People v. Burnes
242 Cal. App. 4th 1452
| Cal. Ct. App. | 2015Background
- In 2010 Burnes pleaded nolo contendere to multiple offenses including possession of a firearm by a felon and possession of metal knuckles; he admitted two strike priors and five prison-term enhancements and was sentenced to 30 years to life.
- In 2013 Burnes petitioned for recall of sentence under Proposition 36 (Pen. Code § 1170.126); the trial court held an eligibility hearing to determine whether he was disqualified because he was "armed" during the current offenses.
- The People relied solely on an August 2010 postconviction probation report (which summarized a CHP police report) describing a loaded shotgun, metal knuckles, knives, and shotgun shells found in Burnes’s vehicle while evading officers.
- Defense moved to exclude the probation report from the eligibility determination, arguing it was not part of the record of conviction and was hearsay; defense also argued mere possession does not automatically equal being "armed."
- The trial court found Burnes ineligible for resentencing based solely on facts in the probation report and denied the Proposition 36 petition.
- The Court of Appeal reversed, holding the probation report was not an admissible, reliable portion of the record of conviction and thus could not support the ineligibility finding; the matter was remanded for further Proposition 36 proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the probation report is part of the record of conviction and may be used to determine Proposition 36 eligibility | The probation report is part of the record and shows Burnes was armed | The probation report is not part of the record and is hearsay; record of conviction contains no proof he was armed | The report was not an admissible, reliable part of the record and cannot be used for eligibility |
| Whether "mere possession" equals being "armed" for disqualification under Prop 36 | The probation report facts show weapons were present and thus Burnes was armed | Mere possession does not establish being armed; weapons must have been available for offensive or defensive use | Mere possession alone does not disqualify; court must find weapons were available for use (arming), based on admissible record |
| Whether the trial court may consider double hearsay in the probation report without authentication or hearsay exception | People relied on the report without establishing admissibility | Defense argued the report is multiple hearsay and unreliable | Trial court erred because the probation report was double hearsay, not shown admissible or reliable |
| Remedy when trial court relied solely on inadmissible probation report to deny resentencing | People defended the ineligibility finding | Burnes sought reversal and remand for proper proceedings | Reversed and remanded for further Proposition 36 proceedings consistent with opinion |
Key Cases Cited
- People v. Yearwood, 213 Cal.App.4th 161 (explaining the Act and postconviction recall proceeding)
- People v. Osuna, 225 Cal.App.4th 1020 (clarifying disqualifying factors including being armed)
- People v. Blakely, 225 Cal.App.4th 1042 (holding mere possession does not automatically show defendant was armed)
- People v. Oehmigen, 232 Cal.App.4th 1 (stating probation reports ordinarily are not part of the record of conviction)
- People v. Reed, 13 Cal.4th 217 (probation reports may be excluded as multiple hearsay when used to prove weapon use)