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Name: People v. Berry
Case #: G049483
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 04/17/2015

A dismissed firearm count was improperly considered to determine that inmate was ineligible for resentencing under Penal Code section 1170.126 (Prop. 36). Berry was sentenced in 2000 to a Three Strikes life term following his guilty plea to possessing a fraudulent check and a forged driver’s license. Seven other counts were dismissed at the time of his plea, including some alleging he unlawfully possessed a firearm. Berry’s subsequent petition for resentencing under section 1170.126 was dismissed based on a finding he was ineligible because he was armed with a firearm during the offenses to which he pled guilty. On appeal, Berry claimed that because the counts alleging he was in possession of a firearm were dismissed, they should not have disqualified him from resentencing eligibility. Held: Reversed. Under section 1170.126, subdivision (e), the initial determination of an inmate’s eligibility for recall of his sentence must be based upon the convictions for which the inmate is serving time, the offenses for which sentence was imposed, and the inmate’s prior convictions. These things cannot be established by referring to evidence underlying dismissed counts. While the trial court’s arming analysis may have been appropriate in a case where the defendant was convicted of possessing a firearm, “it was not appropriate here, where all allegations involving firearm possession were dismissed as part of defendant’s plea agreement.” As a result, the trial court erred when it relied on the evidence underlying the dismissed counts in assessing Berry’s eligibility for resentencing. The case was remanded so the trial court can determine whether Berry would pose an unreasonable risk of danger to public safety if resentenced.