PEOPLE v. ESTRADARespondent’s Answer Brief on the MeritsCal.November 15, 2016In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. MARIO R. ESTRADA, Defendant and Appellant. Second Appellate District, Case No.B260573 Los Angeles County Superior Court, Case No. GA025008 The Honorable William C. Ryan, Judge Case No. 8232114 SUPREME COURT LED NOV 15 2016 Jorge Navarrete Clerk Lo. Deputy/ Cac ANSWERBRIEF ON THE MERITS et KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General LANCEE. WINTERS Senior Assistant Attorney General NOAH P. HILL Deputy Attorney General Louls W. KARLIN Deputy Attorney General NATHAN GUTTMAN Deputy Attorney General State Bar No. 293512 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 620-2024 Fax: (213) 897-6496 Email: DocketingLAAWT@doj.ca.gov Nathan.Guttman@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Issue Presented ............ccscsesssesesesessestsesessseessserensseneadeacssessesessessesssesaseneeeeas 1. Introduction ...........ccccceseesccecsseesceseeeuensseeeeasseceeenseseeaessseesensusesscsseusseesceeesoeane I Procedural and Factual Summary ...............cccccccsccssscessseeeesssecesscesesssseeeseees4 ATQUMENE..0.. ceceeee eeeeeneeeeceeesneeereneeeeaaeeeescaeenseeseatsessseesseaeeeesaneesenssere6 I, The Resentencing Court Complied with the Act’s . Threshold Eligibility Determination Procedure for Sentence Reduction 0.0... cccecesesceeseeseeeesseeesseessseensessnseeees 6 A. The Actdirects the resentencing court to consider disqualifying conduct based on the record of conviction without any “plead-and- PTOVE” FEQUITEMENE 00... eee eeceeeeeteceeteesseteeseeessetenenees 7 B. Neither Johnson nor Guerrero supports limiting consideration of disqualifying conduct to previously “pled and proved”statutory elements.....14 C. . Estrada was properly disqualified from . resentencing because he was armedwith a firearm during the commitmentoffense..........0..0..... 21 II. Estrada’s PleaAgreement Did Not Preclude the Resentencing Court from Finding That His Arming During the Commitment Offense Rendered Him Ineligible for Resentencing..............ccccccccescsesesssccsesseessssenees24 © CONCLUSION ....ccccccscsceseccscsccscssssesssesesessesesaseusssatsvatevessterseececcececeeeeeesenaees 31 TABLE OF AUTHORITIES Page CASES - Apprendi v. New Jersey (2000) 530 US. 466 ooo. eesccceseceessseecsecseesseesssecseeesseeeeseseesees 3, 10, 18 Descamps v. United States . © (2013) 133 S.Ct. 2276.............Se eecucceeeesecneeeseeseeesseeseeeeesensaeecenes 12, 29, 30 Dillon v. United States (2010) 560 U.S. 817 ooccetcceseeeeesseeeeeens besseesseesseeeesaeeeeaeerseeatesseee 10 Goodmany. Lozano . (2010) 47 Cal.4th 1327 ooceceecccccscccsesseseseeseesseesseccsecesseesssssessessseesseeeses 7 In re Coley (2012) 55 Cal.4th 524occcecccsssecesssecssseseessecsseesssesesssseessssssvensensaes 23 In re Winship (1970) 397 U.S. 358 ooo ececcesseeseeeseceesssesessessteseecsscsecessuccsssausaeseaeeeas 10 Pease v. Pease. (1988) 201 Cal.App.3d 29 0... eeeessetetesesseeseeneseenesssneeesseseseeereesseesaeey 28 People v. Alvarez (1982) 127 Cal.App.3d 629 0...seteeneneneeeeneeeeneeeteeeteaeeeaeaeees 26 People v. Arzate (2003) 114 Cal.App.4th 390 ooo.eecccsccccesssecessessescessssescsussaseasesseaes 9 People v. Berry (2015) 235 Cal.App.4th 1417 oo... ccccccsccscsscsscsseessesssecsseesssetessees 14, 29 People v. Blackburn (1999) 72 CalApp.4th 1520 oo... cceeccccscesssesesesseseessecseesssessscssssstessreveres 28 People v. Blakely (2014) 225 Cal.App.4th 1042 oo... ccccseeseestesseeseseeees 10, 13, 14, 18 People v. Bradford . (2014) 227 Cal.App.4th1322 ....ccccccccccccccsesscsscessessessssccsssesatenenspassim li TABLE OF AUTHORITIES (continued) Page People v. Collin (1978) 21 Cal.3d 208 0... eeeeccccesseeeessecnseesseesseseeessseesssseessesseesssseesaes 30 People v. Conley . (2016) 63 Cal4th 64600ccsccccessseccsseessreeseseeeesseeeseeeeeas 11, 12, 15 People v. Estrada | (2015) 196 Cal.Rptr.3d 418 oo... cccccceseseseeeecsseesessteeeesssseseeeeespassim People v. Frierson (2016) 1 Cal.App.5th 788 [review granted October 19, 2016, S236728) ooo... eeeceeeeeeeeneeessececeeceeecseeeceecseseesessaeaeessaseaeeees 10, 11 People v. Guerrero (1988) 44 Cal.3d 343 ooo cccccecssseceessesesseeesssscesseeccesessessnseseespassim People v. Guevara (1979) 88 Cal.App.3d 86 0...ee ccesccecsneeereceseeeseesseeeesseeecsseeessseeessanens 26 People v. Guilford (2014) 228 Cal.App.4th 651 oo... eccccccccceseeseecseeeeseeessaesessccssesssceeseees 11 People v. Harvey (1979) 25 Cal. 3d 754oeeecccessseessneeesseensesesseeeessaeeessasecseesssenenspassim People v. Johnson . (2015) 61 Cal4th 674000. ccccceccesseecssseseeesessseseeseeeesseeenes 6, 7, 14, 15 People v. Jones (1999) 75 CalApp.4th 616 oo... ccceecccccsecseessesesesesseesssesesssesessesesessenane 10 People v. Kelii © (1999) 21 Cal.4th 452... ccccccscsesscscsessscsesceesssesesscscsesevscseeaseceeseeaees 18 People v. Manning . (2014). 226 Cal.App.4th 1133 oo...eee ececeeesscesseeeessseeeeesneesseens 7,8, 19 People v. McGee (2006) 38 Cal.4th 682 .....ccccccccesscsssesscseescssssesessssssescesseeeesneeseesnee 3, 18, 19 ili TABLE OF AUTHORITIES (continued) Page People v. Newman (2016) 2 Cal.App.Sth 718, 724 oo... eececceesesseeesseeeesseeeenesdeeteeeeees 12, 13 People v. Osuna . | (2014) 225 Cal.App.4th 1020 oo... ceeccecssneeeeessssreeessseessesessseees 9,11 People v. Perez (2016) 3 Cal.App.Sth 812, 822 oo... eecccccccenceseeeeeeneeseneeeseeseeeeaee 10, 14 Peoplev. Reed (1996) 13 Cal.4th 217ooeeeeceseeceneeseceeeeseeeeneeeeeseeeaseesseeeseeens 17, 21 People v. Santamaria (1994) 8 Cal.4th 903... eeeeseeeeesseeeeeaecaeesaseeceeceesaesneeaseaeente 23, 28 People v. Trujillo (2006) 40 Cal.4th 165.000... ccc ecccceseceeteeeeeseesseeessseeeeens17, 18, 23, 28 People v. Villalobos (2012) 54 Cal.4th 177 ooo eeccccsecssceeeseceeeeseeeseeesseeesenseeeeseesseessseens 26, 27 People v. White . (2014) 223 Cal.App.4th 512 oo.ecceesecsesseeeessnseeesteeesseenseessees 11, 19 People v. Woodell (1998) 17 Cal.4th 448oooccccecsssenseesecsssecsesseeeesssessseceeecsssenseenes 17 People v. Yearwood (2013) 213 CalApp.4th 131 oo. cceccseeceseseteeseseeseseessessesscnsrerseseasensens 8 United States v. Gaudin (1995) 515 U.S. 506 woesseseeescesaeesececeeeeseenececaressssesseaneeeeasenas 10 Iv TABLE OF AUTHORITIES (continued) Page STATUTES Pen. Code SDcccceccceesssceeesssssceecceecessessssuesseseeeeenssVevecvececescescesusnececateeecees 4 § BBS oo ccccsessscssssseeceseneesssssssesceescesscccesecavcescceececseseeeeseueestnttttetttenens 11 8 459 ooo ccccccsscsssscccecesssssessssnsusesssssscsseseeseeceveeeeeeeseceseseeresstntttttttanenes 4 § ABT oo. cccsessecssssseccecereesssseseeeeee saececeugececsecueceaeeeeeceussaeseceveeseeeces1.4 § O67 oieeee eect ceeeseeeceeeseaeeeeeseaeeseeeneesssaeereeesuesesseaeeeesstenateeespassim § L102.eeeeeecsceceneeeseecsseeseecseesseeeesseesseeeessaseesseeseeesaaspassim § 1170126... cccecccccccseeeeeseccesececessneeseeeuaseacaavepeeseaaaranes 1, 4, 8, 11 § LL70127occcece ceeseeeseneesccseseeestseteeeeossusaneasdececusseesecenseesecsecess 1 § 12022 ooo eeecccccsesesseesssssssessdesscessctecsseeseecececeeseeceecececesersueceneess 9,12 3 2022Seeecee eesecseeeceeseeeneeeeesseseetserseeersesesssessstesssesseseee dy 9, 24 CONSTITUTIONAL PROVISIONS U.S. Const. Sth Amen. 20.0... ceeseccccececceccccccesesseseeecceceuseseccuecsessuuasetecassesecenace 10 Oth Amend. 00... ecceseessssssccescceeessssseessssssvsseeseeseeveeeceeeeers 3, 10, 12, 18 14th Amend. 0.0... ececee cece ccc cescesececcccscececcceccecccuaceceuanseceuausceseseusceaueeseeees 10 OTHER AUTHORITIES | Three Strikes Reform Act of 2012 .0.......ccccceeeeeeeesseeteeeeeeeecenseeeeeeespassim ISSUE PRESENTED Did the trial court improperly rely on the facts of counts dismissed under a plea agreementto find defendantineligible for resentencing under the provisions of Proposition 36? INTRODUCTION The Three Strikes Reform Act of 2012 (‘the Act”), approved by the voters as Proposition 36, permits inmates serving “third-strike” sentences for a commitmentoffense that is neither “serious” nor “violent”to petition for resentencing as “second-strike” offenders. The Act’s provisions impose thresholdeligibility rules that direct resentencing courts to determine whether petitioners satisfy enumeratedcriteria, including — as is relevant here — a requirementthat the petitioner’s third-strike sentence was not imposed for an offense during which he or she used a firearm. (Pen. Code, -§ 1170.126, subd. (e)(2),' incorporating §§ 667, subd. (e)(2)(C)(aii), 1170.12, subd. (c)(2)(C)(iii).) If the resentencing court determinesthat the petitioner satisfies all threshold eligibility criteria, recall of sentenceis permitted only if the court exercises its discretion to find that resentencing would not pose an unreasonable risk of danger to public safety. (§ 1170.127, subd.(f).) Underhis 1996 plea agreement, appellant Mario Estrada pleaded guilty to grand theft person; in return, the prosecution dismissed a robbery count and firearm useallegation based on the same conduct as the grand theft person, and the court imposeda third-strike sentence of 25 years to life. When Estradapetitioned for resentencing under the Act (§ 1170.126), the resentencing court deniedhis petition after reviewing the record of ’ conviction, including the preliminary hearing transcript, and determining ' Undesignatedstatutory references are to the Penal Code. that he was armed with a firearm during the grand theft person, which "rendered him ineligible for resentencing. On direct appeal from the resentencing denial, the Court of Appeal rejected Estrada’s contention that People v. Guerrero (1988) 44 Cal.3d 343 prohibited the resentencing court from finding the firearm-related disqualifying conduct, which had not been “pled or proven” as an element of his original conviction. (People v. Estrada (2015) 196 Cal.Rptr.3d 418, 421-422.) The Court of Appealreasonedthat the Act’s resentencing provisions contain no pleading and proof requirement(id. at p. 421) and that Guerrero permits consideration of the entire record of conviction to determine the truth of a prior-conviction allegation (ibid., citing Guerrero, supra, at p. 335). The Court of Appeal also held that the negotiated dismissal of the firearm use allegation and robbery countdid not foreclose the resentencing court’s determination of the arming disqualifying conduct: the arming conduct occurred during the admitted offense, rather than during dismissed counts or allegations “wholly unrelated”’ to the admitted offense. Regardless, the finding ofthe disqualifying conduct was not tantamountto a finding of the dismissed countor allegation. The Court of Appeal concludedthat the resentencing court properly found Estrada ineligible becausethe record of conviction showed that he was armedwith a firearm during the commitment offense. (Estrada, supra, at pp. 422-423.) The Court ofAppeal was correct. The plain language ofthe Act, consistent with the electorate’s general intent, neither requires prior pleading and proofof the disqualifying conductnorlimits the resentencing court’s determination to conduct necessarily established by the elements of the conviction. On the contrary, when the Act was approved,this Court’s precedent, including Guerrero, permitted sentencing courts to look beyond the elements of a prior conviction and consider the entire record of conviction to determine whether a defendant was subject to enhanced punishmentunder the Three Strikes law andsimilar recidivist sentencing provisions. (See,e.g., Guerrero, supra, 44 Cal.3dat pp. 355-356; People v. McGee (2006) 38 Cal.4th 682, 693-694.) This Court has since discussed circumscribing the scope of a sentencing court’s inquiry into the nature ofa defendant’s prior convictions in order to avoid constitutional violations, such as a Sixth Amendmentviolation under Apprendi v. New Jersey (2000) 530 U.S. 466. (See, e.g., McGee, supra, at pp. 706-709.) However,as Estrada apparently concedes (see ABOM 24,fn. 8), his Sixth Amendment rights are not implicated here because the Act functionssolely to reduce, rather than to increase, his sentence. And, consistent with the rule established in People v. Harvey (1979) 25 Cal.3d 754, a sentencing court may consider conduct underlying an admitted countor allegation even if that conductalso underlies another count orallegation dismissed by plea — agreement. | | In sum,a trial court conducting the thresholdeligibility determination for sentence reduction under the Act may generally consider facts from the record of conviction of the commitment offense to determine whether the petitioner’s conduct disqualifies him or her from relief. Where the commitment offense was admitted pursuant to a negotiated plea, the resentencing court may consider conduct underlying admitted counts or allegations even if that conduct also underlies dismissed counts or allegations, unless the agreementincludes a specific finding or provision that precludessuch consideration. Where, as in this case, there was no such finding or agreement, and the record of conviction showsthat the petitioner committed the commitment offense in a manner that disqualifies him or her from resentencingrelief under the Act, the dismissal of other counts or allegations based on the same conduct as the commitmentoffense is immaterial. PROCEDURAL AND FACTUAL SUMMARY Pursuant to a 1996 plea agreement, Estrada pleadedguilty to grand theft person (§ 487, subd. (c)) and admitted two prior robbery convictions (§ 211). In return, the prosecution dismissed a personalfirearm use allegation (§12022.5, subd.(a)) alleged asto the admitted grand theft person, a robbery count and a burglary count (§ 459) based on the same conduct as the admitted grandtheft person,” and 12 additional counts (including 11 “strike” offenses) alleged to have occurred on dates other than that of the admitted grand theft person. Thetrial court sentenced Estrada to state prison for an indeterminate term of 25 years to life (former § 1170.12, subd. (c)(2)(A)(ii)). (CT 1, 7, 134, 148-157, 160-161.) In 2012, Estrada filed a resentencing (or “recall’”) petition (§ 1170.126) (CT 1-2), which the resentencing court denied after reviewing the evidence presented at the preliminary hearing that preceded Estrada’s guilty plea and finding it “more likely than not that [Estrada] was armed with a firearm during the commission of the commitmentoffense, thereby disqualifying him from relief... pursuant to section 1170.126, subdivision (e)(2)” (CT 159-175 [quotation from CT 163]). The resentencing court specifically noted that the dismissed section 12022.5, subdivision (a), firearm allegation was “not decided on [its] merits.” (CT 163.) The preliminary hearing transcript showed the following:* * Thepreliminary hearing evidence (summarized below) showsthe conduct underlying the admitted grand theft person count and the dismissed firearm use allegation and robbery and burglary counts. > Respondentlimits this summary to the events that occurred on April 9, 1995. Evidence of crimes alleged to have occurred on otherdates wasalso presented at the preliminary hearing. (CT 71-119; see also People v. Estrada, supra, 196 Cal.Rptr.3d at pp. 419-420.) At about 2:00 p.m.or 3:00 p.m. on April 9, 1995, Alfred Valladolid* was working at a Radio Shack store when Estrada entered with another man. (CT 64-66.) Estrada told Valladolid he wanted to buy particular car stereo. Valladolid got the stereo from a back room and returnedto the counter to charge Estrada. (CT 67.) When hewasthree or four feet away from Valladolid, Estrada drew a small, dark 38-caliber pistol from his pocket, held the gun in his right hand, and said somethinglike, “Just keep quiet and give me the moneyin the register.” (CT 68, 80.) Valladolid knew it was a .38-caliber pistol because he had seen guns of the same caliber before; he had fired guns with his uncle, a gun collector. (CT 79.) Valladolid put the money from the register (about $400) in a plastic bag and gaveit to Estrada. (CT 69, 74.) Estrada told Valladolid to go to the back room. As Valladolid was walking back, he saw Estrada andhis companion exit the store. (CT 69-70.) Estrada also took the carstereo. (CT 74.) | On appeal from the denial of his resentencing petition, Estrada argued ‘that the resentencing court’s consideration was “limited” to the “elements” that “constituted theft from the person.” (AOB 16.) Morespecifically, Estrada asserted that, becausethe firearm useallegation and robbery count based on the same conduct as the admitted grand theft person were dismissed pursuantto the plea agreement, the resentencing court was prohibited from considering evidence that went “beyondestablishing [the] elementsofthe grand theft crime,” and thus was permitted to consider only theevidence “that Estrada took money handed him by the salesman from the cash register and then left the store.” (AOB 16-17 [quotations from AOB17].) The Court of Appeal affirmed the denial of Estrada’s * It appearsthe preliminary hearing transcript incorrectly spells the last name “Valladolie” rather than “Valladolid.” (CT 67-68, 125-126.) resentencing petition, reasoning that the resentencing court properly reviewed evidenceof the circumstancesof the admitted grand theft person from within the record of conviction to find the firearm-related _ disqualifying conduct — a finding that did not amount to relitigatation of the dismissed robbery countorfirearm use allegation. (Estrada, supra, 196 Cal.Rptr.3d at pp. 421-423.) | ARGUMENT IL. THE RESENTENCING COURT COMPLIED WITH THE ACT’S THRESHOLD ELIGIBILITY DETERMINATION PROCEDURE FOR SENTENCE REDUCTION With the passage of Proposition 36 in 2012, the electorate modified Three Strikes law sentencing prospectively and retrospectively. Before the . Act waspassed,third-strike sentences could be imposed for any felony. After the Act was passed,third-strike sentences could be imposed in the first instance (prospectively) only for serious or violent felonies, with certain exceptions. Retrospectively, the Act permitted inmates serving third-strike sentences forfelonies that are neitherserious norviolent to petition for resentencing as second-strike offenders, subject to categorical as wellas discretionary limitations. (See People v. Johnson (2015) 61 Cal.4th 674, 679-682.) The established canonsof statutory construction confirm that the requirement for qualifying conductto be “pled and proved” (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C)) applies prospectively, not retrospectively. Contrary to Estrada’s assertions, neither People v. Johnson, supra, 61 Cal.4th 674, nor People v. Guerrero, supra 44 Cal.3d 343, supports an interpretation that “retrospective application [of the Act] should turn on what was pleaded and proved when the petitioner sustained the current conviction.” (ABOM 20.) Instead, the Act’s plain language, consistent with the evidence of voter intent, forecloses Estrada’s proposed interpretation. Properly interpreted, the Act directs resentencing courts to conduct a threshold eligibility determination to find whetherthe record of conviction for the commitment offense showsanyofthe disqualifying conduct during the offense. The resentencing court in this case followed the procedure set forth in the Act when it determined Estrada wasineligible for resentencing because he was armed witha firearm while committing the grand theft person for which he received his third-strike sentence. A. The Act Directs the Resentencing Court to Consider Disqualifying Conduct Based on the Record of Conviction without Any “Plead-and-Prove” Requirement Courts use the sameprinciples to interpret laws enacted by the electorate and by the Legislature: “We begin with the language ofthe statute, to which we give its ordinary meaning and construe in the context of the statutory scheme. If the language is ambiguous, we look to other indicia of voter intent.” Courts conduct this interpretive analysis in order to discern and effectuate the lawmaker’s intent. (Johnson, supra, 61 Cal.4th at p. 682.) Issues of statutory interpretation present questions of law, which courts review de novo. (Goodman v. Lozano (2010) 47 Cal.4th 1327, _ 1332.) Under California’s “three strikes” sentencing schemeasit existed before 2012, a defendant previously convicted of two or more serious or violent felonies was subject to a third-strike sentence (a minimum of 25 yearsto life) upon conviction of any subsequent felony. (Former §§ 667, subd.(e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii); People v. Manning (2014) 226 Cal.App.4th 1133, 1137.) However, underthe 2012 Act, third-strike sentencing applies only when the commitmentoffenseis seriousor violent, unless the prosecution “pleads and proves” one of four enumerated circumstances that allow third-strike sentencing for a non-serious, non- violent felony. (Current §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C); id. at p. 1137.) This “prospective”part of the Act applies to defendants sentenced under current law. (/d. at p. 1138.) The Act’s procedure for reducing a previously-imposedsentence has been described as “retrospective.” (Manning, supra, 223 Cal.App.4th at p. 1138.) The Act... created a postconviction release proceeding whereby a prisoner whois serving an indeterminate life sentence imposed pursuantto the three strikes law for a crime that is not a serious or violent felony and whois not disqualified, may have his or her sentence recalled and be sentenced as a secondstrike offender unlessthe court determines that resentencing would pose an unreasonable risk of danger to public safety. (§.1170.126.) (People v. Yearwood(2013) 213 Cal.App.4th 131, 167-168,italics added.) The text of the Act specifies a straightforward threshold eligibility determination procedure: the resentencing court examinesthe record of conviction to find whetherthe petitioner committed any of the disqualifying conduct during the commitment offense. (People v. Bradford (2014) 227 _ Cal.App.4th 1322,1336-1340.) Under the Act’s plain language, several criteria define inmates’ eligibility for resentencing. The broadest criterion states that “any person” serving a third-strike sentence for a non-serious and non-violent commitmentoffense “mayfile a petition for recall of sentence.” (§ 1170.126, subd. (b); see also § 1170.126, subd. (e)(1) [samecriterion].) While any such inmate mayfile a petition, not all are eligible forrelief; rather, other criteria furtherrestrict eligibility. In relevant part, an inmate is eligible for resentencing underthis section only if “[t]he inmate’s current sentence was not imposedfor any of the offenses appearing” in section 667, subdivisions (e)(2)(C)(i) through (iii), or section 1170.12, subdivisions (c)(2)(C)G) through (aii). (§ 1170.126, subd.(e)(2).) Those disqualifying offenses are defined in two ways. Someare defined by existing statutory offenses andallegations. (§§ 667, subds. (e)(2)(C)(i)-(ii), 1170.12, subd. (c)(2)(C)(i)-(ii).) Others are defined by “non-elemental” conduct showing the manner in which the offense was committed; namely, any offense “{d]uring the commission of [which] the defendant used a firearm, was armed with a firearm or deadly weapon,orintended to cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(ii); see Bradford, supra, 227 Cal.App.4th at p. 1333 [“the criteria at issue here do not describe particular offense but apply to conduct relating to a weaponorintent to cause great bodily injury that occurred during the commission ofan adjudicated offense”); ABOM 17 [recognizing “non-elemental” disqualifying conduct].) | The disqualifying conductat issue here is defined more broadly than the Penal Code’s independent firearm-related sentence enhancements:it applies if, “[d]uring the commission of the current offense, the defendant ... was armed with firearm... .”(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(ii1).) The word “during” solely requires a “temporal nexus between the arming and the underlying felony, not a facilitative one.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1032.) In other words, the disqualifying conduct requires only that the defendant havethe firearm available for use at the time of the offense; the defendant need not have the firearm available tofurther the commission of the offense — a requirement of the more narrowly-defined allegation for being armed in the commission of a felony under section 12022, subdivision (a). (Id. at pp. 1031-1032.) Andthe allegation for personaluse ofa firearm dismissed in this case (§ 12022.5, subd.(a)) is defined even more narrowly (requiring, for example, displaying, brandishing, or firing) than the section 12022 allegation for being armed in the commissionofthe offense. (Peoplev. -Arzate (2003) 114 Cal.App.4th 390, 399-400.) To be sure, constitutional requirements supersedestatutory language; however, the Act does not implicate any such requirements. As a general matter, the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution combine to require that each element of a crime or sentence enhancementbeprovedto a jury beyond a reasonable doubt. (See,e.g., People v. Blakely (2014) 225 Cal.App.4th 1042, 1059-1060, citing United States v. Gaudin (1995) 515 U.S. 506, 509-510; Inre Winship (1970) 397 US. 358, 364: People v. Jones (1999) 75 Cal.App.4th 616, 631.) Additionally, under the Apprendiline of authority, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum mustbe submitted to a jury, and proved beyond a reasonable doubt.” (Blakely, supra, at p. 1060, citing Apprendi, supra, 530 U.S.at p. 490.) However, the Act’s retrospective provisions trigger no Sixth Amendmentright because those provisions function solely to reducerather than to increase the sentence. (See, e.g., People v. Perez (2016) 3 Cal.App.Sth 812, 822, fn. 10 [summarizing case law]; see also Dillonv. United States (2010) 560 U.S. 817, 827-829 [a criminal defendant’s Sixth Amendmentrightto have essential facts found by a jury beyonda reasonable doubt does not apply to downward sentencing modifications due to intervening laws].) Thus, the Act accords with constitutional dictates by including the “plead and prove” requirementsolely in the prospective part of the Act. In contrast, the retrospective part does not require the prosecution to “plead and prove”the existence of the disqualifying conduct;rather, the resentencing court “shall determine whether” any disqualifying conduct applies.’ (People v. Conley (2016) 63 Cal.4th 646, 660-661 [concluding > The Courts of Appeal have disagreed about who bears the burden in the disqualifying conduct determination. (Compare People v. Frierson (continued..:) 10: “that the Act does not address the complexities involved in applying the pleading-and-proof requirements to previously sentenced defendants precisely because the electorate did not contemplate that these provisions would apply. Rather, voters intended for previously sentenced defendants to seek relief under section 1170.126, which contains no comparable pleading-and-proof requirements’’]; see also People v. White (2014) 223 Cal.App.4th 512, 527 [same]; Bradford, supra, 227 Cal.App.4th at p. 1332 [“The fact that the [prospective part ofthe Act] contains a plead-and-prove requirement evidencesthat the drafters knew how to impose such a requirement[retrospectively] had they chosen to do so”].) Because the disqualifying conductat issue here refers to “those facts attendant to commission of the actual offense, the express statutory language requires the trial court to make a factual determinationthatis not limited by a review ofthe particular statutory offenses and enhancements of which a ~ petitioner was convicted.” (Bradford, supra, at p. 1332; see also Osuna, supra, 225 Cal.App.4th at p. 1034 [“the drafters of the initiative knew how - to require a tethering offense/enhancementif desired. (See §§ 334, subd. (e)(2)(C)() [disqualifying inmate if current offense is controlled substance charge in which enumerated enhancementallegation was admitted or found true], 1170.12, subd. (c)(2)(C)(i) [same]’”].) (...continued) (2016) 1 Cal.App.5th 788, 793 [review granted October 19, 2016, 5236728] [prosecutor bears burden to prove disqualifying conduct] with People v. Guilford (2014) 228 Cal.App.4th 651, 657 [prosecution bears no burden of proof; rather, “the burden falls on the trial court to make the [threshold eligibility] determination”].) In Frierson, this Court granted review on the issue of the proper standard of proof for the threshold eligibility determination for resentencing underthe Act: by a preponderance of the evidence or beyond a reasonable doubt. . 11 2 Q o m e R M g a p s Therefore, the constitutional avoidance doctrine has no application to the interpretation of this aspect of the Act. (Cf. Descamps v. United States (2013) 133 S.Ct. 2276, 2288 [Under the federal Armed Career Criminals Act, the sentencing court’s “finding of a predicate offense indisputably increases the maximum penalty. Accordingly, that finding would (at the least) raise serious Sixth Amendmentconcernsifit went beyond merely identifying a prior conviction”].) It follows that “Proposition 36, on its face, does notdictate that any ofthe triad of disqualifying factors must be an element of the [commitment] offense or . . . sentence enhancementor that such disqualifying factors must be pled and proved as suchtothetrier of fact. Its plain and clear languagereflects a contrary intent.” (People v. Newman(2016) 2 Cal.App.5th 718, 724.) | | The Act’s thresholdeligibility determination procedure for sentence reduction — based on petitioners” dangerous conduct during the commitment offense — emanates from practical and legal considerations unique to the resentencing context. Prosecutors handling pre-Act third- | strike cases had no independentreasonto obtain specific findings of the non-elementaldisqualifying conduct that would later preclude resentencing under the Act. (See Bradford, supra, 227 Cal.App.4th at pp. 1333-1334.) As this Court recently explained, “Before the Reform Act, the prosecution ordinarily would have had noreasonto plead and provethat the defendant [charged with the offense of felon in possession of a firearm] was actually armed with, not merely in possessionof, the firearm; arming is not an element ofthe offense, and case law suggests that the armed-with-a-firearm — enhancement (Pen.Code, § 12022, subd. (a)) does not apply to the offense of felon in possession ofa firearm.” (Conley, supra, 63 Cal.4th at p. 659, citation omitted.) . This procedure advancesthe purpose ofthe Act as a whole andofits retrospective provisions in particular. Although the Act somewhat 12 “diluted”the Three Strikes law’s mechanism for protecting the public and punishingrecidivism through longer sentences, the Act nevertheless maintained “enhancing public safety” as a “key purpose.” (Blakely, supra, 225 Cal.App.4th at p. 1054, internal quotation marks andcitations omitted.) After reviewing the ballot materials for Proposition 36, the Blakely court correctly concludedthat, in enacting the retrospective portions of the Act, the electorate’s intent was not to throw open the prison door for all third strike offenders whose current convictions were not for serious or violent felonies, but only for those who were perceived as nondangerousorposinglittle or no risk to the public. A felon who has been convicted of two or more serious and/or violent felonies in the past, and most recently had a firearm readily available to use, simply doesnot poselittle or no risk to the public. (Id. at p. 1057.) The “plain purpose of these disqualifying factors is to serve as a prophylactic measureto further the goal of the Three Strikes law to protect society against recidivist criminals who commit violent and/or serious crimes.” (Newman, supra, 2 Cal.App.Sth at p. 724.) To achievethat goal, the “triad” of disqualifying conduct(using a firearm, being armedwith a firearm or deadly weapon,and intending to cause great bodily injury during the commitment offense) excludes from resentencing “those defendants who committed the current nonviolent and nonserious crime in a manner that potentially could result in violent and/or serious consequences.” (Jbid., italics added.) The statutory text supports this conclusion: . [The] voters renderedineligible for resentencing not only narrowly drawn categories of third strike offenders who committed particular, specified offenses or types of offenses, but also broadly inclusive categories of offenders who, during commission of their crimes — and regardless of those crimes’ basic statutory elements — used a firearm, were armed with a firearm or deadly weapon,or intended to cause great bodily injury to another person. Significantly, however, those categories, while broad, are not unlimited. Voters easily could 13 have expressly disqualified any defendant who committed a gun-related felony or who possesseda firearm, had they wanted to do so. This is not what voters did, however. (Id. at pp. 1054-1055.) Thus, these disqualifying criteria properly exclude petitioners from resentencing based on the actual dangerousnessof their commitment offenses, determined in reference to enumerated conduct defined more broadly than similar offenses and allegations.° In contrast, Estrada’s proposed plead-and-prove requirement would render “nugatory” the Act’s designation of non-elemental conductrather than specific offenses _and allegations as disqualifying criteria. (See Perez, supra, 3 Cal.App.5th at p. 825, fn. 14.) 7 B. Neither Johnson nor Guerrero Supports Limiting Consideration of Disqualifying Conduct to Previously “Pled and Proved” Statutory Elements Estrada cites this Court’s opinion in Johnson, supra, 61 Cal. 4th at page 691 to support his argument that the Act’s “retrospective application should turn on what was pleaded and proved whenthepetitioner sustained the current conviction”in order to make the Act’s retrospective provisions “nearly identical” to its prospective provisions. (ABOM 20;see also ABOM 12, citing Johnson, supra, at pp. 687, 691.) His reliance is misplaced. ° Accordingly, the Court should reject as incorrect the holding in People v. Berry (2015) 235 Cal.App.4th 1417 that the threshold eligibility ' determination does not function to prevent dangerous criminals’ release from prison. (See id. at p. 1425 [““While we acknowledgethat an important. goal of the [Act] is to prevent dangerouscriminals from being released from prison early, that concern is not directly implicated in the initial determination of an inmate’s eligibility for resentencing. It is only after an inmate is deemedeligible . . . that the trial court undertakes the required assessmentofthe inmate’s dangerousness”].) As explained above, the thresholdeligibility determination considers petitioners’ dangerousness through findings of specified disqualifying conduct. 14 In Johnson, supra, 61 Cal.4th 674, the Court resolved issues of statutory interpretation regarding two matters for which the text of the Act specified no answer. Thus, the Court had to rely on “other indicia of voter intent” — including voter information materials and the overall structure of the Act — to resolve the ambiguities in the statutory text. In reachingits results, the Court notedthe “parallel structure” of the prospective and retrospective provisions and concludedthis structure “reflects an intent that Sentences imposed on individuals with the same criminal history be the same”prospectively and retrospectively. (/d. at p. 687; see also id. at p. 691 [similar reasoning].) That kind of structural comparisonis unwarranted here because the Act’s text resolves the issue in this case. As shown above, the text of the Act does not impose any plead-and-prove requirementon the threshold eligibility determination for sentence reduction; rather, the text directs resentencing courts to determine disqualifying conductthat is defined more broadly than similar offenses or allegations. (See, eg., Conley, supra, 63 Cal.4th at pp. 659-661.) The existence of similarities between the Act’s prospective and retrospective provisionsdoes notjustify judicial erasure of the explicit differences between those provisions. While the Act contemplates that the same definitions of serious and violent felonies and conduct-based exceptions will produce the same sentences underthe prospective and retrospective provisions (notwithstanding the discretionary dangerousness determination at resentencing) (see Johnson, supra, 61 Cal.4th at pp..687, 691), it imposes a uniqueprocedure for resentencing, consistent with the legal and practical differences between the prospective and retrospective contexts. Indeed, judicially imposing a plead-and-proof requirement on the. threshold eligibility determination for resentencing would impair the voter’s intent for “parallel” prospective and retrospective sentencing: whereasprosecutors can address this conduct-based procedural requirement 15 in a principled mannerprospectively, resentencing courts’ retrospective determinations of the same conduct would arbitrarily depend on pre-Act verdicts and plea agreements that did not contemplate this procedural requirement. Estrada’s reliance on People v. Guererro, supra, 44 Cal. 3d 343,is similarly misplaced. In Guerrero, the Court permitted consideration of conduct beyondthe adjudicated elements of a prior conviction of as a matter of statutory interpretation of the recidivist sentence enhancementat issue in that case (Guerrero, supra, 44 Cal.3d at pp. 346-355) and prohibited consideration of evidence beyondthe record ofthe prior conviction as a prophylactic protection against “threatening the defendant _ with harm akin to double jeopardy and denial of speedytrial”(id. at p. 355, italics added). Thus, Guerrero rejects, rather than imposes,the “least adjudicated elements”limitation on which Estrada’s argumentrelies. Guerrero’s limitation to the record of conviction is grounded on constitutional concerns absent from this case.’ In Guerrero, this Court articulated the proper procedure for determining whethera prior conviction constitutes a serious felony for the purpose ofthe five-year sentence enhancementundersection 667, subdivision (a). Atthe time Guerrero was decided, the definition of serious felony included “burglary of a residence,”but nostatutory offense or allegation establishedthat particular conduct. (Guerrero, supra, 44 Cal.3d at pp. 344-346.) The Court rejected the “least adjudicated elements”test under which a sentencing court’s determination is limited to those “matters necessarily established by the prior judgment of conviction.” (Jd. at ’ The Act’s text independently establishes a threshold eligibility determination procedure for resentencing that considers no new evidence outside the record ofconviction. (Bradford, supra, 227 Cal.App.4th at pp. 1337, 1339.) 16 pp. 354-355.) Instead, the Court held that in order to accomplish the legislative intent to impose the serious felony enhancementbased onpast conduct rather than a specific past offense, courts determining the truth of that allegation may consider conduct beyondthe least adjudicated elements by “look[ing] to the entire record of the conviction — but nofurther.” (Id. at p. 355,italics original.) The Court reasonedthat limiting consideration to the record of conviction is “fair” because “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.” ([bid.) The record of conviction includesonly those materials that demonstrate the nature or basis of the conviction, which meansthe version of events that formed the legal foundation for the judgment. (See People v. Reed (1996) 13 Cal.4th 217, 220-221, 223 [preliminary hearing transcriptis part of the record ofa conviction byplea becauseit reliably reflects the | facts of the offense of conviction]; Trujillo, supra, 40 Cal.4th at p. 179 [post-guilty-plea statements by defendant fall outside the record of conviction because they do notreflect nature or basis of conviction].) In this context, “relitigation” means consideration of evidence outside the record of conviction. (Guerrero, supra, 44 Cal.3d at p. 355; see also Reed, supra, at p. 226 [prosecution prohibited from relitigating facts “behind”the record by “introducing evidence outside the record”].) Avoiding relitigation is not a separate requirement; it is the purpose and effect of the rule limiting consideration to the record of conviction. (Guerrero, supra, at p. 355; see also People v. Woodell (1998) 17Cal.4th 448, 456 [“we allow recourse to the record of conviction, but no further, to promote the efficient administration ofjustice.and to precludetherelitigation of the _ circumstances of the crime”’].) 17 Thus,there is no basis to constrain the thresholdeligibility determination procedure for resentencing under the Act with Guerrero’s additional prophylactic limitation, as there is no suggestion the threshold eligibility determination could cause the double jeopardy or speedytrial violations that the Guerrero limitation seeks to avoid (see, e.g, ABOM 24, fn. 8 [clarifying that argument on review raises no constitutional issue]). Noris there a basis to impose any other constitutional constraint from the sameline of cases. For example, in order to avoid violation of the Sixth Amendment under Apprendi, supra, 530 U.S. 466, the Court has clarified that the Guerrero procedure “does not contemplate that the court will make an independent determination regarding a disputedissue offactrelating to the defendant’s prior conduct.” (McGee, supra, 38 Cal.4th at p. 706.) ' Similarly, the Court has explained that a defendant’s post-plea but pre- sentencing statements in a probation report fall outside the record of conviction because that evidence wasnot available to the prosecution before conviction,so its use in a later case to prove a recidivist sentence enhancement would risk “harm akin to double jeopardy” and improperly “relitigate the circumstancesofthe crime.” (Trujillo, supra, 40 Cal.4th at pp. 179-181 [quotations from p. 180].) These prophylactic constitutional limitations from the Guerrero line of cases haveno application to resentencing under the Act, which implicates no such constitutional concerns. (See Blakely, supra, 225 Cal.App.4th at p. 1063.) Regardless, these constitutional limitations do not demand imposition of a least adjudicated elements rule: the Guerrero procedure has always contemplated a “factual inquiry, limited to examining court documents,” to determine conduct beyondthat necessarily established by the elements of the prior conviction. (McGee, supra, 38 Cal.4th at pp. 691-694, 706-709 [quotation from p. 707, citing People v. Kelii (1999) 21 Cal.4th 452, 457]; see also Kelii, supra, at p. 456 [“Sometimesthe determination does have a 18 factual content”] and p. 457 [sometimesthetrier of fact must draw inferences from transcripts of testimony or other parts of the prior . conviction record”].) Therefore, the Court should reject Estrada’s contrary argumentthat the resentencing court could consideronly an artificially- tailored version of the evidence, limited to the minimum conduct necessary to establish the elements of grand theft person, as this argument ignores whatthe Court has actually done in the Guerrero line of cases. (See - ABOM 10, 14, 23-30, 43-44; AOB 16-17.) According to Estrada, the question presented on review is whether a resentencing court may “review the transcripts of the defendant’s preliminary hearing and makefindings offact that the defendant engaged in conduct which disqualifies him from Proposition 36, even though those findings were not madeat the time by the trier of fact, nor were those findings necessary to explain the conviction?” (ABOM 8.) Thelegal authority summarized above showsthe answeris “yes.” The Act requires resentencing courts to determine disqualifying criteria that include enumerated non-elemental conduct during the commitment offense. Under Guerrero, courts determining non-elemental conduct underlying a conviction are not limited by the least adjudicated elements test but instead may draw inferences to make factual findings based onthe entire record of conviction. (See McGee, supra, 38 Cal.4th at pp. 691-695 [summarizing Guerrero and progeny].) . Estrada complainsthat the resentencing court “used the limited evidence to makenewfindings of fact that were not encompassed by the conviction” (ABOM 14), to which respondentreplies, “Of course” — finding non-elemental facts underlying but not determined by a conviction is “exactly what Guerrero and [ White, supra, 223 Cal.App.4th 512] allow.” (Estrada, supra, 243 Cal.App.4th at p. 422; seealso Manning, supra, 226 Cal.App.4th at pp. 1140-1141 [citing Guerrero to refute 19 resentencing petitioner’s argument that “[n]o case has ever” permitted using record of prior conviction to prove underlying conduct not established by least adjudicated elements].) Estrada advocates a self-contradictory interpretation of the law that would render Guerrero meaningless and the Act’s non-elemental disqualifying conduct impossible to apply unless proved by adjudicated elements. For example, he claims that the Guerrero procedure “‘is focused on the elements of the offense of which the defendant was convicted” (ABOM18), and that the Act “should be interpreted to permit consideration of only the facts adjudicated and foundin reaching the previous conviction” (ABOM 21). But in Guerrero and its progeny, this Court has repeatedly rejected the least adjudicated elements test Estrada now suggests Guerrero requires. And, as Estrada acknowledges, the Act requires the resentencing court to “look beyond the bare elements of the offense” of which the. petitioner was convicted in order to determine “non-elemental conduct” (ABOM 21) that statutory offenses and enhancements “frequently” do not establish (ABOM17). | As a matter ofstatutory interpretation, Estradaargues that in passing the Act, the voters presumably were aware of Guerrero and intended for the Act’s non-elementaleligibility criteria to be determined using the same procedureas the analogous determination in Guerrero. (ABOM 13, 18- 19.) Thus, he asks this Court to interpret the Act in accordance with his interpretation of Guerrero in orderto limit the threshold eligibility determination to consideration of matters “admitted” or “adjudicated and foundin reaching the . . . conviction.” (AOB 21.) But Estrada’s fundamental misinterpretation of the Guerrero procedure leads him to draw the wrong conclusion from the presumption that the electorate was aware of Guerrero whenit passed the Act. As argued above, Guerrero permits consideration of non-elemental conduct underlying but not adjudicated by a 20 conviction, so any electoral intent to apply the Guerrero procedure to the Act could not require the least adjudicated elements limitation that Guerrero rejected. Stated otherwise, the plain language of the disqualifyingcriteria showsthe electoral intent for resentencing courts to consider non-elemental conduct in the same mannerthat the Guerrero procedure permits. Thereis no indication theelectorate that passed the Act paradoxically intended both to require consideration of non-elemental conduct and to prohibit consideration of matters beyond the elements “admitted” or “adjudicated and foundin reaching the conviction.” (AOB21.) Accordingly, this Court should reject Estrada’s argumentthat the resentencing court “improperly relied on facts underlying dismissed counts” (ABOM 13). The preliminary hearing evidence includes only one version ofhow Estrada committed the grandtheft person: with a pistol in his hand. Both the Act and the Guerrero procedure authorize the resentencing court’s determination that this version of events wasthe basis for his conviction by plea of grand theft person and that this version of events proved the non-elemental arming conductthat rendered him ineligible for resentencing under the Act. | C. Estrada Was Properly Disqualified from Resentencing Because He Was Armedwith a Firearm During the Commitment Offense The resentencing court found Estrada ineligible for resentencing in compliance with the procedureset forth in the Act: it reviewed the evidence presented at Estrada’s preliminary hearing and found he was “armed with a firearm during the commission of the commitmentoffense, thereby disqualifying him from relief” under the Act’s resentencing provisions. (CT 163.) Preliminary hearing transcripts fall within the record of a conviction by plea. (Reed, supra, 13 Cal.4th at pp. 220-221, 223.) Thus, . 2) the resentencing court did not violate the threshold eligibility determination procedure set forth in Act. Estrada does not dispute that the preliminary hearing transcript showsheheld a gunin his hand during the grandtheft person for which hereceived his third-strike sentence. Accordingly, the Court of Appeal correctly affirmed the findingthat he is disqualified from resentencing. Nevertheless, Estrada argues that various policy considerations should constrain the electorate’s intent as tothe threshold eligibility determination procedure for sentence reduction under the Act. Estrada arguesthat determination of non-elemental disqualifying conduct not established by the elements of conviction is unfair because it depends on evidence “developed when the now-critical issue was not even relevant.” (ABOM 14.) Given that Guerrero rejected the same argumentin the context of a sentence enhancement (Guerrero, supra, 44 Cal.3d at pp. 355-356), the | same argument should berejected in this context, where the “now-critical” issue solely relates to a sentence reduction. In any event, Estradafails to explain how the procedure under the Act would disadvantage resentencing petitioners any more than it would disadvantage the prosecution. For example, if Estrada had pleaded guilty underthe instant agreement before his preliminary hearing, then the record of conviction probably would not have demonstrated his arming during the commitmentoffense — the consequences of which the prosecution could not have knownatthe time of the plea. | Estrada also argues that determination of non-elemental disqualifying conductnot established by the elements of conviction would improperly “permit the recallcourt to make findings of fact about whicha prior jury had potentially hung or even found untrue; this could easily occur because the recall court was using a lesser burden of proof.” (ABOM 31.) Assumingthat trial verdict has a preclusive effect on the threshold 22 eligibility determination (see ArgumentII, post), nothing prevents resentencing courts from determining whethera deadlock,nottrue finding, or not guilty verdict on a given countor allegation informsthe nature or basis of the commitmentoffense in the same case. (See People v. Santamaria (1994) 8 Cal.4th 903, 907-922 [examining possible factual bases of not true finding on weaponallegation to determine whether finding — precludesretrial on murder count]; see also In re Coley (2012) 55 Cal.4th 524, 557 [permitting a sentencing judge to consider evidence of conduct underlying counts of which the defendant was acquitted generally does not underminethe jury’s role in establishing, by its verdict, the maximum authorized sentence].) In any event, Estrada’s case did notinvolvea trial verdict, and none of those concernsapply. Critically, the Act cannot cause the harm Estrada seeksto avoid — “forcing the defendantto relitigate the circumstances of the crime” based on evidence unfairly “used against him” (ABOM 25, quoting People v. Trujillo (2006) 40 Cal.4th 165, 180, italics added by Estrada) — because the Act gives defendants the unilateral choice whether to seek sentence reduction based on enumerated statutory criteria determined without considering new evidence. Estrada, not the prosecution, filed the resentencing petition that necessarily called into question whether the record of conviction showshe used a firearm during the commission of the grandtheft person for which hereceivedhis third-strike sentence. (See Bradford, supra, 227 Cal.App.4th at p. 1340 [“Here, the People did not ‘charge’ or even raise the issue ofpetitioner’s ineligibility for resentencing underthe statutory criteria. Rather, the current matter concerns a unique postconviction proceeding that called uponthe trial court to make a threshold eligibility determination”].) The Act provided Estrada with a fair opportunity for sentence reduction, which was properly denied based onhis disqualifying conduct under the procedureset forth in the Act. 23 II. ESTRADA’S PLEA AGREEMENT DID NOT PRECLUDE THE RESENTENCING COURT FROM FINDING THAT HIS ARMING _ DURING THE COMMITMENT OFFENSE RENDERED HIM INELIGIBLE FOR RESENTENCING — Estrada arguesthat in the context of conviction by plea, determination - of non-elemental disqualifying conduct outside the elements of conviction “permits the prosecutiontolitigate for the first time things that were removed from issue byvirtue of a plea bargain,” which would improperly _ changeandrelitigate “those facts that the plea proved.” (ABOM 30.) Assuming that the plea agreement “removed”the dismissed robbery count and firearm use allegation “from issue”altogether, Estrada does not explain how finding the arming disqualifying conduct during the admitted offense in his case relitigated the dismissed robbery count and firearm use allegation.* On direct appeal, Estrada arguedthat in finding he was armed during the grandtheft person, the resentencing court “essentially” found a robbery with personal firearm use. (AOB 16.) The Court of Appeal correctly rejected that argument: [Estrada] argues that somehow [the dismissal of the robbery count and firearm use allegation] means he was not armed. It does not. Under Proposition 36, the disqualifying factor, “armed with a firearm,” means havinga firearm available for offensive or defensive use during the offense. [Citations.] One can have a firearm available for use without elevating the offense to a robbery. Similarly, one can be armed with afirearm without personally using it within the meaning of section 12022.5, subdivision (a). Thus, a finding that [Estrada] was armed with a ® Estrada at one point states that the resentencing court improperly relitigated the admitted grand theft person, rather than the dismissed robbery count andfirearm use allegation (ABOM 36), but he also argues that the resentencing court improperly relied on facts underlying the dismissed count andallegation (see, e.g., ABOM 13, 46). The general thrust of his argumentappears to concern the dismissed count and allegation, which is also the focus of the Issue Presented by the Court. 24 firearm is not a relitigation of the dismissed robbery counts or firearm use enhancementallegations. (Estrada, supra, 243 Cal.App.4th at p. 342.) Estrada fails to controvert the appellate court’s reasoning. - Instead, Estrada acknowledgesthat the dismissal of the robbery count and firearm use allegation left “unresolved”the factual issue of whether he was armed during the admitted grand theft person (ABOM37), and further acknowledges that his commitment offense was “transactionally related” to the robbery and firearm use allegation (ABOM 36,fn. 13). Nonetheless, he contendsthat the determination of the arming disqualifying conduct violated the terms of his plea agreement, under which “the prosecution gave up anyattempt to prove that a weapon wasinvolved in the commission”of the grand theft person (ABOM 34-35) and “bargained away”any “proof” of that conduct (ABOM 39). But Estrada cites no basis in the law or the record to show that the plea agreementincludedeither (1) a stipulated factual basis that Estrada had no firearm in his hand during the grandtheft . person or (2) a commitment by the prosecution notto use the evidence of Estrada’s arming during the grand theft person for a purpose such as the instant resentencing. Withouteither of those terms, Estrada’s plea agreement does notlimit the threshold eligibility determination to the elements of conviction. On the contrary, this Court’s precedent showsthat when a plea agreementincludes both theadmission and the dismissal of counts or allegations based on the same underlying conduct(or “transaction”’), the dismissal does not independently preclude subsequent consideration of that conductas to the admitted counts and allegations. In Harvey, supra, 25 Cal.3d 754, this Court held that a plea agreement involving the dismissal of a given count includes an “[i]mplicit” agreementthat the defendant “will suffer no adverse sentencing consequencesby reasonofthe facts 25 underlying, and solely pertaining to, the dismissed count.” (/d. at p. 758, italics added.) The Court approvingly cited People v. Guevara (1979) 88 Cal.App.3d 86 to clarify why a sentencing court may considerfacts underlying a dismissed countor allegation that is “transactionally related” to an admitted count or allegation. (Harvey, supra,p. 75 8, italics original.) The court in Guevara heldthat a plea agreement dismissing a weapon allegation doesnot preclude a sentencing court from considering evidence of a defendant’s arming during the underlying offense as an aggravating factor justifying imposition of an upper term sentence. (Guevara, supra, at | pp. 92-94.) Contrary to the expansive interpretation that Estrada advocates, the court reasoned that the plea agreement to dismiss an allegation solely “prohibits the court from imposing” the sentence enhancementthat the dismissed allegation would have authorized. (/d. at p. 94.) Absent a specific term of the agreement “requir[ing] the judge to ignore the facts relating to the dismissed [allegation]”(id. at p. 93), the “[negotiated dismissal] does not, expressly or by implication, preclude the sentencing court from reviewingall the circumstances relating to” the underlying admitted offense (id. at p. 94). . Indeed, because plea agreements are generally interpreted under the sameprinciples as contracts, “mere silence by the parties andtrial court concerning a statutorily mandated punishment does not make exclusion of the punishment a negotiated term of a plea agreement.” (Peoplev. Villalobos (2012) 54 Cal.4th 177, 183.) A defendantis entitled to only those benefits for which he or she hasactually bargained. (People v. Alvarez (1982) 127 Cal.App.3d 629 [agreementto “strike” prior conviction allegation (which defendant never admitted) precluded only punishment for allegation and did not preclude sentencing consideration of conduct underlying allegation as aggravating factor for admitted offense].) Thus, the presumption that “ambiguities in plea agreements are construed in favor 26 of the defendant” (ABOM 35-36) does not independently justify inserting a term that was completelyabsent from Estrada’s plea agreement. No term in Estrada’s plea agreement precludes a sentencing court from considering the circumstancesof the grandtheft person or precludes the prosecution from using that evidencefor sentencing purposes. Rather, Harvey permits the instant use of the evidence of Estrada’s arming during his commitment offense. Absent inclusion ofa preclusive term, there is no basis for interpreting the agreement to have the limiting effect Estrada proposes, as the dismissed robbery count andfirearm useallegation are transactionally related to (based on the same conductas) the admitted grand theft person. If Estrada’s plea agreement permits considering the evidence of his arming to increase his grand theft person sentence within the statutory range (Harvey, supra, 25 Cal.3d at p. 758), then it must permit considering that same evidence to evaluate his request to reduce his sentence under a procedure that requires considering arming as disqualifying conduct. Similarly, if mere silencedoes not make exclusion of statutorily mandated punishment a term of a plea agreement(Villalobos, supra, 54 Cal.4th at p. 183), then the samesilence could not make exclusion ofstatutorily mandated disqualifying conduct for sentence reduction a term of the plea agreement. The Court should reject Estrada’s unsupported assertions about the prosecution’s “intent” behind (but not memorialized in) the plea agreement. He arguesthat in dismissing the robbery count and firearm useallegation, “the prosecution gave up any attempt to prove that a weapon wasinvolved in the commission”ofthe grand theft person (ABOM 34-35) and “bargained away”the “proof” of Estrada’s arming (ABOM 39). But nothing in the record supportsattributing to the prosecution an intent to preclude the consideration that Harvey permits. Estrada’s contrary assertions rely on the baseless premise that the prosecutor in 1996 shared 27 Estrada’s current misconception that sentencing consideration of a final convictionis limited to the conviction’s least adjudicated elements(see, e.g., ABOM 18, 21) and meantfor the dismissal to confine future consideration of the conviction accordingly. There is no evidence the prosecutor intended for Estrada’s plea agreement to have that consequence. Indeed, absent inclusion of an affirmative limitingprovision, the prosecution could not have intended that the dismissal of the robbery and firearm use allegation, byitself, would preclude future consideration of the evidence of Estrada’s arming during the grand theft person. A dismissal pursuantto a plea agreement doesnot“litigate” the matter being dismissed, and a judgment based on a guilty plea has no preclusive effect between separate cases. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1528; Pease v. Pease (1988) 201 Cal.App.3d 29, 33-34 [same]; see also Santamaria, supra, 8 Cal.4th at pp. 913-916 [expressing doubt, but not deciding, whether collateral estoppel has preclusive effect within a single case].) Estrada’s authorities do not support his position. First, he cites Tirujillo for the proposition that a plea agreement dismissing a weapon allegation precludes later consideration of that conduct under Guerrero. (ABOM 34, quoting Trujillo, supra, 40 Cal.4th at p. 179.) But the Court in Trujillo solely reasoned that the defendant’s post-plea statements about weapon usein the probation report fell outside the record of conviction; the Court never held that the plea agreement would have precluded proofof the - weaponusebased on material within the record of conviction. (Jd. at pp. 179-181.) In fact, the trial court and the Court of Appeal in Trujillo _ disagreed on the same point Estrada now advocates — whether the dismissal of an allegation precludes consideration of that conduct under Guerrero — but this Court declined to resolve that dispute. (/d. at pp. 171, 175.) 28 Estrada cites Berry, supra, 235 Cal.App.4th 1417 for the proposition that his plea agreement precluded consideration of whether he was armed because his arming conduct was “wholly unrelated” to his grand theft person conviction. (ABOM 37-39.) Relying on Harvey, the court in Berry held that dismissal of weaponallegations pertaining to counts “wholly unrelated” to the commitment offenses precluded consideration of that arming conductin the threshold eligibility determination. The court then incorrectly applied the reasoning ofHarvey to the facts of the case by ignoring evidence that the defendant wasbriefly armed during the commitment offenses. (/d. at pp. 1423, 1425-1428 [defendant opened and reachedinside car trunk containing firearm during fraudulent-document- possession commitment offenses].) But the validity of the factual conclusion in Berry is irrelevant here. The reasoning ofBerry does not support Estrada’s position because he concedes his arming conduct was transactionally related to the grand theft person he admitted: he had a firearm in his hand when he committed the theft. (See ABOM36,fn. 13.) Lastly, Estrada cites dictum from the United States Supreme Court’s decision in Descamps v. United States, supra, 133 S.Ct. 2276, in which the Court reasoned that permitting a court applying a federal recidivist sentence enhancementto consider conduct underlying counts or allegations dismissed by negotiated plea in a prior conviction “would allow later sentencing court to rewrite the parties’ [plea] bargain.” (Jd. at p. 2289.) ButEstrada’s plea agreement contains no term that the instant resentencing _ denial would similarly violate or “rewrite.” . Whereas the federal recidivist sentence enhancementat issue in Descampssolely dependsonthe statutory offense of the prior conviction rather than its underlying conduct(id. at p. 2287), the Act’s threshold eligibility determination procedure depends on conduct rather than specific statutory offenses or enhancements. . Furthermore, under California law, sentencing courts can considerthe facts 29 underlying a conviction by plea even if that conduct also underlies dismissed countsor allegations, unless the agreementincludesa specific finding or provision that precludes such consideration. Thus, a defendant whoenters into a negotiated plea might have a legitimate expectation that the conduct underlying the conviction will not be used to enhance future sentences underthe federal recidivist schemeat issue in Descamps,as that scheme’s application dependson statutory offenses rather than underlying conduct. In contrast, Estrada had no legitimate expectation that (without a limiting provision) his plea agreement would preclude consideration of the conduct underlying his conviction for the purpose of a sentence reduction procedure that depends on such conduct. Thus, is Estrada whois seeking to “rewrite the parties’ bargain”in this case. He pleaded guilty to an offense that properly subjected him to third-strike sentencingat the time of the plea but he now wishes to be | resentenced as a second-strike offender on the basis that the record of conviction shows he was unarmed duringthe grand theft person — a contention refuted by the plea agreement and supporting facts contained in that record. (See Bradford, supra, 227 Cal.App.4th at p. 1340; People v. Collin (1978) 21 Cal.3d 208, 215 (“Defendant seeks to gain relief from the sentence imposed but otherwise leave the plea bargain intact. This is bounty in excess of that to which heis entitled”].) 30 CONCLUSION Accordingly, respondent respectfully requests that the judgment of the Court of Appeal be affirmed. — Dated: November 14,2016 Respectfully submitted, KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General NOAH P. HILL Deputy Attorney General LOUIS W. KARLIN ) Deputy Attorney General NATHAN GUTTMAN Deputy Attorney General Attorneysfor Plaintiffand Respondent NG:sf LA2016501086 52289524.doc 31 DECLARATION OF SERVICE Case Name: Peoplev. Mario R. Estrada No.: §232114 I declare: I am employedinthe Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member’s direction this service.is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On November14, 2016, I served the attached ANSWER BRIEF ON THE MERITSby placing a true copy thereof enclosed in a sealed envelopein the internal mail system of the Office of the Attorney General at 300 South Spring Street, Suite 1702, LosAngeles, CA 90013, addressed as follows: 520 South Grand Avenue,4th FI. Honorable William C. Ryan Los Angeles, CA 90071 Clara Shortridge Foltz Criminal Justice Center 210 West Temple St. Dpt. 130 Denise Moehlman Los Angeles, CA 90012-3210 320 West Temple Street, Suite 540 Los Angeles, CA 90012 Richard B. Lennon Attorney at Law California Appellate Project (LA) On November14, 2016, I caused Original & eight (8) copies of the ANSWER BRIEF ON THE MERITSin this case to bedelivered to the California Supreme Court at 350 McAllister Street, First Floor, San Francisco, CA 94102-4797 by FEDEX,# .8102 2453 7809 I declare under penalty ofperjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on November14,2016, at Los Angeles, California. Sylvia Sevilla-Farr Zfé~__lAr— Declarant fy Signature NG:sf , LA2016501086