People v. Frierson

          Order Filed Date 8/5/16

         APPEAL from an order of the Superior Court of Los Angeles County, No. GA043389 William C. Ryan, Judge.

          Richard B. Lennon and Suzan E. Hier, by appointment of the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Robert C. Schneider, Deputy Attorneys General.

         ORDER MODIFYING OPINION AND DENYING REHEARING

         THE COURT^[*]

         It is ordered that the published opinion, filed July 20, 2016, be modified as follows:

         1. In the fourth line of the first paragraph of the Discussion section, the code section subdivision citation is changed from “(e)(2)(C)(ii)” to “(e)(2)(C)(iii)”;

         2. The Roman Numeral “I” is inserted between the first and second paragraph of the Discussion portion of the opinion;

         3. In the second paragraph of the Discussion section following the citation to People v. Guerrero, insert “(Guerrero)”;

         4. After the first paragraph of section I of the Discussion section, insert the following:

         Citing Guerrero and other cases, defendant argues that in ruling on a motion for resentencing under Proposition 36, the trial court is limited to a determination of “the narrow issue of whether the conviction was for qualifying conduct, ” and that in ruling on the motion the trial court is not permitted “to simply review a transcript and, based on testimony, find the fact.” Instead, defendant argues, “to determine whether a conviction encompasses relevant conduct, the court inquiry is limited to identifying ‘the basis of the crime of which defendant was convicted.’” (Citing People v. McGee (2006) 38 Cal.4th 682, 691.) He argues, essentially, that the trial court must restrict its decision to those facts and circumstances necessarily decided in the underlying conviction.

         We do not agree that the trial court is so restricted. Guerrero itself involved a determination that went beyond what necessarily had been decided in the prior conviction. The issue in that case was whether a prior conviction qualified as a “serious felony” under the residential burglary provisions of Sections 667 and 1192.7, subd. (c), since the burglary statute in force when that crime was committed did not differentiate between residential and other burglary. (Guerrero, at p. 346.) A previous decision, People v. Alfaro (1986) 42 Cal.3d 627, had held the trial court could not decide that issue because the residential character of the burglary was not an element of the underlying crime. Overruling Alfaro on this issue, the Supreme Court held that in deciding whether the prior burglary was of a residence, the court could “look to the record of the conviction-but no further” in making its decision. (Guerrero, atp. 355.)

         Later decisions clarified that the “record of conviction” did not extend to such matters as the defendant’s post-conviction admission to a probation officer that he had used a knife in committing the underlying crime (People v. Trujillo (2006) 40 Cal.4th 165, 179), or to factual allegations in charges dismissed in a plea bargain (People v. Berry (2015) 235 Cal.App.4th 1417, 1425). But the term does include material which is part of the record, such as excerpts from preliminary hearing transcripts. (People v. Reed (1996) 13 Cal.4th 217, 223.)

         If anything, Guerrero is a fortiori to this case, since it deals with evidence bearing on an increase in punishment, such as whether a prior conviction was for a “serious felony.” In a Proposition 36 proceeding, the court does not consider an increase in punishment, but only whether the convicted defendant is entitled to the reduction in punishment afforded by that law. If he or she is ineligible, the result is that punishment is not reduced; it cannot be increased. That is why there is no right to a jury trial on issues going to the defendant’s ...