People v. Estrada

Filed 7/24/17

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S232114

v. )

) Ct.App. 2/8 B260573

MARIO R. ESTRADA, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. GA025008

____________________________________)

Under the Three Strikes Reform Act of 2012, certain inmates may file a

―recall‖ petition to reduce their punishment for third-strike sentences imposed on

them for offenses that are neither serious nor violent felonies. (Pen. Code

§ 1170.126, subds. (b), (e).)1 When a court evaluates a petition to recall such a

sentence, may it find an inmate ineligible for relief because certain facts

underlying a previously dismissed count show the inmate was ―armed with a

firearm or deadly weapon‖ during the commission of the third strike offense?

(See §§ 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) The trial court in

this case relied on preliminary hearing testimony to find that Mario Estrada was

indeed armed during the commission of his 1996 theft offense. The court did so

1 All subsequent statutory citations are to the Penal Code, unless otherwise

noted.

1

notwithstanding the dismissal — pursuant to Estrada‘s plea agreement — of a

robbery count and a firearm use allegation connected to the same incident. What

we hold is that a trial court may deny resentencing under the Act on the basis of

facts underlying previously dismissed counts. Because the trial court denied recall

of Estrada‘s sentence in a manner consistent with this rule, the appellate court

properly affirmed the trial court — and we now affirm that judgment.

I.

In 1996, defendant Mario Estrada pleaded guilty to one count of grand theft

from a person under section 487, subdivision (c). Under a plea agreement, the

prosecution dismissed a firearm use allegation (former § 12022.5, subd. (a))

related to the count of conviction, and robbery (§ 211), burglary (§ 459) and false

imprisonment by violence (§ 236) counts based on the same incident that led to the

conviction. The prosecution also dismissed several additional counts based on

unrelated conduct alleged to have occurred on other dates. Estrada further

admitted to two prior convictions qualifying as strikes under the ―Three Strikes‖

law,2 and the trial court sentenced him to an indeterminate term of 25 years to life.

Sixteen years later, the electorate approved Proposition 36, the Three

Strikes Reform Act of 2012 (Proposition 36, or the Act). Among other reforms,

the Act amended the Penal Code to permit recall of sentence for some inmates

2 The Three Strikes law consists of two nearly identical statutory schemes.

(People v. Conley (2016) 63 Cal.4th 646, 652 (Conley).) The first was enacted by

the Legislature in March 1994, and appears in section 667 (as amended by Stats.

1994, ch. 12, § 1, p. 71). The second was adopted by ballot initiative several

months later, and appears in section 1170.12. Both were amended by Proposition

36. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) §§ 2, 4, pp. 105, 107.)

The differences between the statutes are immaterial for the purposes of this case,

so for convenience we refer only to section 1170.12. Our decision, however,

applies to both versions.

2

sentenced for third strike offenses that were neither serious nor violent felonies.

(§ 1170.126.) After approval of the Act, Estrada petitioned to recall his sentence.

The trial court denied the petition on the basis of its factual finding that Estrada

was armed with a firearm during the commission of his 1996 theft offense –– a

finding that renders a petitioner ineligible for resentencing under Proposition 36.

(See §§ 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) In making this

finding, the trial court reviewed the transcript of the 1996 preliminary hearing held

before Estrada pleaded guilty. During that preliminary hearing, a Radio Shack

employee testified that Estrada entered the store on April 9, 1995, and pulled out a

small handgun. The employee also testified that Estrada demanded the money in

the register and then, after he received the money, ordered the employee to the

store‘s back room. Estrada then left the store.3 Based on this testimony, the trial

court denied resentencing, concluding that it was ―more likely than not‖ that

Estrada was armed during the commission of the offense.

Estrada appealed. The trial court, Estrada contended, impermissibly based

its finding of ineligibility for resentencing on conduct tied to the robbery count

and firearm use allegation, which were dismissed pursuant to the plea agreement.

The Court of Appeal affirmed the denial of the petition, and we granted Estrada‘s

petition for review.

II.

Prior to the approval of Proposition 36, the Three Strikes law imposed a

prison term of 25 years to life on a defendant for a felony conviction, even if it

3 This is a summary of only those events underlying the specific offense to

which Estrada pleaded guilty. During the preliminary hearing, the prosecution

also presented evidence of other crimes allegedly committed by Estrada on other

dates.

3

was not a serious or violent felony, where the defendant had two or more prior

convictions for serious or violent felonies. (Former § 1170.12, subds. (b),

(c)(2)(A).) Following enactment of Proposition 36, defendants are now subject to

a lesser sentence when they have two or more prior strikes and are convicted of a

felony that is neither serious nor violent, unless an exception applies. (People v.

Johnson (2015) 61 Cal.4th 674, 681 (Johnson); see also § 1170.12, subd. (c)(2)(C)

[setting forth various exceptions].) One such exception is if, ―[d]uring 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.‖ (§ 1170.12, subd. (c)(2)(C)(iii).)

The Act applies both prospectively and to defendants already sentenced

under the pre-reform version of the Three Strikes law. A defendant with two prior

strikes convicted of a nonserious, nonviolent felony cannot be sentenced to a third

strike term unless the prosecution ―pleads and proves‖ that one of the Act‘s

exceptions applies. (§ 1170.12, subd. (c)(2)(C).) For those sentenced under the

scheme previously in force, the Act establishes procedures for convicted

individuals to seek resentencing in accordance with the new sentencing rules.

(§ 1170.126.) The procedures call for two determinations. First, an inmate must

be eligible for resentencing. (§ 1170.126, subd. (e)(2).) An inmate is eligible for

resentencing if his or her current sentence was not imposed for a violent or serious

felony and was not imposed for any of the offenses described in clauses (i) to (iv)

of section 1170.12, subdivision (c)(2)(C). (§ 1170.126, subd. (e)(2).) Those

clauses describe certain kinds of criminal conduct, including the use of a firearm

during the commission of the offense. Second, an inmate must be suitable for

resentencing. Even if eligible, a defendant is unsuitable for resentencing if ―the

court, in its discretion, determines that resentencing the petitioner would pose an

unreasonable risk of danger to public safety.‖ (§ 1170.126, subd. (f).) If an

4

inmate is found both eligible and suitable, the inmate‘s third strike sentence is

recalled, and the inmate is resentenced to a second-strike sentence. (Ibid.;

§ 1170.12, subd. (c)(1).)

Estrada was among the defendants who received a third-strike sentence,

after pleading guilty to one count of grand theft from a person in 1996. The Penal

Code defines theft as ―feloniously steal[ing], tak[ing], carry[ing], lead[ing], or

driv[ing] away the personal property of another.‖ (§ 484, subd. (a).) The code

also defines grand theft from a person as theft ―[w]hen the property is taken from

the person of another.‖ (§ 487, subd. (c).) By pleading guilty, Estrada admitted to

feloniously stealing the personal property of another, from the person of another.

Whatever else Estrada‘s admission of guilt established, however, it did not by

itself establish that Estrada was ―armed with a firearm or deadly weapon.‖

(§ 1170.12, subd. (c)(2)(C)(iii).) But the trial court concluded that Estrada was

―armed with a firearm or deadly weapon‖ during the commission of the offense.

(Ibid.; see also1170.126, subd. (e)(2).) To make this determination, the court

considered more than just the facts established by Estrada‘s guilty plea. It also

considered transcripts of Estrada‘s preliminary hearing, during which the

employee testified that Estrada was armed when he stole from a Radio Shack.

What is more, the trial court considered this testimony even though it was also

connected to a robbery count and a firearm use allegation that the prosecution

dismissed pursuant to the plea agreement.

The trial court‘s decision to consider this testimony raised the question we

must now resolve: whether a court may rely on facts connected to a dismissed

count to find that ―the defendant . . . was armed with a firearm or deadly weapon‖

during the commission of a third strike offense, which renders an inmate ineligible

for Proposition 36 recall of sentence. (§ 1170.12, subd. (c)(2)(C)(iii); see also

1170.126, subd. (e)(2).) To answer this question, we must first resolve whether a

5

court may consider facts beyond those encompassed by the judgment when

making an eligibility determination under section 1170.12, subdivision

(c)(2)(C)(iii). If the answer is yes, we must then decide whether a court may

consider the subset of those facts connected to dismissed counts when making that

determination.

These matters turn on how we interpret Proposition 36. Estrada does not

argue that resentencing proceedings implicate a defendant‘s right under the Sixth

Amendment to the United States Constitution to have essential facts found by the

jury beyond a reasonable doubt. Rather, he argues that Proposition 36 itself

precludes courts reviewing a petition to recall a sentence from making a factual

finding of the sort made here. In construing the text of a statute adopted through

the initiative process, we apply the same principles of statutory interpretation that

we apply to statutes enacted by the Legislature. (Johnson, supra, 61 Cal.4th at p.

682.) In both contexts, our essential aim is to give effect to the statutory purpose

of the specific legislation at issue. (Ibid.)

A.

Although Proposition 36 offers certain inmates the possibility of a reduced

sentence, it also rations access to resentencing. Specifically, the Act provides that

an inmate is eligible for resentencing if, among other things, ―[t]he inmate‘s

current sentence was not imposed for any of the offenses appearing in [section

1170.12, subdivision (c)(2)(C)(i)-(iii)].‖ (§ 1170.126, subd. (e)(2).) Section

1170.12, subdivision (c)(2)(C)(iii), provides, in full, ―During 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.‖

Accordingly, the Act provides that an inmate is eligible for resentencing if ―[t]he

inmate‘s current sentence was not imposed for‖ an offense during which ―the

defendant used a firearm, was armed with a firearm or deadly weapon, or intended

6

to cause great bodily injury to another person.‖ What this provision necessarily

implies, of course, is that an inmate is ineligible for resentencing if the inmate was

armed with a firearm during the offense for which the third strike sentence was

imposed.

A court adjudicating a petition for resentencing must therefore draw a line

distinguishing an inmate qualified for resentencing from one whose offense-

related conduct precludes eligibility. Estrada recognizes that when a court draws

that line under section 1170.12, subdivision (c)(2)(C)(iii), it may rely on more than

just facts appearing on the face of the judgment of conviction. But in doing so, he

argues, a court may only consider facts encompassed by the verdict, or by the

defendant‘s guilty plea. Imagine, for example, that Proposition 36 precluded

inmates convicted of residential burglary from seeking recall of sentence. Because

the nature of the building entered during the burglary is not an element of the

crime of burglary, the prior judgment against any inmate convicted of burglary

would not reflect burglary of a residence. (See § 459.) Even under Estrada‘s

approach, however, a court could nonetheless find this hypothetical inmate

ineligible for resentencing. By finding the inmate guilty of burglary, the trier of

fact presumably must have found that the defendant entered some building. And if

the evidence at trial indicates that the only building the defendant could have

entered was in fact a residence, the finding that the defendant entered a building

implies a finding that he entered a residence. Now consider that same hypothetical

inmate, but add an ineligibility criterion for use of a firearm. Under Estrada‘s

approach, this inmate could not be held ineligible — even if the record contained

uncontroverted evidence that he was armed during the burglary — because no

element of the burglary conviction implies firearm use. In contrast, the Attorney

General argues that a court may base a finding of ineligibility under section

7

1170.12, subdivision (c)(2)(C)(iii) on any facts contained in the record of

conviction, even if not implied by the judgment.

Nothing in the relevant statutes explicitly addresses the question before us.

Several factors nonetheless cut against restricting the inquiry in the manner

Estrada urges and in favor of allowing trial courts to follow a more pragmatic

course. Section 1170.126, subdivision (e)(2) provides that inmates serving time

for three categories of offenses are ineligible for resentencing. The definitions for

two such categories reference statutes defining specific criminal offenses or

allegations. (§ 1170.12, subd. (c)(2)(C)(i)-(ii).) For example, section 1170.12,

subdivision (c)(2)(C)(i) renders an inmate ineligible for resentencing if the

―current offense is a controlled substance charge, in which an allegation under

Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found

true.‖ But section 1170.12, subdivision (c)(2)(C)(iii) is different. One finds no

reference to any specific statutory provision there, but instead more general terms

describing how criminal offenses may be committed. In contrast to the provisions

in section 1170.12, subdivisions (c)(2)(C)(i) and (ii), these general terms evoke an

inquiry that can extend beyond elements of the specific offense of conviction or

facts that those elements necessarily imply.

What is more, section 1170.12, subdivision (c)(2)(C)(iii) provides only one

express nexus requirement between these general descriptive terms and the

inmate‘s prior offense: the excluding conduct must occur ―[d]uring the

commission‖ of the offense. (Ibid., italics added). The term ―during‖ suggests

temporal overlap: something that occurs throughout the duration of an event or at

some point in its course. (See, e.g., Merriam-Webster‘s Collegiate Dict. (11th ed.

2003), p. 388 [defining ―during‖ as ―throughout the duration of‖ or ―at a point in

the course of‖].) The term implies, at a minimum, a need for a temporal

connection between the excluding conduct and the inmate‘s offense of conviction.

8

Although the need to establish such a nexus imposes certain limits on the

applicability of the firearm-related exception, the Act could certainly have

imposed an even stricter requirement for triggering the exception. (See People v.

Bland (1995) 10 Cal.4th 991, 1002 [interpreting the phrase ―in the commission‖ to

impose a ―facilitative nexus‖ requirement].) Because the Act does not do so, we

may infer some kind of temporal limitation on the retroactive application of

section 1170.12, subdivision (c)(2)(C)(iii).4 And if the relevant limitation is

temporal, it follows that a court should be permitted to review relevant portions of

the record to determine whether that requirement is satisfied. To hold otherwise

— that the temporal connection must be gleaned from findings implied by the

elements of the offense — would foist on trial courts an additional requirement not

reasonably discernible in the statute. (Cf. People v. Romanowski (2017) 2 Cal.5th

903, 908 [declining, in similar recall of sentence context, to find ―implicit[]‖

limitation in general statutory phrase].) Accordingly, we think section 1170.12,

subdivision (c)(2)(C)(iii) is best read as excluding from resentencing ―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.‖ (People v. Blakely (2014) 225 Cal.App.4th 1042, 1055.)

Our analysis also fits with other indicia of the Act‘s purposes. As we

explained in Conley, the two purposes of the Act are ―mitigating punishment‖ and

―protecting public safety.‖ (Conley, supra, 63 Cal.4th at p. 658.) In its Findings

and Declarations, the Act indicated that it would accomplish these twin objectives

4 Whether the use, arming, and intent described in section 1170.12,

subdivision (c)(2)(C)(iii) must have a more-than-coincidental relationship to the

current offense is a question we have no occasion to consider here.

9

by distinguishing between ―low-risk, non-violent inmates‖ (who would benefit

from the Act‘s ameliorative provisions) and ―dangerous criminals‖ (who would

not). (Voter Information Guide, Gen. Elec. (Nov. 6, 2012, § 1, p. 105.) Voters

were reminded of this distinction throughout the materials advocating for passage

of the Act. (See, e.g., Voter Information Guide, supra, argument in favor of Prop.

36, p. 52 [―Prop. 36 will help stop clogging overcrowded prisons with non-violent

offenders, so we have room to keep violent felons off the streets.‖]; id. at p. 53,

rebuttal to argument against Prop. 36 [―Today, dangerous criminals are being

released early from prison because jails are overcrowded with nonviolent

offenders who pose no risk to the public.‖].) We see no indication in the Voter

Information Guide that the Act was designed to equate the ―violent felons‖

category solely with those convicted of inherently violent offenses. To the

contrary — we think it more faithful to Proposition 36‘s crucial distinction to

interpret its conception of violent offenders as including not only those inmates

convicted of inherently violent offenses but also those who committed nonviolent

offenses in a violent manner. With section 1170.12, subdivision (c)(2)(C)(iii),

Proposition 36 furthers its twin purposes by denying the latter category of

offenders the benefits of the Act. To construe the Act otherwise would

substantially, and impermissibly, impair its purpose of distinguishing between

violent and nonviolent offenders. (See Weatherford v. City of San Rafael (2017) 2

Cal.5th 1241, 1246 [―[O]ur fundamental task in statutory interpretation is to

ascertain and effectuate the law‘s intended purpose.‖].)

It also matters that the Act itself incorporated into the Three Strikes law the

categories defined in section 1170.12, subdivision (c)(2)(C)(iii). (Compare former

§ 1170.12, with current § 1170.12, subd. (c)(2)(C).) The pre-reform version of the

Three Strikes law required that a defendant with two or more prior strikes be

sentenced to a third strike sentence for any third felony conviction. (Johnson,

10

supra, 61 Cal.4th at p. 680.) Before passage of the Act, prosecutors had little

reason to prove any conduct on a defendant‘s part that now constitutes

disqualifying conduct under section 1170.12, subdivision (c)(2)(C)(iii). (See

Conley, supra, 63 Cal.4th at p. 659-660.) As the facts of this case aptly

demonstrate, a judgment that predates Proposition 36 may at times fail to imply

anything about disqualifying conduct, even if the evidence available to the

prosecution could have supported such a finding. For this reason, we think it

unlikely that it was part of the Act‘s design to prevent courts reviewing a recall

petition from considering conduct beyond that implied by the judgment. Given

the importance of the Act‘s distinction between violent and nonviolent criminal

conduct, it seems implausible that the Act is best understood to condition

ineligibility on an indicator of violence that the prosecution had no incentive to

incorporate into the judgment. Accordingly, section 1170.12, subdivision

(c)(2)(C)(iii) would be substantially underinclusive were we to interpret it to apply

only to cases in which the judgment implies disqualifying conduct. (See Williams

v. Superior Court (1993) 5 Cal.4th 337, 354 [―A court should not lightly adopt an

interpretation of statutory language that renders the language useless in many of

the cases it was intended to govern.‖].)

Estrada maintains that allowing a court reviewing a recall petition to rely on

facts beyond those encompassed by the judgment is inconsistent with our

approach to sentence enhancements for prior convictions. (See People v.

Guerrero (1988) 44 Cal.3d 343.) The question we confronted in Guerrero was

whether a finding that a defendant had suffered a prior conviction for a ―serious

felony‖ could be based on facts beyond those established by the prior judgment.

(44 Cal.3d at p. 345.) We held that a court could look to the ―entire record of the

[prior] conviction‖ to determine the ―substance‖ of the conviction. (Id. at p. 355.)

What Estrada contends is that Guerrero‘s focus on the ―substance‖ of the prior

11

conviction limits the inquiry to facts established, at least implicitly, by the

judgment of conviction. The Attorney General contends instead that the opinion

and its progeny allow for fact finding within the record of conviction, without

regard to the specific elements of the offense of conviction.

We need not resolve these competing interpretations of the Guerrero

inquiry. Even assuming that Estrada‘s interpretation of those cases is correct,

nothing in Proposition 36 or any material we might examine to understand its

purpose suggests the Act incorporated such a substantive limitation. Precluding a

court from considering facts not encompassed within the judgment of conviction

would be inconsistent with the text, structure, and purpose of sections 1170.12,

subdivision (c)(2)(c)(iii) and 1170.126, subdivision (e)(2) –– and would, by

consequence, impose an unnecessary limitation.

Finally, Estrada points to the Act‘s prospective plead and proof

requirement, and our statement in Johnson that ―the sentencing rules are intended

to be identical‖ for new defendants and previously sentenced inmates (aside from

the court‘s authority under section 1170.126, subdivision (f) to deny resentencing

if doing so would pose an unreasonable danger to the public). (Johnson, supra, 61

Cal.4th at p. 691.) Estrada does not dispute that, by the Act‘s own terms, the plead

and proof requirement applies only prospectively. What he contends instead is

that for past and prospective offenders to be treated in a ―nearly identical‖ manner,

a court determining eligibility for resentencing should be limited to considering

only those facts encompassed by the prior conviction. But nowhere in Johnson

did we suggest that the Act‘s general purpose compelled identical treatment of

past and prospective offenders, despite a clear indication that the statutory design

was premised on the existence of certain distinctions in their treatment. Rather,

we stated only that the substantive criteria that render a future offender eligible for

a third strike sentence are the same substantive criteria that render a past offender

12

ineligible for a reduction in sentence. (Johnson, at p. 691; see also Conley, supra,

63 Cal.4th at pp. 660-661.) So the passage from Johnson does not buttress

Estrada‘s position.

B.

Because a court may consider at least some facts not encompassed by the

relevant judgment of conviction when determining whether a third strike offender

is ineligible for resentencing under section 1170.12, subdivision (c)(2)(C)(iii), we

must now decide whether anything prevents a court making that determination

from considering the subset of those facts connected to a dismissed count. Under

a plea agreement, the prosecution dismissed a robbery count and firearm use

allegation related to the incident that led to Estrada‘s guilty plea for grand theft

from a person. Estrada posits that basing ineligibility on facts underlying those

dismissed counts essentially rewrites the plea agreement by ―resurrect[ing] facts

underlying charges and allegations‖ that Estrada bargained away. We are not

persuaded.

Estrada argues that basing ineligibility on facts underlying dismissed counts

violates due process by denying him the benefit of his plea agreement. (See

People v. Villalobos (2012) 54 Cal.4th 177, 182 [Due process requires that both

parties, including the state, ― ‗abide by the terms of [a plea] agreement.‘ ‖],

quoting People v. Walker (1991) 54 Cal.3d 1013, 1024.) While both sides must

indeed abide by the terms of a plea agreement, the promises that must be kept are

only those the agreement indicates. The touchstone of any inquiry into the scope

of a plea agreement is the terms to which the parties actually agreed. (Villalobos,

54 Cal.4th at pp. 182-183.) In Villalobos, we held that ―mere silence by the

parties and trial court concerning a statutorily mandated punishment does not

make exclusion of the punishment a negotiated term of a plea agreement.‖ (Id. at

p. 183, 186.) The question in that case was whether the trial court could impose a

13

restitution fine above the statutory minimum ―when the fine is not mentioned

either by the parties in the plea agreement or by the trial court during the plea

colloquy.‖ (Id. at p. 183.) We held that it could, because ―no specific amount of

fine was expressly negotiated or otherwise made a part of the plea agreement.‖

(Id. at p. 186.) Here, the question is similar: whether a court reviewing a

Proposition 36 recall petition may consider facts underlying a dismissed count

when nothing in the inmate‘s plea agreement discusses the effect of those facts.

As in Villalobos, the answer to the question is that a court may do so. The legal

effect of the facts associated with Estrada‘s use of a firearm was simply not ―a part

of the plea agreement.‖ (See Villalobos, at p. 186.) By entering into a plea

agreement that resulted in the dismissal of the robbery count and firearm use

allegation, Estrada did not bargain for immunity from all consequences associated

with the facts underlying those counts. What he bargained for instead was

dismissal of the counts themselves. Considering facts connected to a dismissed

count therefore does not rewrite the plea agreement, unless the agreement evinces

some preclusion of the court‘s discretion to consider such facts.5

Notice how a contrary construction would condition eligibility under

Proposition 36 on a prosecutor‘s charging decisions for dismissed counts. Under

Estrada‘s theory, his eligibility for resentencing would depend on whether the

5 Of course, it would be unreasonable to ask defendants to anticipate the

passage of Proposition 36 and bargain for a provision in the plea agreement that

explicitly addressed the circumstances at issue here. We do not mean to impose

such an unrealistic standard. Rather, we hold that nothing about a fact‘s

connection to a dismissed count prevents a court from considering it when

determining whether an inmate is ineligible for resentencing under section

1170.12, subdivision (c)(2)(C)(iii), unless there is some indication that the plea

agreement immunized the defendant from the effect of the facts that underlie the

dismissed count or counts.

14

prosecutor charged the relevant events as a single count of theft as opposed to

assorted counts of theft, robbery, and firearm use. Resentencing would be

possible for a defendant who pleaded guilty in the latter scenario but not in the

former. Yet the underlying acts and offense of conviction are the same in both

cases. We decline to conclude that the Act was crafted to condition eligibility on

counts that are dismissed and thus not part of the criminal judgment. (See Copley

Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1291 [We favor statutory

constructions that lead to ― ‗reasonable result[s],‘ ‖ because we presume ―that the

Legislature intends reasonable results consistent with its apparent purpose.‖].)

Accordingly, a court determining whether a third strike offender is

ineligible for resentencing under section 1170.12, subdivision (c)(2)(C)(iii) may

consider facts connected to dismissed counts, but only if those facts also underlie a

count to which the defendant pleaded guilty. That last qualifier is as crucial as any

aspect of the rule: evidence of arming on which a court relies to deny recall of

sentence must, of course, demonstrate that the inmate was armed ―[d]uring the

commission of the current offense.‖ (§ 1170.12, subd. (c)(2)(C)(iii), italics added.)

By its own terms, this eligibility criterion plainly applies only to the offense or

offenses that form the basis of the sentence sought to be recalled. (Ibid.; see also

§ 1170.126, subd. (e)(2) [―An inmate is eligible for resentencing if . . . [¶] (2) [t]he

inmate‘s current sentence was not imposed for . . . .‖ (italics added)].) What this

necessarily implies is that a finding of ineligibility pursuant to section 1170.12,

subdivision (c)(2)(C)(iii) cannot be made on the basis of conduct that occurred

other than during the offense of conviction.

In support of his argument that a court cannot rely on facts connected to a

dismissed count, Estrada cites People v. Berry (2015) 235 Cal.App.4th 1417

(Berry). In Berry, an inmate petitioned under section 1170.126 to recall a third

strike sentence imposed after he pleaded guilty to possession of a fraudulent check

15

and forged driver‘s license. (Berry, 235 Cal.App.4th at pp. 1419-1420.) During

the incident that led to his convictions, the defendant was pulled over and found

with a fake driver‘s license and fraudulent check. (Id. at p. 1421.) After

discovering the forged items, the police searched the trunk of another of the

defendant‘s vehicles and discovered a loaded firearm. (Ibid.) The prosecution

charged the defendant with nine counts — including various gun-related

enhancements — but the defendant pleaded guilty only to the two forgery counts.

(Id. at pp. 1421-1422.) The trial court relied on evidence of the firearm to

conclude that the defendant was ineligible for recall of sentence under section

1170.126, subdivision (e)(2) for having been armed during the commission of his

possession of the fraudulent check offense. (Berry, 235 Cal.App.4th at pp. 1422-

1423.) The Court of Appeal reversed, reasoning that a defendant cannot suffer ―

‗adverse sentencing consequences by reason of the facts underlying, and solely

pertaining to, the dismissed count.‘ ‖ (Id. at p. 1426, quoting People v. Harvey

(1979) 25 Cal.3d 754, 758.)

Estrada argues that under Berry, a recall court cannot rely on facts

connected to a dismissed count when denying a petition for recall of sentence. But

given Berry‘s facts, the opinion can be read to hold something narrower: that the

defendant was not armed ―during‖ the commission of the offense involving

possession of the fraudulent check. (235 Cal.App.4th at p. 1426.) We do not here

address the merits of this factual determination, which is not before us. What we

do instead is to disapprove People v. Berry, supra, 235 Cal.App.4th 1417 to the

extent it holds that a court is precluded from considering facts demonstrating that

an inmate was armed during a third-strike offense, simply because those facts also

16

support a count the court dismissed. The view that such a limitation is implicit in

Proposition 36 is one for which we find no support.6

C.

We now apply these principles to Estrada‘s own petition to recall his 1996

sentence for grand theft from a person. The trial court here was not limited to

considering only facts encompassed by the prior judgment when determining

whether Estrada was eligible for recall of sentence under sections 1170.12,

subdivision (c)(2)(C)(iii) and 1170.126, subdivision (e)(2). Nor was it precluded

from considering the subset of those facts connected to the firearm use and

robbery counts that were dismissed pursuant to Estrada‘s plea agreement. When

the trial court made its determination that Estrada was ineligible under those

provisions, it relied on testimony from the preliminary hearing transcript. Estrada

does not challenge the trial court‘s decision to admit and rely on this testimony, or

the trial court‘s factual determination that the preliminary hearing transcript

demonstrated that he was armed during the commission of his offense.7 So we

find no error in the trial court‘s determination that Estrada was armed with a

firearm during the commission of his grand theft from a person offense.

6 Estrada also argues that if a finding pursuant to sections 1170.126,

subdivision (e)(2) and 1170.12, subdivision (c)(2)(C)(iii) can be premised on facts

that underlie a dismissed count, then a court could conceivably base such a finding

on facts that underlie counts for which the inmate was acquitted. That

circumstance is not before us, and different arguments might well pertain in a case

that poses that question. Accordingly, we take no position on the issue.

7 Accordingly, we express no opinion on whether Estrada could have raised a

valid hearsay or other evidentiary objection to the admission of the preliminary

hearing transcript. (See, e.g., Evid. Code, § 1291, subd. (a)(2).) For the same

reason, we need not consider in this case what sources a court may consider when

making an eligibility determination under sections 1170.12, subdivision

(c)(2)(C)(iii) and 1170.126, subdivision (e)(2). (Cf. People v. Bradford (2014)

227 Cal.App.4th 1322, 1331.)

17

III.

To find that an inmate was armed with a firearm during the commission of

the inmate‘s third strike offense, a court reviewing a Proposition 36 recall petition

may rely on facts underlying counts dismissed pursuant to the inmate‘s plea

agreement –– so long as those facts establish the defendant was armed during his

offense of conviction. This outcome leaves trial courts in a position to implement

the crucial distinction Proposition 36 draws between violent and nonviolent

offenders, and is consistent with the text, structure, and other indicia of statutory

purpose. And such procedures do not violate an inmate‘s plea agreement, unless

the plea agreement precludes a recall court from considering such facts. Because

the appellate court‘s opinion is consistent with this conclusion, we affirm the

judgment.

CUÉLLAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

18

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Estrada

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 243 Cal.App.4th 336

Rehearing Granted

__________________________________________________________________________________

Opinion No. S232114

Date Filed: July 24, 2017

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: William C. Ryan

__________________________________________________________________________________

Counsel:

Richard B. Lennon and Suzan E. Hier, under appointments by the Supreme Court, for Defendant and

Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney

General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell, Noah P. Hill, Louis W.

Karlin and Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Suzan E. Hier

California Appellate Project

520 S. Grand Avenue, 4th Floor

Los Angeles, CA 90071

(213) 243-0300

Nathan Guttman

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 620-2024