People v. Frierson

Filed 8/5/16 (unmodified opn. attached) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B260774

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA043389) v. ORDER MODIFYING OPINION JAMES BELTON FRIERSON, AND DENYING REHEARING

Defendant and Appellant. [NO CHANGE IN JUDGMENT]

THE COURT*:

It is ordered that the published opinion, filed July 20, 2016, be modified as follows:

1. In the fourth line of the first paragraph of the Discussion section, the code section subdivision citation is changed from “(e)(2)(C)(ii)” to “(e)(2)(C)(iii)”;

2. The Roman Numeral “I” is inserted between the first and second paragraph of the Discussion portion of the opinion;

3. In the second paragraph of the Discussion section following the citation to People v. Guerrero, insert “(Guerrero)”;

4. After the first paragraph of section I of the Discussion section, insert the following: Citing Guerrero and other cases, defendant argues that in ruling on a motion for resentencing under Proposition 36, the trial court is limited to a determination of “the narrow issue of whether the conviction was for qualifying conduct,” and that in ruling on the motion the trial court is not permitted “to simply review a transcript and, based on testimony, find the fact.” Instead, defendant argues, “to determine whether a conviction encompasses relevant conduct, the court inquiry is limited to identifying ‘the basis of the crime of which defendant was convicted.’” (Citing People v. McGee (2006) 38 Cal.4th 682, 691.) He argues, essentially, that the trial court must restrict its decision to those facts and circumstances necessarily decided in the underlying conviction. We do not agree that the trial court is so restricted. Guerrero itself involved a determination that went beyond what necessarily had been decided in the prior conviction. The issue in that case was whether a prior conviction qualified as a “serious felony” under the residential burglary provisions of Sections 667 and 1192.7, subd. (c), since the burglary statute in force when that crime was committed did not differentiate between residential and other burglary. (Guerrero, at p. 346.) A previous decision, People v. Alfaro (1986) 42 Cal.3d 627, had held the trial court could not decide that issue because the residential character of the burglary was not an element of the underlying crime. Overruling Alfaro on this issue, the Supreme Court held that in deciding whether the prior burglary was of a residence, the court could “look to the record of the conviction—but no further” in making its decision. (Guerrero, at p. 355.) Later decisions clarified that the “record of conviction” did not extend to such matters as the defendant’s post-conviction admission to a probation officer