People v. Burnes (6th Dist.): Error for Trial Court to Deny 117.126 Petition Based Upon Facts in Presentence Report.

Mr. Burnes was sentenced to a life term after pleading to, among other crimes, being a felon in possession of a firearm and being in possession of metal knuckles.  His was a life term because he had two prior "strike" convictions.  This was in 2010, when the "three strikes" law was actually "two strikes and any subsequent felony".  Following the passage of a voter initiative changing the law to require the triggering felony to be a "strike" (with exceptions inapplicable here), Burnes filed a petition in court to have his life sentenced recalled under PC 1170.126.

Under 1170.126, a prisoner serving a life sentence under the old "two strikes and any subsequent felony" rule may petition to have his sentence recalled and be sentenced under the new law.  In Burnes' case, his eligibility turned on whether he was "armed" with a firearm or deadly weapon during the commission of his latest felonies, which included possession of a firearm and possession of metal knuckles.

But alas, possession is not the same as being "armed with", so the convictions themselves do not end the inquiry.  During the proceedings, the government submitted a copy of a presentence report, written by a probation officer, which contained a recitation of facts from a police report.  Burnes objected that the report was not part of the record of conviction and that the court's inquiry is limited to the record of conviction.  The trial court, relying upon the presentence report, found Burnes ineligible for resentencing.

The Sixth District reverses.    They hold a presentence report is not, in these circumstances, part of the record of conviction, and the trial court is limited to the record of conviction.  Additionally, the opinion states that even if the report were part of the record of conviction, the report's recitation of the facts contained in the police report would be inadmissible hearsay.  

The latter portions of the opinion imply this may be an error the Sixth District is sick of seeing.  To wit,

 We emphasize that the trial court may consider only relevant, reliable, admissible portions of the record of conviction when determining whether a defendant is eligible for Proposition 36 resentencing.