Mr. Frierson had been sentenced to a life term under the former "two strikes and any subsequent felony" law, the subsequent felony being the crime of stalking, PC 646.9.
Following the amendments to the "strike" laws, Frierson petitioned the trial court to resentence him pursuant to PC 1170.126, a statute that allows certain prisoners serving life sentences under the former law to be resentenced under the current "strike" laws. Under 1170.126, a petitioner is not eligible for resentencing if, during the commission of the triggering felony (here the stalking), the petitioner intended to cause great bodily injury (GBI) to the victim.
Frierson's stalking conviction was based upon letters he sent from prison to his estranged wife. His wife, understandably, wanted a divorce. Frierson sent her a series of letters vowing that if he couldn't have her, no one could. He vowed to "track her down" and sent her a newspaper clipping of a murder-suicide committed by a jilted spouse.
Based on the above facts, the trial judge denied Frierson's petition, finding him disqualified from relief because he, in committing his stalking crime, intended to inflict GBI upon his wife. Frierson appealed.
The Second District affirms.
This is a frustrating opinion. Not for its decisions on the issues of whether the trial court abused its discretion and whether the proper standard is a preponderance of evidence. Both these decisions are reasonable. What irritates is that the opinion fails to examine the source of the evidence at issue.
It is, IMEO, well settled what may be examined by the trial court in making its decision on a PC 1170.126 petition, all relevant, reliable, and admissible material contained in the record of conviction. The opinion cites this rule, but omits the last two words. This is important. The record of conviction is limited to specific items. The textual omission noted above, coupled with the opinion's failure to state from where the disqualifying facts came, gave me pause.
Did the facts underlying the affirmance actually come from the record of conviction (preliminary hearing transcript, change of plea form, or a document incorporated by reference), or did it come from an impermissible source? Is the failure to mention the source a conscious attempt to avoid the issue?
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