People v. Estrada

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

conviction, even if it was not a serious or violent felony, where the defendant had two or more prior convictions for serious or violent felonies. (Former

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, 189 Cal.Rptr.3d 794 , 352 P.3d 366 .) 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

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)

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, 218 Cal.Rptr.3d 394 , 395 P.3d 274 ["[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

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, 189 Cal.Rptr.3d 794 , 352 P.3d 366 .) Estrada does not dispute that, by the Act's own terms, the plead and proof requirement applies only prospectively. What he contends

§ 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, 189 Cal.Rptr.3d 794 , 352 P.3d 366 ( 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 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 also 1170.126, subd. (e)(2).) To make this determination, the court considered

more than just the facts established by Estrada's guilty plea. It

firearm or deadly weapon, or intended 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,

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. 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, 43 Cal.Rptr.2d 77 , 898 P.2d 391 [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

(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

which the judgment implies disqualifying conduct. (See Williams v. Superior Court (1993) 5 Cal.4th 337 , 354, 19 Cal.Rptr.2d 882 , 852 P.2d 377 ["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 , 243 Cal.Rptr. 688 , 748 P.2d 1150 .) 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, 243 Cal.Rptr. 688 , 748 P.2d 1150 .) 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, 243 Cal.Rptr. 688 , 748 P.2d 1150 .) What Estrada contends is that Guerrero 's focus on the "substance" of the prior 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

are the same substantive criteria that render a past offender ineligible for a reduction in sentence. ( Johnson , at p. 691, 189 Cal.Rptr.3d 794 , 352 P.3d 366 ; see also Conley , supra , 63 Cal.4th at pp. 660-661, 203 Cal.Rptr.3d 622 , 373 P.3d 435 .) 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, 141 Cal.Rptr.3d 491 , 277 P.3d 179 [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, 1 Cal.Rptr.2d 902 , 819 P.2d 861 .) 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, 141 Cal.Rptr.3d 491 , 277 P.3d 179 .) 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, 141 Cal.Rptr.3d 491 , 277 P.3d 179 .) The question in that case was whether the trial court could impose a 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, 141 Cal.Rptr.3d 491 , 277 P.3d 179 .) 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, 141 Cal.Rptr.3d 491 , 277 P.3d 179 .) 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

allegation, Estrada did not bargain for immunity from all consequences associated with the facts underlying those counts. What he bargained for instead

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 , 186 Cal.Rptr.3d 89 ( 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 and forged driver's license. ( Berry , 235 Cal.App.4th at pp. 1419-1420, 186 Cal.Rptr.3d 89 .) During the incident that led to his convictions, the defendant was pulled over and found with a fake driver's license and fraudulent check. (

indeed armed during the commission of his 1996 theft offense. The court did so 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

n 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

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

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 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

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 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

any third felony conviction. ( Johnson , supra , 61 Cal.4th at p. 680, 189 Cal.Rptr.3d 794 , 352 P.3d 366 .) 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, 203 Cal.Rptr.3d 622 , 373 P.3d 435 .) 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

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

Villalobos , at p. 186, 141 Cal.Rptr.3d 491 , 277 P.3d 179 .) By entering into a plea agreement that resulted in the dismissal of the robbery count and firearm use

Id . at p. 1421, 186 Cal.Rptr.3d 89 .) 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, 186 Cal.Rptr.3d 89 .) 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, 186 Cal.Rptr.3d 89 .) 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, 186 Cal.Rptr.3d 89 , quoting People v. Harvey (1979) 25 Cal.3d 754 , 758, 159 Cal.Rptr. 696 , 602 P.2d 396 .)

court's determination that Estrada was armed with a firearm during the commission of his grand theft from a person offense.

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.

We Concur:

Cantil-Sakauye, C.J.

Werdegar, J.

Chin, J.

Corrigan, J.

Liu, J.

Kruger, J.