Trial court erred by denying defendant’s Proposition 36 petition after relying solely on inadmissible and unreliable evidence in the probation report to find he was armed during the commission of the offenses. In July 2010 Burnes pleaded no contest to numerous offenses and admitted two strike priors and five prior prison terms. He received a life Three Strikes sentence. In January 2013 Burnes filed a Proposition 36 petition for resentencing (Pen. Code, § 1170.126). The trial court denied the petition after finding that Burnes was armed with a deadly weapon during the commission of the commitment offenses. (See Pen. Code § 1170.126, subd. (e)(2).) To make this finding, the trial court relied on the probation report, which quoted portions of a police report. Burnes appealed. Held: Reversed. The Three Strikes Reform Act of 2012 changed the requirements for imposing a life Three Strikes sentence by limiting it to cases where the current crime is a serious or violent felony or the prosecution pleads and proves a disqualifying factor. It also created a postconviction procedure whereby a qualified defendant may petition the trial court for resentencing. An inmate is disqualified from resentencing if he was armed during the commission of the offense (Pen. Code, § 1170.126, subd. (e)(2)). However, mere possession of a firearm does not mean a defendant was armed during the offense; the gun must be available for offensive or defensive use. A trial court determining a defendant’s eligibility for resentencing may examine admissible, reliable portions of the record of conviction to determine if there are disqualifying factors. A probation report is not part of the record of conviction. The trial court therefore erred in relying on the probation report to deny Burnes’ petition for resentencing.
Even if the probation report was part of the record of conviction, the trial court erred in relying on unreliable facts described in that document. The probation report was neither reliable nor admissible. The portions of the report that describe the “facts” of the offense were taken from a police report and are therefore at least double hearsay. Nothing in the probation report established the reliability of these “facts.” The police report was not attached to the probation report; it was unclear whether the police report was being quoted or paraphrased, or whether it included all of the facts from the police report; the date and author of the police report were not provided; and it was unclear whether the police report was a first-hand account of the “facts” or was based on hearsay.