People v. Berry
235 Cal. App. 4th 1417
| Cal. Ct. App. | 2015Background
- Roland Berry pleaded guilty (2000) to possession of a fraudulent check (§ 476) and possession of a forged driver’s license (§ 470(b)); seven other counts, including firearm-possession allegations, were dismissed as part of the plea.
- He was sentenced to an indeterminate life term (25 years to life) under the pre-Prop. 36 Three Strikes law, with prior serious/violent convictions admitted.
- In April 2013 Berry petitioned under Penal Code § 1170.126 (Prop. 36 resentencing) to recall and resentence his indeterminate term.
- The prosecutor and trial court treated evidence underlying the dismissed firearm counts (preliminary hearing and probation report) as proof Berry was “armed with a firearm” during the commission of the qualifying offense and dismissed the petition as ineligible under § 1170.126(e)(2).
- The Court of Appeal reversed, holding eligibility under § 1170.126(e) must be determined from the convictions/sentences (the record of conviction) and not from facts underlying dismissed counts; the matter was remanded for the court to perform the discretionary dangerousness inquiry under § 1170.126(f).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Is an order dismissing a § 1170.126 petition appealable? | Dismissal does not affect substantial rights; not appealable. | Appealable; dismissal affects rights. | Appealable (Teal controls). Court proceeded on merits. |
| 2. May a court rely on evidence underlying dismissed firearm counts to find a petitioner ineligible under § 1170.126(e)(2)? | Yes — court may examine the entire record of the qualifying case to determine if the petitioner was armed. | No — eligibility must be based on convictions/sentences; dismissed counts cannot be used. | No. Court erred by relying on dismissed-count evidence; eligibility inquiry is limited to the record of conviction. |
| 3. Does the court’s use of non-conviction facts to disqualify a petitioner trigger a jury-trial/Alleyne right? | (Prosecution implied) factual findings for eligibility do not require jury. | Berry: armed-offense determination sets a mandatory minimum and requires a jury beyond reasonable doubt (Alleyne). | Rejected. Prop. 36 resentencing is a lenity/benefit provision; denial of relief does not increase the original sentence, so Alleyne jury right does not apply. |
| 4. What is the proper scope of the court’s inquiry under § 1170.126? | Broader inquiry at eligibility stage to protect public safety. | Eligibility stage is statutory and limited to convictions and the sentence-imposed record; dangerousness is assessed only after eligibility is established. | Eligibility is determined from convictions/sentences; discretionary dangerousness inquiry under § 1170.126(f) can consider broader factual matters after eligibility is found. |
Key Cases Cited
- Teal v. Superior Court, 60 Cal.4th 595 (California Supreme Court) (orders dismissing § 1170.126 petitions are appealable)
- People v. Harvey, 25 Cal.3d 754 (1979) (court may not consider facts underlying dismissed counts for sentencing enhancements in plea cases)
- People v. Woodell, 17 Cal.4th 448 (1998) (inquiries about the nature of a prior conviction are limited to the record of conviction)
- People v. Elder, 227 Cal.App.4th 1308 (2014) (trial court may examine the record of a qualifying conviction when that conviction itself involves firearm possession)
- People v. Blakely, 225 Cal.App.4th 1042 (2014) (same—review of qualifying conviction record to resolve eligibility issues)
- People v. Osuna, 225 Cal.App.4th 1020 (2014) (same principle applied to qualifying convictions)
- People v. Guilford, 228 Cal.App.4th 651 (2014) (examined record of the qualifying offense to determine whether it involved intent to cause great bodily injury)
- People v. Superior Court (Kaulick), 215 Cal.App.4th 1279 (2013) (Prop. 36 procedures and the absence of a jury requirement for resentencing eligibility determinations)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (defendant argued Alleyne required jury findings for facts that would increase mandatory minima; court rejected application here because § 1170.126 denial does not increase original sentence)