People v. Burnes

Filed 12/14/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040102 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS100891A)

v.

WILLIAM LEONARD BURNES, JR.,

Defendant and Appellant.

STATEMENT OF THE CASE On April 23, 2010, the Monterey County District Attorney filed an information charging defendant William Leonard Burnes, Jr. with the following crimes: possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1); count 1), evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 2), possession of ammunition by a prohibited person (former Pen. Code, § 12316, subd. (b)(1); count 3), possession of a deadly weapon (former Pen. Code, § 12020, subd. (a)(1); count 4 [identifying metal knuckles as the deadly weapon]), possession of burglary tools (Pen. Code, § 466; count 5), driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a); count 6), driving with a blood alcohol content of .08% or more (Veh. Code, § 23152, subd. (b); count 7), resisting a public officer (Pen. Code, § 148, subd. (a)(1); count 8), intercepting and divulging police radio communication (Pen. Code, § 636.5; count 9), hit and run driving resulting in property damage (Veh. Code, § 20002, subd. (a); count 10), possession of a hypodermic needle or syringe (former Bus. & Prof. Code, § 4140; count

11), and driving with a suspended license (Veh. Code, § 14601.2, subd. (a); count 12). The information alleged two prior strike convictions (Pen. Code, § 1170.12, subd. (c)) and five prior prison terms (Pen. Code, § 667.5, subd. (b)). On July 29, 2010, defendant pleaded nolo contendere to all counts charged in the information, except count 6. Defendant admitted the two prior strike convictions and the five prior prison terms. On April 15, 2011, the trial court sentenced defendant to a total prison term of 30 years to life, calculated as follows: 25 years to life for count 1, a consecutive term of five years for the prior prison term allegations, three stayed terms of 25 years to life for counts two through four, and concurrent six-month terms for each of the remaining counts. On January 9, 2013, defendant filed a petition for recall of sentence pursuant to Penal Code section 1170.126,1 the resentencing provision of Proposition 36. On August 23, 2013, the trial court denied the petition, ruling that defendant was ineligible for resentencing. Defendant now appeals from the order denying resentencing. Among other arguments, defendant contends that the trial court erred in relying on facts described in a postconviction probation report when determining that he was armed and thus ineligible for resentencing. As set forth below, we conclude that the trial court erred in relying on the probation report, and we will reverse the order denying resentencing. BACKGROUND After defendant filed his petition for recall of sentence, the trial court ordered a hearing on the issue of “whether [defendant] meets the minimum requirements for resentencing or is excluded under section 1170.126, subdivision (e)(2) due to the possibility that he was armed with a deadly weapon during the commission of the newly