ©bath b U AbA- Co\r RICHARD B. LENNON | 30 OPINION 31 Filed 12/23/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA COURT OF APPEAL — SECOND DIST. FILED SECOND APPELLATE DISTRICT DIVISION EIGHT Dec 23, 2015 JOSEPH A. LANE,Clerk THE PEOPLE, B260573 S. Lui Deputy Clerk Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA025008) V. MARIO R. ESTRADA, Defendant and Appellant. APPEALfrom a judgmentof the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Mario Estrada appeals from a post conviction order denying his petition for resentencing as a second-strike offender under Proposition 36, the Three Strikes Reform Act of 2012. (Pen. Code, § 1170.126.)! Thetrial court denied the petition on the groundthat defendant was armed with a firearm during the commission of his crime, an enumerated exclusion under Proposition 36, and thus he is notentitled to resentencingrelief. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Defendant argues that he pled guilty only to grandtheft person and thatall firearm related charges were dismissed; thus the court erred in reviewing thereporter’s transcript of his preliminary hearing to makethe finding that he was armed. Wedisagree and affirm. FACTS The critical facts occurred on three days over 20 years ago. Since defendantpled guilty, we take our facts primarily from the preliminary hearing. On April 9, 1995, defendant entered a Radio Shack store and approachedthe employeeat the sales counter. As the employee beganto ring up defendant’s purchase, defendantpulled out a gun and told the employee to handoverall of the money in the register. The employee handed defendant approximately $400 in a plastic bag and defendantleft the store. On April 16, 1995, defendant entered the same Radio Shack and waited until all of the customers were gone. Then he approached the employee behind the counter and took out a gun. Defendanttold the employee to opentheregister, and once it was open, defendant removed approximately $200. The employee also gave defendant somecarspeakers and a small television from the back room. After tying up the two employeesin the store, defendantleft through the backexit. 1 Undesignated statutory references will be to the Penal Code. 2 On July 27, 1995, defendant returned to the Radio Shacka third time. Defendant approached the employee behind the counter and took out a gun. Defendant told the employeeto give him the cell phonesin the display and the moneyfrom the cash register, about $200-$300; the employee complied. Then, defendant took the employee to the back room and demandeda carstereo. Defendant again left through the back door. After defendant fled, the employee called the police and a short timelater police arrested defendant. PROCEDURAL HISTORY Defendant wascharged with fifteen counts, including four counts of robbery (§ 211), three counts of grand theft person (§ 487, subd. (c)), four counts of false imprisonmentby violence (§ 236), three counts of commercial burglary (§ 459) and one count of felony evading with willful disregard. It was alleged with respect to all but the evading count, that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a). Beforetrial defendantpled guilty to one count of grandtheft person in connection with the events that took place on April 9, 1995. All other charges and enhancements were dismissed. He was found, by his own admission, to have sustained twopriorstrikes for robbery. Defendant was sentenced to an indeterminate term of 25 years to life pursuant to the Three Strikes law. In November 2012, California voters approved Proposition 36, which amended the Three Strikes law so that a defendant convicted of twopriorstrikes is subject to the indeterminate term only if the current third felony offense is defined as serious or violent. (§ 1170.126 subd. (b).) Proposition 36 also allowed those serving indeterminate life sentencesfor third felony that is neither serious nor violent to seek court review oftheir indeterminate sentences and, subject to certain disqualifying exclusions or exceptions, obtain resentencing as if the defendant had only onepriorseriousor violent felony conviction. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286, 1293.) 3 In November 2012, defendantfiled a petition for resentencing as a second- strike offender under Proposition 36. (§ 1170.126, subd. (b).) He argued that becausehis third felony conviction for grand theft person is neither serious nor violent he is eligible for resentencing. (§ 1170.126, subd. (e)(1).) The trial court found that he had madea primafacie showingofeligibility, and issued an orderto show cause as to whythe requested relief should notbe granted. The prosecution argued in opposition that the petition should be denied because defendant was armedat the time of his commitmentoffense and thus was ineligible for resentencing. (§§ 1170.126, subd. (€)(2), 667, subd.(e)(2)(C)(ii1), 1170.12, subd. (c)(2)(C)(iii).) The prosecutor also argued that even if defendant waseligible, he was unsuitable because he posed an unreasonablerisk of dangerto public safety. (§ 1170.126, subd. (f).) The prosecution submitted eight exhibits, including transcripts of someofthe testimony, including that of Alfred Valladolid, that had been presentedat defendant’s October 19, 1995 preliminary hearing. Valladolid wasthe victim of the April 9, 1995 grand theft at the Radio Shack store to which defendant had pled. Valladolidtestified in the preliminary hearing that defendant had used a gun. In his reply, defendant argued that Proposition 36 requires a court to determinea petitioner’s eligibility based on crimes for which thepetitioner was convicted and any special allegations foundto be true. Defendantargued further that any disqualifying factor under section 1170.126 must be pled and proven, which wasnot the case here. Nor did defendant admit any facts which would make him ineligible for Proposition 36 resentencing. After a hearing,the trial court concluded it could consider the preliminary hearing transcript in denying Proposition 36 eligibility. Because evidence at the preliminary hearing showed that defendant used a gun in the commissionofthe grandtheft, the court found defendant wasineligible under section 1170.12, subdivision (c)(2)(C)(iii), and denied defendant’s petition. DISCUSSION 1. Standard ofReview Asweare tasked with interpreting a statute, the issue before us presents a question of law, and weapply the de novo standard of review. (People v. Bradford (2014) 227 Cal.App.4th 1322, 1332.) 2. The Court Properly Found That Defendant Was Ineligible For Resentencing Based on Preliminary Hearing Testimony According to the plain language of Proposition 36, “[u]pon receiving a petition for recall of sentence underthis section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e).” (§ 1170.126, subd.(f).) There is no requirement that the disqualifying factors in subdivision (e) be pled and proved;ratherit is the court that makes the determination. (People v. White (2014) 223 Cal.App.4th 512, 527.) A trial court “determining whether an inmate is eligible for resentencing under section 1170.126 may examine[all] relevant, reliable, admissible portions of the record of conviction to determine the existence of a disqualifying factor.” (People v. Blakely (2014) 225 Cal.App.4th 1042, 1048- 1049.) Preliminary hearing transcripts are properly considered part of the record of conviction. (People v. Reed (1996) 13 Cal.4th 217, 223, cert. den. 519 U.S. 873; see White, at p. 519, fn. 4 [facts were derived from the preliminary hearing transcript].) Defendant contendsthat there is no support in the record for the finding that he was armed with a firearm during the commission of his commitment (1988) 44 Cal.3d 343. In Guerrero, the court held that the trier of fact may look to the entire record of conviction in order to determine the truth of a prior conviction allegation in the context of the Three Strikes law. (/d. at p. 355.) Defendant concedesthat thisis the rule, but argues that this rule does not permit the court to review a transcript and find the fact based on testimony because Guerrero does not permit a “relitigation” of the circumstances of the crime. (/bid.) In our view, defendant mischaracterizes Guerrero, whichstates that the trier may look to the record of conviction, but no further, effectively barring the prosecution from relitigating the circumstancesof a prior crime. (Jbid.) In this case, the trial court properly looked at the circumstancesofthis crime; it did not draw conclusionsbased on other offenses. The issue is whether or not defendant was armed when he committed grand theft person. Thetrial court consideredthe preliminary hearing transcripts, not going beyond the record of conviction, and foundit true that defendant was armed with a firearm during the commission of the crime. This type of review is exactly what Guerrero and White allow, and in no way resemblesrelitigation of the case. Wereject defendant’s argumentthat a court maynotrely on a resentencing disqualification if it was not pled or proven attrial. A similar claim was rejected in People v. Hicks (2014) 231 Cal.App.4th 275. In Hicks, the defendant was convicted ofbeing a felon in possession ofa firearm. Thetrial court deniedhis petition for resentencing because the appellate court opinion from his conviction reported that he was armedwith a firearm when he committed the offense, even though the arming enhancement had neverbeenpledor proven. (/d. at p. 279.) The Court of Appeal affirmed, holding that “the express statutory language requiresthe trial court to makea factual determination that is not limited by a review of the particular statutory offenses and enhancements for which a petitioner’s sentence was imposed.” (Jd. at p. 285.) Defendanttries to distinguish these cases by the fact that the robbery charges andfirearm use enhancements were dismissed aspart of plea negotiations. He argues that somehow this means he wasnot armed. It does not. Under Proposition 36, the disqualifying factor, “armed with a firearm,” means having a firearm available for offensive or defensive use during the offense. (Peoplev. Burnes (Dec. 14, 2015, H040102) __Cal.App.4th __ [2015 WL 8734099, *3]; 6 People v. Osuna (2014) 225 Cal.App.4th 1020, 1029.) One can h ave a firearm available for use during a grand theft without elevating the offense to a robbery. Similarly, one can be armedwith a firearm without personally using it w ithin the meaning of section 12022.5, subdivision (a). Thus, a finding that defenda nt was armed with a firearm is nota relitigation of the dismissed robbery counts or firearm use enhancementallegations. Finally, defendantrelies on People v. Berry (2015) 235 Cal.App.4th 1417 . In Berry, the defendantoriginally pled guilty to possessionof a fraudulen t check and a forged driver’s license. Other counts, including firearm charge s, were dismissed. (Jd. at p. 1421.) Thetrial court denied his petition for resenten cing becauseit found that he was armed during the commission ofhis crime. (Id. at p. 1426.) But the firearms defendant possessed were found in a different l ocation than the fraudulent documents; he was not armed with them whenar rested in possession ofthe fraudulent documents. (Id. at p. 1421.) On appeal, th e court reversed, holdingthat “the trial court wentoutside defendant’s ‘record of conviction’ whenit based its assessment of defendant's eligibility for resentencing on evidenceof firearm possession that was wholly unrelated to the coun ts on which defendant was convicted.” (Id. at p. 1427.) Berry is distinguisha ble from this case because the evidence ofarming is not “wholly unrelated”to the gran d theft person which defendant committed. In fact, the evidence showsthat he was armed with a firearm during the commissionof his offense. The dismissal of someof the charges against defendant doesnot bar thetrial court from looki ng at the facts underlying the charges of which he was convicted. The trial court properly consideredall of the facts in the preliminary hearing transcript as circumstancesofthe grand theft person. ze DISPOSITION The decision denying defendant’s petition and declaring him ineligible for resentencingis affirmed. RUBIN,J. WE CONCUR: BIGELOW,P.J. FLIER,J. PROOF OF SERVICE I am a citizen of the United States, over the age of 18 years, employed in the County of Los Angeles, and not a party to the within action; my business address is 520 S. Grand Avenue, 4" Floor, Los Angeles, California 90071. I am employed by a memberof the bar of this court. On January 25, 2016, I served the within PETITION FOR REVIEW in said action, by emailing a true copy thereofto: Kamala D. Harris, Attorney General docketineLAawt@doj.ca.gov, and by placinga true copy thereof enclosed in a sealed envelope, addressed as follows, and deposited the samein the United States Mail at Los Angeles, California. Jackie Lacey, District Attorney Clerk, Court of Appeal Denise Moehlman, Deputy Second Appellate District 18000 Foltz Criminal Justice Center Division Eight 210 West Temple Street 300 South Spring Street Los Angeles, CA 90012 Los Angeles, CA 90013 Ronald Brown, Public Defender Mario Estrada Michelle Paffile, Deputy K-38639 18000 Foltz Criminal Justice Center P.O. Box 3030 210 West Temple Street Susanville, CA 96127-3030 Los Angeles, CA 90012 Clerk, Los Angeles Superior Court Criminal Courts Building 210 West Temple St., Room M-6 Los Angeles, CA 90012 For Delivery to Hon. Wilham C. Ryan I declare under penalty of perjury that the foregoingis true and correct. Executed January 25, 2016 at Los Angeles, California. JACQUELINE GOMEZ 32