Three-Strike Resentencing Ordered

A Monterey man charged with possession of a firearm for his third felony is eligible for resentencing, California’s Sixth District Court of Appeals ruled last week.

On April 23, 2010, the state charged William L. Burnes, Jr. with possession of a firearm by a felon and several related crimes. A probation report showed that Burnes had been armed with a firearm while committing these crimes. This was Burnes’ third strike, in a state that allows judges to sentence any third-time felony offender to a 25-year-to-life prison sentence. In April 2011, the trial court sentenced Burnes to 30 years to life.

Prop. 36, which California voters approved on November 6, 2012, reformed California’s three strikes law. Under the prior law, any third time felony subjected a person to an indeterminate life sentence.

Prop. 36 lessened the blow by reserving life sentences only for people whose third felonies were “serious or violent.” Prop. 36 also allows qualified, three-time felons to be resentenced.

Presiding Justice Conrad L. Rushing stated that Burnes would have been disqualified from resentencing if, during his third felony, he had used a firearm, was armed with one, or meant someone great bodily harm. The probation report was the only evidence that Burnes had been armed with a firearm, rather than just in possession of one. Rushing found the probation report inadmissible on hearsay grounds, and said the lower court had been wrong to consider it.

“A defendant’s ‘mere possession’ of a firearm or deadly weapon does not establish that the defendant was armed with the firearm or deadly weapon,” Rushing wrote, adding that Burnes was armed only if he had the firearm “available for offensive or defensive use.”

If the probation report had been admissible, the appeals court noted, the trial court would not have denied resentencing in error. But since it could not be admitted and there was no other proof that Burnes had been “armed,” the appeals court reversed the lower court’s decision, sending it back to the trial judge for a new ruling.

Rushing was joined by Judges Miguel Márquez and Adrienne M. Grover.

Case: People v. Burnes, No. H040102