Filed 12/23/15
                       CERTIFIED FOR PUBLICATION

         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                DIVISION EIGHT


THE PEOPLE,                                      B260573

        Plaintiff and Respondent,                (Los Angeles County
                                                 Super. Ct. No. GA025008)
                 v.

MARIO R. ESTRADA,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Los Angeles County.
William C. Ryan, Judge. Affirmed.



      Richard B. Lennon, under appointment by 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, Margaret E.
Maxwell and Nathan Guttman, Deputy Attorneys General, for Plaintiff and
Respondent.


                          __________________________
          Defendant Mario Estrada appeals from a post conviction order denying his
petition for resentencing as a second-strike offender under Proposition 36, the
Three Strikes Reform Act of 2012. (Pen. Code, § 1170.126.)1 The trial court
denied the petition on the ground that defendant was armed with a firearm during
the commission of his crime, an enumerated exclusion under Proposition 36, and
thus he is not entitled to resentencing relief. (§§ 1170.126, subd. (e)(2), 667,
subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Defendant argues that he pled
guilty only to grand theft person and that all firearm related charges were
dismissed; thus the court erred in reviewing the reporter’s transcript of his
preliminary hearing to make the finding that he was armed. We disagree and
affirm.

                                        FACTS

          The critical facts occurred on three days over 20 years ago. Since
defendant pled guilty, we take our facts primarily from the preliminary hearing.
On April 9, 1995, defendant entered a Radio Shack store and approached the
employee at the sales counter. As the employee began to ring up defendant’s
purchase, defendant pulled out a gun and told the employee to hand over all of the
money in the register. The employee handed defendant approximately $400 in a
plastic bag and defendant left the store.
          On April 16, 1995, defendant entered the same Radio Shack and waited
until all of the customers were gone. Then he approached the employee behind
the counter and took out a gun. Defendant told the employee to open the register,
and once it was open, defendant removed approximately $200. The employee also
gave defendant some car speakers and a small television from the back room.
After tying up the two employees in the store, defendant left through the back exit.




1         Undesignated statutory references will be to the Penal Code.
                                            2
       On July 27, 1995, defendant returned to the Radio Shack a third time.
Defendant approached the employee behind the counter and took out a gun.
Defendant told the employee to give him the cell phones in the display and the
money from the cash register, about $200-$300; the employee complied. Then,
defendant took the employee to the back room and demanded a car stereo.
Defendant again left through the back door. After defendant fled, the employee
called the police and a short time later police arrested defendant.

                           PROCEDURAL HISTORY

       Defendant was charged with fifteen counts, including four counts of
robbery (§ 211), three counts of grand theft person (§ 487, subd. (c)), four counts
of false imprisonment by violence (§ 236), three counts of commercial burglary
(§ 459) and one count of felony evading with willful disregard. It was alleged
with respect to all but the evading count, that defendant personally used a firearm
within the meaning of section 12022.5, subdivision (a).
       Before trial defendant pled guilty to one count of grand theft person in
connection with the events that took place on April 9, 1995. All other charges and
enhancements were dismissed. He was found, by his own admission, to have
sustained two prior strikes for robbery. Defendant was sentenced to an
indeterminate term of 25 years to life pursuant to the Three Strikes law.
       In November 2012, California voters approved Proposition 36, which
amended the Three Strikes law so that a defendant convicted of two prior strikes is
subject to the indeterminate term only if the current third felony offense is defined
as serious or violent. (§ 1170.126 subd. (b).) Proposition 36 also allowed those
serving indeterminate life sentences for a third felony that is neither serious nor
violent to seek court review of their indeterminate sentences and, subject to certain
disqualifying exclusions or exceptions, obtain resentencing as if the defendant had
only one prior serious or violent felony conviction. (People v. Superior Court
(Kaulick) (2013) 215 Cal.App.4th 1279, 1286, 1293.)

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       In November 2012, defendant filed a petition for resentencing as a second-
strike offender under Proposition 36. (§ 1170.126, subd. (b).) He argued that
because his third felony conviction for grand theft person is neither serious nor
violent he is eligible for resentencing. (§ 1170.126, subd. (e)(1).) The trial court
found that he had made a prima facie showing of eligibility, and issued an order to
show cause as to why the requested relief should not be granted.
       The prosecution argued in opposition that the petition should be denied
because defendant was armed at the time of his commitment offense and thus was
ineligible for resentencing. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii),
1170.12, subd. (c)(2)(C)(iii).) The prosecutor also argued that even if defendant
was eligible, he was unsuitable because he posed an unreasonable risk of danger to
public safety. (§ 1170.126, subd. (f).) The prosecution submitted eight exhibits,
including transcripts of some of the testimony, including that of Alfred Valladolid,
that had been presented at defendant’s October 19, 1995 preliminary hearing.
Valladolid was the victim of the April 9, 1995 grand theft at the Radio Shack store
to which defendant had pled. Valladolid testified in the preliminary hearing that
defendant had used a gun.
       In his reply, defendant argued that Proposition 36 requires a court to
determine a petitioner’s eligibility based on crimes for which the petitioner was
convicted and any special allegations found to be true. Defendant argued further
that any disqualifying factor under section 1170.126 must be pled and proven,
which was not the case here. Nor did defendant admit any facts which would
make him ineligible for Proposition 36 resentencing.
       After a hearing, the trial court concluded it could consider the preliminary
hearing transcript in denying Proposition 36 eligibility. Because evidence at the
preliminary hearing showed that defendant used a gun in the commission of the
grand theft, the court found defendant was ineligible under section 1170.12,
subdivision (c)(2)(C)(iii), and denied defendant’s petition.


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                                    DISCUSSION

1.     Standard of Review

       As we are tasked with interpreting a statute, the issue before us presents a
question of law, and we apply the de novo standard of review. (People v.
Bradford (2014) 227 Cal.App.4th 1322, 1332.)

2.     The Court Properly Found That Defendant Was Ineligible For
       Resentencing Based on Preliminary Hearing Testimony

       According to the plain language of Proposition 36, “[u]pon receiving a
petition for recall of sentence under this section, the court shall determine whether
the petitioner satisfies the criteria in subdivision (e).” (§ 1170.126, subd. (f).)
There is no requirement that the disqualifying factors in subdivision (e) be pled
and proved; rather it is the court that makes the determination. (People v. White
(2014) 223 Cal.App.4th 512, 527.) A trial court “determining whether an inmate
is eligible for resentencing under section 1170.126 may examine [all] relevant,
reliable, admissible portions of the record of conviction to determine the existence
of a disqualifying factor.” (People v. Blakely (2014) 225 Cal.App.4th 1042, 1048-
1049.) Preliminary hearing transcripts are properly considered part of the record
of conviction. (People v. Reed (1996) 13 Cal.4th 217, 223, cert. den. 519 U.S.
873; see White, at p. 519, fn. 4 [facts were derived from the preliminary hearing
transcript].)
       Defendant contends that there is no support in the record for the finding
that he was armed with a firearm during the commission of his commitment
offense, relying on the California Supreme Court’s decision in People v. Guerrero
(1988) 44 Cal.3d 343. In Guerrero, the court held that the trier of fact may look to
the entire record of conviction in order to determine the truth of a prior conviction
allegation in the context of the Three Strikes law. (Id. at p. 355.) Defendant
concedes that this is the rule, but argues that this rule does not permit the court to


                                           5
review a transcript and find the fact based on testimony because Guerrero does
not permit a “relitigation” of the circumstances of the crime. (Ibid.) In our view,
defendant mischaracterizes Guerrero, which states that the trier may look to the
record of conviction, but no further, effectively barring the prosecution from
relitigating the circumstances of a prior crime. (Ibid.)
       In this case, the trial court properly looked at the circumstances of this
crime; it did not draw conclusions based on other offenses. The issue is whether
or not defendant was armed when he committed grand theft person. The trial
court considered the preliminary hearing transcripts, not going beyond the record
of conviction, and found it true that defendant was armed with a firearm during the
commission of the crime. This type of review is exactly what Guerrero and White
allow, and in no way resembles relitigation of the case.
       We reject defendant’s argument that a court may not rely on a resentencing
disqualification if it was not pled or proven at trial. A similar claim was rejected
in People v. Hicks (2014) 231 Cal.App.4th 275. In Hicks, the defendant was
convicted of being a felon in possession of a firearm. The trial court denied his
petition for resentencing because the appellate court opinion from his conviction
reported that he was armed with a firearm when he committed the offense, even
though the arming enhancement had never been pled or proven. (Id. at p. 279.)
The Court of Appeal affirmed, holding that “the express statutory language
requires the trial court to make a factual determination that is not limited by a
review of the particular statutory offenses and enhancements for which a
petitioner’s sentence was imposed.” (Id. at p. 285.)
       Defendant tries to distinguish these cases by the fact that the robbery
charges and firearm use enhancements were dismissed as part of plea negotiations.
He argues that somehow this means he was not armed. It does not. Under
Proposition 36, the disqualifying factor, “armed with a firearm,” means having a
firearm available for offensive or defensive use during the offense. (People v.
Burnes (Dec. 14, 2015, H040102) ___ Cal.App.4th __ [2015 WL 8734099, *3];

                                          6
People v. Osuna (2014) 225 Cal.App.4th 1020, 1029.) One can have a firearm
available for use during a grand theft without elevating the offense to a robbery.
Similarly, one can be armed with a firearm without personally using it within the
meaning of section 12022.5, subdivision (a). Thus, a finding that defendant was
armed with a firearm is not a relitigation of the dismissed robbery counts or
firearm use enhancement allegations.
       Finally, defendant relies on People v. Berry (2015) 235 Cal.App.4th 1417.
In Berry, the defendant originally pled guilty to possession of a fraudulent check
and a forged driver’s license. Other counts, including firearm charges, were
dismissed. (Id. at p. 1421.) The trial court denied his petition for resentencing
because it found that he was armed during the commission of his crime. (Id. at
p. 1426.) But the firearms defendant possessed were found in a different location
than the fraudulent documents; he was not armed with them when arrested in
possession of the fraudulent documents. (Id. at p. 1421.) On appeal, the court
reversed, holding that “the trial court went outside defendant’s ‘record of
conviction’ when it based its assessment of defendant’s eligibility for resentencing
on evidence of firearm possession that was wholly unrelated to the counts on
which defendant was convicted.” (Id. at p. 1427.) Berry is distinguishable from
this case because the evidence of arming is not “wholly unrelated” to the grand
theft person which defendant committed. In fact, the evidence shows that he was
armed with a firearm during the commission of his offense. The dismissal of
some of the charges against defendant does not bar the trial court from looking at
the facts underlying the charges of which he was convicted. The trial court
properly considered all of the facts in the preliminary hearing transcript as
circumstances of the grand theft person.




                                           7
                                DISPOSITION

      The decision denying defendant’s petition and declaring him ineligible for
resentencing is affirmed.




                                               RUBIN, J.
WE CONCUR:



             BIGELOW, P. J.




             FLIER, J.




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