PEOPLE v. PEREZ

Appellant’s Answer Brief on the Merits

Cal.April 14, 2017

In the Supreme Count of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Appellant, Case No. 5238354 SUPREME COURT v. FILED ALFREDO PEREZ,JR., APR 14 2017 Defendant and Respondent. Jorge Navarrete Clerk Fifth Appellate District, Case No. F069020 Deputy Fresno County Superior Court, Case No. CF94509578 The Honorable Jonathan Conklin, Judge APPELLANT’S ANSWERBRIEF ON THE MERITS LISA A. SMITTCAMP Fresno County District Attorney TRACI FRITZLER Chief Deputy District Attorney DOUGLASO. TREISMAN Senior Deputy District Attorney State Bar No. 131986 3333 E. American Ave., Ste. F Fresno, CA 93725 Telephone: (559) 600-4923 FAX: (559) 600-4900 E-mail: dtreisman@co.fresno.ca.us Attorneysfor Plaintiffand Appellant In the Supreme Count of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Appellant, Case No. $238354 Vv. ALFREDO PEREZ, JR., Defendant and Respondent. Fifth Appellate District, Case No. F069020 Fresno County Superior Court, Case No. CF94509578 The Honorable Jonathan Conklin, Judge APPELLANT’S ANSWER BRIEF ON THE MERITS LisA A. SMITTCAMP Fresno County District Attorney TRACI FRITZLER Chief Deputy District Attorney DOUGLASO. TREISMAN Senior Deputy District Attorney State Bar No. 131986 3333 E. American Ave., Ste. F Fresno, CA 93725 Telephone: (559) 600-4923 FAX: (559) 600-4900 E-mail: dtreisman@co.fresno.ca.us Attorneysfor Plaintiffand Appellant TABLE OF CONTENTS Page TSSUES PLESENLE™ce esecseseeeeteseseseessecseceseesesecsevseseeecsesseessecsessecteteaeerseses 8 Introduction ooo... eceeccsesssseeeeccsseceseeseeseesseesscseecsseeseceseeesessesvansstesssersepnaters 8 Statement Of the CaS@oscecessecsecssessessersesscsaecseesecsecesssssesaecssseeasceseeeses 1] SumMAry Of ATYUMENeee eecesecseecssessscesessesecseessscsecsseaucrsvsseeseesarens 13 ATQUMEML 0... cc ecessectesecteceereeeneeenecesecseesaessessessssssssecsaesasersesessecsteaessasensenass 15 I, Specific intent is not an elementof or prerequisite for a finding of arming or use of a deadly weapon..........cee 15 A. Specific intent is not an element in arming or use of a vehicle aS @ WEAPON. ......cccccccseessessserseveeeees 16 B. The jury verdict and those findings necessary to the verdict along with the undisputed record of conviction establish that the defendant used and was armed with a deadly weapon when he committed a felony assault using an SUV.......0000.. 26 II. Undereither an abuse of discretion or an independent standard of review of a section 1170.126 eligibility determination, the majority reached the correctresult. ....... 36 A. The correct standard of review for an eligibility determination is the usual standard applied to mixed questions of law and fact that are predominantly record based and predominantly questions of law; independent, de novoreview........ 37 B. The trial court abusedits discretion by rejecting Jury findings and by applying an incorrect interpretation Of proposition 36. .......cccsesseeeseeeee 44 II. A defendantis not entitled to a jury trial in a proposition 36 eligibility proceeding... ccceesesceeeenees 46 CONCLUSION... eeeeeseseeesteeeeeeseeseaeesaeevuesseesesseessseceuesssessseecausesteatvssevsenneenen 50 Certificate Of COMp]iANCe oo... ecessesessecsseessecsseeesseeeseeesessseasescsevstesseeenarens 51 TABLE OF AUTHORITIES Page CASES Almendarez-Torres v. United States (1998) 523 U.S. 224 oceeeccesessecssesecnesssesesseceesesesecsecesesstecesecauesensents 42 Apprendi v. New Jersey (2000) 530 U.S. 466 ooo. eecesectecseceeeseeecsecsssessessecscesesessasstssesassucssessecnes 42 Dillon v. United States (2010) 560 U.S. 817 veeeenessesetseesesetsstesssesssesesssesessesseeessscseseuseneeas 49 In re Anthony M. (2007) 156 Cal.App.4th 1010 oo... eeceeseeseseesessecsscceecseessssessrseseceessnes 46 In re D.T. (2015) 237 Cal.App.4th 693 oo... ccccssscscsssssescssesecsecssenecevsessessssrssesensenes 25 In re Rayan D. (2002) 100 Cal.App.4th 854 ooo. cccssesessssessessecsssescssscsessecsecsersesenevans 39 Moon v. Superior Court (2005) 134 Cal.App.4th 1521 o.ccccccccscsssssssesscssesscsesseescsecsesscnsesseesscnes 32 People v. Aguilar (1997) 16 Cal.4th 1023 oeccceccccsseceessessssessseseesessessesscsesessesanenses 21, 22 People v. Aznavoleh (2012) 210 Cal.App.4th 1181 ooo ccssecsecssesscssessessessessessecnenes 19, 25 People v. Banuelos (2005) 130 Cal.App.4th 601 oo. cecseceessetectscesessectessssssssscsecnesnevenses 15 People v. Barns (1986) 42 Cal.3d 284 oieecceseescssceesnectesseesseessessessessessesaecsesaressuesags 39 People v. Blake (2004) 117 CalApp.4th 543 oicccecsssectssssssscsssesssecsessessrecsessesessres 37 TABLE OF AUTHORITIES (continued) Page People v. Bradford (2014) 227 Cal.App.4th 1322oeccesessesscsseseneestesensetseeseseseensens passim People v. Burton (2006) 143 Cal.App.4th 447 ooo. cccccccsessssseseecssecssescecsrsssrsssscssneesanens 18 People v. Colantuono (1994) 7 Cal.4th 206oecccsesscsecsccsssessssesssessesessecsssesessesseseesssssetsrserens 16 People v. Eubanks (1996) 14 Cal.4th 580occccceeescsscssstsctecsssessssseessscrssessesseceseerenitens 46 People v. Graham (1969) 71 Cal.2d 303 oceeeescssessesssscsesseseesesesesessescsetasssessesssenees 21,22 People v. Guerrero (1988) 44 Cal.3d 343 oeccesesssseesssecseseesessessessecsecsssecsceaccarsascssesevanes 40 People v. Guilford (2014) 228 CalApp.4th 651 ooeeceecsensesseeesssssesessesesesessecseens 37,39 People v. Haykel (2002) 96 Cal.App.4th 146 oo... ccessssssesessessecsecsesesessesseesesssseeserensees 15 People v. Hicks (2014) 231 CalApp.4th 275 oo ccccccsessssssesscesscrssserecssesssessessesscentens 37 People v. Holt (1997) 15 Cal.4th 619iccecsccsesssssessesscssscssscsscseseseesseceecsevsesseeens 26 People v. Kelii (1999) 21 Cal.4th 452cccccsseeseesesecsessesseessseesessseesseeseeeeess 35, 41, 43 People v. Maciel (2013) 57 Cal.4th 482occccccseesecseeesesssessseeeecssesesseeeeseecseesseseeeeens 37 People v. McGee (2006) 38 Cal4th 682 00... ecescescscsscesseessnseeceeessecessesseessesteesenaes passim TABLE OF AUTHORITIES (continued) Page People v. Neely (1999) 70 Cal.App.4th 767 oo... cccccecscessessecssscsseessseeseesssesssecseesseecseees 46 People v. Newman (2016) 2 CalApp.Sth 718, 721 oc cccccsccsecsessesccsssssesescssesssessesseseesesves 32 People v. Oehmigen (2014) 232 Cal.App.4th | oo cecccsecsecsteceetsessecesessseecessseecnstevsees passim People v. Perez (2016) 3 CalApp.Sth 812 oo. cccccccccsesscsecsscessstsesseerscsssesseecssssensees passim People v. Raleigh (1932) 128 Cal.App. 105 vce cccccsessssssssscsserscsscsecseseesseeesereees 22, 23, 24 People v. Ray (1975) 14 Cal.3d 20 ooeeccsscsccsssessnscsecseessecssssecsesecsescceressesesesereseaeens 21 People v. Reed (1996) 13 Cal.4th 207occceesssesseessressssesesesssssssessssesseseesanecneees 4] People v. Russell (2005) 129 Cal.App.4th 776 ...cccccccccccssseessesssessesccsesessesevsesesesnessevssseneras 29 People v. Smith (1997) 57 Cal.App.4th 1470icccesccssssssssessccsetssssecsseseseesessessesneesas 19 People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737 oo ccecceeceessstcssescssesssessessssseccreeeceeseseersesess 45, 46 People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 oo. ccccccccccsscccescsscsscsscsesessserseesensesseeesens 48 People v. Wiley (1995) 9 Cal 4th 580 ooeecceesscsecseeesseeeceesasecsesseeeeecenseessteeseeeensees 4} People v. Williams (1990) 222 Cal.App.3d 911 oecsesseescsecsssessesssssseecesesneesseeesseensesens 35 TABLE OF AUTHORITIES (continued) Page People v. Williams (2001) 26 Cal.4th 779 voceeccsescssscsscseccevsstcuseeeeesteeeceseceuueeueseeseas 17, 19 People v. Woodell (1998) 17 Cal.4th 448 oooieccsssseccssssssessecesssssereettssseetess 40, 42, 44 People v. Wright (2002) 100 Cal.App.4th 703 oo... .ccesscccssscssssssssssssssecssversseeesnseeeneens 16, 18 People v. Yearwood (2013) 213 Cal.App.4th 161cececcccessccsscssssscsresssccsescesevecsserssesesseeaes 9 Trope v. Katz (1995) 11 Cal.4th 274 ooo ccccccsccccessesccsssscsssesaeessevesesseeetesenauessuseress 32 Williams v. Superior Court (2001) 92 Cal.App.4th 612 oc ccccccccccssessscsscssssecssssssccsssersseesseerevasveess 15 STATUTES Penal Code 2 e22 § 24S iiccssssssssssececusccccesssssseessssceccsessetecevsvuecerstseseeeersietertreestrttsusecceuneescs 8 § O67 oo ieeeceecscceeeeesserssevsesseesesseeesesesecssesseesssucseessucsausneeesssusuressaees passim § 667.5 cecccscsccccsssseeeecessssessssscecsesevecsvesstseceenseessseseseuateeserseeeenttevensacs 8,31 SLL TOD eeeceeeesecnereneesesessseessaeecsessessssesesseeseessseesesssereperenees passim § 1170126cee ceeneeseeeeseseeseeessesessaesessessssessseesessesseeseesstenessesiees passim F197 eecccneccceeccessccesseccssssccsceececaueveusenueversstaseserteverenas 10, 31, 35 Three Strikes Reform Act .....cccicccecccccccccccccesssscecetcusececeeseeseeeseuseesseesss 9,39 CONSTITUTIONAL PROVISIONS United States Constitution Sixth Amendment.........cccccccccsssssssssseveccceceseesscccseceesevsvsssesseceeeseesesevseseenes 49 Fourteenth Amendment............ ccc ec cc ccsescesccccscevecsececceceeccuuuccsccsuuaveneesenss 49 TABLE OF AUTHORITIES (continued) Page OTHER AUTHORITIES CALCRIM NO. 875 viccecccccccessssssssssceeeenescesesescescccesesesseueesescenssseuseeeseseeeusesenass 21, 28, 30 NO. 3130 ceecccccccccsssssssevesssneccsserssecececeeeesseeceseenseseseceseesseess 21, 27, 28, 30 CALJIC No. 9.00 (1994 rev.) ..cccccccsecccesssseesssseeneseesseeeves 16, 24, 26, 27, 28, 29, 35 NO. 9.01 coecceccccccccccccccccececseeseesseseecececcescececesuenestnsintttrstunenteesrereeas 26, 27, 35 NO. 9.02 ....cccceccesssccsscssccsssscesesssecssecccessecesntseseecesseaceuseeecerseveeersars 26, 27, 35 ISSUES PRESENTED Respondent(hereinafter “Perez”’) sought review by this Court of the Opinionissued by the Fifth District Court of Appeal, People v. Perez (2016) 3 Cal.App.5th 812. On January 11, 2017, this Court granted review. The following are the issues Appellant (hereinafter “the People”) believes have been raised by Perez and answers herein: 1. Specific intent is not an elementofor prerequisite for a finding of armingor use of a dangerous or deadly weapon in the commission of an assault by meansofforce likely to inflict great bodily injury. 2. Under either an independent or deferential standard of review the majority opinion reached the correct result in concluding that the record of conviction shows Perez wasineligible for resentencing under section 1170.126. 3. The determinations involved in a review ofthe record of conviction to asses eligibility under section 1170.126is a limited inquiry that does not involve independent determination of disputed issues of fact relating to a defendant’s prior conduct. 4. In concluding that Perez is ineligible for resentencing under section 1170.126 the majority opinion did not violate the Sixth or Fourteenth Amendmentrights of Perez. INTRODUCTION The following summary is quoted from the majority’s published opinion. “Alfredo Perez, Jr., (defendant) was convicted by jury [in Fresno Superior Court case number F509578-1] of assault with force likely to produce great bodily harm, a violation of Penal Code section 245, former subdivision (a)(1).' The jury further foundhe suffered two prior strike convictions (§ 667, subds. (b)-(i)) and served twoprior prison terms (§ 667.5, subd. (b)). On May 4, 1995, he was sentencedto a total of two ' All statutory references are to the Penal Code unless otherwisestated. years plus 25 yearsto life in prison.” (People v. Perez (2016) 3 Cal.App.5th 812, 815.) In 2012, the Three Strikes Reform Act (hereafter the Act) created a postconviction release proceeding for third strike offenders serving indeterminate life sentences for nonserious and nonviolent felonies. An inmate who meets thecriteria enumerated in section 1170.126, subdivision (e), is to be resentenced as a secondstrike offender unless the court determines such resentencing would pose an unreasonable risk of dangerto public safety. (§ 1170.126, subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168.) Defendant’s conviction was for a crime that was neither a serious nor a violent felony.’ (People v. Perez, supra, 3 Cal.App.5th 812, 816.) An inmateis ineligible for resentencing under the Act, however,if his or her current sentenceis ‘for any of the offenses appearing in clauses(i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) ofparagraph (2) of subdivision (c) of section 1170.12.’ (§ 1170.126, subd. (e)(2).) Thus, an inmate is disqualified from resentencingif, inter alia, ‘during the commission of the current offense, he or she... was armed with a... deadly weapon[.]’ (§§ 667, subd. (e)(2)(C)ii), 1170.12, subd. (c)(2)(C)(iii).) (People v. Perez, supra, 3 Cal.App.Sth at p. 816.) After the Act went into effect, defendant filed a petition for recall of sentence and request for resentencing under the Act. The People opposed the petition on the ground,interalia, defendant was armed with (and actually used) a deadly weapon * This determination is on the face ofthe charge alone. The determination of whether a defendant was armed with a dangerous or deadly weapon or used a dangerous or deadly weaponin the commission of the offense can alter the designation andstatutorily qualify an offense as serious or violent or disqualify a petitioner from eligibility for resentencing under the Act. (See People v. McGee (2006) 38 Cal.4th 682; People v. Oehmigen (2014) 232 Cal.App.4th 1.) during the commission ofhis offense.’ Following a hearing, the trial court found defendant eligible for resentencing, and that resentencing defendant would not pose an unreasonablerisk of dangerto public safety. The court granted the petition and resentenced defendant as a secondstrike offender. (People v. Perez, supra, 3 Cal.App.Sth at p. 816.) The People timely appealed, and a divided court issued a majority, concurring, and a dissenting opinion. The majority held that, “an inmate is armed with a deadly weapon within the meaningof clause(iii) of subparagraph (C) of paragraph (2) of subdivision (e) of section 667 and clause (iil) of subparagraph (C) of paragraph (2) of subdivision (c) of section 1170.12 (hereafter referred to collectively as “clause (iii)”) when he or she personally andintentionally uses a vehicle in a mannerlikely to producegreat bodily injury.” (People v. Perez, supra, 3 Cal.App.5th at p. 816.) The majority concludedthat, “[o]n the evidence foundin the record of conviction, defendant used a vehicle as a deadly weapon. Heis, therefore, ineligible for resentencing pursuant to section 1170.126, subdivision (e)(2).” Cd.) The majority, therefore, “reverse[d] the trial court’s order granting defendant’s petition.” (People v. Perez, supra, 3 Cal.App.5th at p. 816.) > The People’s appeal contendedthat petitioner was ineligible for relief undersection 1170.126 because his use of a vehicle as the sole means of an assault by meansofforce likely to cause great bodily injury disqualified him because Perez was “‘armed with a... deadly weapon’ within the meaning of clause (iii), Accordingly, defendant is ineligible for resentencing pursuantto section 1170.126, subdivision (e)(2).” The People also argued that Perez “personally used a dangerous or deadly weapon” within the meaning of section 1192.7, subdivision (c)(23), so as to render him ineligible pursuant to section 1170.126, subdivision (e)(1).” This theory was not reached by the Court of Appeal. (People v. Perez, supra, 3 Cal.App.5th at p. 821, FN7.) 10 STATEMENT OF THE CASE‘ On March 17, 1994, at approximately 2 p.m., Fred Sanchez was workingasa sales clerk at Grand Auto in Fresno. He observed [defendant] and a man, who hereinafter will be referred to as the ‘passenger,’ enter the store. The passenger raised a Club, an auto anti-car theft device, a couple offeet abovethe aisle and then lowered it. The passenger was wearing a Pendleton wool-type jacket and had his back to Sanchez. [Defendant] spokebriefly to the passenger and then wentup to Sanchez and spoke to him about sometires. While this conversation was taking place, the passengerleft the store. Sanchez could see the passengergo outinto the parkinglot of the store and wait at the passenger side of a Blazer-type truck. [Defendant] wentto the driver’s side and drove away. Sanchez suspected that the passenger had stolen the Club from the store and [defendant] had attempted to divert his attention away from the theft. However, he did notcall the police over the incident nor did he check the store inventory to determine if any items were missing. The next day, March 18, 1994, around noon, Sanchez saw the same passenger from the day before enter the store. He was wearing the same jacket, even though the day was‘incredibly’ hot. He appeared nervous and kept turning his back toward Sanchez. Sanchez asked the passengerif he neededassistance and then followed the passengeroutofthe rear ofthe store after alerting the other store employee that he needed assistance. He heard rustling in the passenger’s clothing. The passenger had not paid for any item from thestore. The passenger entered the passengerside of the same Blazer as the day before. The passenger side window wasrolled down. Sanchez was wearing a red smockshirt with the insignia of Grand Auto and his name tag. The passenger wasin the Blazer less than a minute when Sanchez cameupto its window. [Defendant] wasthe driver. Sanchez observed a bulge protruding from the passenger’s clothing. Sanchez told the passengerto please give the merchandise back and he could leave. Sanchez then reachedinto the vehicle and grabbed atthe * The Statement of The Caseis taken from the Fifth District Court of Appeal opinion. (People v. Perez, supra, 3 Cal.App.Sth at pp. 817-819.) 1] package in the passenger’s jacket. Sanchez identified the package as an Ultra Club which hada retail value of $59.55. Sanchez said, ‘Give it up.’ [Defendant] then looked toward Sanchez andsaid, ‘Giveit up.’ [Defendant] then drove the vehicle in reverse. The passenger grabbed Sanchez’s left arm and pushed it down, which prevented Sanchez from pulling his arm out of the vehicle. Sanchez yelled, ‘Stop the vehicle’ three times as the vehicle was moving in reverse. He was dragged whenthe vehicle went into reverse. He hadto run to keephis balance. [Defendant] then drove the vehicle forward. Sanchez was able to pull his arm free once the vehicle moved forward, but he was _afraid if he fell he could be run over. Sanchez estimated the speed of the Blazer to be 20 miles per hour, but admitted that at the preliminary hearing he had testified that the vehicle started at 10 miles per hour and was doing 15 when hepulled his arm free. He estimated the entire incident took a minute, his arm wasin the vehicle after it was put in drive for 15 seconds, andthat the vehicle traveled approximately 50 feet forward. After he broke free, Sanchez saw the vehicle leave the scene. Sanchez never recovered the merchandise from the passenger. Thepolice arrived and Sanchez provided them with a description of the vehicle and the license plate number. The vehicle was registered to [defendant] and his wife. Sanchez’s co-worker, Don Tatum,testified to seeing Sanchez run alongside the truck. He characterized the incident as Sanchez being dragged and‘runningforhislife.) Both Sanchez and Tatum picked out [defendant] from various photographs. [Defendant] testified that he was not in the store on March 17. On that day he had gone with his father to the Sanger cemetery to visit the grave of his grandmother and then wentto the father’s house until 3:30 p.m. His father testified similarly. [Defendant] testified that on March 18, he was looking for a ° The opinion noted that, “[i]n our discussion of one of defendant’s claims on appeal, we expounded that Tatum testified ‘he saw Sanchez running forhis life and was surprised that Sanchez wasable to run that fast.’” (People v. Perez, supra, 3 Cal.App.5th at p. 818, FN3.) 12 Universal Tire store when he met a womanfriend, Elizabeth Ornelas. Ornelas offered [defendant] $5 to give her male acquaintance, Dan,a ride to an auto parts store to get a part to fix her vehicle which had broken down. [Defendant] testified he drove to the Grand Auto store but stayed in his vehicle and the passenger Dan wentinto the store. When Danreturned to the vehicle he was angry with another man. [Defendant] was not aware the man was a store employee. When [defendant] said, ‘Give it up,’ he wastalking to his passenger and meant quit fighting. [Defendant] stated he wasafraid and admitted driving one mile an hourin reverse and two-to-three miles an hourin drive. Hestated at no time did Sanchez have to run. He admitted that Sanchez had his arm in the passenger side of his vehicle when he put his vehicle in reverse and forward. After heleft the parkinglot, he told his passenger to get out and returned the gas moneyto him. [Defendant] admitted telling the investigating officer that the man outside the vehicle was dressed “like you and me.” [Defendant] just wanted to leave. He admitted nottelling the investigating officer about Ornelas and never mentionedto the officer he had a witnessthat the police could contact. [Defendant] admitted he told the investigating officer that his passengerhadtold him to leave since the man outside the vehicle wastrying to rob him. SUMMARY OF ARGUMENT The People maintain that the majority opinion wascorrectin its result and conclusions: The character of an object that is not inherently a weapon, can be transmutedinto a weaponby howitis used in the commission of an offense. In this case, “the evidence found in the record of conviction” and specifically Perez’s willful use of the vehicle, as determined by the jury verdict and undisputed facts, demonstrates that Perez personally and willfully used the vehicle in a mannerlikely to result in great bodily injury and any reasonable person would know that such use would likely result in great bodily injury to the victim. 13 In this case, the vehicle was the sole instrumentality of a felony assault. As such, Perez was armed,in that he had the vehicle available for offense or defense. Contrary to Perez’s assertion, neither the assessment of one’s mannerofuse of an object nor the elements of arming require any finding of specific intent. Second, thetrial court abusedits discretion in making findings that were inconsistent with the jury findings and verdict in case F509578-1. The dissent concludesthat thetrial court’s findings were supported by substantial evidence in the record. (People v. Perez, supra, 3 Cal.App.5th 812, 837, dis. opn. of Franson, J.) However, those findings were inconsistent with the findings and verdict rendered by the jury. The substantial evidence is drawn from an inconsistent reassessment of the same facts consideredbythe jury in reaching its determination. The People maintain that a trial court is bound by the findings of fact explicit and implicit in the jury’s verdict. The People maintain that such a reassessment negates the verdict, is an error of law, and is an abuse ofdiscretion. Finally, Perez is not entitled to a jury trial on matters that do not increase his punishment. However, the undisputed facts of the case demonstrate only one act—driving a vehicle (hereinafter “SUV”)—which was Perez’s sole act and the basis of the conviction for assault by means likely to produce great bodily injury. The jury found Perez’s willful use of the SUV, knowingit would likely result in death or great bodily injury to the victim, was the means and mannerofan assault by meansofforce likely to produce great bodily injury (hereinafter “felony assault”). On these facts, his willful and knowing act (his use of the SUV) cannot be deemed merely “incidental” to the assault without contradicting the jury’s verdict. But for his knowing andwillful act of use of the SUV,a felony assault could not have occurred. 14 ARGUMENT I, SPECIFIC INTENT IS NOT AN ELEMENTOF OR PREREQUISITE FOR A FINDING OF ARMING OR USE OF A DEADLY WEAPON Perez argues that the majority opinion was mistaken. He arguesthat the majority held that “a person convicted of [felony assault] who uses a vehicle in the commission ofthat offense has necessarily used a deadly weapon.” (Respondent’s Opening Brief on the Merits, p. 9, hereinafter, “RB.”’) But that, alone, is not the holding of the majority and does not capture the majority’s reasoning. Rather, the majority’s opinion is wedded to “the evidence foundin the record of conviction”in this case. (People v. Perez, supra, 3 Cal.App.5th at p. 816.) Perez concedesthat, “[t]he Court of Appeal... correctly found... [that] [felony assault] does not automatically disqualify an inmate from resentencing under the Reform Act.” (RB,15, citing People v. Perez, supra, 3 Cal.App.5th at p. 824; see also People v. Haykel (2002) 96 Cal.App.4th 146, 149; Williams v. Superior Court [(2001)] 92 Cal.App.4th 612.) Perez also concedesthat [a felony assault], can becomea serious felony or disqualifying crime undersection 1170.126. (RB,14,citing People v. Banuelos (2005) 130 Cal.App.4th 601, 605.) As a result, Perez does not disagree “that under some circumstances an automobile may be used as a deadly weapon and maythus disqualify a petitioner from resentencing under Penal Code section 1170.126.” (RB 3 17.) What Perez arguesis that a car can be used “in the commission of a crime” “in ways that that do not render it a ‘deadly weapon’ underthe law.” (RB, 17.) And in explaining his concessions, citing the dissenting opinion, Perez observesthat “the question of whether a car so qualifies is always dependent upon the circumstancesofthe individual case. (Cf. People v. Perez, supra, 3 Cal.App.Sth at pp. 834-836, dis. opn. of Franson, J.)” (RB, 17.) 15 Perez makes two arguments as to why his undisputed SUV use and the jury’s guilty verdict of the crime of felony assault do not, in his view, support the majority opinion: He argues that the law requires specific intent and that he did not have a specific intent to use the SUV as a weapon. (RB,19-27.)° And second, Perez arguesthat “the Court of Appealerred in holding that the jury verdict necessarily encompassed a finding that [Perez] used the [SUV] as a deadly weapon.” (RB,16.) Both ofthese assertions are incorrect and without support in the law. A. Specific intent is not an element in armingor use of a vehicle as a weapon. In rendering its verdict, the jury in the underlying case was instructed on the elements of a felony assault, including mental state. This Court, in addressing the question of whether felony assault requires a specific intent, both concludedthat specific intent is not required but also clarified the mentalstate in a felony assault. Citing its earlier decision in Peoplev. Colantuono (1994) 7 Cal.4th 206, 214, the Court explained that “the mens rea for assault is established upon proofthe defendant willfully committed an act that by its nature will probably and directly result in injury to another, 1.¢., a battery.” The Court went on toclarify, “we hold that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledgeofthose facts sufficient to establish 6 Although Perez writes, “intent” to use the SUV as a deadly or dangerous weapon, becausethe jury specifically found Perez’s “act” was willful, and willful is defined asintentional (People v. Wright (2002) 100 Cal.App.4th 703, 711, citing CALJIC No. 9.00 (1994 rev.) [“the person committing the act did so intentionally”]), the act of driving the SUV backward and forward (the only act that Perez did) was intentional. The People conclude that Perez is referring to a mental state of specific intent to use the SUV as weapon. 16 that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790, emphasis added.)’ Perez ignores this Court’s precedent, instead setting forth a number of cases, insisting in each onethat the determination of armingrelies on the perpetrator’s intent. (RB, 18-27.) Perez begins with People v. Oehmigen (2014) 232 Cal.App.4th 1, “Oehmigen”). Perez concedes that “Oehmigen is both factually and legally indistinguishable from the instant case.” (RB, 18, emphasis added.) However, Perez states that, “[nJotably, in Oehmigen there was no question of the defendant’s intent to use the car as a deadly weapon.” (/d.) But that claim is wrong. In Oehmigen, the accused contested the use of the vehicle as a weapon and sought to exclude the prosecutor’s recitation of facts as an adoptive admission and a part of the record of conviction. (Oehmigen, supra, 232 Cal.App.4th at p. 6 [a review of the probation report revealed that the “defendant had been actively contesting the legal conclusion that his conduct constituted an assault; this demonstrates that his silence at the time of the plea was not inadvertent or unconsidered”’].) Oehmigen concludesthat the defendant’s intent was not known and wasnotrelevant to the determination of whether he was armedin the commission ofthe offense: Defendantfails to support his bald statements that he did not have any opportunity to contest the recited circumstances, that it is “sheer speculation’ that he personally used the car ina ” Although People v. Williams addressed assault with a deadly weapon,the elements and mental state for the purposesof this analysis are identical. The mens rea for assault “requires actual knowledgeofthe facts sufficient to establish that the defendant’s act by its nature will probably and directly result in injury to another.” (People v. Williams, supra, 26 Cal.4th at p. 782.) 17 manner rendering it a deadly weapon,or that the facts recited do not establish an intent to inflict great bodily injury as opposed to reckless indifference to that outcome. Evenifthe latter argument may be a colorable claim in light of the difficulty in giving retroactive effect to a criterion based on a mentalstate (that is subject prospectively to pleading and proof), this does not detract from the disqualifying facts of being irrefutably armed with a car and using it purposefully in a dangerous fashion (with whatever intent defendant may have had). (Oehmigen, supra, 232 Cal.App.4th at p. 6, citing People v. Burton (2006) 143 Cal.App.4th 447, 451-452.) In determining eligibility under section 1170.126, based on whether assault involved use of the SUV as a deadly weapon, Oehmigen correctly foundintent of the defendant, “whatever intent defendant may have had,” wasirrelevant to the conviction and the facts supporting the use ofa weapon. (Oehmigen, supra, 232 Cal.App.4th at p. 6.) Perez’s assertion that there was no question of the defendant’s intent to use the car as a deadly weaponas well as his effort to parley intent into the central issue, is terribly misplaced. While there was no question ofhis intentional use of the SUV,his specific intent was never an issue and was not determined by the jury or court. Perez explains that People v. Wright “did not consider the question of whether the car was employed as a deadly weapon.” (RB, 19.) However, because the conviction in that case was assault with a deadly weapon and the court sustained the conviction, finding that the jury found defendant’s “conduct would probably and directly result in the application of physical force upon Dircksen and McHenry andthere is substantial evidence to support that finding,” there was, in fact, a finding that a deadly weapon was used, (People v. Wright, supra, 100 Cal.App.4th at p. 725 (“Wrigh?’).) The Wright court took issue with Williams because Wright concluded that Williams would support a conviction for felony assault on a negligence 18 theory, based on this Court’s rejection of People v. Smith (1997) 57 Cal.App.4th 1470 and the lack of a subjective state required of a defendant.® (People v. Wright, supra, 100 Cal.App.4th at p. 712, quoting Williams, supra, 26 Cal.4th at pp. 787-788, fn. omitted [“In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable personto realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware ofthe risk that a battery might occur.’’].) Perez conducts a similar analysis of People v. Aznavoleh (2012) 210 Cal.App.4th 1181 (“‘Aznavoleh”). Aznavoleh “deliberately races through a red light at a busy intersection and collides with another vehicle, causing injury to another.” (Aznavoleh, supra, at p. 1183.) The case involved an assertion that the facts were insufficient to support a conviction for assault with a deadly weapon. Althoughthetrial court had improperly instructed the jury that to convict for assault with a deadly weapon,the “defendant could not be convicted of assault unless he actually knew that his reckless driving would cause injury to another,” the error inured to the defendant’s benefit and the evidence was foundsufficient to sustain the verdict. (Aznavoleh, supra, at p. 1183.) ® The Third District Court of Appeal had opined that the mentalstate for assault is an intent to commit a battery. (People v. Smith (1997) 57 Cal. App.4th 1470, 1484.) However, based on this Court’s opinion in Williams, the Third District reversed itself in Wright. The court wrote at length “that language similar to CALJIC No. 9.00 misdefined the mental state for assault because it encompassed a negligence standard.” (Wright, supra, 100 Cal.App.4th at pp. 705-706.) 19 Perez argues that People v. Bradford (2014) 227 Cal.App.4th 1322, requires intent as an element of arming. (RB,24.) But Bradford addresses the denial of resentencing by thetrial court based on eligibility where a petitioner was found armed becauseof his mere possession ofa pair of wire cutters during the commission of an offense. The court of appeal looked to the record of conviction to determine the mannerofuse ofthe wire cutters and found nothing that would demonstrate that the wire cutters, certainly an object that is not inherently a weapon, were used as a weaponin the commission of the offense. (Bradford, supra, at pp. 1341-1343.) While Perez concedes that Bradford never uses the word “intent” in the opinion (RB, 24), he maintains that it was Bradford’s intent that the court found to be the missing element. (RB,24.) But any reading of the opinion makesclear that Perez is mistaken. Summarizing its conclusion, Bradford states, “[u]nder the circumstances,the trial court could not conclude that petitioner was armed with a deadly weapon. Nofacts establish that the wire cutters were designed for use as a weapon, they were not used as a weapon,andthereis no evidenceto clearly establish they were being carried for use as a weapon. In fact, the evidenceinthetrial court record [based on the defendant’s statement] implies the wire cutters were being carried for the purpose of removing security tags from stolen merchandise.” (People v. Bradford, supra, 227 Cal.App.4th at pp. 1342- 1343.) Bradford does not addressintent, specific or otherwise. The reason for Perez’s reliance on the above cases was explained with the following assertion: In order to prove that a defendant is armed with a deadly weapon, however, the People must prove that the weapon was one that was inherently dangerousor deadly, or prove that the defendant intendedto or in fact did use the instrumentas a deadly or dangerous weapon. This requires proofof intent that is not required, and here was not pleaded or proven or otherwise established by the evidence,in a case of aggravated assault. 20 (RB,20.) Perez provides no authority for this proposition. But more, he conflates the element in assault of a willful or intentional act with the “manner of use” inquiry in determining the character of an object. In so doing, Perez concludes that the eligibility inquiry requires a specific intent to use or actual use of the instrumentas a deadly or dangerous weapon. However, because Perez actually used the SUV asthe instrumentality of the felony assault, his own syllogism would appear to concedethat through its use, the SUV was a dangerous or deadly weapon. But, Perez continuesthis analysis by noting the distinction between inherently dangerous or deadly weaponsand those “which are not weaponsin the strict sense of the word and are not dangerousor deadly to others in the ordinary use for which they are designed.” (RB, 21, citing People v. Graham (1969) 71 Cal.2d 303, 327-328, disapproved on other groundsin People v. Ray (1975) 14 Cal.3d 20, 30.) The People agree that there are inherently dangerousor deadly weaponsas one class and a secondclass of objects that are not inherently dangerous or deadly but which may be used as weapons. What determines whether items within this second class are being used as weaponsis the mannerof the item’s use: In defining a deadly weapon, CALCRIM No. 3130 states that “[a] deadly weaponis any object, instrument, or weapon that is inherently deadly or dangerousor one that is used in such a way that it is capable andlikely to cause death or great bodily injury.” The determination of whether an item is a “deadly weapon”hasturned on the nature of the item or the mannerof use, not intent. (See, e.g., People v. Aguilar (1997) 16 Cal.4th 1023, 1029; CALCRIM No.875.) Somefew objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, 21 undercertain circumstances, in a mannerlikely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerousis used as such,the trier of fact may consider the nature of the object, the manner in whichit is used, andall other facts relevant to the issue. [Citations.] (People v. Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) Unlike Aguilar, Graham is an old case addressing no longerexisting elements offirst degree robbery; “[t]o convict defendants of robbery of the first degree, Penal Code, § 21 1a (Deering) require[d] that the robbery be perpetrated by a person ‘armed with a dangerous or deadly weapon.’” (People v. Graham, supra, 71 Cal.2d 303, 327.) In Graham the court addressed whethera shod foot used to stomp a victim during a robbery was a dangerous or deadly weapon and whetherthe jury was properly instructed. To correct an instructional error, the following portion of an instruction was required by the court where a weapon that was not inherently dangerous was involved: “Before you mayfind a defendant guilty of robbery of the first degree, you mustfind the following to be true beyond a reasonable doubt: (1) that the defendant is guilty of robbery asI have definedit; (2) that at least one of the perpetrators of the robbery possessed an instrumentality which was capable of being used by him in a dangerous or deadly manner; and (3) that its possessor intended to use the instrumentality in the robbery as a weapon of offense or defense should the circumstancesrequire.” (People v. Graham, supra, 7\ Cal.2d 303, 328-30.) Based on the third element, it might appear that Graham lends some support to Perez’s argument. However, Graham relied entirely on People v. Raleigh for its reasoning and conclusion. (People v. Raleigh (1932) 128 Cal.App. 105 (“Raleigh”).) Raleigh makesclearthatit is the specific intent requirementofrobbery rather than arming that brought aboutthe language addressing intent used by Graham.Raleigh, in fact, explicitly contrasts the 22 requirements of armingin the old first degree robbery statute versus assault with a deadly weapon,and in reference to inherently dangerous weapons versus those that are dangerous based on their mannerofuse: Whenit appears, however, that an instrumentality other than onefalling within the first class [those inherently dangerous] is capable of being used in a ‘dangerous or deadly’ manner, and it may be fairly inferred from the evidencethat its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a ‘dangerous or deadly weapon’ may bethus established, at least for the purposes ofthat occasion. (Raleigh, supra, 128 Cal.App. at pp. 108-109.) But the Raleigh court went on to contrast robbery with assault in the context of determining the character of a weapon. The court explained that in assault the element ofpresent ability takes the place ofintent to use the object in robbery: Reference is also made in the decisions to the ‘present ability’ of the possessor of the instrumentality. A showing of ‘present ability’ has been deemed essential in cases involving the charge of assault with a deadly weapon. [Citation] But such showing is not essential under such section 211a where the accused is armed with a gun.[Citation.] . .. Notwithstanding the fact that ordinarily and in and ofitself the instrumentality may be in fact comparatively harmless, if, considering the attendant circumstances, together with the present ability of its possessor, the instrumentis capable of being used in a deadly or dangerous manner, for the purposeofthe particular occasion only, the character of the instrument maybeso established.’ But the ‘present ability of its possessor’ there referred to is of importance only for the purpose of determining whether an instrumentality, not falling within the first class above mentioned and not ‘dangerous or deadly’ to others in ordinary 23 use for which it was designed, could be used in the handsofits possessor in a ‘dangerousor deadly’ manner. (Raleigh, supra, 128 Cal.App. at pp. 109-110 (emphasis added).) In the context of the old first degree robbery, having as an element that the perpetrator be armed with a dangerous or deadly weapon,that an element with regard to an object that was not inherently dangerous wasthat the perpetrator intend to use the object in a dangerous or deadly mannerto satisfy the element of having the object for offense or defensein that specific intent crime. In contrast, as Raleigh states, assault with an object that is not inherently dangerous has no such intent requirement. Rather, to satisfy the elements of assault with a deadly weapon, wherethe object is not an inherently dangerous or deadly weapon,the law requires a finding of present ability to use the object. In the present case, the jury was so instructed and,in returning its verdict, affirmatively found such present ability. (CALJIC No. 9.00.) In fact, the jury instructions specifically required a finding that Perez willfully committed an act “that by its nature would probably and directly result in the application of physical force on another person”and that Perez have “the present ability to apply physical force to the person of another.” (People vy. Perez, supra, 3 Cal.App.Sth at p. 819, quoting CALJIC No. 9.00.) In rendering its verdict, the jury certainly found that the assault was committed by meansofforce likely to produce great bodily injury.” In the context of felony assault and section 1170.126 eligibility, and contrary to the reasoning proffered by Perez, to the extent that any intent is ” Perez claims “the evidence on the record supports a conclusion that [he] did not intend to use the vehicle as a weapon.” (RB, 23.) While it is true that no jury findings were made asto specific intent and the evidence could support multiple conclusions, the jury did find Perez willfully used the SUV knowingthe likely result would be theinfliction of great bodily injury and with the presentability to cause that injury. 24 required in orderto find a subject armed with or used an object, that is not inherently dangerous or deadly as a weapon,it is the intent to act, as in volitional or willful action that is required. While intent might be useful in determining the “mannerof use”of an object, it is not a legal element. After summarizing and analyzing the authorities presented by Perez, the majority opinion observed that the line of cases “does no more than establish that intent to use an item as a weapon can besufficient, in some circumstances, to qualify the item as a deadly weapon. It in no waystates that proof of such intent is necessary to this inquiry.” (People v. Perez, supra, 3 Cal.App.Sth at pp. 826-827, quoting Jn re D.T. (2015) 237 Cal.App.4th 693, 702.) The majority also observedthat, “[e]ven assuming such an intent must be shown, however, it is established by the record of conviction in the present case. Sanchez yelled ‘Stop the vehicle’ three times as the vehicle was movingin reverse, yet defendant then drove the vehicle forward ‘at a great speed.’ Sanchez only managedtopull his arm free shortly before defendant drove out of the store parking lot onto Blackstone without even stopping at the stop sign.” (People v. Perez, supra, at p. 827, finding agreement with Jn re D.T., supra, at p. 702, and People v. Aznavoleh, supra, 210 Cal.App.4th at pp. 1183, 1186-1187.) Perez’s position, that the majority erred in concluding that use and arming do notrequire a finding of specific intent,is, itself, in error. The Court of Appeal correctly determined that the jury findings and record of conviction demonstrate that Perez was noteligible for resentencing. 25 B. The Jury Verdict And Those Findings Necessary To The Verdict Along With The Undisputed Record Of Conviction Establish That The Defendant Used And Was Armed With A Deadly Weapon When He Committed A Felony Assault Using An SUV. The Defendant contendsthat “the Court of Appeal erred in holding that the jury verdict necessarily encompassesa finding that [Perez] used the [SUV] as a deadly weapon. (RB, 16.) Without the imposition of specific intent, however, Perez does not explain what element is missing from the verdict and those findings necessarily madeby the jury in reaching that verdict. Thetrial court’s ruling, that the vehicle was not, as “used,” a deadly weapon,is inconsistent with the record of conviction. Although the dissent looked to the raw facts presented in the case to concludethat substantial evidence supportedthe trial court’s ruling, this overlooks the jury’s previous assessmentof those same raw facts andthe findings it reached, necessarily, in renderingits verdict. As the majority opinion observed, “Jurors are presumed to understand and follow the court’s instructions. (People v. Perez, supra, 3 Cal.App.5th at p. 825, quoting People v. Holt (1997) 15 Cal.4th 619, 662.) In the present case, based on theinstructions given, the jury was informed and madethe following findings in returning a verdict of guilty of felony assault:'° Perez “willfully committed an act that by its nature would ' “On December2, 2014, by separate order and in compliance with Evidence Code section 459, this court granted the People’s request for judicial notice of these selected jury instructions given by thetrial court to the jury in thetrial of defendant’s commitment offense.” (People v. Perez, supra, 3 Cal.App.5th at p. 819, FN4.) This Order specifically included CALJIC Nos. 9.00, 9.01, and 9.02, as modified by the trial court and presentedto the jury at pages 238, 242, and 244-245 ofthe original appellate record of the commitmentoffense. 26 probably and directly result in the application of physical force on another person; and [at] the time the act was committed, [Perez] had the present ability to apply physical force on the person of another.” (CALJIC No. 9.00, original appellate record p. 238.) In the sameinstruction, the jury was informed that ‘““Willfully means that the person committing the act did so intentionally.” (/bid.) The jury also wasinstructed and concluded that Perez, in “committing the assault [had] the present ability to commit a violent injury upon the person of another.” (CALJIC No. 9.01.) The jury wastold that this “means that at the time of the attempt one must have the physical meansto accomplish such an injury in the manner by which it is attempted. If there is such an ability this element exists even if the attempt to commit the injury fails for some reason.” (/bid.) In addition, by its verdict, the jury concluded that Perez did “commit an assault upon the person of another by meansofforce likely to produce great bodily injury.” (CALJIC No. 9.02, original appellate record p. 244.) The jury concluded that a person wasassaulted, and “[t]he assault was committed by meansofforce likely to produce great bodily injury.” (/bid.) In the sameinstruction the jury was informedthat “[g]reat bodily injury refers to significant or substantial bodily injury or damage;it does not refer to trivial or insignificant injury or moderate harm.” (/bid.) As a matter of law, CALCRIM No.3130 states that “[a] deadly weaponis any object, instrument, or weaponthat is inherently deadly or dangerousoronethat is used in such a waythat it is capable andlikely to cause death or great bodily injury.” Because a “deadly weapon”is an object or instrument “used in such a waythatit is capable of causing and likely to cause death or great bodily injury” then, if an object was used, as a matter of undisputed fact, by Perez in the commission of the felony assault 27 for which the jury found him guilty, then that object as used by Perez was, by definition, a deadly weapon. (See, CALCRIM Nos. 3130 and 875.) In rendering its verdict, the jury was not asked to makea finding as to what“act” Perez “committed” to constitute the felony assault. Rather, in the present case, the factual record of the conviction makesclear that Perez did only oneact, driving of the SUV in knowing disregard for the consequence to Fred Sanchez. That act of driving the SUV,the only act the record supports that Perez committed, constitutes “[t]he sole means by which [Perez] applied this force [being] the vehicle.” (People v. Perez, supra, 3 Cal.App.Sth at pp. 825.) It is undisputed, and there are no facts to support an alternative theory as to the “act” committed by Perez that constituted the basis for the assault. Perez argues that the inquiry into the act is “complicated by the fact that the [SUV] wasnotthe ‘sole instrumentality’ involvedin the assault.” (RB, 26.) Perez explainsthat “[i]t was the movementof the carin combination with the passenger’s grabbing of the store clerk’s arm that resulted in the assault. Petitioner’s driving of the vehicle alone, at a low speed and not aimingto strike the store clerk, would not have resulted in an assault. The attempted escape only becamean assault due to the action of the passenger.” (RB,26.) But this observation by Perez is almost entirely inaccurate. While it is undisputed that the “passenger grabbed Sanchez’s left arm and pushedit down, which prevented Sanchez from pulling his arm out of the vehicle,” this is not an act committed by Perez. (People v. Perez, supra, 3 Cal.App.Sth at p. 817.) The passenger’s act cannot bethe basisfor a guilty verdict as to Perez for felony assault. As the instruction states, the jury was required to find that “[Perez] willfully committed an act.” (CALJIC No. 9.00.) 28 While the passenger’s actions are a circumstance that could contribute to the danger posed to Mr. Sanchezin the event the car were driven,it is a circumstance knownto the jury and considered in its determination that the “act” committed by Perez would “byits nature,” “probably and directly result in the application of physical force on another person.” (CALJIC No. 9.00.) In addition, the passenger’s actions, while a circumstance Perez was aware of, need not be the entirety of what constituted Perez’s “present ability to apply physical force on the person of another.” Perez’s act need only be a part of his presentability, that is, his willful movementofthe SUV." It is simply a matter of law that, in the absence of Perez’s willful movementof the SUV, the passenger’s act of grabbing Sanchez’s left arm and pushing it down, could not and would not support a verdict of felony assault. Without movementof the SUV,there is no theory under which grabbing an arm and holdingit could, in any way, threaten death or great bodily injury. This is not to say that the “act” committed by Perez waslegally required to be life threatening. In People v. Russell, the defendant’s act of pushinga victim in front of an oncoming car was foundsufficient to sustain a conviction for both assault with a deadly weapon andassault by means of force likely to produce great bodily injury. (People v. Russell (2005) 129 Cal.App.4th 776, 781-786, 787-789.) The “use” of an oncomingcar, not in the defendant’s possession, presents an opposite scenario to the present 'l While there was conflicting evidence regarding the speed ofthe SUV,andthe possible intentions and purpose of Perez, Perez’s assertion that he drove “‘at a low speed and not aimingto strike the store clerk,” while one possible interpretation of the evidenceis certainly not groundedin any verdict or finding returned by the jury, or any conclusion based ona finding of fact. 29 case. Here, Perez possessed the SUV and acted to use it, while Russell did not possessit but his act of pushing the victim madeuseofthe car as a weapon. Even thoughthe ability to inflict death or great bodily injury is a question of fact, because the passenger’s actions alone could notinflict any significant injury, it is known from the verdict that movement of the SUV was foundto bethat instrumentality that would likely cause death or great bodily injury. To the extent that the jury may have thoughtso,it is Perez’s willful movementof the SUV that rendered the passenger’s act as contributing to the danger posed by that movement. Perez’s contention that it was the “movementof the car in combination with the passenger’s grabbingofthe store clerk’s arm that resulted in the assault,” (RB,26)it wasonly the use of the SUV that applied force that threatened death or great bodily injury. The jury concluded that Perez’s act of driving the SUV,the only action he took, knowing that his act would “probably anddirectly result in the application of physical force on another person”and in apparent reckless disregard for that danger to the victim, rendered him guilty of felony assault. Whetherthat included the passenger’s actionsornot, it was Perez’s act that posed the dangersufficient to threaten death or great bodily injury. The actions of the passenger andthecries to stop by the victim, while supportive of the jury’s verdict, do not in any way changethe character of Perez’s act. When he drove the SUV, knowingthat great bodily injury was probable, because the SUV used by Perez posedthethreat of great bodily injury under the circumstances, and the jury concluded that death or great bodily injury was likely, the manner of Perez’s use becomes, by definition, with a “deadly weapon.” (CALCRIM Nos. 3130 and 875.) This is so regardless of his purpose, motive or specific intent. 30 The People concede that the jury was not asked to determine whether driving the SUV wasthe only act committed by Perez. But, factually, and from the record of conviction, Perez committed no other act. As a result, whenthetrial court explained that the acknowledged “use” by Perez of the SUV was“incidental” to the felony assault, one is left to wonder what act by Perez wasthe basis of the felony assault, if not the use of the SUV? Apart from the willful use of the SUV,there wasnoother act sufficient to threaten death or great bodily injury. Once determinedthat Perez used the vehicle as the sole instrumentality of his felony assault on the victim, then the conviction of Perez for felony assault becomes a “serious felony” under section 1192.7(c)(23); defining a “serious felony”as “any felony in which the defendant personally used a dangerous or deadly weapon.” And, any “serious felony” is explicitly precluded from eligibility for resentencing under section 1170. 126(e)(1)."” The majority’s observation that “[t]he sole means by which [Perez] applied this force was the vehicle he wasdriving,” is correct. (Peoplev. Perez, supra, 3 Cal.App.Sth at p. 825.) And, as a result, the majority’s statement, “[t]hus, the record of conviction establishes [Perez] used the vehicle in a manner capable of producing, andlikely to produce,at a minimum great bodily injury—i.e., as a deadly weapon,”(ibid) is also '2 Section 1170.126(e) states, “[an ] inmateis eligible for resentencingif: (1) The inmateis serving an indeterminate term oflife imprisonment imposed pursuant to paragraph (2) of subdivision(e) of section 667 or subdivision (c) of section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of section 667.5 or subdivision (c) of Section 1192.7.” (§1170.127(e).) This issue was not reached in by the majority based onits conclusion concerning arming. (People v. Perez, supra, 3 Cal.App.5th 812, 821, FN7.) 31 correct. Characterizing Perez’s use as both the basis of the verdict and as merely “incidental”to the assault, is inconsistent. But the latter is without support in the record of conviction. The majority notes at Footnote 14 the dissent’s quotation from People v. Newman,that “in determining eligibility for Proposition 36 relief, a court is empoweredto consider the record of conviction and to make factual findings by a preponderanceofthe evidence, even if those findings were not madebythe jury or thetrial court in convicting a defendantof the current offense.” (People v. Perez, supra, 3 Cal.App.5th at p. 825, FN14, quoting People v. Newman (2016) 2 Cal.App.Sth 718, 721.) The majority agreed with this proposition and even expressed that to hold otherwise would negate clause(iii). (People v. Perez, supra, at p. 825, FN.14.) However, the majority observed that, “[c]ontrary to the apparent positions of the resentencing court and dissentin this case, this does not mean the jury’s verdict can be disregarded altogether, or that the resentencing court can declineto find, by the applicable standard of preponderanceof the evidence,a fact the jury necessarily found beyond a reasonable doubt.” (People v. Perez, supra, 3 Cal.App.Sth at p. 825, FN14.) The majority quoted Moon v. Superior Court in explaining that “we must remember‘the language of an opinion must be construed with reference to the facts presented by the case, and the positive authority ofa 393 decision is coextensive only with those facts.’” (People v. Perez, supra, 3 Cal.App.Sth 812, 825, fn.14, quoting Moon v. Superior Court(2005) 134 Cal.App.4th 1521, 1532 and Trope v. Katz (1995) 11 Cal.4th 274, 284.) The majority explained that “Newman deals only with situation in which the resentencing court made factual findings that went beyond those made by the jury, not that contradicted the jury’s verdict.” (Peoplev. Perez, supra, 3 Cal.App.Sth at p. 825, fn.14.) The majority’s point, with which the People fervently agree, is that a trial court, in considering 32 Proposition 36 eligibility, is bound by the jury verdict and those findings necessarily included in the return of that verdict. (See, People v. McGee (2006) 38 Cal.4th 682, 706 [“‘such an inquiry does not contemplate that the court will make an independent determination regarding a disputed issue of fact relating to the defendant’s prior conduct.”].) Like those assertions concerning speed and purported intent (see footnote 11, ante), the majority recognized that the dissent as well as the trial court discussed conclusions of fact that contradict the jury’s verdict and implicit findings. Thetrial court’s characterization of the use ofthe SUVbyPerez as “incidental” to the felony assault, discussed above,is one such example. But the dissent’s observation that “[t]he trial court reviewed and weighedthefacts, including the credibility of the estimated speeds and length oftime for the incident and determined, based onits review and interpretation of the facts, that the method used by Perez in maneuvering his car to depart the scene did not convert an object otherwise not inherently a deadly weapon,into one,” demonstrates this disregard for the jury’s findings and verdict. (People v. Perez, supra, 3 Cal.App.5th at p. 835, dis. op.) Given the factual inquiry outlined by the dissent, reweighing the very same evidence on whichthe jury reachedits verdict, the dissent and the trial court were reconsidering the verdictitself. Where is the assault if not for the speed and lengthoftime ofthe use of the SUV? Thedissent concludesthat the factual inquiry includes a reconsideration ofall aspects of the case, even includingthe basis of the verdict. (People v. Perez, supra, 3 Cal.App.5th at p. 835, dis. op.) Both the dissent and Perez argue that the trial court is free to reassess the evidence considered by the jury. The dissent looked to thefacts presented to the jury at trial and explained that the “trial court examines the ‘conduct that occurs during the commission of an offense’”in determining 33 ineligibility under the Act.” (People v. Perez, supra, 3 Cal.App.Sth at p. 836, citing People v. Bradford, supra, 227 Cal.App.4th at p. 1333.) In that process, the dissent reweighed the very same evidence the jury considered in rendering its findings and verdict: Here, the record does not show Perez sped away with Sanchez’s arm trappedin the car; he did not ram him with his vehicle, nor did he aim for him while driving. Instead, the facts contained in the record, as interpreted and cited by thetrial court, were that Perez assaulted Sanchez when, while he wasin the driver’s seat of the vehicle, Sanchez reached into the passenger windowin an attemptto retrieve the anti-theft device, the passenger grabbed Sanchez’s arm and Perez then drove the vehicle slowly in reverse, to effect a getaway, while the passenger held onto Sanchez. Sanchez implored Perez to stop the vehicle as it continued to move in reverse. Sanchez was dragged by the movementofthe vehicle and hadto run to keep his balance. Perez then put the vehicle in drive and the vehicle moved forward. Sanchez wasable to pull his arm free. Sanchez received no injuries other than a few scrapes. While Sanchez estimated the Blazer was going between 10 and 20 milesper hour and that the entire incident took about a minute, common sense dictates otherwise. (People v. Perez, supra, 3 Cal.App.Sth at p. 836, dis. op.) The dissent’s description of the offense, above, does not considerin any way the findingsthe jury reached in renderingits guilty verdict.It appears to question the gravity of the felony assault. It even presentsa theory by which Perez aids and abets the assault by the passenger. (/d.) The record of conviction determineseligibility (whether a conviction is a serious felony and/or whether Perez was armed). The jury verdict, that Perez did knowingly apply forcelikely to produce great bodily injury by an '3 The concurring opinion engaged in the same reexamination of the evidence, finding it “instructive that the jury found [Perez] guilty of [felony assault].” but reached the conclusion that Perez wasineligible because “the vehicle was employed as a deadly weapon.” (People v. Perez, supra, 3 Cal.App.5th at p. 829-830, con. op.) 34 instrumentality capable of causing and likely to cause great bodily injury, is binding on the court. The determinationis not one of discretion,it is a legal question left to the court. (People v. Kelii (1999) 21 Cal.4th 452, 456.) “(E]ligibility is not a question of fact requiring the resolution of disputed issues; rather, ‘what the trial court decides is a question of law: whetherthe facts in the record of conviction are the proper subject of consideration, and whether they establish eligibility. 232 Cal.App.4th at p. 7.) (Oehmigen, supra, The dissent’s rationale stands for the proposition that the trial court, in determiningeligibility, is free to reweigh evidence previously considered by the jury, and withoutregard for the jury instructions,the verdict’s implicit findings, and the verdictitself, the trial court is free to disregard the jury’s findings inherentin the verdict. This is how the dissent arrived at the factual discussion above. The gross record demonstratesthat there was substantial evidence from whichthe jury could havearrived at various conclusions regarding speed, distance, time, and even motivation of Perez. But the verdict explains that the jury concluded that the constellation of facts supported an assault that threatened death or great bodily injury. (CALJIC No.s 9.00, 9.01, 9.02.) By reconsideringthe factual perception of the case and disregarding the jury’s role and findings, the dissent concludes that the conviction of Perez for felony assault “does not come within section | 192.7, subdivision (c)(23) use of a deadly weapon exclusion making him ineligible for resentencing. (People v. Williams (1990) 222 Cal.App.3d 911, 914.) Nor does it come within the ‘armed with a ... deadly weapon’ exclusions pursuant to section 667, subdivision (e)(2)(C)(iii) and section 1170.12, subdivision (c)(2)(C)(iii), as referenced in section 1170.126, subdivision (e)(2).” (People v. Perez, supra, 3 Cal.App.Sth at p. 836, dis. op.) 35 The People submit that the majority correctly concluded that the jury verdict, and the findings necessarily included andas part of the record of conviction, lead to the following conclusion: [t]he record of conviction reflects [Perez] committed assault by meansofforce likely to produce great bodily injury. The facts show [Perez] personally and intentionally used a vehicle in the commission ofthat assault. When a vehicle is used as a meansofforce likely to produce great bodily injury,it is a deadly weapon. [Perez] was, therefore, “armed witha... deadly weapon”within the meaningofclause(iii). Accordingly, defendantis ineligible for resentencing pursuantto section 1170.126, subdivision (e)(2). (People v. Perez, supra, 3 Cal.App.Sth at pp. 820-821.) For this reason, the People respectfully request that this Court affirm the Court of Appeal. I. UNDER EITHER AN ABUSE OF DISCRETION OR AN INDEPENDENT STANDARD OF REVIEW OF A SECTION 1170.126 ELIGIBILITY DETERMINATION, THE MAJORITY REACHED THE CORRECT RESULT. In considering the standard of review applied in the presentcase, the majority concluded that, “[b]ecause the trial court made both factual and legal determinations, multiple standards ofreview apply.” (People v. Perez, supra, 3 Cal. App. Sth at p. 821, emphasisin the original.) The court concludedthat, “[t]he standard of review applicable to an eligibility determination dependson the natureofthe finding or findingsa trial court is called upon to makein a given resentencing proceeding.” (/d.) The following quotes summarize the majority’s conclusions concerning the applicable standard of review: “Theeligibility criteria contained in clause (iii) refer to the ‘facts attendant to commission ofthe actual offense ... .’ (People v. Bradford (2014) 227 Cal.App.4th 1322, 1332 [174 Cal.Rptr.3d 499].) In deciding whether a defendant’s current offense falls within those criteria, a trial court ‘make[s] a factual determinationthat is not limited by a review ofthe particular 36 statutory offenses and enhancements of which the petitioner was convicted.’” (bid.) (People v. Perez, supra, at p. 821.) The opinion went on to state, Thetrial court makes this factual determination based on the evidence foundin the record of conviction. (People v. Hicks (2014) 231 Cal.App.4th 275, 285-286 [179 Cal.Rptr.3d 703]; People v. Bradford, supra, at p. 1331, People v. Blake (2004) 117 Cal.App.4th 543, 559 [11 Cal.Rptr.3d 678].) It is subject to review for substantial evidence under the familiar sufficiency of the evidence standard. (People v. Guilford (2014) 228 Cal.App.4th 651, 661 [175 Cal.Rptr.3d 640]; see, ¢.g., People v. Maciel (2013) 57 Cal.4th 482, 514-515 [160 Cal.Rptr.3d 305, 304 P.3d 983].) (People v. Perez, supra, at pp. 821-822.) In contrast, the majority explained that matters of statutory interpretation have a different standardofreview. “When the issue is one ofthe interpretation ofa statute and its applicability to a given situation, however,it is a question of law we review independently.” (People v. Perez, supra, at p. 822.) A. The Correct Standard of Review for an Eligibility Determination Is The Usual Standard Applied to Mixed Questions of Law and Fact That Are Predominantly Record Based and Predominantly Questions of Law; Independent, De Novo review. The understanding ofthe factual review conductedby a trial court is discussed in manycases, butis called into question by a reading of Oehmigen and Bradford. Thesecasesraise a question regarding the nature of the factual inquiry and the standard of review in regard to eligibility determinations for resentencing undersection 1170.126. Although noted in the majority’s opinion, the majority overtly concludedthat review of any factual inquiry in an eligibility determination under section 1170.126 is conducted by the deferential, substantial evidence standard. 37 Reachingthis conclusion,it is noted at Footnote 8 in its discussion of whethera petitioner for resentencing has a right to a hearing concerningthe eligibility determination, that Oehmigen describes a considerably different factual inquiry and, consequently, standard of review: In its discussion of whether a defendantis entitled to an evidentiary hearing ontheissue ofeligibility for resentencing, the appellate court in People v. Oehmigen (2014) 232 Cal.App.4th 1 [181 Cal.Rptr.3d 569]states eligibility is not a question of fact requiring the resolution of disputed issues; rather, ‘what the trial court decidesis a question of Jaw: whether the facts in the record of conviction are the proper subject of consideration, and whetherthey establish eligibility.’ (/d. at p. 7.) Whatever the validity of this statement with respect to a petitioner’s right to an evidentiary hearing, we believeit overstates the legal nature of our review. (People v. Perez, supra, 3 Cal.App.5th at p. 821, fn.8.) Like Oehmigen, Bradford, as better understoodthrough the contrast expressed in the concurring opinion, appearsto apply an independent review, having also concludedthat the determination of eligibility under the section 1170.126 is a legal determination: The eligibility determinationat issue is not a discretionary determination by thetrial court, in contrastto the ultimate determination of whether an otherwiseeligible petitioner should be resentenced. Section 1170.126, subdivision(f), describing the eligibility determination, simply provides that ‘the court shall determine whether the petitioner satisfies the criteria in subdivision (e) ... .’ Only after making that determination does the statute describe any exercise of discretion on the part of the trial court. Thestatute specifies: ‘If the petitioner satisfies the criteria in subdivision (e), the petitioner shall be resentenced pursuant to paragraph (1) of subdivision (e) of section 667 and paragraph (1) of subdivision (c) of section 1170.12 unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of dangerto public safety.” (§ 1170.126, subd.(f), italics added.) (People v. Bradford, supra, 227 Cal.App.4th 1322, 1336-1337.) 38 As mentioned, the concurrence in Bradford emphasizes that much of the opinion is surplusage and stresses application of the substantial evidence standard: Since there was no substantial evidence to support thetrial court’s findingthat petitioner was armed with a deadly weapon when he committed the current offenses and there was no other aspect of the current offenses thatdisqualifies petitioner from resentencing underthe Three Strikes Reform Act, it is unnecessary to consider petitioner’s other arguments. This case must be remandedforthe trial court to either resentence petitionerorfind petitioner too dangerousto resentence under the Three Strikes Reform Act. Nothing stated in the majority opinion, except for the finding that there was no substantial evidencethatpetitioner was armed with a deadly weapon,is necessary to the disposition or helpful to the court or the parties on remand. Accordingly, I would simply find the evidence was insufficient to sustain the deadly weapon finding and remandfor further proceedings.” (People v. Bradford, supra, 227 Cal.App.4th at pp. 1343-1344.) The People raise this inconsistent language with the primary purpose of gaining clarity and guidance fromthis Court. As an example of another perspective, People v. Guilford clearly observes that the substantial evidence standard is the applicable standard of review foreligibility determinations: Defendant acknowledges wereview the factual basis of the trial court’s finding under the familiar sufficiency of the evidence standard. ‘We review the whole record in a light most favorable to the order to determine whether it contains substantial evidence, i.e., evidence that is credible and ofsolid value, from which a rationaltrier of fact could find beyond a reasonable doubt that the accused committed the offense.’ (/n re Ryan D. (2002) 100 Cal.App.4th 854, 859 [123 Cal.Rptr.2d 193]; see People v. Barnes (1986) 42 Cal.3d 284, 303-304 [228 Cal.Rptr. 228, 721 P.2d 110].) (People v. Guilford (2014) 228 Cal.App.4th 651, 661.) 39 Ofcourse, in Guilford there was no dispute as to what standard was applied. If the determination ofeligibility under section 1170.126 is a question of law, as Oehmigen and Bradford suggest,or if it is a mixed question of law and fact dominated by the legal aspectof the determination, it would appearthat the correct standard of review for the non-discretionary determination ofeligibility would be independentor de novo review. (See, People v. McGee, supra, 38 Cal. 4th 682; People v. Woodell (1998) 17 Cal.4th 448.) Perhaps the disparate thought comes from the idea of factual review or fact finding. But the nature of the factual inquiry is both limited in its scope to the record of conviction and not ofthe sort that a jury would engagein. In discussion of an analogous review this Court explained the following: Sometimes the determination does have a factual content, just as the question whether convictions were broughtandtried separately has a factual content. As we explained in People v. Woodell, supra, 17 Cal.4th 448, ‘Sometimesthe definition of the qualifying prior conviction is not completely congruent with the definition of the crime of which the defendant has been convicted. For example, in People v. Guerrero [(1988)] 44 Cal.3d 343, the alleged prior conviction was for a “ ‘burglary of a residence.’ (People v. Guerrero, supra, 44 Cal.3d at p. 346 [quoting Pen. Code, former § 1192.7, subd. (c)(18)}.) The statutory use ofthe phrase, “burglary of a residence,” posed a problem because “thereis no offense specifically so defined in the Penal Code.” (Guerrero, supra, at p. 346.) A particular burglary conviction might or might not have involved a residence.’ (People v. Woodell, supra, 17 Cal.4th at p. 452.) But these factual questions are of limited scope. In determining whethera prior conviction is serious, ‘the trier of fact maylook to the entire record of the conviction’ but ‘no further.’ (People v. Guerrero, supra, Cal.3dat p. 355, original italics.) Thus, no witnessestestify about the facts of the prior crimes. Thetrier of fact considers only court documents. It is true that sometimesthe trier of fact must draw inferences from transcripts of testimony orother parts of the prior conviction 40 OR S F A R g e n i e ee record. (See, e.g., People v. Reed (1996) 13 Cal.4th 217, 220.) But the factual inquiry, limited to examining court documents,is not significantly different from the one we considered in Wiley. ‘[S]uch facts generally are readily ascertainable upon an examination of court documents. This is the type of inquiry traditionally performed by judges as part of the sentencing function.’ ({People v.} Wiley [(1995)] 9 Cal.4th [580], 590.) Accordingly, the statutory right to have a jury decide whether the defendant‘has suffered’ (§§ 1025, 1158) the prior conviction does not include the inquiry whether the conviction qualifies as a strike.” ([People v.|Kelii, supra, 21 Cal.4th [452], 456- 457,first italics added.) (People v. McGee, supra, 38 Cal.4th 682, 694.) Following this reasoning, this Court concluded, in regard to the inquiry into whethera prior conviction qualifies as a strike and other recidivism enhancements,that the inquiry is legal in nature and does not implicate a right to a jury determination. In McGee this Court concluded, “we believe the Court of Appeal erred in framing the issue as one calling for a finding of fact regarding defendant’s conductat the time he committed the prior offense. Instead, we believe it is more accurate to characterize the inquiry that is required under California law as a legal determination of the nature of defendant’s prior convictions as established by the record ofthe prior criminal proceedings.” (People v. McGee (2006) 38 Cal. 4th 682, 702.) The reasoning behind this conclusionis explained, as the People understandit, as a distinction between the role of the jury in making factual determinations based on credibility, and comparing various statements and weighing and considering various pieces of evidence, versus the review of the record of conviction undertaken by the trial court: California law specifies that in making [‘a determination regarding the nature or basis of the defendant’s prior convictions’ ], the inquiry is a limited one and must be based upon the record ofthe prior criminal proceeding, with a focus 4] on the elements of the offense of which the defendant was convicted. If the enumeration of the elements of the offense does not resolve the issue, an examination of the record of the earlier criminal proceeding is required in order to ascertain whether that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law. (See, e.g., People v. Woodell, supra, 17 Cal.4th 448, 452-461.) The need for such an inquiry does not contemplate that the court will make an independent determination regarding a disputed issue of fact relating to the defendant’s prior conduct (see id. at p. 460), but instead that the court simply will examine the record of the prior proceeding to determine whether that recordis sufficient to demonstrate that the conviction is of the type that subjects the defendant to increased punishment under California law. This is an inquiry that is quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court. (People v. McGee, supra, 38 Cal.4th at p. 706, emphasis added.) This Court’s rejection of an appellate ruling necessarily involved issues related to increase in punishmentandtherecidivist exception to Apprendi v. New Jersey (2000) 530 U.S. 466,as well as the Almendarez- Torres exception for recidivist conduct. Almendarez-Torres v. United States (1998) 523 U.S. 224. (People v. McGee, supra, 38 Cal. 4th at p. 698.) However, the reasoning expressed by this Court points out the fundamental distinction betweenthetraditional role of the jury, in its broad role as a finder of fact, and the role ofa trial court considering the dry paper record and making determinationsofthe legal sufficiency or presence oflegal factors based onprior findings of conductor conduct in the commission of an offense, upon which a conviction is based or related: [T]he Court of Appeal in the present case narrowly construed the A/mendarez-Torres exception for recidivist conductas preserved by Apprendi. In so holding, however, we believe the Court of Appeal improperly minimized the distinction between sentence enhancements that require factfinding related to the circumstance ofthe current offense, 42 such as whether a defendant acted with the intent necessary to establish a “hate crime”—a task identified by Apprendi as one for thejury—andthe examination ofcourt records pertaining to a defendant’s prior conviction to determine the nature orbasis of the conviction—a task to which Apprendi did not speak and‘the type of inquiry that judges traditionally perform as part of the sentencing function.’ (Kelii, supra, 21 Cal.4th 452, 456.) (People v. McGee, supra, 38 Cal. 4th at pp. 708-709.) The People submit that the eligibility inquiry of section 1170.126, basedentirely on the record of conviction,is virtually identical to the inquiry into whether prior convictions qualify as serious or violent orstrike convictions underthe law. It appears that Oehmigen and Bradford concluded thateligibility is fundamentally a legal determination. As such, the People contendthat the proper standard of review is that standard established for legal determinations or mixed factual and legal determinations that are primarily legal in nature, independentor de novo review. Although this wasnotthe standard employedby either the majority or dissenting opinionsin the present case, based on the analysis of the record of conviction, above, the majority correctly set forth the result undereither an abuse of discretion standard or a de novo analysis. The record of conviction demonstrates the use of the SUV by Perez as the sole instrumentof the felony assault, and byhis act it constituted a weapon. Through actualuse, the SUV was available to Perez for offense or defense. In fact, the record of conviction showsthat it was used for offense or defense;either to assault Mr. Sanchezorto flee in reckless disregard for the life of Mr. Sanchez. 43 B. The Trial Court Abused Its Discretion by Rejecting Jury Findings and by Applying an Incorrect Interpretation of Proposition 36. The People contend that even under the more deferential standard of an abuseofdiscretion, the standard applied by the majority, a trial court’s factual inquiry is restrained by the record of conviction and the prior findings, explicit and implicit, returned bythetrial jury. This appears to be what this Court expressed in McGee and Woodéell, in discussing the limited inquiry based upon therecord ofprior criminal proceedings, with a focus on the elements of the offense of which a defendant was convicted. (People v. McGee, supra, 38 Cal.4th at p. 706.) In its discussion,this Court expressedthat, while a review ofearlier criminal proceedings may be required where a review of the elements of the offensealone are notsufficient, “[t]he need for such an inquiry does not contemplate that the court will make an independent determination regarding a disputed issue offact relating to the defendant’s prior conduct. (People v. McGee, supra, 38 Cal.4th atp. 706, quoting People v. Woodell, supra, 17 Cal.4th at p. 460.) It should be noted that such an inquiry and independent determination regarding disputed issuesoffactis precisely what the dissenting and concurring opinions engagedin, and the inquiry urged by Perezin his brief. (RB, 23; see footnotes 9 and 11, ante.) Only the majority was constrained by the record of conviction and the findings previously returned by the jury in its verdict. This also appears to be what Bradford expressed,in explaining that the eligibility determination “is not a discretionary determination by thetrial court.” (People v. Bradford, supra, 227 Cal.App.4th at p. 1336.) However,the trial court abused its discretion, as determined by the majority, in that it departed from the record of conviction or failed to 44 consider the record of conviction. That is, the conclusion that the SUV that wasused in the felony assault was “incidental” to the conviction is inconsistent, as discussed above, with the findings and verdict returned by the jury. Moreover, the discussion of speed, level of threat, relative seriousness of the felony assault in the present case as opposed to other cases involving convictions for felony assault—asset out in the dissenting and concurring opinions (People v. Perez, supra, 3 Cal.App.5th at pp. 835-836, dis. op.}— is immaterial to an eligibility determination based on the verdict, elements of the offense, and record of conviction. While the majority found thatthe trial court abusedits discretion by reaching conclusionsinconsistent with the verdict and findings of the jury (People v. Perez, supra, 3 Cal.App.5th at p. 825), the majority also found that the trial court misinterpreted the voterinitiative. (/d. at p. 827.) However, other than correcting this misinterpretation, the majority foun d no consequenceto thetrial court’s conclusion that “an object that is not a deadly weapon perse” was not an objectthat if used would disqualify a petitioner from resentencing: The question,then, is whether voters intended clause (iii) to encompass arming based on personal use as a deadly weapon of an object that is not a deadly weaponperse. Thetrial court found defendant’s use of the motor vehicle in the present case was ‘not the anticipated use of a deadly weapon contemplated by [section] 1170.126.’ Reviewingthis question of law independently, we disagree. (People v. Perez, supra, 3 Cal.App.5th at p. 827.) Although the People agree with the majority’s conclusion, the majority rejected the People’s argument that an error in interpretation a nd application of the law is itself an abuse ofdiscretion. Yet, it is w ell settled that, “whena trial court’s decision rests on an error of law, that decision is an abuseof discretion.” (People v. Superior Court (HumbertoS.) (20 08) 43 45 Cal.4th 737, 746; see also, People v. Eubanks (1996) 14 Cal.4th 580, 595; People v. Neely (1999) 70 Cal.App.4th 767, 775-776; In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016.) In the present case, by rejecting the possibility that an object thatis not inherently a weapon might qualify as a weapon for purposes of ineligibility for resentencing under section 1170.126,thetrial court abused its discretion. Unlike the dissent’s analysis, the trial court failed to articulate what rationale it was relying on other than drawinga distinction between use of a weapon and being armed with a weapon. Thetrial court erred in concluding that objects that are not per se weapons can not disqualify a petitioner from eligibility under section 1170. 126, and that error infected the decision of the court and constitutes an abuseofthetrial court’s discretion. Consequently, assuming that an abuse ofdiscretion is the correct standard of review, the majority correctly concluded thatthe trial court abused its discretion. The decision therefore should be upheld. Ill. A DEFENDANTIs NOT ENTITLED TO A JURY TRIAL IN A PROPOSITION 36 ELIGIBILITY PROCEEDING Perez arguesthat the trial court would have been precluded form finding himineligible for resentencing undersection | 170.126 because the jury did notreturn a verdict of guilty of assault with a deadly weapon or make an explicit finding as to any weapon or arming allegation. (RB, 41.) Without repeating the argumentabove, the People,like the majority, believe that the jury’s verdict and those findings necessary to that verdict, as determined bya reviewofthe actualinstructions provided to the jury, refute these claims. In fact, the jury did make implicit findings necessary to the verdict, which dictate Perez’s ineligibility. The only factual 46 determination necessary, apart from those findings, explicit and implicit, is what wasthe “act” committed by Perez? In the presentcase,it is undisputed that Perez’s only act was driving the SUV. Hedid nothing else that could have, in any way, constituted an “act” supporting a conviction for felony assault. As discussed above, the jury made findings concerning Perez’s general criminal intent and present ability. Andit is from the record of conviction that the majority observed that, “[w]hen the jury convicted [Perez] of assault by meansof force like ly to produce great bodily injury, they necessarily found the force used by [Perez] in assaulting Sanchez,the victim, was likely to produce great bo dily injury.” (People v. Perez, supra, 3 Cal.App.5th at p. 825.) The majorit y goes on to reasonthat, “[t]he sole means by which [Perez] applied th is force was the vehicle he wasdriving.” (/d.) “Thus, the record of conviction establishes [Perez] used the vehicle in a manner capable of producing, and likely to produce, at a minimumgreat bodily injury —e., as a deadly weapon.” (/d.) In arguing that the foregoing conclusion of law violates the Sixth and Fourteenth Amendments, Perez argues that the majority substituted its “own extra facts determination for the judgmentofthe jury.” (RB, 44 .) Perez does not explain in what wayuse of the record of conviction and, particularly the findings of the jury necessary to the verdict, is violative of his rights. And, in fact, as discussed at length above, the findings relied upon by the majority were explicit or implicit findings necessarily returne d by the jury with its verdict. Perez appears to make two assumptions that are inconsistent with current law: Perez concludesthat “Penal Code section 1170.126 creates a mandatory reduction in sentence when certain criterion are met.” He describes this mandate as a presumption. (RB, 45.) And, “(t]he appel late courts have uniformly erred in misconstruingthe intent of the voters and 47 depriving petitioners oftheir rights under Apprendi and its progeny.” (RB, 45.) However, Perez concedes“that numerouscases have disagreed with this argument, following People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279.” (RB, 44.) In fact, the People have found no support for the assertion made by Perez that section 1170.126 establishes a presumption in favorof resentencing. In Kaulick it was argued “that, once the trial court concludedthat he waseligible for resentencing under the Act, he was subject only to a second strike sentence, unless the prosecution established dangerousness.” (People v. Superior Court (Kaulick), supra, 215 Cal.App.4th at p. 1302, emphasi s in the original, (““Kaulick”).) This argument, like that of Perez in the prese nt case, supposes a presumption in favor of resentencing. But the court rejected this construction of the law: [D]angerousnessis not a factor which enhances the sentence imposed when a defendantis resentenced under the Act; instead, dangerousness is a hurdle which must be cross ed in order for a defendantto be resentencedatall. If the court finds that resentencing a prisoner would pose an unreasonablerisk of danger, the court does not resentence the prisoner, and the petitioner simplyfinishes out the term to which he or she was originally sentenced. (Kaulick, supra, 215 Cal.App.4th 1279, 1302.) Asfor the second broad assertion,that the courts of appeal have “uniformly erred” concerning petitioners under section 1170.126 and violation of rights under Apprendi andits progeny, the People wouldci te the discussion in Bradford. Bradford provides a thorough analysis specifically addressing that, “[‘]he type offactual determination calledf or by the statute does not violate the Apprendiline ofcases.” (People v. Bradford, supra, 227 Cal.App.4th atpp. 1334-1336, emphasis ad ded.) 48 The clear conclusion in Bradford, not unlike the similar analysis of this Court in People v. McGee,is that section 1170.126 does not increase the already imposed sentence. (See, People v. McGee, supra, 38 Cal.4th at pp. 688-709.) Rather, the factual inquiry, limited to the record of conviction, does not require findings by a jury. Discussing the analogous case of Dillon v. United States (2010) 560 U.S. 817, the court explai ned in Bradford: The United States Supreme Court characterized the statute permitting the sentencing reduction, 18 United States Code section 3582(c)(2), as ‘a congressional act of lenity intended to give prisonersthe benefit oflater enacted adjustments to the judgmentsreflected in the Guidelines,’ emphasizing that such sentencing modification proceedings were ‘not constitutionall y compelled.’ (Dillon, supra, 560 U.S.at p. 828 [177 L.Ed.2d a t p. 285].) The court then explained: Viewed that way, proceedings under 18 United States Code section 3582(c)(2) do not implicate the Sixth Amendmentrightto have essential facts found by a jury beyond a reasonable doubt. Taking the ori ginal sentence as given, any facts found by a judge at a section 3582(c)(2) proceeding do notserveto increase the prescribe d range of punishment; instead, they affect only the judge’s exercise of discretion within that range. ‘Judgesin this count ry have long exercised discretion ofthis nature in imposing sentence within establishedlimits in the individual case,’ and the exercise of such discretion does not contravene the Sixth Amendmenteven ifit is informed by judge-foundfacts. (People v. Bradford, supra, 227 Cal.App.4th at p. 1335.) Consequently, the court of appeal majority was correct. Thetrial court did not violate the Sixth or Fourteenth Amendments andits procedure was consistent with the law. 49 CONCLUSION For the foregoing reasons,the People respectfully request that this Court affirm the court of appeal’s decision. Dated: April 11, 2017 Respectfully submitted, Senior D éputy District Attorney Attorneys for Plaintiffand Appellant Appellant’s Brief Perez.doc 50 CERTIFICATE OF COMPLIANCE I certify that the attached Appellant’s Answer Brief On The Merits uses a 13 point Times New Roman font and contains 13,885 words. Dated: April 11, 2017 Senior Deputy District Attorney Attorneys for Plaintiffand Appellant 5] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE People v. Alfredo Perez,Jr. Superior Court No. CF94509578 Appellate No. F069020 Supreme Ct. No. 8238354 I, THE UNDERSIGNED, DECLARE AND SAY; I am a citizen of the United States and a resident of the County of Fresno,State of California; I am over the age of 18 years and nota party to the within action; my business addressis Fresno County District Attorney's Office, 3333 E. American Avenue, Ste. F, Fresno, CA 93725 and 2220 Tulare Street, Ste. 1000, Fresno, CA 93721. On April 10, 2017, I served the attached, APPELLANT’S ANSWER BRIEF ON THE MERITSas follows: I am familiar with the business’ practice for collection and processing of correspondence for mailing, and that correspondence, with postage thereon fully prepaid, will be deposited with the United States Postal Service on the date noted below in the ordinary course of business, at Fresno, CA., addressed as follows: Elizabeth Campbell Central California Appellate Program Attorney at Law 2150 River Plaza Dr., Ste. 300 PMB 334 Sacramento, CA 95833 3104 O Street Sacramento, CA Clerk of the Fifth District Court of Appeal 2424 Ventura Street Fresno, CA 93721 Clerk of the Fresno County Superior Court 1100 Van Ness Avenue Fresno, CA 93724-0002 Office of the Attorney General Attn. Heather S. Gimle, Deputy Attorney General P.O. Box 944255 Sacramento, CA 94244-2550 I declare underpenalty of perjury, underthe lawsof the State of California, that the foregoing is true andcorrect. Date: April 11, 2017 District