California Court of Appeals, Second District, Fourth Division
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 ...