In determining eligibility for Proposition 36 resentencing, a trial court may rely on facts underlying a dismissed count so long as those facts also underlie a count of conviction. In 1996, Estrada pleaded guilty to grand theft from the person (Pen. Code, § 487, subd. (c)) and admitted prior serious felonies. The prosecution dismissed other charges as well as a gun use allegation (Pen. Code, § 12022.5, subd. (a)) related to the count of conviction. He received a Three Strikes life sentence. After the Three Strikes Reform Act passed, Estrada petitioned for resentencing. The trial court found him ineligible for relief because the preliminary hearing transcript revealed he was armed during the commission of the offense. (See Pen. Code, §§ 1170.126, subd. (e)(2), 1170.12, subd. (c)(2)(C)(iii).) The Court of Appeal affirmed and the California Supreme Court granted review. Held: Affirmed. Proposition 36 amended the Penal Code to reserve a Three Strikes life sentence for defendants whose current offense is serious or violent, unless an exception applies. For defendants sentenced under the previous scheme, it establishes procedures for defendants to seek resentencing (Pen. Code, § 1170.126) if their current offense is not serious or violent, and they did not commit certain offenses, or engage in disqualifying conduct, like being armed during the commission of the current offense. In assessing a defendant’s eligibility for relief, a court is not limited to considering only facts encompassed by the prior judgment, but may consider facts connected to dismissed counts so long as those facts also underlie a count to which the defendant pleaded guilty. This conclusion implements the distinction in Proposition 36 between violent and nonviolent offenders. Because the record showed that Estrada was armed during the commission of the offense, the trial court properly denied resentencing. [Editor’s Note: The court disapproved People v. Berry (2015) 235 Cal.App.4th 1417 to the extent it held “that a court is precluded from considering facts demonstrating that an inmate was armed during a third-strike offense, simply because those facts also support a count the court dismissed.”]

Basing ineligibility for resentencing on facts underlying dismissed counts does not violate due process by denying petitioner the benefit of his plea agreement. Due process requires that both parties abide by the terms of a plea agreement. However, the promises that must be kept are only those the agreement indicates. A court reviewing a Proposition 36 recall petition may consider facts underlying a dismissed count when nothing in the inmate’s plea discusses the effect of those facts. In Estrada’s case, the legal effect of the facts associated with his use of a gun during the commission of the offense was not part of the plea agreement and the court was not precluded from considering such facts.

Because petitioner did not challenge the trial court’s reliance on the preliminary hearing transcript to find him ineligible for resentencing, there was no error with respect to the court’s finding that he was armed during the commission of the current offense. The court expressed no opinion as to whether Estrada could have raised a valid hearsay or other evidentiary objection to the trial court’s use of the preliminary hearing transcript. Further, it did not consider what sources a trial court may consider when making a Proposition 36 eligibility determination.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S232114.PDF