Trial court properly found defendant ineligible for Proposition 36 resentencing based on preliminary hearing testimony showing that defendant used a gun in the commission of a grand theft. In 1995, defendant was charged with four counts of robbery and other offenses, gun use, and two strike priors. He pleaded guilty to one count of grand theft person and admitted two strike priors. He received a life Three Strikes sentence. In November 2012, defendant filed a Proposition 36 petition for resentencing. He claimed that Proposition 36 requires a court to make an eligibility determination based only on the counts of conviction (in his case the grand theft conviction, which is not a strike offense) and any enhancements found true, and that any disqualifying factor must be pled and proved. The trial court reviewed the preliminary hearing transcript, and found that Estrada was armed with a gun during the offense and was thus disqualified from resentencing (Pen. Code, § 1170.126, subd. (e)(2)). Defendant appealed. Held: Affirmed. The Three Strikes Reform Act of 2012 amended the Three Strikes law so that a defendant with two or more strike priors is subject to a life sentence only if the current felony is serious or violent, or the prosecution pleads and proves a disqualifying factor. It created a postconviction proceeding whereby a qualified defendant serving a life Three Strikes sentence may petition the trial court for resentencing. In determining a defendant’s eligibility for resentencing the trial court may examine admissible, reliable portions of the record of conviction to determine if there are disqualifying factors (Pen. Code, § 1170.126, subd. (e)(2)). The preliminary hearing transcript is part of the record of conviction. In this case, the transcript reflected that Estrada used a gun during the offense. The trial court properly relied upon the transcript in denying the petition.
The disqualifying factors need not be pled and proved. The statutory language requires the court to make a factual determination regarding eligibility for resentencing that is not limited to a review of the statutory offenses and enhancements for which the defendant’s sentence was imposed. Further disqualifying factors need not be pled and proved.