Opinion
C084550
12-04-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID CASAS PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 95F08311)
Defendant David Casas Perez appeals from the trial court's postjudgment order denying his request for recall of sentence after finding him ineligible for relief under the Three Strikes Reform Act of 2012 (Proposition 36). (Pen. Code, § 1170.126, added by Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012).) Defendant's appeal is limited to the determination on one of his convictions for a violation of section 273d. He argues the trial court's judicial fact finding as to his eligibility for this conviction "deprived him both of his right to a determination of those facts beyond a reasonable doubt and his right to a jury determination of those facts, secured by both the United States Constitution and the Reform Act [Proposition 36]."
Undesignated statutory references are to the Penal Code. --------
We affirm the trial court's order.
BACKGROUND
In 1996 a jury found defendant guilty of five counts of assault with a deadly weapon (§ 245, subd. (a)(2)); three counts of infliction of corporal injury on a child resulting in a traumatic condition (§ 273d); two counts of felon in possession of a firearm (former § 12021, subd. (a)); and single counts of: firing a gun at an occupied vehicle (§ 246), firing a gun in a grossly negligent manner (§ 246.3), and corporal injury to a spouse or a cohabitant (§ 273.5, subd. (a)). The following enhancements were also found true: five personal use of a firearm allegations (§ 12022.5, subd. (a)), one use of a deadly weapon (§ 12022, subd. (b)), two prior felony convictions (§ 667, subd. (a)), two prior prison terms (§ 667.5, subd. (b)), and one felony conviction within the meaning of sections 273.55 and 273.56. It was further determined defendant had two prior convictions for purposes of the three strikes law. The trial court sentenced defendant to eight consecutive third-strike sentences of 25 years to life, plus enhancements of 31 years, with execution of sentence on the remaining counts stayed pursuant to section 654. Defendant appealed, and his judgment was affirmed by this court. (People v. Perez (Nov. 13, 1997, C024554) [nonpub. opn.].)
Thereafter, defendant's initial request to recall his sentence pursuant to Proposition 36 was denied on the basis that his seven serious felony convictions disqualified him from relief. Defendant appealed, and in another nonpublished opinion (People v. Perez (Jan. 5, 2016, C077127)), this court partially reversed the trial court's order because of an intervening decision of the California Supreme Court, which recognized "an inmate is eligible for resentencing with respect to a current offense that is neither serious nor violent despite the presence of another current offense that is serious or violent." (People v. Johnson (2015) 61 Cal.4th 674, 695.)
On remand, the trial court evaluated defendant's eligibility for recall of sentence and resentencing pursuant to section 1170.126 with regard to his "convictions for corporal injury to a child, felon in possession of a firearm, negligent discharge of a firearm, and corporal injury to a spouse or cohabitant, as well as whether defendant would pose an unreasonable risk of danger to public safety if eligible and resentenced and any actual resentencing that might take place if defendant is eligible and not an unreasonable risk on any of these counts."
The trial court issued a tentative determination finding defendant ineligible for relief. In pertinent part, it concluded: "From the Third District's summary and pages 16 and 17 of the reporter's transcript of the preliminary hearing, it appears to be beyond a reasonable doubt that defendant, during the commission of the Penal Code § 273d corporal injury to child victim [C.W.], was armed with a firearm. Further, because he actually used a bottle as a deadly weapon on the head of a five-month-old infant, it appears to be beyond a reasonable doubt that he was armed with a deadly weapon during the commission of the Penal Code § 273d corporal injury to child victim [C.W.]. And, further, because it was the baby's head that he hit with a bottle, it appears to be beyond a reasonable doubt that he intended to cause great bodily injury to the baby during the commission of the Penal Code § 273d corporal injury to child victim [C.W.]. As such, it appears that defendant Perez is ineligible for Penal Code § 1170.126 recall of sentence and sentencing on Count 8." The tentative ruling directed the parties to brief the eligibility determination.
Thereafter, the trial court issued an order affirming its earlier tentative determination, stating in pertinent part that "Count 8, corporal injury to a child [C.W.] in violation of Section 273(d) was based on evidence introduced at trial that defendant struck a 5-month-old infant in the head with a bottle, which supports a conclusion that Defendant (1) used the bottle as a deadly weapon and (2) intended to cause great bodily injury to the infant." Defendant timely appealed.
DISCUSSION
I
Defendant argues the trial court's judicial fact finding concerning his eligibility for the specified section 273d conviction "deprived him both of his right to a determination of those facts beyond a reasonable doubt and his right to a jury determination of those facts, secured by both the United States Constitution and the Reform Act [Proposition 36]."
The Supreme Court's recent decision in People v. Perez (2018) 4 Cal.5th 1055 (Perez) is instructive. In Perez, the high court "consider[ed] the nature of the inquiry that trial courts and Courts of Appeal should apply when determining whether a defendant is ineligible to be resentenced on the ground that he or she was armed with a deadly weapon during the commission of his or her current offense." (Id. at p. 1059.) It held in pertinent part that: (1) "Proposition 36 permits a trial court to find a defendant was armed with a deadly weapon and is therefore ineligible for resentencing only if the prosecutor proves this basis for ineligibility beyond a reasonable doubt[;]" and (2) "the trial court's eligibility determination may rely on facts not found by a jury; such reliance does not violate the right to a jury trial under the Sixth Amendment to the United States Constitution." (Perez, at p. 1059.)
Here, defendant's claim that the trial court applied the wrong standard of proof is belied by the record. The tentative ruling affirmatively demonstrates the trial court found facts pertaining to its decision on the specified section 273d corporal injury to infant victim, C.W., beyond a reasonable doubt, the standard employed by Perez. (Perez, supra, 4 Cal.5th at p. 1059.) Nothing in the ultimate order adopting that tentative ruling altered these findings, and thus, we see nothing in the record demonstrating the trial court applied the incorrect standard.
Further, the trial court's judicial fact-finding did not deprive him of his right to a jury trial on this issue. Perez rejected the notion that "that the Sixth Amendment to the United States Constitution prohibits a trial court from determining that an inmate is ineligible for resentencing based on a fact not found by a jury beyond a reasonable doubt." (Perez, supra, 4 Cal.5th at p. 1063.) "[T]he Sixth Amendment does not prohibit trial courts from relying on facts not found by a jury in determining the applicability of Proposition 36's resentencing ineligibility criteria. [Citations.]" (Perez, at p. 1064.) Nothing in defendant's authorities demonstrates the statutory structure of Proposition 36 supports a contrary finding. (See, e.g., People v. Estrada (2017) 3 Cal.5th 661, 668, 672, 676 [rejecting a claim that the statutory structure of Prop. 36 limits court to consideration of facts encompassed only within the judgment of conviction].)
II
At oral argument defendant's counsel sought to change his argument on appeal from the theory rejected above to what he called a "backup issue," viz.: even assuming application of the proper standard, there was insufficient evidence to support the court's finding that he intended to cause great bodily injury to the baby during the commission of the § 273d corporal injury to child victim. Our response is simple: " 'We do not consider arguments that are raised for the first time at oral argument.' " (Rosen v. St. Joseph Hospital of Orange County (2011) 193 Cal.App.4th 453, 464, fn. 4.) There are exceptions, but not where the argument is as involved and reliant on a dissection of the appellate court record as defendant's newly crystallized rationale.
DISPOSITION
The trial court's order is affirmed.
RAYE, P. J. We concur: MURRAY, J. DUARTE, J.