People v. Burnes
| Citation | 195 Cal.Rptr.3d 903,242 Cal.App.4th 1452 |
| Decision Date | 14 December 2015 |
| Docket Number | H040102 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. William Leonard BURNES, Jr., Defendant and Appellant. |
Attorney for Defendant and Appellant William Leonard Burnes, Jr.: Junelle Harris under appointment by the Court of Appeal for Appellant
Attorneys for Plaintiff and Respondent The People: Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Allen R. Crown, Deputy Attorney General,
On April 23, 2010, the Monterey County District Attorney filed an information charging defendant William Leonard Burnes, Jr. with the following crimes: possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1) ; count 1), evading a peace officer (Veh. Code, § 2800.2, subd. (a) ; count 2), possession of ammunition by a prohibited person (former Pen. Code, § 12316, subd. (b)(1) ; count 3), possession of a deadly weapon (former Pen. Code, § 12020, subd. (a)(1) ; count 4 [identifying metal knuckles as the deadly weapon] ), possession of burglary tools (Pen. Code, § 466 ; count 5), driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a) ; count 6), driving with a blood alcohol content of .08% or more (Veh. Code, § 23152, subd. (b) ; count 7), resisting a public officer (Pen. Code, § 148, subd. (a)(1) ; count 8), intercepting and divulging police radio communication (Pen. Code, § 636.5 ; count 9), hit and run driving resulting in property damage (Veh. Code, § 20002, subd. (a) ; count 10), possession of a hypodermic needle or syringe (former Bus. & Prof. Code, § 4140 ; count 11), and driving with a suspended license (Veh. Code, § 14601.2, subd. (a) ; count 12). The information alleged two prior strike convictions (Pen. Code, § 1170.12, subd. (c) ) and five prior prison terms (Pen. Code, § 667.5, subd. (b) ).
On July 29, 2010, defendant pleaded nolo contendere to all counts charged in the information, except count 6. Defendant admitted the two prior strike convictions and the five prior prison terms. On April 15, 2011, the trial court sentenced defendant to a total prison term of 30 years to life, calculated as follows: 25 years to life for count 1, a consecutive term of five years for the prior prison term allegations, three stayed terms of 25 years to life for counts two through four, and concurrent six-month terms for each of the remaining counts.
On January 9, 2013, defendant filed a petition for recall of sentence pursuant to Penal Code section 1170.126,1 the resentencing provision of Proposition 36. On August 23, 2013, the trial court denied the petition, ruling that defendant was ineligible for resentencing.
Defendant now appeals from the order denying resentencing. Among other arguments, defendant contends that the trial court erred in relying on facts described in a postconviction probation report when determining that he was armed and thus ineligible for resentencing. As set forth below, we conclude that the trial court erred in relying on the probation report, and we will reverse the order denying resentencing.
After defendant filed his petition for recall of sentence, the trial court ordered a hearing on the issue of "whether [defendant] meets the minimum requirements for resentencing or is excluded under section 1170.126, subdivision (e)(2) due to the possibility that he was armed with a deadly weapon during the commission of the newly convicted offenses within the meaning of 1170.12, subdivision (c)(2)(C)(iii) and section, 667, subdivision (e)(2)(C)(iii)." In issuing the order, the trial court noted: "If [defendant] is found to meet the minimum legal requirements for resentencing, the matter will then be set for a hearing pursuant to section 1170.126, subdivisions (f) and (g) to determine whether [defendant] poses ‘an unreasonable risk of danger to public safety.’ "
The People opposed resentencing. The written opposition asserted that a postconviction probation report, dated August 26, 2010, showed that defendant was armed with a firearm and a deadly weapon during the commission of his offenses and was thus ineligible for resentencing. A copy of the probation report was included with the opposition. A portion of the probation report was titled "CIRCUMSTANCES OF THE OFFENSE," and it identified "California Highway Patrol Report # F084–730–10" as the "[s]ource" of those circumstances. The section titled "CIRCUMSTANCES OF THE OFFENSE" described the following pertinent facts: defendant drove at high speeds while evading patrol officers, defendant's "vehicle" ultimately collided with a speed-limit sign and came to a rest, officers found a loaded shotgun "in plain view" on "the back seat" of defendant's vehicle, officers found "metal knuckles which had a blade on both sides" on "the left rear floorboard," officers found "metal knuckles" on "the right rear floorboard," and officers found knives and numerous shotgun shells inside the vehicle.
Defendant filed written briefing in support of his petition. In his brief, defendant argued that "mere possession" of a weapon does not constitute arming, and that nothing in the record of conviction showed that he was armed with a firearm or other weapon. He emphasized that the probation report proffered by the People was not part of the record of conviction and therefore could not be used to establish ineligibility for resentencing.
At the Proposition 36 eligibility hearing, defense counsel asserted that "nothing" in the record of conviction showed that defendant was armed and thus ineligible for resentencing. Defense counsel asked the trial court to strike the probation report proffered by the People, arguing that the probation report was not part of the record of conviction and was hearsay. Although defense counsel conceded that the probation report "would be able to come in at the dangerousness hearing," she emphasized that it was "not appropriate" to consider the probation report in determining eligibility for resentencing. The prosecutor argued that the probation report was "absolutely part of the record of conviction," and he urged the trial court to consider the facts in the probation report and find defendant ineligible for resentencing.
In a written order denying defendant's Proposition 36 petition, the trial court ruled that defendant was ineligible for resentencing because "the facts underlying [defendant's] section 12021 and 12020 convictions demonstrate that he was armed with a firearm and a deadly weapon." In determining that defendant was armed, the trial court relied solely on the facts described in the probation report.
Defendant contends that we must reverse the order denying resentencing because the trial court erred in relying on the probation report in determining that he was ineligible for resentencing.2 Defendant is correct. As explained below, we conclude that the trial court erred in relying on the probation report, which was not an admissible, reliable document in the record of conviction. Because the trial court relied solely on the facts in the probation report in determining that defendant was armed and ineligible for resentencing, we must reverse the order denying resentencing and remand for further Proposition 36 proceedings.
On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012 (hereafter "the Act"), which amended sections 667 and 1170.12 and added section 1170.126. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167–168, 151 Cal.Rptr.3d 901.)
(People v. Osuna (2014) 225 Cal.App.4th 1020, 1028–1029, 171 Cal.Rptr.3d 55 (Osuna ).)
A defendant's "mere possession" of a firearm or deadly weapon does not establish that the defendant was armed with the firearm or deadly weapon. (People v. Blakely (2014) 225 Cal.App.4th 1042, 1057, 171 Cal.Rptr.3d 70 (Blakely ).) Rather, the defendant was armed, and thus ineligible for resentencing, if he or she had the firearm or deadly weapon "available for offensive or defensive use." (Id. at p. 1048,...
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In re Brown
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...possessed a sharp object, which was first seen hidden in his cell while he was detained elsewhere.In People v. Burnes (2015) 242 Cal.App.4th 1452, 195 Cal.Rptr.3d 903, although the defendant admitted possession of a firearm and possession of a deadly weapon with his no contest pleas to thos......
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...probation report inadmissible hearsay in proceeding to prove that prior conviction was serious felony].)In People v. Burnes (2015) 242 Cal.App.4th 1452, 1459, 195 Cal.Rptr.3d 903, the defendant had been convicted based on his plea. In a subsequent proceeding under Proposition 36, the trial ......
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Appendix E
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Punishment
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