Filed 7/24/17




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S232114
           v.                        )
                                     )                       Ct.App. 2/8 B260573
MARIO R. ESTRADA,                    )
                                     )                      Los Angeles County
           Defendant and Appellant.  )                    Super. Ct. No. GA025008
____________________________________)


         Under the Three Strikes Reform Act of 2012, certain inmates may file a
―recall‖ petition to reduce their punishment for third-strike sentences imposed on
them for offenses that are neither serious nor violent felonies. (Pen. Code
§ 1170.126, subds. (b), (e).)1 When a court evaluates a petition to recall such a
sentence, may it find an inmate ineligible for relief because certain facts
underlying a previously dismissed count show the inmate was ―armed with a
firearm or deadly weapon‖ during the commission of the third strike offense?
(See §§ 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) The trial court in
this case relied on preliminary hearing testimony to find that Mario Estrada was
indeed armed during the commission of his 1996 theft offense. The court did so


1        All subsequent statutory citations are to the Penal Code, unless otherwise
noted.




                                           1
notwithstanding the dismissal — pursuant to Estrada‘s plea agreement — of a
robbery count and a firearm use allegation connected to the same incident. What
we hold is that a trial court may deny resentencing under the Act on the basis of
facts underlying previously dismissed counts. Because the trial court denied recall
of Estrada‘s sentence in a manner consistent with this rule, the appellate court
properly affirmed the trial court — and we now affirm that judgment.
                                          I.
       In 1996, defendant Mario Estrada pleaded guilty to one count of grand theft
from a person under section 487, subdivision (c). Under a plea agreement, the
prosecution dismissed a firearm use allegation (former § 12022.5, subd. (a))
related to the count of conviction, and robbery (§ 211), burglary (§ 459) and false
imprisonment by violence (§ 236) counts based on the same incident that led to the
conviction. The prosecution also dismissed several additional counts based on
unrelated conduct alleged to have occurred on other dates. Estrada further
admitted to two prior convictions qualifying as strikes under the ―Three Strikes‖
law,2 and the trial court sentenced him to an indeterminate term of 25 years to life.
       Sixteen years later, the electorate approved Proposition 36, the Three
Strikes Reform Act of 2012 (Proposition 36, or the Act). Among other reforms,
the Act amended the Penal Code to permit recall of sentence for some inmates


2      The Three Strikes law consists of two nearly identical statutory schemes.
(People v. Conley (2016) 63 Cal.4th 646, 652 (Conley).) The first was enacted by
the Legislature in March 1994, and appears in section 667 (as amended by Stats.
1994, ch. 12, § 1, p. 71). The second was adopted by ballot initiative several
months later, and appears in section 1170.12. Both were amended by Proposition
36. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) §§ 2, 4, pp. 105, 107.)
The differences between the statutes are immaterial for the purposes of this case,
so for convenience we refer only to section 1170.12. Our decision, however,
applies to both versions.



                                          2
sentenced for third strike offenses that were neither serious nor violent felonies.
(§ 1170.126.) After approval of the Act, Estrada petitioned to recall his sentence.
The trial court denied the petition on the basis of its factual finding that Estrada
was armed with a firearm during the commission of his 1996 theft offense –– a
finding that renders a petitioner ineligible for resentencing under Proposition 36.
(See §§ 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) In making this
finding, the trial court reviewed the transcript of the 1996 preliminary hearing held
before Estrada pleaded guilty. During that preliminary hearing, a Radio Shack
employee testified that Estrada entered the store on April 9, 1995, and pulled out a
small handgun. The employee also testified that Estrada demanded the money in
the register and then, after he received the money, ordered the employee to the
store‘s back room. Estrada then left the store.3 Based on this testimony, the trial
court denied resentencing, concluding that it was ―more likely than not‖ that
Estrada was armed during the commission of the offense.
       Estrada appealed. The trial court, Estrada contended, impermissibly based
its finding of ineligibility for resentencing on conduct tied to the robbery count
and firearm use allegation, which were dismissed pursuant to the plea agreement.
The Court of Appeal affirmed the denial of the petition, and we granted Estrada‘s
petition for review.
                                          II.
       Prior to the approval of Proposition 36, the Three Strikes law imposed a
prison term of 25 years to life on a defendant for a felony conviction, even if it


3      This is a summary of only those events underlying the specific offense to
which Estrada pleaded guilty. During the preliminary hearing, the prosecution
also presented evidence of other crimes allegedly committed by Estrada on other
dates.



                                           3
was not a serious or violent felony, where the defendant had two or more prior
convictions for serious or violent felonies. (Former § 1170.12, subds. (b),
(c)(2)(A).) Following enactment of Proposition 36, defendants are now subject to
a lesser sentence when they have two or more prior strikes and are convicted of a
felony that is neither serious nor violent, unless an exception applies. (People v.
Johnson (2015) 61 Cal.4th 674, 681 (Johnson); see also § 1170.12, subd. (c)(2)(C)
[setting forth various exceptions].) One such exception is if, ―[d]uring the
commission of the 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.‖ (§ 1170.12, subd. (c)(2)(C)(iii).)
       The Act applies both prospectively and to defendants already sentenced
under the pre-reform version of the Three Strikes law. A defendant with two prior
strikes convicted of a nonserious, nonviolent felony cannot be sentenced to a third
strike term unless the prosecution ―pleads and proves‖ that one of the Act‘s
exceptions applies. (§ 1170.12, subd. (c)(2)(C).) For those sentenced under the
scheme previously in force, the Act establishes procedures for convicted
individuals to seek resentencing in accordance with the new sentencing rules.
(§ 1170.126.) The procedures call for two determinations. First, an inmate must
be eligible for resentencing. (§ 1170.126, subd. (e)(2).) An inmate is eligible for
resentencing if his or her current sentence was not imposed for a violent or serious
felony and was not imposed for any of the offenses described in clauses (i) to (iv)
of section 1170.12, subdivision (c)(2)(C). (§ 1170.126, subd. (e)(2).) Those
clauses describe certain kinds of criminal conduct, including the use of a firearm
during the commission of the offense. Second, an inmate must be suitable for
resentencing. Even if eligible, a defendant is unsuitable for resentencing if ―the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.‖ (§ 1170.126, subd. (f).) If an

                                          4
inmate is found both eligible and suitable, the inmate‘s third strike sentence is
recalled, and the inmate is resentenced to a second-strike sentence. (Ibid.;
§ 1170.12, subd. (c)(1).)
       Estrada was among the defendants who received a third-strike sentence,
after pleading guilty to one count of grand theft from a person in 1996. The Penal
Code defines theft as ―feloniously steal[ing], tak[ing], carry[ing], lead[ing], or
driv[ing] away the personal property of another.‖ (§ 484, subd. (a).) The code
also defines grand theft from a person as theft ―[w]hen the property is taken from
the person of another.‖ (§ 487, subd. (c).) By pleading guilty, Estrada admitted to
feloniously stealing the personal property of another, from the person of another.
Whatever else Estrada‘s admission of guilt established, however, it did not by
itself establish that Estrada was ―armed with a firearm or deadly weapon.‖
(§ 1170.12, subd. (c)(2)(C)(iii).) But the trial court concluded that Estrada was
―armed with a firearm or deadly weapon‖ during the commission of the offense.
(Ibid.; see also1170.126, subd. (e)(2).) To make this determination, the court
considered more than just the facts established by Estrada‘s guilty plea. It also
considered transcripts of Estrada‘s preliminary hearing, during which the
employee testified that Estrada was armed when he stole from a Radio Shack.
What is more, the trial court considered this testimony even though it was also
connected to a robbery count and a firearm use allegation that the prosecution
dismissed pursuant to the plea agreement.
       The trial court‘s decision to consider this testimony raised the question we
must now resolve: whether a court may rely on facts connected to a dismissed
count to find that ―the defendant . . . was armed with a firearm or deadly weapon‖
during the commission of a third strike offense, which renders an inmate ineligible
for Proposition 36 recall of sentence. (§ 1170.12, subd. (c)(2)(C)(iii); see also
1170.126, subd. (e)(2).) To answer this question, we must first resolve whether a

                                          5
court may consider facts beyond those encompassed by the judgment when
making an eligibility determination under section 1170.12, subdivision
(c)(2)(C)(iii). If the answer is yes, we must then decide whether a court may
consider the subset of those facts connected to dismissed counts when making that
determination.
       These matters turn on how we interpret Proposition 36. Estrada does not
argue that resentencing proceedings implicate a defendant‘s right under the Sixth
Amendment to the United States Constitution to have essential facts found by the
jury beyond a reasonable doubt. Rather, he argues that Proposition 36 itself
precludes courts reviewing a petition to recall a sentence from making a factual
finding of the sort made here. In construing the text of a statute adopted through
the initiative process, we apply the same principles of statutory interpretation that
we apply to statutes enacted by the Legislature. (Johnson, supra, 61 Cal.4th at p.
682.) In both contexts, our essential aim is to give effect to the statutory purpose
of the specific legislation at issue. (Ibid.)
                                           A.
       Although Proposition 36 offers certain inmates the possibility of a reduced
sentence, it also rations access to resentencing. Specifically, the Act provides that
an inmate is eligible for resentencing if, among other things, ―[t]he inmate‘s
current sentence was not imposed for any of the offenses appearing in [section
1170.12, subdivision (c)(2)(C)(i)-(iii)].‖ (§ 1170.126, subd. (e)(2).) Section
1170.12, subdivision (c)(2)(C)(iii), provides, in full, ―During the commission of
the 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.‖
Accordingly, the Act provides that an inmate is eligible for resentencing if ―[t]he
inmate‘s current sentence was not imposed for‖ an offense during which ―the
defendant used a firearm, was armed with a firearm or deadly weapon, or intended

                                            6
to cause great bodily injury to another person.‖ What this provision necessarily
implies, of course, is that an inmate is ineligible for resentencing if the inmate was
armed with a firearm during the offense for which the third strike sentence was
imposed.
       A court adjudicating a petition for resentencing must therefore draw a line
distinguishing an inmate qualified for resentencing from one whose offense-
related conduct precludes eligibility. Estrada recognizes that when a court draws
that line under section 1170.12, subdivision (c)(2)(C)(iii), it may rely on more than
just facts appearing on the face of the judgment of conviction. But in doing so, he
argues, a court may only consider facts encompassed by the verdict, or by the
defendant‘s guilty plea. Imagine, for example, that Proposition 36 precluded
inmates convicted of residential burglary from seeking recall of sentence. Because
the nature of the building entered during the burglary is not an element of the
crime of burglary, the prior judgment against any inmate convicted of burglary
would not reflect burglary of a residence. (See § 459.) Even under Estrada‘s
approach, however, a court could nonetheless find this hypothetical inmate
ineligible for resentencing. By finding the inmate guilty of burglary, the trier of
fact presumably must have found that the defendant entered some building. And if
the evidence at trial indicates that the only building the defendant could have
entered was in fact a residence, the finding that the defendant entered a building
implies a finding that he entered a residence. Now consider that same hypothetical
inmate, but add an ineligibility criterion for use of a firearm. Under Estrada‘s
approach, this inmate could not be held ineligible — even if the record contained
uncontroverted evidence that he was armed during the burglary — because no
element of the burglary conviction implies firearm use. In contrast, the Attorney
General argues that a court may base a finding of ineligibility under section



                                          7
1170.12, subdivision (c)(2)(C)(iii) on any facts contained in the record of
conviction, even if not implied by the judgment.
       Nothing in the relevant statutes explicitly addresses the question before us.
Several factors nonetheless cut against restricting the inquiry in the manner
Estrada urges and in favor of allowing trial courts to follow a more pragmatic
course. Section 1170.126, subdivision (e)(2) provides that inmates serving time
for three categories of offenses are ineligible for resentencing. The definitions for
two such categories reference statutes defining specific criminal offenses or
allegations. (§ 1170.12, subd. (c)(2)(C)(i)-(ii).) For example, section 1170.12,
subdivision (c)(2)(C)(i) renders an inmate ineligible for resentencing if the
―current offense is a controlled substance charge, in which an allegation under
Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found
true.‖ But section 1170.12, subdivision (c)(2)(C)(iii) is different. One finds no
reference to any specific statutory provision there, but instead more general terms
describing how criminal offenses may be committed. In contrast to the provisions
in section 1170.12, subdivisions (c)(2)(C)(i) and (ii), these general terms evoke an
inquiry that can extend beyond elements of the specific offense of conviction or
facts that those elements necessarily imply.
       What is more, section 1170.12, subdivision (c)(2)(C)(iii) provides only one
express nexus requirement between these general descriptive terms and the
inmate‘s prior offense: the excluding conduct must occur ―[d]uring the
commission‖ of the offense. (Ibid., italics added). The term ―during‖ suggests
temporal overlap: something that occurs throughout the duration of an event or at
some point in its course. (See, e.g., Merriam-Webster‘s Collegiate Dict. (11th ed.
2003), p. 388 [defining ―during‖ as ―throughout the duration of‖ or ―at a point in
the course of‖].) The term implies, at a minimum, a need for a temporal
connection between the excluding conduct and the inmate‘s offense of conviction.

                                          8
Although the need to establish such a nexus imposes certain limits on the
applicability of the firearm-related exception, the Act could certainly have
imposed an even stricter requirement for triggering the exception. (See People v.
Bland (1995) 10 Cal.4th 991, 1002 [interpreting the phrase ―in the commission‖ to
impose a ―facilitative nexus‖ requirement].) Because the Act does not do so, we
may infer some kind of temporal limitation on the retroactive application of
section 1170.12, subdivision (c)(2)(C)(iii).4 And if the relevant limitation is
temporal, it follows that a court should be permitted to review relevant portions of
the record to determine whether that requirement is satisfied. To hold otherwise
— that the temporal connection must be gleaned from findings implied by the
elements of the offense — would foist on trial courts an additional requirement not
reasonably discernible in the statute. (Cf. People v. Romanowski (2017) 2 Cal.5th
903, 908 [declining, in similar recall of sentence context, to find ―implicit[]‖
limitation in general statutory phrase].) Accordingly, we think section 1170.12,
subdivision (c)(2)(C)(iii) is best read as excluding from resentencing ―broadly
inclusive categories of offenders who, during commission of their crimes — and
regardless of those crimes‘ basic statutory elements — used a firearm, were armed
with a firearm or deadly weapon, or intended to cause great bodily injury to
another person.‖ (People v. Blakely (2014) 225 Cal.App.4th 1042, 1055.)
       Our analysis also fits with other indicia of the Act‘s purposes. As we
explained in Conley, the two purposes of the Act are ―mitigating punishment‖ and
―protecting public safety.‖ (Conley, supra, 63 Cal.4th at p. 658.) In its Findings
and Declarations, the Act indicated that it would accomplish these twin objectives


4      Whether the use, arming, and intent described in section 1170.12,
subdivision (c)(2)(C)(iii) must have a more-than-coincidental relationship to the
current offense is a question we have no occasion to consider here.



                                          9
by distinguishing between ―low-risk, non-violent inmates‖ (who would benefit
from the Act‘s ameliorative provisions) and ―dangerous criminals‖ (who would
not). (Voter Information Guide, Gen. Elec. (Nov. 6, 2012, § 1, p. 105.) Voters
were reminded of this distinction throughout the materials advocating for passage
of the Act. (See, e.g., Voter Information Guide, supra, argument in favor of Prop.
36, p. 52 [―Prop. 36 will help stop clogging overcrowded prisons with non-violent
offenders, so we have room to keep violent felons off the streets.‖]; id. at p. 53,
rebuttal to argument against Prop. 36 [―Today, dangerous criminals are being
released early from prison because jails are overcrowded with nonviolent
offenders who pose no risk to the public.‖].) We see no indication in the Voter
Information Guide that the Act was designed to equate the ―violent felons‖
category solely with those convicted of inherently violent offenses. To the
contrary — we think it more faithful to Proposition 36‘s crucial distinction to
interpret its conception of violent offenders as including not only those inmates
convicted of inherently violent offenses but also those who committed nonviolent
offenses in a violent manner. With section 1170.12, subdivision (c)(2)(C)(iii),
Proposition 36 furthers its twin purposes by denying the latter category of
offenders the benefits of the Act. To construe the Act otherwise would
substantially, and impermissibly, impair its purpose of distinguishing between
violent and nonviolent offenders. (See Weatherford v. City of San Rafael (2017) 2
Cal.5th 1241, 1246 [―[O]ur fundamental task in statutory interpretation is to
ascertain and effectuate the law‘s intended purpose.‖].)
       It also matters that the Act itself incorporated into the Three Strikes law the
categories defined in section 1170.12, subdivision (c)(2)(C)(iii). (Compare former
§ 1170.12, with current § 1170.12, subd. (c)(2)(C).) The pre-reform version of the
Three Strikes law required that a defendant with two or more prior strikes be
sentenced to a third strike sentence for any third felony conviction. (Johnson,

                                          10
supra, 61 Cal.4th at p. 680.) Before passage of the Act, prosecutors had little
reason to prove any conduct on a defendant‘s part that now constitutes
disqualifying conduct under section 1170.12, subdivision (c)(2)(C)(iii). (See
Conley, supra, 63 Cal.4th at p. 659-660.) As the facts of this case aptly
demonstrate, a judgment that predates Proposition 36 may at times fail to imply
anything about disqualifying conduct, even if the evidence available to the
prosecution could have supported such a finding. For this reason, we think it
unlikely that it was part of the Act‘s design to prevent courts reviewing a recall
petition from considering conduct beyond that implied by the judgment. Given
the importance of the Act‘s distinction between violent and nonviolent criminal
conduct, it seems implausible that the Act is best understood to condition
ineligibility on an indicator of violence that the prosecution had no incentive to
incorporate into the judgment. Accordingly, section 1170.12, subdivision
(c)(2)(C)(iii) would be substantially underinclusive were we to interpret it to apply
only to cases in which the judgment implies disqualifying conduct. (See Williams
v. Superior Court (1993) 5 Cal.4th 337, 354 [―A court should not lightly adopt an
interpretation of statutory language that renders the language useless in many of
the cases it was intended to govern.‖].)
       Estrada maintains that allowing a court reviewing a recall petition to rely on
facts beyond those encompassed by the judgment is inconsistent with our
approach to sentence enhancements for prior convictions. (See People v.
Guerrero (1988) 44 Cal.3d 343.) The question we confronted in Guerrero was
whether a finding that a defendant had suffered a prior conviction for a ―serious
felony‖ could be based on facts beyond those established by the prior judgment.
(44 Cal.3d at p. 345.) We held that a court could look to the ―entire record of the
[prior] conviction‖ to determine the ―substance‖ of the conviction. (Id. at p. 355.)
What Estrada contends is that Guerrero‘s focus on the ―substance‖ of the prior

                                           11
conviction limits the inquiry to facts established, at least implicitly, by the
judgment of conviction. The Attorney General contends instead that the opinion
and its progeny allow for fact finding within the record of conviction, without
regard to the specific elements of the offense of conviction.
       We need not resolve these competing interpretations of the Guerrero
inquiry. Even assuming that Estrada‘s interpretation of those cases is correct,
nothing in Proposition 36 or any material we might examine to understand its
purpose suggests the Act incorporated such a substantive limitation. Precluding a
court from considering facts not encompassed within the judgment of conviction
would be inconsistent with the text, structure, and purpose of sections 1170.12,
subdivision (c)(2)(c)(iii) and 1170.126, subdivision (e)(2) –– and would, by
consequence, impose an unnecessary limitation.
       Finally, Estrada points to the Act‘s prospective plead and proof
requirement, and our statement in Johnson that ―the sentencing rules are intended
to be identical‖ for new defendants and previously sentenced inmates (aside from
the court‘s authority under section 1170.126, subdivision (f) to deny resentencing
if doing so would pose an unreasonable danger to the public). (Johnson, supra, 61
Cal.4th at p. 691.) Estrada does not dispute that, by the Act‘s own terms, the plead
and proof requirement applies only prospectively. What he contends instead is
that for past and prospective offenders to be treated in a ―nearly identical‖ manner,
a court determining eligibility for resentencing should be limited to considering
only those facts encompassed by the prior conviction. But nowhere in Johnson
did we suggest that the Act‘s general purpose compelled identical treatment of
past and prospective offenders, despite a clear indication that the statutory design
was premised on the existence of certain distinctions in their treatment. Rather,
we stated only that the substantive criteria that render a future offender eligible for
a third strike sentence are the same substantive criteria that render a past offender

                                          12
ineligible for a reduction in sentence. (Johnson, at p. 691; see also Conley, supra,
63 Cal.4th at pp. 660-661.) So the passage from Johnson does not buttress
Estrada‘s position.
                                          B.
       Because a court may consider at least some facts not encompassed by the
relevant judgment of conviction when determining whether a third strike offender
is ineligible for resentencing under section 1170.12, subdivision (c)(2)(C)(iii), we
must now decide whether anything prevents a court making that determination
from considering the subset of those facts connected to a dismissed count. Under
a plea agreement, the prosecution dismissed a robbery count and firearm use
allegation related to the incident that led to Estrada‘s guilty plea for grand theft
from a person. Estrada posits that basing ineligibility on facts underlying those
dismissed counts essentially rewrites the plea agreement by ―resurrect[ing] facts
underlying charges and allegations‖ that Estrada bargained away. We are not
persuaded.
       Estrada argues that basing ineligibility on facts underlying dismissed counts
violates due process by denying him the benefit of his plea agreement. (See
People v. Villalobos (2012) 54 Cal.4th 177, 182 [Due process requires that both
parties, including the state, ― ‗abide by the terms of [a plea] agreement.‘ ‖],
quoting People v. Walker (1991) 54 Cal.3d 1013, 1024.) While both sides must
indeed abide by the terms of a plea agreement, the promises that must be kept are
only those the agreement indicates. The touchstone of any inquiry into the scope
of a plea agreement is the terms to which the parties actually agreed. (Villalobos,
54 Cal.4th at pp. 182-183.) In Villalobos, we held that ―mere silence by the
parties and trial court concerning a statutorily mandated punishment does not
make exclusion of the punishment a negotiated term of a plea agreement.‖ (Id. at
p. 183, 186.) The question in that case was whether the trial court could impose a

                                          13
restitution fine above the statutory minimum ―when the fine is not mentioned
either by the parties in the plea agreement or by the trial court during the plea
colloquy.‖ (Id. at p. 183.) We held that it could, because ―no specific amount of
fine was expressly negotiated or otherwise made a part of the plea agreement.‖
(Id. at p. 186.) Here, the question is similar: whether a court reviewing a
Proposition 36 recall petition may consider facts underlying a dismissed count
when nothing in the inmate‘s plea agreement discusses the effect of those facts.
As in Villalobos, the answer to the question is that a court may do so. The legal
effect of the facts associated with Estrada‘s use of a firearm was simply not ―a part
of the plea agreement.‖ (See Villalobos, at p. 186.) By entering into a plea
agreement that resulted in the dismissal of the robbery count and firearm use
allegation, Estrada did not bargain for immunity from all consequences associated
with the facts underlying those counts. What he bargained for instead was
dismissal of the counts themselves. Considering facts connected to a dismissed
count therefore does not rewrite the plea agreement, unless the agreement evinces
some preclusion of the court‘s discretion to consider such facts.5
       Notice how a contrary construction would condition eligibility under
Proposition 36 on a prosecutor‘s charging decisions for dismissed counts. Under
Estrada‘s theory, his eligibility for resentencing would depend on whether the


5      Of course, it would be unreasonable to ask defendants to anticipate the
passage of Proposition 36 and bargain for a provision in the plea agreement that
explicitly addressed the circumstances at issue here. We do not mean to impose
such an unrealistic standard. Rather, we hold that nothing about a fact‘s
connection to a dismissed count prevents a court from considering it when
determining whether an inmate is ineligible for resentencing under section
1170.12, subdivision (c)(2)(C)(iii), unless there is some indication that the plea
agreement immunized the defendant from the effect of the facts that underlie the
dismissed count or counts.



                                          14
prosecutor charged the relevant events as a single count of theft as opposed to
assorted counts of theft, robbery, and firearm use. Resentencing would be
possible for a defendant who pleaded guilty in the latter scenario but not in the
former. Yet the underlying acts and offense of conviction are the same in both
cases. We decline to conclude that the Act was crafted to condition eligibility on
counts that are dismissed and thus not part of the criminal judgment. (See Copley
Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1291 [We favor statutory
constructions that lead to ― ‗reasonable result[s],‘ ‖ because we presume ―that the
Legislature intends reasonable results consistent with its apparent purpose.‖].)
       Accordingly, a court determining whether a third strike offender is
ineligible for resentencing under section 1170.12, subdivision (c)(2)(C)(iii) may
consider facts connected to dismissed counts, but only if those facts also underlie a
count to which the defendant pleaded guilty. That last qualifier is as crucial as any
aspect of the rule: evidence of arming on which a court relies to deny recall of
sentence must, of course, demonstrate that the inmate was armed ―[d]uring the
commission of the current offense.‖ (§ 1170.12, subd. (c)(2)(C)(iii), italics added.)
By its own terms, this eligibility criterion plainly applies only to the offense or
offenses that form the basis of the sentence sought to be recalled. (Ibid.; see also
§ 1170.126, subd. (e)(2) [―An inmate is eligible for resentencing if . . . [¶] (2) [t]he
inmate‘s current sentence was not imposed for . . . .‖ (italics added)].) What this
necessarily implies is that a finding of ineligibility pursuant to section 1170.12,
subdivision (c)(2)(C)(iii) cannot be made on the basis of conduct that occurred
other than during the offense of conviction.
       In support of his argument that a court cannot rely on facts connected to a
dismissed count, Estrada cites People v. Berry (2015) 235 Cal.App.4th 1417
(Berry). In Berry, an inmate petitioned under section 1170.126 to recall a third
strike sentence imposed after he pleaded guilty to possession of a fraudulent check

                                          15
and forged driver‘s license. (Berry, 235 Cal.App.4th at pp. 1419-1420.) During
the incident that led to his convictions, the defendant was pulled over and found
with a fake driver‘s license and fraudulent check. (Id. at p. 1421.) After
discovering the forged items, the police searched the trunk of another of the
defendant‘s vehicles and discovered a loaded firearm. (Ibid.) The prosecution
charged the defendant with nine counts — including various gun-related
enhancements — but the defendant pleaded guilty only to the two forgery counts.
(Id. at pp. 1421-1422.) The trial court relied on evidence of the firearm to
conclude that the defendant was ineligible for recall of sentence under section
1170.126, subdivision (e)(2) for having been armed during the commission of his
possession of the fraudulent check offense. (Berry, 235 Cal.App.4th at pp. 1422-
1423.) The Court of Appeal reversed, reasoning that a defendant cannot suffer ―
‗adverse sentencing consequences by reason of the facts underlying, and solely
pertaining to, the dismissed count.‘ ‖ (Id. at p. 1426, quoting People v. Harvey
(1979) 25 Cal.3d 754, 758.)
       Estrada argues that under Berry, a recall court cannot rely on facts
connected to a dismissed count when denying a petition for recall of sentence. But
given Berry‘s facts, the opinion can be read to hold something narrower: that the
defendant was not armed ―during‖ the commission of the offense involving
possession of the fraudulent check. (235 Cal.App.4th at p. 1426.) We do not here
address the merits of this factual determination, which is not before us. What we
do instead is to disapprove People v. Berry, supra, 235 Cal.App.4th 1417 to the
extent it holds that a court is precluded from considering facts demonstrating that
an inmate was armed during a third-strike offense, simply because those facts also




                                         16
support a count the court dismissed. The view that such a limitation is implicit in
Proposition 36 is one for which we find no support.6
                                          C.
       We now apply these principles to Estrada‘s own petition to recall his 1996
sentence for grand theft from a person. The trial court here was not limited to
considering only facts encompassed by the prior judgment when determining
whether Estrada was eligible for recall of sentence under sections 1170.12,
subdivision (c)(2)(C)(iii) and 1170.126, subdivision (e)(2). Nor was it precluded
from considering the subset of those facts connected to the firearm use and
robbery counts that were dismissed pursuant to Estrada‘s plea agreement. When
the trial court made its determination that Estrada was ineligible under those
provisions, it relied on testimony from the preliminary hearing transcript. Estrada
does not challenge the trial court‘s decision to admit and rely on this testimony, or
the trial court‘s factual determination that the preliminary hearing transcript
demonstrated that he was armed during the commission of his offense.7 So we
find no error in the trial court‘s determination that Estrada was armed with a
firearm during the commission of his grand theft from a person offense.

6      Estrada also argues that if a finding pursuant to sections 1170.126,
subdivision (e)(2) and 1170.12, subdivision (c)(2)(C)(iii) can be premised on facts
that underlie a dismissed count, then a court could conceivably base such a finding
on facts that underlie counts for which the inmate was acquitted. That
circumstance is not before us, and different arguments might well pertain in a case
that poses that question. Accordingly, we take no position on the issue.
7      Accordingly, we express no opinion on whether Estrada could have raised a
valid hearsay or other evidentiary objection to the admission of the preliminary
hearing transcript. (See, e.g., Evid. Code, § 1291, subd. (a)(2).) For the same
reason, we need not consider in this case what sources a court may consider when
making an eligibility determination under sections 1170.12, subdivision
(c)(2)(C)(iii) and 1170.126, subdivision (e)(2). (Cf. People v. Bradford (2014)
227 Cal.App.4th 1322, 1331.)



                                          17
                                          III.
       To find that an inmate was armed with a firearm during the commission of
the inmate‘s third strike offense, a court reviewing a Proposition 36 recall petition
may rely on facts underlying counts dismissed pursuant to the inmate‘s plea
agreement –– so long as those facts establish the defendant was armed during his
offense of conviction. This outcome leaves trial courts in a position to implement
the crucial distinction Proposition 36 draws between violent and nonviolent
offenders, and is consistent with the text, structure, and other indicia of statutory
purpose. And such procedures do not violate an inmate‘s plea agreement, unless
the plea agreement precludes a recall court from considering such facts. Because
the appellate court‘s opinion is consistent with this conclusion, we affirm the
judgment.


                                                          CUÉLLAR, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.




                                          18
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Estrada
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 243 Cal.App.4th 336
Rehearing Granted

__________________________________________________________________________________

Opinion No. S232114
Date Filed: July 24, 2017
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: William C. Ryan

__________________________________________________________________________________

Counsel:

Richard B. Lennon and Suzan E. Hier, under appointments by the Supreme Court, for Defendant and
Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell, Noah P. Hill, Louis W.
Karlin and Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Suzan E. Hier
California Appellate Project
520 S. Grand Avenue, 4th Floor
Los Angeles, CA 90071
(213) 243-0300

Nathan Guttman
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 620-2024
