Filed 12/14/15
                           CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


THE PEOPLE,                                         H040102
                                                   (Monterey County
        Plaintiff and Respondent,                   Super. Ct. No. SS100891A)

           v.

WILLIAM LEONARD BURNES, JR.,

        Defendant and Appellant.



                                STATEMENT OF THE CASE
        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.
                                       BACKGROUND
       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



       1
           Subsequent unspecified statutory references are to the Penal Code.
                                              2
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

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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.
                                        DISCUSSION
       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


       2
          Defendant makes several other arguments on appeal. He first argues that the
denial of his Proposition 36 petition is appealable, a point which the Attorney General
concedes. (See Teal v. Superior Court (2014) 60 Cal.4th 595, 597 [an order denying a
Proposition 36 petition for recall of sentence, on the ground of ineligibility, is an
appealable order].) We therefore need not address that issue. Defendant also contends
that the trial court erred in finding him ineligible for resentencing because he was entitled
to a jury trial on the issue of eligibility and because the prosecution failed to plead and
prove arming in the underlying case. Given our conclusion that the trial court committed
reversible error in relying on the probation report for the ineligibility determination, we
need not address defendant’s argument regarding the right to a jury trial or his argument
regarding pleading and proof.
                                               4
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.
Legal Principles and the Standard of Review
       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. “The Act changes the requirements for sentencing a third strike
offender to an indeterminate term of 25 years to life imprisonment. Under the original
version of the three strikes law, a recidivist with two or more prior strikes who is
convicted of any new felony is subject to an indeterminate life sentence. The Act dilutes
the three strikes law by reserving the life sentence for cases where the current crime is a
serious or violent felony or the prosecution has pled and proved an enumerated
disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike
offender. (§§ 667, 1170.12.) The Act also created a postconviction release proceeding
whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the
three strikes law for a crime that is not a serious or violent felony and who is not
disqualified, may have his or her sentence recalled and be sentenced as a second strike
offender unless the court determines that resentencing would pose an unreasonable risk of
danger to public safety. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th
161, 167-168.)
       “Insofar as is pertinent to this appeal, an inmate is ineligible for resentencing
under the Act if his or her current sentence was ‘imposed for any of the offenses
appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of
paragraph (2) of subdivision (c) of Section 1170.12.’ (§ 1170.126, subd. (e)(2).) Thus,
an inmate is disqualified from resentencing if, inter alia, ‘[d]uring the commission of the

                                              5
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.’ (§§ 667, subd.
(e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)” (People v. Osuna (2014) 225 Cal.App.4th
1020, 1028-1029 (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 (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.) “[A] person convicted of
being a felon in possession of a firearm is not automatically disqualified from
resentencing by virtue of that conviction; such a person is disqualified only if he or she
had the firearm available for offensive or defensive use.” (Ibid.)
       “[A] trial court determining eligibility for resentencing under the Act is not limited
to a consideration of the elements of the current offense and the evidence that was
presented at the trial (or plea proceedings) at which the defendant was convicted. Rather,
the court may examine relevant, reliable, admissible portions of the record of conviction
to determine the existence or nonexistence of disqualifying factors.” (Blakely, supra, 225
Cal.App.4th at p. 1063.) “[T]he trial court must determine the facts needed to adjudicate
eligibility based on evidence obtained solely from the record of conviction.” (People v.
Bradford (2014) 227 Cal.App.4th 1322, 1327, italics added.)
       A probation report “ordinarily is not part of the record of conviction.” (People v.
Oehmigen (2015) 232 Cal.App.4th 1, 5 (Oehmigen).) Thus, when determining eligibility
for resentencing, a probation report “cannot supply facts involving circumstances of the
offense itself.” (Id. at p. 10.)




                                             6
       The issue presented in this appeal “is one of the interpretation of a statute and its
applicability to a given situation, a question of law we review independently.” (Osuna,
supra, 225 Cal.App.4th at p. 1034.)
The Trial Court Erred in Relying on the Probation Report in Finding Defendant
Ineligible for Resentencing
       Here, the parties disagree as to whether the probation report was a document
within the record of conviction that could be considered when determining defendant’s
eligibility for resentencing. Defendant contends that the probation report was not part of
the record of conviction, and the Attorney General contends that the probation report was
part of the record of conviction that could be considered in finding defendant ineligible
for resentencing. The Attorney General’s argument ignores case law specifying that
probation reports are not part of the record of conviction. (See Oehmigen, supra, 232
Cal.App.4th at pp. 5, 10; see also, In re Brown (2013) 218 Cal.App.4th 1216, 1226.) In
any event, even if we assume that the probation report here was part of the record of
conviction, we still must conclude that the trial court erred in relying on the facts
described in the probation report.
       When ruling on eligibility for resentencing, the trial court “may examine relevant,
reliable, admissible portions of the record of conviction to determine the existence or
nonexistence of disqualifying factors.” (Blakely, supra, 225 Cal.App.4th at p. 1063.)
The probation report here was neither admissible nor reliable. The portion of the
probation report that described the circumstances of defendant’s offenses was derived
from a police report. The probation report thus constituted double hearsay or multiple
hearsay, and the People never attempted to show that the probation report was admissible
under an exception to the hearsay rule. Moreover, nothing in the probation report
established the reliability of the asserted circumstances of the offenses: the probation
report did not include a copy of the police report; the probation report did not state

                                              7
whether it was directly quoting from the police report or summarizing the police report;
the probation report did not specify whether it contained all of the facts included in the
police report; the probation report did not state when the police report was prepared; the
probation report did not identify the person who prepared the police report; and the
probation report did not specify whether the facts in the police report were based on first-
hand knowledge or hearsay. Given these circumstances, it is impossible to conclude that
the probation report reliably described the circumstances of defendant’s offenses.
Because the probation report was neither admissible nor reliable, the trial court erred in
relying upon it in determining that defendant was ineligible for resentencing. (See
generally People v. Reed (1996) 13 Cal.4th 217, 220, 230 [holding that a probation
report, which was admitted to prove weapon use during a prior offense, should have been
excluded as multiple hearsay].)
       In sum, the trial court erred in considering the facts described in the probation
report when determining that defendant was armed and thus ineligible for resentencing.
Because the trial court relied solely on the facts in the probation report in ruling that
defendant was ineligible for resentencing, that ruling cannot stand. We therefore must
reverse the order denying resentencing.
       Finally, we note that if the same facts described in the probation report had
appeared in a relevant, reliable, admissible portion of the record of conviction, the trial
court would not have erred in considering such facts. We emphasize that the trial court
may consider only relevant, reliable, admissible portions of the record of conviction when
determining whether a defendant is eligible for Proposition 36 resentencing.
                                        DISPOSITION
       The order denying resentencing is reversed. The matter is remanded for further
Proposition 36 proceedings not inconsistent with this opinion.



                                              8
                                 ______________________________________
                                            RUSHING, P. J.




WE CONCUR:




____________________________________
           MÁRQUEZ, J.




____________________________________
           GROVER, J.




People v. Burnes
H040102




                                   9
Trial Court:                                  Monterey County
                                              Superior Court No.: SS100891A


Trial Judge:                                  The Honorable Timothy P. Roberts



Attorney for Defendant and Appellant          Junelle Harris
William Leonard Burnes, Jr.:                  under appointment by the Court
                                              of Appeal for Appellant



Attorneys for Plaintiff and Respondent        Kamala D. Harris
The People:                                   Attorney General

                                              Gerald A. Engler,
                                              Chief Assistant Attorney General

                                              Catherine A. Rivlin,
                                              Supervising Deputy Attorney General

                                              Allen R. Crown,
                                              Deputy Attorney General




People v. Burnes
H040102




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