PEOPLE v. PEREZ

Respondent’s Opening Brief on the Merits

Cal.March 21, 2017

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Appellant, V. ALFREDO PEREZ,JR., Defendant and Respondent. 5238354 MAR 2 1 2017 Jorge Navarrete Clerk Deputy Court of Appeal, Fifth Appellate District, No. F069020 Fresno County Superior Court No. CF94509578 Hon. Jonathan Conklin, Judge RESPONDENT’S OPENING BRIEF ON THE MERITS ELIZABETH CAMPBELL Attorney at Law State Bar No. 166960 PMB 334 3104 O Street Sacramento, CA 95816 (530) 786-4108 campbell166960@gmail.com Attorney for Respondent TABLE OF CONTENTS Page RESPONDENT'S OPENING BRIEF ON THE MERITS ....... 1 INTRODUCTION ........ 0... ccceet tees 1 STATEMENT OF THE CASE AND FACTS...............05 4 ARGUMENT .......... eee ce et eee eee tenes 9 I. The Court of Appeal Erred in Finding That, as a Matter of Law, a Person Convicted of Aggravated Assaulted Who Uses a Vehicle in the Commission of That Offense Has Necessarily Used a Deadly Weapon .... eee eee ee eee ene 9 A. The Three Strikes Reform Act ............ 10 B. A Conviction for Aggravated Assault under FormerSection 245, subdivision (a)(1), Does Not Render an Inmate Facially Ineligible for Resentencing underthe Three Strikes Reform 7X|ra12 C. The Court of Appeal Erred in Holding That the Jury Verdict Necessarily Encompassed a Finding That Respondent Used the Caras a Deadly Weapon ..........-. 0c eee eee eee 16 TABLE OF CONTENTS Page Il. THe Court OF APPEAL INCORRECTLY APPLIED THE STANDARD OF REVIEW AND FAILED TO ACCORD PROPER DEFERENCE TO THE FINDINGS OF THE TRIAL COURT .... ccceeeee eee eee 29 A. A Reviewing Court Should Uphold the Factual Findings of a Court Determining a Petitioner’s Eligibility under Penal Code Section 1170.126 if Those Findings Are Supported by Substantial Evidence ................6.. 30 B. The Trial Court’s Finding That Mr. Perez Was Not Armed Was Supported by Substantial Evidence. ..... 0... ccc eee eee ee eee 37 III. HAD THE COURT FOUND MR.PEREZ INELIGIBLE FOR RELIEF BASED ON FACTS NOT FOUND TRUEBYTHE JURY, IT WOULD HAVE DEPRIVED HIM OF HIS RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION 0.0... ccc tenes 41 CONCLUSION 1.1.0.0... ccceee eens 47 CERTIFICATE OF WORD COUNT .............. 0000005) 47 DECLARATION OF SERVICE ........... 0.000. e eee eee 48 ii TABLE OF AUTHORITIES Page Cases Alleyne v. United States 183 S.Ct. 2151 ...... 0.0.0... ee 41 Apprendi v. New Jersey (2000) 530 U.S. 466 .......... 42, 43, 46 Descampsv. United States (2018) 133 S.Ct. 2276 ............ 45 Dillon v. United States (2010) 560 U.S. 817 ............. 44, 45 Harris v. United States (2002) 5386 U.S. 466 ............ passim In re D.T. (2015) 237 Cal.App.4th 693 ............... 24, 25, 26 People v. Aguilar (1997) 16 Cal.4th 1023 ................ 16, 22 People v. Arevalo (2016) 244 Cal.App.4th 836 ............... 17 People v. Aznavoleh (2012) 210 Cal._App.4th 1181 ....... passim People v. Banuelos (2005) 130 Cal.App.4th 601 ............. 14 People v. Blakely (2014) 225 Cal.App.4th 1042 .............. 31 People v. Bradford (2014) 227 Cal.App.4th 1322 ........ passim People v. Brookins (1989) 215 Cal. App. 8d 1297 ............ 22 People v. Cervantes (2014) 225 Cal.App.4th 1007 ............ 36 People v. Delgado (2008) 43 Cal.4th 1059 .................. 14 People v. Elder (2014) 227 Cal.App.4th 1808 ............... 31 People v. Feyrer (2010) 48 Cal.4th 426 .................00.8. 13 People v. Fox (2014) 224 Cal.App.4th 424 .................. 13 People v. Gaitan (2001) 92 Cal.App.4th 540 .............0.. 22 People v. Graham (1969) 71 Cal. 2d 303 ............... passim People v. Guerrero (1988) 44 Cal.3d 343 ............. 17, 34, 45 People v. Haykel (2002) 96 Cal.App.4th 146 ............. 13, 15 People v. Hazelton (1996) 14 Cal.4th 101 .................. 15 People v. Hicks (2014) 231 Cal.App.4th 275 ............ passim People v. Hughes (2012) 202 Cal.App.4th 1473 .............. 30 People v. Kaulick (2018) 215 Cal.App.4th 1279 .............. 44 People v. Lochtefeld (2000) 77 Cal.App.4th 583 ............. 22 People v. Luna (2003) 113 Cal.App.4th 395 ................. 14 People v. Martinez (2014) 225 Cal.App.4th 979 .............. 36 People v. McCoy (1944) 25 Cal.2d 177 2.0... cece 22 People v. Moran (1973) 33 Cal.App.3d 724 .............40.4. 22 People v. Nguyen (2009) 46 Cal.4th 1007................00. 13 People v. Oehmigen (2014) 232 Cal.App.4th1............ 17, 18 People v. Osuna (2014) 225 Cal.App.4th 1020. .............. 17 Lil TABLE OF AUTHORITIES Page Cases People v. Page (2004) 123 Cal.App.4th 1466 .......... 22, 25, 26 People v. Raleigh (1932) 128 Cal.App. 105. ............ 9, 21, 25 People v. Ray (1975) 14 Cal.8d 20 2.0... .. cee eee eee 9, 21 People v. White (2014) 228 Cal.App.4th 1040 ............... 30 People v. Williams (2001) 26 Cal.4th 779 .............. passim People v. Winters (2001) 93 Cal.App.4th 273 .............08. 13 People v. Woodell (1998) 17 Cal.4th 448 ......eee eee 17, 45 People v. Wright (2002) 100 Cal.App.4th 703 ............ 18, 19 People v. Wyatt (2010) 48 Cal.4th 776 1.0.0... cece ene 20 People v. Yearwood (2013) 213 Cal.App.4th 161 ............. 10 Rossi v. Brown (1995) 9 Cal.4th 688 ........... 0. cece eee 15 Williams v. Superior Court (2001) 92 Cal.App.4th 612 ... passim Codes 18 U.S.C. § 924(c)IMA)eeeee eee nes 43 18 U.S.C. § 3582, subd. (2) .. 0... eee 45 Pen. Code, § 211 2.0...ccee tee ene 22 Pen. Code, § 245 2.0... . ccc ccc eee eee eee passim Pen. Code, § 667 2.0... .. 0c ccc eee eee eens passim Pen. Code, § 667.5 0.0... ccceee eee eens 7 Pen. Code § 1170.12 «0.0... . ceceeee passim Pen. Code § 1170.126 .... 0... . ccceee passim Pen. Code, § 1197.2 .. 0...ccceee eee eee 13 Constitutional Provisions United States Constitution, Sixth Amendment ..... 2, 41, 42, 43 United States Constitution, Fourteenth Amendment 2, 41, 42, 43 iv IN THE SUPREME COURTOF THE STATE OF CALIFORNIA $238354 PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Appellant, F069020 V. Fresno County Superior Court ALFREDO PEREZ,JR., No. CF94509578 Defendant and Respondent. RESPONDENT’S OPENING BRIEF ON THE MERITS INTRODUCTION On January 11, 2017, this court granted review on the following issues: 1. Is a petitioner ineligible for recall of his sentence under Penal Codesection 1170.126 where he personally andintentionally used a vehicle in a mannerlikely to result in great bodily injury, even if the evidencein the record of conviction did not demonstrate an intent to use the vehicle as a deadly weapon? Where a trial court makes a factual determination regarding a petitioner’s eligibility for resentencing under Penal Codesection 1170.126, and that factual determination is supported by substantial evidence in 1 the record of conviction, should a Court of Appeal defer to those factual findings? 3. Did the Court of Appeal, in reversing the order grantingthe recall petition based on facts not found true by a jury, deprive respondentof his right to jury trial as guaranteed by the Sixth Amendmentto the United States Constitution? After serving approximately 19 years in state prison for a 1995 conviction for assault by meanslikely to result in great bodily injury (Pen. Code, § 245, subd. (a)(1)), respondent Alfredo Perez successfully petitioned the Fresno County Superior Court to recall his sentence under Penal Code section 1170.126. In granting the petition, the court found that, based on the facts contained in the record of conviction, Mr. Perez had not used a deadly weapon in the commission of the offense. (RT 26.)' A sharply divided Court of Appeal for the Fifth Appellate District reversed the holding of the trial court, and remanded with directions to the lower court to reversethe findingofeligibility and reinstate the life sentence. (People v. Perez (2016) 3 Cal.App.5th 812, 828-829.) The majority held that, although Mr. Perez was neither charged with nor convicted of assault with a deadly weapon, as a matter of law, where an automobile is used as the “sole means” by which the defendant applied force likely to result in a great bodily injury, the defendantis ineligible for relief under Penal Code section 1«COT” refers to the clerk’s transcript on appeal; “RT” refers to the reporter’s transcript. 1170.126, under the exclusionary language of Penal Code section 667, subdivision (e)(2)(C)Gii) and section 1170.12, subdivision (c)(2)(C)Gii) (hereinafter “clause (iii)”). (People v. Perez, supra, 3 Cal.App.5th at p. 825.) The majority opinion ignores the thoughtful fact-finding of the superior court, and drawsan unjustifiably rigid legal line around whatis ultimately a fact-based inquiry. Respondent respectfully requests that this court reverse the holding of the Court of Appeal and reinstate the orderrecalling his life sentence. STATEMENT OF THE CASE AND FACTS? . On Marcy 17, 1994, the day before the incident that formed the basis of the charges in this case, Fred Sanchez was working as a sales clerk in an auto parts store when he saw a manhelater identified as Alfredo Perez, along with a man referred to in the court’s opinion as “the passenger,” enter the store. (CT 52.) The passenger was wearing a wool jacket and had his back to Mr. Sanchez, and Mr. Sanchez saw him raise a Club, an anti-theft device, above his head and then lowerit. (CT 52.) Mr. Perez spoke briefly to the passenger and then spoke to Mr. Sanchez about some tires. While the conversation was takingplace, the passengerleft the store, and Mr. Sanchez saw him go to the parking lot and wait in a Blazer-type truck. (CT 52.) Mr. Perez went to the driver’s side of the truck and drove away.(CT 52.) Mr. Sanchez suspected that the passenger had stolen the club while Mr. Perez had attempted to divert Mr. Sanchez’s attention. (CT 52.) Mr. Sanchez did not, however, notify police or check the store“s inventory to see if a Club hadbeenstolen. (CT 53.) The next day, March 18, Mr. Sanchez saw the same passenger enter the store. He was wearing the same wooljacket, even though the day washot. (CT 53.) The passenger appeared nervous and kept turning his back toward Mr. Sanchez. Mr. 2The statementoffacts is summarized from the Court of Appeal opinion in case number F023703,filed on November5, 1996. (CT 50.) Sanchez asked him if he neededhelp, and then followed the passengeroutof therearofthe store after alerting another employee. (CT 53.) Mr. Sanchez heard rustling in the passenger’s clothes. (CT 53.) The passenger had not paid for any items from the store. (CT 53.) The passenger entered the same Blazer, again with Mr. Perez in the driver’s seat; the passenger side window wasrolled down.(CT 53.) Mr. Sanchez was wearing a red smock shirt with the store insignia and his nametag. (CT 53.) The passenger had been in the car for less than a minute when Mr. Sanchez came up to his window. Mr. Sanchez saw a bulge in the passenger’s clothing, and told the passengerto please give the merchandise back and then hecould leave. (CT 53.) Mr. Sanchezreachedinto the car and grabbed at the package in the passenger’s jacket. Mr. Sanchezidentified it as a Club with a retail value of $59.55. Mr. Sanchez said, “Give it up.” Mr. Perez then looked toward Mr. Sanchez andsaid, “Give it up.” (CT 53.) Mr. Perez then drove the vehicle in reverse. The passenger grabbed Mr. Sanchez’s arm andpushed it down, preventing Mr. Sanchez from pulling his arm out of the window. Mr. Sanchez yelled, “Stop the vehicle,” three times as the vehicle was moving in reverse. (CT 53.) He was dragged and had to run to keep his balance. (CT 53.) Mr. Perez then drove the vehicle forward; Mr. Sanchez was able to pull his arm free at that point, but feared that if he fell he would be runover. (CT 53.) Mr. Sanchez variously estimated the speed of the Blazer between 10 and 20 miles per hour, but admitted that at the preliminary hearing he hadtestified that the vehicle started at 10 miles an hour and was doing 15 when hepulled his arm free. (CT 53.) He estimated that the entire incident took a minute and that his arm wasin the movingvehicle for about 15 seconds, and that the vehicle traveled about 50 feet forward. (CT 53-54.) Mr. Sanchez wasable to provide a license plate for the vehicle; it was registered to Mr. Perez andhis wife. (CT 54.) Anotherstore employee witnessed the events and characterizedit as Mr. Sanchez being dragged and “runningforhis life.” (CT 54.) Both store employees identified photographs of Mr. Perez. (CT 54.) Mr.Perez testified and denied being in the store on March 17; he and his father both testified that he had been elsewhereat the time. (CT 54.) Mr. Perez testified that on March 18, he was looking for a tire store when he meta friend named Elizabeth Ornelas, who offered him five dollars to give her acquaintance, “Don,” a ride to an auto parts store to get a part to fix her vehicle. (CT 54.) Mr. Perez testified that he drove to the store and waited in the car while Don went inside. When Don returnedto thecar, he was angry with another man; Mr. Perez was not aware that the man wasa store employee. (CT 54.) When Mr.Perez said “give it up,” he wastalking to his passenger, not to Mr. Sanchez, and that he meantfor the passengerto quit fighting. (CT 54.) Mr. Perez testified that he had been afraid; he admitted driving one or two miles an hourin reverse and twoto three miles an hourin drive, and stated that at no time did Mr. Sanchez have to run. (CT 54.) He admitted that Mr. Sanchez’s arm had been inside the vehicle when he put the car into reverse and when he drove forward. (CT 54.) Mr. Perez testified that after leaving the parkinglot, he told the passenger to get out and returned the gas money.(CT 54.) Mr.Perez told the investigatingofficer that the passenger had told him to leave because the man wastrying to rob him. (CT 55.) Ms. Ornelastestified that she had asked Mr. Perez to give a ride to man she hadrecently met in order to buy a part for the disabled vehicle they had been driving. At trial she testified that she had madethis request at a red light; prior to trial she had stated that it took place in a parkinglot. (CT 55.) On April 4, 1995, Mr. Perez was convicted of one violation of Penal Codesection 245, subdivision (a)(1), assault by meansof force likely to produce great bodily injury. (CT 6.) Dueto his two prior serious felony convictions, Mr. Perez was sentence to a term of 25 yearsto life, with two one-year enhancements under Penal Code section 667.5, subdivision (b). (CT 6.) On August 16, 2013, Mr. Perezfiled a petition to recall his sentence under Penal Codesection 1170.126. (CT 8.) Following a hearing, the court found Mr. Perez eligible for resentencing on February 5, 2014. (CT 967, RT 26.) On March 7, 2014, the court further found that Mr. Perez’s release would not pose an unreasonable risk to public safety. (CT 1016, RT 40.) The court accordingly denied probation and sentenced Mr. Perez to the upper term of four years in state prison, doubledto eight years, with two additionalyearsfor the prior prison term enhancements. (CT 1017, RT 43.) On March 7, 2014, the Peoplefiled timely notice of appeal. (CT 1020.) In a published opinion issued on September 29, 2016, the Court of Appeal reversed the orderfinding him eligible for release. (See People v. Perez (2016) 3 Cal.App.5th 812.) This court granted Mr. Perez’s petition for review on January11, 2017. ARGUMENT I. THE COURT OF APPEAL ERRED IN FINDING THAT, AS A MATTER OF LAW, A PERSON CONVICTED OF AGGRAVATED ASSAULTED WHO USES A VEHICLE IN THE COMMISSION OF THAT OFFENSE HAS NECESSARILY USED A DEADLY WEAPON Before finding that Mr. Perez did not pose an unreasonable risk to public safety and resentencing him to a determinate term pursuant to Penal Code section 1170.126 (CT 1016), the trial court found that he wasnotineligible for resentencing “based on the method in which the motor vehicle was used.” (CT 967.) A majority of the Court of Appeal panel rejected this finding, holding that, as a matter of law, when a person uses an automobile in the commission of an assault by meansofforce likely to result in great bodily injury, he has necessarily also been armed with a deadly weapon within the meaning of Penal Codesections 667, subdivision (e)(2)(iii), and 1170.12, subdivision (c)(2)(C)Gii). (People v. Perez (2016) 3 Cal.App.5th 812, 820, 825.) This holding is contrary to settled law. Where the People seek to prove that a defendant was armed with an instrument that is not inherently dangerous, they must prove that, under thefacts of the case, the instrument was employedor intended to be employed as a deadly weapon. (See People v. Graham (1969) 71 Cal. 2d 303, 327-328, disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 30; see also People v. Raleigh (1932) 128 Cal.App. 105.) This is a fact-based inquiry and not one subject to rigid legal line-drawing. Respondentrespectfully requests that this court reverse the holding of the Court of Appeal and reinstate the order recalling his life sentence. A. The Three Strikes Reform Act In 2012, the Three Strikes Reform Act was enacted by the voters with the adoption of Proposition 36. (Pen. Code, § 1170.126 et seq.) The Reform Act created a post-conviction release proceedingforlife prisoners sentenced under the Three Strikes Law for nonserious and nonviolent felonies. A person serving a three strikes sentence who meets thecriteria set out in section 1170.126, subdivision (e), is to be resentenced as a secondstrike offender unless the court determines such resentencing would pose an unreasonablerisk of dangerto public safety. (Pen. Code, § 1170.126, subd.(f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168.) A personservinga life sentence under the Three Strikes Law is ineligible for resentencing under the Reform Actif his or her current sentenceis for an offense listed in Penal Codesection 667, subdivision (e)(2)(C)i)-(iii), or Penal Code section 1170.12, subdivision (c)(2)(C)(i)-(iii). The disqualifying factor at issue in this case is listed in clause(iii) of these identical provisions: During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon,or intendedto cause great bodily injury to anotherperson. 10 (Pen. Code, § 667, subd. (e)(2)(iii); Pen. Code § 1170.12, subd. (cX2\C)Gii).)° Undersection 1170.126, the trial court only has the authority to determine whethera third strike offenderis eligible for resentencing if the inmate satisfies the criteria set out in subdivision (e) of section 1170.126. As relevant here, thosecriteria are: (1) the petitioner is serving a life term underthe three strikes law for a conviction of a felony or felonies not defined as serious or violent under section 1170.126; (2) the petitioner’s current sentence was not imposedfor an offense in which the defendant used or was armed with a firearm or deadly weapon (see Pen. Code, § 667, subd. (e)(2)(iii); Pen. Code § 1170.12, subd. (c)(2)(C)(iii)); and (3) the petitioner has noprior convictionsfor certain specified offenses. If the inmate doesnot satisfy each of the criteria, the trial court must deny the request for resentencing. (Pen. Code, § 1170.126, subd. (e); People v. Perez, supra, 3 Cal.App.5th at pp. 831-832, dis. opn. of Franson, J.) As the dissenting justice noted below, respondentsatisfied the first and third requirement, and this appeal thus relates to the second requirement. (Jbid.) ’These identical provisions will be referred to as “clause (iii).” 11 B. A Conviction for Aggravated Assault under Former Section 245, subdivision (a)(1), Does Not Render an Inmate Facially Ineligible for Resentencing under the Three Strikes Reform Act The Court of Appeal correctly noted that respondent’s current offense is not a seriousor violent offense. (People v. Perez, supra, 3 Cal.App.5th at p. 816.) At the time of the instant offense, Penal Codesection 245, subdivision (a)(1), applied to any person _ who committed an assault with a deadly weapon “or by meansof force likely to produce great bodily injury.” (Pen. Code, § 245, subd. (a)(1).)* The abstract ofjudgmentlists the offense of which respondentwas convicted as “assault by meansofforce likely to produce GBI.” (CT 6.) Moreover, the instructions provided to the jury defined only “by meansofforce likely to produce great bodily injury,” the jury was not instructed on use of a deadly weapon.” Thus,there is no question in this case as to whether Mr. Perez was convicted under the deadly weapon theory of Penal Code *For ease of reference, respondentwill refer to this offense as “aggravated assault.” A violation of section 240, “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another,” is a simple assault. The additional element of “use of force likely to create great bodily injury” under former section 245, subdivision (a)(1) defines the felony of aggravated assault. (Williams v. Superior Court (2001) 92 Cal. App. 4th 612, 615, fn 2.) The alternate theoryofliability under Penal Codesection 245, subdivision (a)(1), will be referred to as “assault with a deadly weapon.” ‘The Court of Appeal granted the People’s request to take judicial notice of selected jury instructions provided to the jury. (People v. Perez, supra, 3 Cal.App.5th at p. 819,fn. 4.) 12 section 245, subdivision (a)(1), or the “use of force by meanslikely to result in great bodily injury” theory,i.e., aggravated assault. (Williams v. Superior Court (2001) 92 Cal.App.4th 612, 624.) The record hereis clear that he was convicted only of the latter. Prior to its amendmentin 2011, Penal Codesection 245, subdivision (a)(1), could be proven in two distinct ways: either by committing an assault with a deadly weapon, or by committing an assault by meansofforce likely to result in great bodily injury. (Pen. Code, § 245, subd. (a)(1)®; People v. Winters (2001) 93 Cal.App.4th 273, 275.) A conviction under the formertheoryis a serious felony within the meaning of the Three Strikes Law; a conviction underthelatter is not. (Pen. Code, § 1197.2, subd. (c)(31); People v. Fox (2014) 224 Cal.App.4th 424, 434, fn. 8; People v. Haykel (2002) 96 Cal.App.4th 146, 148-149; People v. Winters (2001) 93 Cal.App.4th 273, 280; Williams v. Superior Court, supra, 92 Cal.App.4th at pp. 622-624.) Similarly, a conviction for assault with a deadly weaponis an excludable offense under the Three Strikes Reform Act, and a conviction for aggravated assault, standing alone,is not. (People v. Feyrer (2010) 48 Cal.4th 426, 442, fn. 8; People v. Nguyen (2009) 46 Cal.4th 1007, 1029,fn. 1; People ®As noted, Penal Codesection 245 has been amendedsince the time of respondent’s conviction. Subdivision (a)(1) of that provision now applies only to an assault with a deadly weapon other than a firearm. Subdivision (a)(4) now applies to an assault by meansofforce likely to produce great bodily injury. Both subdivisions carry the same punishment. Forease of reference, respondentwill refer to the statute as it existed at the timeofhis conviction. R A R E e a 13 v. Learnard (2016) 4 Cal App.5th 1117, 1121-1122,rev.gr. 2/22/2017.)' Section 1192.7, subdivision (c)(31), provides that “assault with a deadly weapon,firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peaceofficer or firefighter, in violation of Section 245,” is a serious felony. Under this statutory language, any conviction for assault with a deadly weapon under Penal Codesection 245 counts as a serious felony for this purpose, without regard to whether the defendant personally used the deadly weapon.(§ 1192.7, subd. (c)(31); see also People v. Luna (2003) 118 Cal.App.4th 395, 398, disapproved on other grounds in People v. Delgado (2008) 43 Cal.4th 1059, 1070, fn. 4.) Assault “by any meansofforce likely to produce great bodily injury,” by contrast, does not count as a serious felony unless it also involves the personal use of a deadly weapon or personalinfliction of great bodily injury. (People v. Banuelos (2005) 130 Cal.App.4th 601, 605.) In sum, an aggravated assault, without more,is not a strike, but any assault with a deadly weaponis a strike. (People v. Delgado, supra, 43 Cal.4th at p. 1067, fn. 3.)° "Briefing has been deferred in this case pendingresolution of People v. Gallardo, S231260,rev. gr. 2/17/16. 8 In the trial court, the People madelight of the differences between assault with a deadly weapon and aggravated assault, claiming that the prosecutorial decision to proceed with a prosecution on only a “by meansofforcelikely to result in great bodily injury” wasinsignificant, as it would not have affected the 14 Whenconstruing an initiative measure, and in the absence of evidence to the contrary, courts generally presumethat the drafters’ intent and understandingof the measure was shared by the electorate. (Rossi v. Brown (1995) 9 Cal.4th 688, 700, fn. 7; see also People v. Hazelton (1996) 14 Cal.4th 101, 123; Peoplev. Goodliffe, supra, 177 Cal.App.4th at p. 731.) The drafters of Proposition 36 could have expressly included the crime of assault by meanslikely to produce great bodily injury as a disqualifying offense in the Reform Act. Instead, the electorate excluded only those defendants who were found to have been armed with or used a firearm or deadly weapon during the commission of another offense. The Court of Appeal thuscorrectly found from this clear statutory language an aggravated assault does not automatically disqualify an inmate from resentencing under the Reform Act. (People v. Perez, supra, 3 Cal.App.4th at p. 824; see also People v. Haykel (2002) 96 Cal.App.4th 146, 149; Williams v. Superior Court, supra, 92 Cal.App.4th 612.) ultimate sentence. (RT 15.) This is, of course, incorrect, because personal use of a deadly weapon would have madethe current conviction a serious felony, subjecting Mr. Perez to a five-year enhancement under Penal Code section 667, subdivision (a). Although the prosecution in this case occurred before the Three Strikes Law was amended to makeany assault with a deadly weapon a strike, personal use of a deadly weapon wasa serious felony at the timeof the offense. 15 C. The Court of Appeal Erred in Holding That the Jury Verdict Necessarily Encompassed a Finding That Respondent Used the Car as a Deadly Weapon Although the Court of Appeal wascorrect in concluding that a conviction for aggravated assault does not render a petitioner automatically ineligible for resentencing under the Reform Act, the court went further and held that, as a matter of law, when a defendantis convicted of using a vehicle as a meansofforce likely to produce great bodily injury, that defendant was “armed with a deadly weapon” within the meaningof clause(iii). (People v. Perez, supra, 3 Cal.App.5th at pp. 820-821.) In essence, the Court of Appealhere held that the aggravated assault of which the jury convicted Mr. Perez necessarily involved the use of a deadly weapon,i.e., the car, because by committing an assault by means of force likely to result in great bodily injury, he necessarily used deadly force. (People v. Perez, supra, 3 Cal.App.5th at pp. 820-821.) This is not the law of assault, and it is not the law concerning use of a deadly weapon.If it were, then the crimes of aggravated assault and assault with a deadly weapon would merge, and the longstanding distinction between the twooffenses would be meaningless. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1030-1031 [noting that “force likely” language was added to section 245 in 1874 in order to encompassthose aggravated assaults that did not involve a weapon extrinsic to the body, such as hands andfeet}.) More importantly, the majority opinion’s analysis diminishes the importanceof the factual inquiry necessary to 16 determine whether an assault such as the oneat issue in this case amounts to a disqualifying offense underclause(iii). While this factual determination does not involve the taking of new evidence andis limited to the record of conviction, the appellate courts of this state have held that a superior court considering the question of eligibility under Penal Code section 1170.126 must undertake a record-boundfactual inquiry, as described by this court in People v. Guerrero (1988) 44 Cal.3d 343 and People v. Woodell (1998) 17 Cal.4th 448. (See People v. Bradford (2014) 227 Cal.App.4th 1322, 1337-1339.)° Respondentdoes not disagree, of course, that under some circumstances an automobile may be used as a deadly weapon and may thus disqualify a petitioner from resentencing under Penal Code section 1170.126. But because a car can also be used — even in the commissionof a crime — in ways that do not renderit a “deadly weapon” underthe law, the question of whethera car so qualifies is always dependent upon the circumstancesof the individualcase. (Cf. People v. Perez, supra, 3 Cal.App.5th at pp. 834-836, dis. opn. of Franson,J.) For instance, in People v. Oehmigen (2014) 232 Cal.App.4th 1, the Third District found that a petitioner wasnoteligible for resentencing becausethefactual recitation at the time he entered °This court is currently considering the question of the standard of proof to be applied at such a hearing. (Peoplev. Frierson (2016) 1 Cal.App.5th 788, review granted 10/19/2016 (S236728/B260774); see People v. Arevalo (2016) 244 Cal.App.4th 836; cf. People v. Osuna (2014) 225 Cal.App.4th 1020.) 17 his 1998 plea established that he was armed with a deadly weapon whenhe purposefully drove a car at a police vehicle. (People v. Oehmigen, supra, 232 Cal.App.4th at p. 11.) Oehmigen is both factually and legally indistinguishable from the instant case. There, the defendant pleaded guilty to assault by meanslikely to result in great bodily injury, and the factual basis agreed upon at the time of the plea stated that he had stolen a car, driven it ina reckless manner for several miles with police in pursuit, and at the end of the pursuit, he turned the car around andintentionally drove it at one of the police cars, which had to make an evasive maneuverto avoid a collision. The defendant then crashedinto a house, and police found a small-bore pistol in the vicinity of the car, and three pipe bombsin thecar. (Id. at p. 5.) Thetrial court found the defendantineligible for resentencing because he was armed with multiple deadly weapons (the car, pistol, and the pipe bombs) and further because he had the intent to inflict great bodily injury on his pursuers. (People v. Oehmigen, supra, 232 Cal.App.4th at p. 6.) The Court of Appeal found that, at minimum,the record of conviction supported the trial court’s finding in regard to the use of a car as a deadly weapon.(Jd. at p. 11.) Notably, in Oemigen there was no question of the defendant’s intent to use the car as a deadly weapon. Oehmigenrelied in part on the Third District’s earlier holding in People v. Wright (2002) 100 Cal.App.4th 703, in which the court held that “any operation of a vehicle by a person knowing facts that would lead a reasonable personto realize a 18 battery will probably and directly result may be charged as an assault with a deadly weapon.” (People v. Wright, supra, 100 Cal.App.4th at p. 706.) The court in Wright based this holding on this court’s decision in People v. Williams (2001) 26 Cal.4th 779 permitting a conviction of assault where the defendant’s conductis merely negligent rather than purposeful. (People v. Williams, supra, 26 Cal.4th at p. 790.) The defendant in Wright had argued that becausehis intent was only to use the car to intimidate the victim, rather than to actually use the car as a deadly weapon,his conduct amounted to no more than reckless driving. (Peoplev. Wright, supra, 100 Cal.App.4th at p. 705.) The court rejected this argument. (Ibid.) The question before the court in Wright, however, was the necessary mental state for assault; the court did not consider the question of whether the car was employed as a deadly weapon. (/d. at pp. 711-717.) The court in People v. Aznavoleh (2012) 210 Cal.App.4th 1181 likewise relied on Williams in finding that a defendant was properly convicted of assault with a deadly weapon where he deliberately ran a red light while racing another vehicle on a busy city street, was repeatedly told to slow downbyhis passengers, and saw anothervehicle in the intersection as he approached the but made noeffort to stop, slow down,or otherwise avoid a collision. (People v. Aznavoleh, supra, 210 Cal.App.4th at pp. 1183- 1184.) The court found that, based on this evidence and the negligence standard adopted by this court in Williams, the jury could properly find that the defendant wasguilty of assault with a 19 deadly weapon. (People v. Aznavoleh, supra, 210 Cal.App.4th at p. 1189.) The court noted that, under California law, “assault does not require intent to commit a battery.” (id. at p. 1188,italics in original.) This court has held that “a defendant may commit an assault without realizing he is harmingthe victim, but the prosecution must prove the defendant was awareoffacts that would lead a reasonable personto realize that a battery would directly, naturally, and probably result from the defendant’s conduct.” (People v. Wyatt (2010) 48 Cal.4th 776, 779.) A defendant “who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery.” (People v. Williams, supra, 26 Cal.4th at p. 788, fn. 3.) In orderto prove that a defendant is armed with a deadly weapon, however, the People must either prove that the weapon was one that was inherently dangerous or deadly, or prove that the defendant intendedto or in fact did use the instrument as a deadly or dangerous weapon.This requires a proofof intent thatis not required, and here wasnot pleaded or proven or otherwise established by the evidence, in a case of aggravated assault. Two categories of instruments have been foundto be “deadly weapons.” Thefirst includes any object that is inherently dangerous or deadly, such asa firearm,a dirk, or a dagger. These instruments are considered to be weaponsas a matter of law. The 20 instrumentalities falling into the second class, such as pocket knives, canes, hammers,hatchets and other sharp or heavy objects, “which are not weaponsin thestrict sense of the word and are not ‘dangerous or deadly’ to others in the ordinary use for which they are designed, maynot be said as a matter of law to be ‘dangerousor deadly weapons.”(People v. Graham, supra, 71 Cal. 2d at pp. 327-328, disapproved on other groundsin People v. Ray (1975) 14 Cal.3d 20, 30; see also People v. Brown, supra, 210 Cal.App.4th at p. 10; People v. Raleigh, supra, 128 Cal.App. 105, 108-109.) For the latter type of weapon, the question of whether the item is a deadly or dangerous weapon turns upontheperpetrator’s intent. “Although the mannerofthe use of an object does not automatically determine whethera defendant was ‘armed with a dangerous or deadly weapon,’ the method of use may be evidence of the intent of its possessor.” (People v. Graham, supra, 71 Cal.2d at p. 327.) “Whenit appears[...] that an instrumentality other than onefalling within thefirst class is capable of being used in a ‘dangerous or deadly’ manner,and it may befairly inferred from the evidence that 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 be thus established, at least for the purposesof that occasion.” (Peoplev. Raleigh, supra, 128 Cal.App. at pp. 108-109.) Thus, in order to prove that a defendant is “armed with” an instrument that is not inherently dangerous or deadly, the People 21 must prove that the defendant intendedto use it as a weapon. The evidence must demonstrate that the defendant intendedto use the instrument as a weapon and notfor some other purpose. (People v. McCoy (1944) 25 Cal.2d 177, 188-189; People v. Moran (1973) 33 Cal.App.3d 724, 730.) The defendant must knowthat the object is a weapon and mustpossess it as a weapon.(Cf. People v. Gaitan (2001) 92 Cal.App.4th 540, 547.)"° Consequently, objects such as hammers,screwdrivers, or trucks are not deadly weapons unless the evidence establishes that the possessor intended to use them as such. (People v. Brown, supra, 210 Cal.App.4th at p. 7.) The question of whether an instrumentthat is not inherently dangerousis possessed as a deadly weaponis a mixed question of law and fact. (People v. McCoy, supra, 25 Cal.2d at p. 188.) Aggravated assault, by contrast, may be proven without any requirement that the defendant intended to cause harm,i.e., to use an instrument as a deadly weapon.(People v. Williams, supra, 26 Cal.4th at p. 788, fn. 3.) Because this element of arming was not presented to or found true by the jury, the court could not find 1°Cases discussing the definition of a deadly weapon routinely rely on other cases dealing with different statutes. (E.g., People v. Aguilar, supra, 16 Cal.4th at p. 1029 [addressing Pen. Code, § 245], citing People v. Graham, supra, 71 Cal.2d at p. 327 [dealing with former Pen. Code, § 211a].) Absent a specific statutory definition, “no sound reason appearsto define a ‘deadly weapon’ for purposesof section 245 differently than it is defined in other contexts underotherstatutes.” (People v. Page (2004) 123 Cal.App.4th 1466, 1472, citing People v. Lochtefeld (2000) 77 Cal.App.4th 533, 540; see also People v. Brookins (1989) 215 Cal. App. 3d 1297, 1805-1307.) 22 respondentineligible unless the record of conviction established that he intended to or in fact did use the car as a deadly weapon. Code section 1170.126. Respondent has found no published authority that conclusively answers the difficult question presented by the facts of this case: whether a defendant may besaid to have been “armed” with a deadly weapon where the weapon in question is a vehicle, and the evidence on the record supports a conclusion that the defendant did not intend to use that vehicle as a weapon. Moreover, respondent has found nocases in which an assault with a deadly weapon wasestablished in a case involving a noninherently dangerous object and a negligent, as opposed to intentional, assault. (Cf. People v. Williams, supra, 26 Cal.4th at p. 790.) In spite of the Court of Appeal’s conclusion that no proof of intent to use an object as a deadly weaponis required in order to show that a petitioner was “armed with” a deadly weapon,this conclusion flies in the face of simple logic, as it leads to the absurd result that any person who drives a car is armed with a deadly weapon. Moreover, a review of other cases addressing what proof is neededfor an object that is not inherently dangerous to be considered a deadly weaponreveals that, in virtually every case, the defendant’s intent — whether to commit a battery, or to use the object as a deadly weapon — wasclearly established. In People v. Bradford, supra, 227 Cal.App.4th 1322, the Court of Appeal reversed an order denyinga petition to recall a sentence under Penal Code section 1170.126 because therecord of 23 conviction did not establish that the petitioner had been armed with a deadly weapon. Specifically, the reviewing court found that the petitioner’s possession of wire cutters was insufficient where the record failed to show his purpose in carryingthe wire cutters, i.e., whether he intendedto use them as a deadly weapon.(People v. Bradford, supra, 227 Cal.App.4th at pp. 1331-1332.) Although the court did not use the word “intent” in describing the insufficiency, it was clearly the petitioner’s mental state — his intent — that was the missing elementin that case. The majority opinion below declined to follow Bradford and instead held that intent to use the vehicle as a deadly weapon is not necessary. (People v. Perez, supra, 3 Cal.App.5th at pp. 826- 827.) The majority cited the holding in In re D.T. (2015) 237 Cal.App.4th 693, where the court found that the People did not need to prove that a minor intendedto use a knife as a deadly weapon in order to obtain show that the minor had committed assault with a deadly weapon. (In re. D.T., supra, 237 Cal.App.4th at p. 702.) In re D.T.is both legally and factually distinguishable, however, in that the facts there involved an intentional battery, not a negligent assault. The minor in D.T. grabbed another minor who wastrying to avoid him, and whilestill restraining her, displayed an open pocketknife, and poked the other minor several times in the back with the open knife, causing pain. (In re. D.T., supra, 237 Cal.App.4th at p. 696.) The blade of the knife was more than two and a half inches long, with a sharp edge and a pointedtip. Ud. at 24 p. 697.) The juvenile court sustained a wardship petition after finding true an allegation that the minor had committed an assault with a deadly weapon.(Jd. at p. 696.) The appellate court affirmed, rejecting the minor’s argumentthat the evidence did not support the adjudication for assault with a deadly weapon, because the knife was unlikely to cause death or great bodily injury as he used it, and because he did not intend to use it as a deadly weapon. (In re D.T., supra, 237 Cal.App.4th at p. 698.) At the outset, the court discounted the arguments that the minor hadonly intended to annoy or tease the victim, or that the knife was not capable of causing great bodily injury or dath. (Jd. at p. 699-701.) The court wenton to reject the minor’s claim that the prosecution hadfailed to prove that he intended to use the knife as a deadly weapon, holding that such intent is not a necessary element of assault with a deadly weapon. (Id. at p. 702.) The minor in D.T. relied on language from People v. Page (2004) 123 Cal.App.4th 1466, another case from the samecourt, which cited Graham and Raleigh for the proposition that an object that is not inherently dangerous or deadly may nonetheless be a deadly weapon dependingon the perpetrator’s intent. (People v. Page, supra, 123 Cal.App.4th at p. 1471.) In Page, an accomplice held a pencil to the victim’s neck and threatened to stab him with it. The appellate court upheld the conviction for assault with a deadly weapon on the ground that the accomplice had used the pencil as a deadly weapon:“Certainly she was not threatening to 25 write a note with it! She was not threatening that, if the victim involved the police, she would break his pencil; she was threatening to stab him with it. She viewed it, at that moment, as an instrument of great bodily injury or death.” Ud. at p. 1473.) The court in In re D.T. clarified its prior holding in Page by noting that, while the perpetrator’s intent was one method of showingthat an object qualified as a deadly weapon, the prosecution was not required to prove such intent in every case. Un re D.T., supra, 237 Cal.App.4th at p. 702.) Notably, however, the minor in D.T. did not deny that he had harbored theintent to commit a battery. (Ibid.) Nor was there any real question that the minor had intendedto use the knife as a weapon,regardlessofits dangerousor deadly character. (In re D.T., supra, 237 Cal.App.4th at p. 700.) The inquiry in the instant case is complicated by the fact that the car was not the “sole instrumentality” involved in the assault. It was the movementof the car in combination with the passenger’s grabbingof 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. Asnoted, this court has held that assault does not require a specific intent to cause injury or even a subjective awarenessof the risk that an injury might occur. (People v. Williams, supra, 26 Cal.4th at p. 790.) Assault requires only “an intentional act and 26 actual knowledgeofthose facts sufficient to establish that the act by its nature will probably anddirectly result in the application of physical force against another.” (Jbid.) Underthis standard, the facts of the case could be sufficient to establish respondent’s guilt for aggravated assault so long as he knew or should have known that the passenger washolding onto the clerk’s arm when respondent madehis attempt to escape. (RT 17.) But absent an intent to use of the car as a deadly or dangerous weapon, he was not ineligible for recall of his sentence. To borrow an analogy employedby the prosecutor during argumentsin thetrial court, the Club anti-theft device stolen from the store was, like the vehicle, an object that was not an inherently dangerous weapon, but one that certainly could have been employed in that fashion. (See People v. Perez, supra, 3 Cal.App.5th at pp. 834-835, dis. opn. of Franson, J.) Had petitioner intentionally struck the store clerk with the Club, clearly he would have been guilty with assault with a deadly weapon.On the other hand, had petitioner been running away while holding onto the Club, and had the pursuingstore clerk tripped and struck his head on the Clubin petitioner’s hand, respondent mightstill have been guilty of aggravated assault under the negligence theory articulated in People v. Williams. (See RT 12.) He would not, however, have been guilty of assault with a deadly weapon, absent an established intent to use the Club as a weapon. 27 The question of whether Mr. Perez used a deadly weapon in the commission of the offense was one that was not found true by the jury and not established as a matter of law by his conviction. Thus, the appellate court erred in reversing the order granting his petition to recall his sentence. 28 Il. THE COURT OF APPEAL INCORRECTLY APPLIED THE STANDARD OF REVIEW AND FAILED TO ACCORD PROPER DEFERENCE TO THE FINDINGS OF THE TRIAL COURT Following extensive argument and discussion,the trial court found Mr. Perezeligible for relief under Penal Code section 1170.126 “based on the methodin which the motor vehicle was used.” (CT 967.) As noted, in reversing this holding, the majority framed the question as an issue of law, rather than an issue involving findingsof fact, and accordingly failed to defer to the trial court’s factual determinations. (See People v. Perez (2016) 3 Cal.App.5th 812, 835-836, dis. opn. of Franson, J.) Respondent respectfully requests that this court reverse the majority opinion below and reinstate the order grantinghis petition to recall his sentence. Ashasalready been discussed,in order for Mr. Perez to have been “armed with” the vehicle so as to render him ineligible for relief under Penal Codesection 1170.126, the record of conviction would have to have shownthat he intendedto use the vehicle in that fashion. Thetrial court, however, made express findings that this was not Mr. Perez’s intent. The court instead found that Mr. Perez’s use of the vehicle was “incidental” and that his intent in driving the car was simply to escape. (RT 12, 17, 22.) Contrary to the holding in the majority opinion, then, the intent element was not necessarily established by the jury verdict on the underlying offense, and the trial court, upon reviewing the 29 facts, simply found as a factual matter that Mr. Perez was not so armed. The reviewing court should have deferred to those factual findings and affirmed the judgment. A. A Reviewing Court Should Uphold the Factual Findings of a Court Determining a Petitioner’s Eligibility under Penal Code Section 1170.126 if Those Findings Are Supported by Substantial Evidence. As Justice Franson emphasizedin his dissenting opinion, “Thetrial court's underlying factual determination that Mr. Perez waseligible for resentencing is reviewed on appeal for substantial evidence.” (People v. Perez, supra, 3 Cal.App.5th at p. 833, dis. opn. of Franson, J.; see also People v. Bradford, supra, 227 Cal.App.4th at p. 1331; 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2016 supp.) Punishment, § 421C, p. 128.) The appellate court’s role is to review the correctnessof the challenged ruling, not the propriety of the analysis used to reach that ruling. If the trial court’s ruling was correct upon any theoryofthe law applicable to the case, it must be sustained regardless of the considerations which may have movedthetrial court to its conclusion. (People v. Perez, supra, 3 Cal.App.5th at p. 833, dis. opn. of Franson, J.; see also People v. Hughes (2012) 202 Cal.App.4th 1473, 1481.) Thusfar, the intermediate appellate courts considering eligibility determinations under Penal Code section 1170.126 have uniformly held that the determination of whethera petitioneris excludable due to the nature of the current conviction must be determined by thetrial court from the record of conviction. (People 30 v. White (2014) 228 Cal.App.4th 1040, 1044; People v. Bradford, supra, 227 Cal.App.4th at pp. 1831-1332; People v. Elder (2014) 227 Cal.App.4th 1308, 1314-1316; People v. Hicks (2014) 231 Cal.App.4th 275, 285; People v. Blakely (2014) 225 Cal.App.4th 1042, 1063.) An appellate court reviews those findings for substantial evidence. (People v. Hicks, supra, 231 Cal.App.4th at p. 286.) This case is noteworthy becauseall three justices on the Court of Appeal panel wrote separate opinions, and each of those opinions, explicitly or implicitly, apply a different standard of review. The majority opinion, authored by Justice Detjen, identifies the central issue as a question of law, and accordingly applies a de novo standard to evaluating thetrial court’s reasoning. (People v. Perez, supra, 3 Cal.App.5th at pp. 821-825.) The central holding of the majority opinion is that, in convicting Mr. Perezof assault by meansofforce likely to produce great bodily injury, the jury necessarily found that the force used by respondentin assaultingthe store clerk, waslikely to produce great bodily injury, and that since “[t]he sole means by which defendant applied this force was the vehicle he was driving,” the record of conviction therefore established that he used the vehicle in a mannercapable of producing, and likely to produce, great bodily injury — that is, as a deadly weapon. (People v. Perez, supra, 3 Cal.App.5th at p. 825.) The majority opinion purports to review the factual findings of the trial court, holding that even underthe deferential 31 substantial evidence standard of review,the record of conviction did not supportthetrial court’s finding that the use of the vehicle was “incidental.” (Ibid.) However, the court’s analysis begins with the assumption that the trial judge’s findings actually contradicted the findings of the jury. (People v. Perez, supra, 3 Cal.App.5th at p. 825, fn. 14.) In other words, the majority opinion’s deferential review of the trial court’s fact findingis circumscribed by the majority’s conclusion that, as a matter of law, the jury verdict necessarily included a finding that Mr. Perez had used or been armed with a deadly weapon in the commission of the offense. (Id. at p. 825.) Justice Franson’s dissenting opinion rejects the majority’s conclusion that the lower court’s factual findings had contradicted the jury verdict. (People v. Perez, supra, 3 Cal.App.5th at p. 835, dis. opn. of Franson, J.) Instead, the dissent emphasizes the lower court’s careful examination of the evidence and clear knowledge of the dictates of the Reform Act. (Jbid.) Justice Franson accordingly applies a deferential standard of review, and concludes that substantial evidence supported thetrial court’s determination that Mr. Perez’s use of the vehicle was not a deadly weapon within the meaning ofclause(ili). Ud. at p. 837.) The concurring opinion, by Justice Poochigian, does not address the standard of review. Instead, the concurrence focuses entirely on a review of the facts, particularly the available facts regarding the speed of the car. Justice Poochigian prefaces his review of the factual record by noting that, in the instantcase, 32 “the purpose of the use of the vehicle was arguably notto inflict injury but to provide a meansof escape. Indeed,the court's conclusion at the hearingon the petition for resentencing that the use of the vehicle was ‘incidental’ was presumably based on that understanding.” (People v. Perez, supra, 3 Cal.App.5th at p. 829, conc. opn. of Poochigian, J.) The concurring opinion then presents a thoroughreview of the discussion of the speed of the vehicle, noting that under the circumstances, “the speed suggested by the victim’s testimony seems questionable.” (Ibid.) Nonetheless, the concurring opinion concludesthat, in spite of the author’s misgivings about the accuracy of the testimony,“I am satisfied with the conclusion that the vehicle was employed as a deadly weapon — thus rendering the defendantineligible for resentencing.” (Id. at p. 830, conc. opn. of Poochigian, J.) Of the three analyses, only Justice Franson’s applies the proper standard. The majority opinion is premised upon an incorrect analysis of the law, an analysis that circumscribedits deferenceto the lowercourt’s fact finding, since in the view of the majority that fact finding contradicted the jury verdict. (People v. Perez, supra, 3 Cal.App.5th at p. 825.) Justice Poochigian, while clearly troubled by the facts of the case, undertook what amounted to a de novo review of those facts rather than deferringto thetrial court’s findings. (People v. Perez, supra, 3 Cal.App.5th at p. 829, conc. opn. of Poochigian, J.) Only Justice Franson applied to the correct standard of review: to uphold the factual findings of the lower court so long as those findings were supported by 33 substantial evidence. (People v. Perez, supra, 3 Cal.App.5th at p. 837, dis. opn. of Franson,J.) The factual determination of whether a petitioner’s current offense was committed under circumstances that disqualify him or her from resentencing under the Reform Act has been foundto be analogousto the factual determination of whether a prior conviction wasfor a serious or violent felony under the three strikes law. Such factual determinations about prior convictions are madebythe court based on the record of conviction. (People v. Hicks, supra, 231 Cal.App.4th at p. 286; see also People v. Guerrero, supra, 44 Cal.3d at p. 355 [in determiningfacts underlying prior convictions, court may look to entire record of conviction].) In People v. Bradford, as previously discussed, the court reversed a trial court’s finding that a petitioner wasineligible for resentencing under Penal Codesection 1170.126, concluding that the lower court’s finding was not supported by sufficient evidence. (People v. Bradford, supra, 227 Cal.App.4th at p. 1331.) The court held that the statute requires a factual determination bythetrial court as to whetherthe petitioner was armed with a deadly weapon during the commissionofthe offense. (Jd. at pp. 1331- 1332.) The petitioner in Bradford had been convicted of three counts of second degree burglary and four countsof petty theft with a prior. (Id. at p. 1827.) The jury had acquitted him of robbery, and no deadly weapon allegation was found true. (Ibid.) The facts on the record of conviction indicated that the petitioner 34 had been found with a pair of wire cutters in his pocket and had threatened a store employee during oneof the incidents, but he did not display any weapon anddid not actually attack the employee. (Ibid.) The court found that the factual determination contemplated by section 1170.126 must be madesolely on the basis of the record of conviction. (People v. Bradford, supra, 227 Cal.App.4th at p. 1331.) Further, the court found that the evidence wasinsufficient to support the trial court’s conclusion. (Ibid.) Rather than reversingthe issue outright, however, the court remanded the matter to permit the parties to brief the issue of whetherpetitioner’s possession of wire cutters constituted being armed with a deadly weapon.(/d. at p. 1341.) Here, as noted, the abstract ofjudgmentlists the offense of which respondentwasconvicted as “assault by meansof force likely to produce GBI.” (CT 6.) Moreover, the jury was instructed only on the theory of “by meansofforce likely to produce great bodily injury.” (People v. Perez, supra, 3 Cal.App.5th at p. 819, fn. 4.) In considering the petition, the court reviewed the facts and circumstances of the case (RT 11-12) and foundthat they did not support a finding of ineligibility. (RT 12.) The court described the use of the motorvehicle as “incidental.” (RT 12.) The court opined that, as Mr. Perez sat in his car outside of the auto parts store, he was not “armed” simply because an automobile can be used as a deadly weapon.(RT 22.) The court ultimately found that Mr. 35 Perez was not ineligible “due to the method in which the motor vehicle was usedin this case.” (RT 26.) Unlike the scenarios confronted by the court in Peoplev. Martinez (2014) 225 Cal.App.4th 979 and People v. Cervantes (2014) 225 Cal.App.4th 1007, the trial court here did not purport to makeits finding as a matter of law, but rather as one of fact. A reviewing court should not disturb thetrial court’s factual findings unless they are not supported by substantial evidence. (See People v. Hicks, supra, 231 Cal.App.4th at p. 286.) In Martinez and Cervantes, the judge found that a defendant who only constructively possesses a firearm, rather than actually possessinga firearm, is not excluded from relief under the Three Strikes Reform Act. (People v. Cervantes, supra, 225 Cal.App.4th at p. 1012; People v. Martinez, supra, 225 Cal.App.4th at p. 986.) In each of those cases, the court found that thetrial court exceeded its statutory powerin finding the defendanteligible for resentencing. (People v. Martinez, supra, 225 Cal.App.4th atp. 989; cf. People v. Cervantes, supra, 225 Cal.App.4th at p. 1018.) Here, by contrast, the trial court found that Mr. Perez’s “incidental” use of the car to effect a getaway from the auto store did not amount to being “armed with a deadly weapon” within the meaning of Penal Code section 1170.12, subdivision (c)(2)(C)(iii). As the dissenting justice emphasized, “Thetrial court reviewed . and weighedthefacts, including the credibility of the estimated speeds and length of time for the incident and determined, based on its review and interpretation of the facts, that the method used 36 by Mr. Perez in maneuveringhis car to depart the scene did not convert an object otherwise not inherently a deadly weapon, into one.” (People v. Perez, supra, 3 Cal.App.5th at p. 835, dis. opn. of Franson, J, emphasis in original.) Based on this factual determination, the superior court reached the legal conclusion that Mr. Perez was neither armed with nor used a deadly weapon, and was therefore eligible for resentencing. (/bid.) Justice Franson concluded: “This determination was not made becauseof any misunderstanding of Proposition 36. Based on the record, and the trial court’s comments,he clearly understood the mandates of Proposition 36 and properly applied them to the facts, as he interpreted them to reach his decision.” (Ibid.) In other words, the trial court’s finding necessarily involved a factual finding, and the Court of Appeal should havedeferred to that finding to the extent that it was supported by substantial evidence. B. TheTrial Court’s Finding That Mr. Perez Was Not Armed Was Supported by Substantial Evidence. As noted, because Mr. Perez was not charged with use of a deadly weapon,the question of his intent was not settled by the jury. The trial court madea factual finding that his use of the car was “incidental” and that, as he sat in the parkinglot, Mr. Perez was not “armed with” a deadly weapon. (RT 12, 22.) The evidence, as summarized in the opinion from his prior appeal, supports this conclusion: Mr. Perez’s intent was to get away from thestore, and while he may have acted with recklessness or negligence that would support an aggravated assault charge (People v. Williams, supra, 26 Cal.4th at p. 788, fn. 3), no evidence suggested that he 37 harbored the necessary intent to use the car as a deadly weapon should the needarise. (People v.Brown, supra, 210 Cal.App.4th at p. 7.) The court ultimately found that Mr. Perez wasnotineligible “due to the method in which the motor vehicle was usedin this case.” (RT 26.) In other words, the court found that he did not possess the car with the intent to use it as a deadly weapon, and was thusnot armed with a deadly weapon within the meaningof the Reform Act. In sum, the question of whether Mr. Perez was armed with a deadly weapon was neverpresentedtothefirst trier of fact, the jury. Thesecondtrier of fact, the court reviewing the petition to recall the sentence, conclusively found that Mr. Perez was not so armed. The Court of Appeal should havedeferred to this ruling, as even the concurring justice noted that the evidence supported an inference that Mr. Perez did not intentionally use the vehicle to inflict injury, but rather simply to escape. (People v. Perez, supra, 3 Cal.App.5th at p. 829, conc. opn. of Poochigian, J.) Justice Franson, writing in dissent, unequivocally found that the record supported the findingsofthe trial judge. (People v. Perez, supra, 3 Cal.App.5th at p. 835, dis. opn. of Franson, J.) Both of these justices focused particularly on the summation of the testimony regarding the vehicle’s speed. Justice Poochigian addressedthis issue at length, noting the distances and timesat issue and noting that, given that the store clerk was able to run alongside the car, “the speed suggested by the victim's testimony 38 seems questionable.” (People v. Perez, supra, 3 Cal.App.5th atp. 829, conc. opn. of Poochigian, J.) Justice Poochigian suggested that this inherent unreliability that may have affected thetrial court's conclusion that the victim was “draggedslightly.” Ibid.) Justice Franson likewise found the testimony regarding the vehicle’s speed to be not credible, noting the victim’s lack of injuries and his ability to run alongside the car: “While Sanchez estimated the Blazer was going between 10 and 20 miles per hour and that the entire incident took about a minute, common sense dictates otherwise.” (People v. Perez, supra, 3 Cal.App.5th at p. 836, dis. opn. of Franson,J.) The dissent went through the facts from the record of conviction that supported the lower court’s findings: “Here, the record does not show Mr. 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.” (People v. Perez, supra, 3 Cal.App.5th at p. 836, dis. opn. of Franson, J.) Instead, the dissent concluded that, based on the evidence showing that Mr. Perez attempted to make a low speed escape while the passenger hungon to the store clerk’s arm, substantial evidence supportedthetrial court’s determination that Mr. Perez's use of the vehicle was not a deadly weapon within the meaningofthe use of a deadly weapon exclusions. (Id. at p. 837.) Respondent doesnot dispute that this is a scenario in which reasonable minds could differ. Indeed, reasonable minds did differ: three appellate justices reviewed the samerecord of 39 conviction and reached three separate conclusions. But the finder of fact, as dictated by the proceduresof the Three Strikes Reform Act, was the superior court judge. Neither the Reform Act nor established principles of appellate review provide for de novo review of findingsof fact. The Court of Appeal should have deferred to the lower court’s findings, as those findings were supported by substantial evidence. Respondentthusrespectfully requests that this court reverse the holding of the Court of Appeal, and reinstate the order grantinghis petition to reccall his sentence. 40 III. HAD THE COURT FOUND MR. PEREZ INELIGIBLE FOR RELIEF BASED ON FACTS Not FOUND TRUEBY THE JURY, IT WOULD HAVE DEPRIVED HIM OF HIS RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION As explained above, when a previously sentenced third-strike defendant applies for relief, the Reform Act vests the trial court with the responsibility to determine whetherheor she metthe criteria for sentencing as a second-strike offender. (Pen. Code § 1170.126, subd.(f).) This includes a determination of whetherthe defendant’s current offense is serious or violent. (Pen. Code § 1170.126, subd.(e).) If the defendant meets thecriteria for relief, the defendantis to be resentenced, unless the trial court finds he poses an unreasonablerisk for public safety. (Pen. Code § 1170.126, subd.(f).) The Court of Appeal’s reweighing of the evidence here and consideration of “extra facts” outside the fact of conviction effectively deprive Mr. Perez of liberty without trial by jury. Because the jury in this case did not find Mr. Perez guilty of assault with a deadly weapon,or return a true finding on any weapon or arming allegation, the court did not have the powerto find him ineligible for relief under the Reform Act. On June 17, 2013, the United States Supreme Court decided Alleyne v. United States (2013) 570 U.S.___ [183 S.Ct. 2151; 186 L. Ed. 2d 314), overruling Harris v. United States (2002) 536 U.S. 466 [122 S.Ct. 2406; 153 L. Ed. 2d 524] and holding that a fact 41 which triggers a mandatory minimumin federal sentencing and increased the floor of a proscribed sentence is tantamount to an element of an offense and must be submitted to the jury and proven beyonda reasonable doubt. (Alleyne v. United States, supra, 133 S.Ct. at p. 2164.) Theprinciples outlined in Alleyne govern the proceedings in the present case. Once the electorate approved Proposition 36 and evinced anintent for those who petition within a two-year period to be sentenced as second-strikersif their third strike was not violent or dangerous, as defined, the Court of Appeal could not make an extra facts determination and deny Mr. Perez that opportunity without violating his right to a jury trial under the Sixth and Fourteenth Amendmentsto the United States Constitution. In the instant case, the Court of Appeal opinion reverses the determinate term of ten years imposedby thetrial court, and requires reimposition of the term of 27 yearsto life. Thus, the court’s ruling deprives Mr. Perez of a vast liberty interest. The United States Supreme Court has consistently held that facts which subject a defendant to an increased term must be pleaded and proved to ajury beyond a reasonable doubt. (See Apprendiv. New Jersey (2000) 530 U.S.466 [120 S.Ct. 2348; 147 L.Ed.2d 435].) In Harris v. United States, supra, 536 U.S. 545, the court held that the Sixth Amendmentpermitted judicial fact-finding that triggered a mandatory minimum sentence. The Harris court 42 determinedthat the statute authorized the trial court to imposed the higher minimum term becauseitfell within the statutory range permitted by the jury verdict and accordingly,judicial fact-finding did not offend the Constitution. (Harris v. United States, supra, 536 U.S.at p. 567.) In Alleyne, the court reconsidered and overruled Harris. The defendant in that case was convicted of robbery and using or carrying a firearm in relation to a crimeofviolence, but the jury did not indicate on the verdict form whetherthe firearm was “brandished.” (Alleyne v. United States, supra, 133 §.Ct. at p. 2156.) Thefederal firearm statute carried a five year minimum term for “use” and a seven year minimumterm for “brandishing”. (18 U.S.C. § 924(c)(1)(A).) The presentence report recommended the seven year minimum term for brandishing, and overruling the defendant’s Apprendiobjection, the trial court imposed the seven year term. Holding that Harris had been wrongly decided, the United States Supreme Court held that an extra fact was an elementof the crimeif it either increased thefloor or ceiling of the sentence to which the defendant was subjected: “Both kindsof facts alter the prescribed range of sentences to which a defendant is exposed andso in a mannerthat aggravates the punishment. [Citations.]” (Alleyne v. United States, supra, 133 S.Ct. at p. 2158.) In Alleyne, brandishing was an element becauseit aggravated the legally prescribed range of allowable sentences and had to be “found by a jury, regardless of what sentence the defendant might havereceived,if a different range had been 43 applicable.” (Alleyne v. United States, supra, 133 S.Ct. at pp. 2162- 2163.) The high court vacated Alleyne’s sentence and remanded the matter for resentencing consistent with the jury verdict. (bid.) In the present case, Mr. Perez was entitled to resentencing as a second-strike offender because there wasno jury finding beyond a reasonable doubt that he was armed with a deadly weaponat the timeof the offense. Had the trial court made such a finding, it would have violated Mr. Perez’s Sixth and Fourteenth Amendmentrights. In substituting its own extra facts determination for the judgmentof the jury, the Court of Appeal in its turn deprived Mr. Perezofhis rights under the Sixth and Fourteenth Amendments. Respondent acknowledges that numerouscases have disagreed with this argument, following People v. Kaulick (2013) 215 Cal.App.4th 1279. The analysis in Kaulick relies on a United States Supreme Court case interpreting a statute thatis fundamentally different from the Reform Act. The Kaulick court relied on Dillon v. United States (2010) 560 U.S. 817 [130 S.Ct. 2683; 177 L.Ed.2d 271], which considered whether a reduction in the federal sentencing guidelines should benefit previously sentenced prisoners. The Dillon court held that a statute that vests a court with discretion to make only limited sentencing modifications does not necessarily implicate Sixth Amendment restrictions on judicial fact-finding. (Dillon v. United States, supra, 560 US.at p. 828.) 44 Unlike the Reform Act, the statute at issue in Dillon did not establish a presumption for resentencing. Instead, it provided for resentencing at the court’s discretion. (Dillon v. United States, supra, 560 U.S.at pp. 820-821; see also 18 U.S.C.§ 3582, subd. (2) [court “may” resentence].) By contrast, Penal Code section 1170.126 creates a mandatory reduction in sentence when certain criteria are met. Thus the Reform Act, unlike the statute at issue in Dillon, does not provide the court with limited discretion to modify an existing sentence; it requires that the sentence be reduced absent additional findings. The decision in People v. Hicks, supra, 231 Cal.App.4th 275 is distinguishable. In Hicks, the court found that the factual determination of whether the felon-in-possession offense was committed under circumstancesthat disqualify a defendant from resentencing underthe Act is analogousto the factual determination of whether a prior conviction was for a serious or violent felony under the three strikes law. Such factual determinationsabout prior convictions are made by the court based on the record of conviction. (People v. Hicks, supra, 231 Cal.App.4th at p. 286, citing People v. Guerrero, supra, 44 Cal.3d at p. 355; People v. Woodell, supra, 17 Cal.4th at p. 456.) The “This court is currently considering whether, under Descampsv. United States (2013) 570 U.S. __ [1383 S.Ct. 2276; 186 L.Ed.2d 438], a court may engagein judicial fact-finding beyond the elementsof the offense in determining a prior conviction constitutes a strike. (People v. Gallardo (Nov. 16, 2015, B257357) [nonpub. opn.], review granted 2/17/2016 (S231260).) 45 record of conviction in the instant case, however, does not exclude Mr. Perez from eligibility under Penal Code section 1170.126. He was not convicted of an excludable offense. Only by finding extra facts outside of the jury verdict could the court have found Mr. Perez ineligible at the outset. The appellate courts have uniformly erred in misconstruing the intent of the voters and deprivingpetitioners of their rights under Apprendiandits progeny. That collective judicial error has led inexorably to the instant case, wherethe judicial fact finding took place at the appellate level after the trial court had granted relief. In sum, Mr. Perez’s conviction did not render him ineligible for relief under Penal Codesection 1170.126. Underthis circumstance, the Court of Appeal’s ruling was prejudicial and deprived him ofhis right to relief under the Reform Act. Respondentrespectfully requests that this court reverse the Court of Appeal opinion andreinstate the order granting his request to recall his sentence. 46 CONCLUSION For the foregoing reasons, respondent requests that this court reverse the Court of Appeal’s holding and affirm the order recalling his sentence. Dated: March 9, 2017 Respectfully submitted, ELIZABETH CAMPBELL Attorney at Law State Bar No. 166960 PMB 334 3104 O Street Sacramento, CA 95816 (530) 786-4108 Attorney for Respondent CERTIFICATE OF WORD COUNT As required by California Rules of Court, Rule 8.504(d)(1), I certify that this petition contains 11,781 words, as determinedby the word processing program used to create it. Elizabeth Campbell Attorney at Law 47] DECLARATION OF SERVICE I, the undersigned, declare as follows: lam a memberofthe State Bar of California and a citizen of the United States. I am over the age of 18 years and nota party to the within-entitled cause; my business address is PMB 334, 3104 O Street, Sacramento, California, 95816. On March9, 2017, I served the attached RESPONDENT’S OPENING BRIEF ON THE MERITS (by mail) - by placing a true copy thereof in an envelope addressed to the person(s) namedbelow at the address(es) shown,and by sealing and depositing said envelope in the United States Mail at Sacramento, California, with postage thereon fully prepaid. There is delivery service by United States Mail at each of the places so addressed, or thereis regular communication by mail between the place of mailing and eachofthe places so addressed. Alfredo Perez, Jr. Fresno County Superior Court Respondent 1100 Van Ness Avenue 843 12th Street Sanger, CA 93657 Fresno, CA 93724 (by electronic transmission) - | am personally and readily familiar with the preparation of and process of documentsin portable document format (PDF) for e-mailing, and I caused said document(s) to be prepared in PDF andthen served by electronic mail to the party listed below, by close of business on the date listed above: Central California Appellate Program 2150 River Plaza Dr., Ste. 300 Sacramento, CA 95833 eservice@capcentral.org Douglas O. Treisman Office of the District Attorney Juv. Div. 3333 E. American Ave, Bldg 701, Suite F Fresno, CA 93725 dtreisman@co.fresno.ca.us Office of the Attorney General P.O. Box 944255 Sacramento, CA 94244-2550 SacAWTTrueFiling@doj.ca.gov California Court of Appeal Fifth Appellate District 2424 Ventura Street Fresno, CA 93721 served via Truefiling.com I declare under penalty of perjury that the foregoingis true and correct. Executed on March9, 2017, in Sacramento, California. DECLARANT