PEOPLE v. PEREZ

Respondent’s Petition for Review

Cal.November 14, 2016

$238354 COPY a IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Appellant, SUPREME COURT FILED V. NOV 1 4 2016 ALFREDO PEREZ,JR.., Jorge Navarrete Clerk Defendant and Respondent. ORC _25(b) Court of Appeal, Fifth Appellate District, No. F069020 wee Fresno County Superior Court No. CF94509578 Hon. Jonathan Conklin, Judge PETITION FOR REVIEW ELIZABETH CAMPBELL Attorney at Law State Bar No. 166960 PMB 334 3104 O Street Sacramento, CA 95816 (530) 786-4108 campbell 166960@gmail.com Attorney for Respondent TABLE OF CONTENTS Page PETITION FOR REVIEW 1 QUESTIONS PRESENTED 2 1. Is a prisonerineligible for recall of his sentence under Penal Codesection 1170.126 where he personally and intentionally used a vehicle in a mannerlikely to result in great bodily injury, even if the evidence in the record of conviction did not demonstrate an intent to use the vehicle as a deadly weapon? 2 2. Wherea trial court makes a factual determination regardinga petitioner’s eligibility for resentencing under Penal Codesection 1170.126, and that factual determination is supported by substantial evidencein the record of conviction, should a Court of Appeal defer to those factual findings? 2 3. Did the Court of Appeal, in reversing the order grantingtherecall petition based on facts not found true by a jury, deprive appellant of his right to jury trial as guaranteed by the Sixth Amendmentto the United States Constitution? 2 NECESSITY FOR REVIEW 2 STATEMENT OF THE CASE AND FACTS 7 ARGUMENT 11 The Court Did Not Err in Finding That Perez Was Not Armed with a Deadly Weapon in the Commission of the Offense 11 TABLE OF CONTENTS Page A. A Conviction for Aggravated Battery under Former Section 245, subdivision (a)(1), Does Not Render a Defendant Facially Ineligible for Resentencing under the Three Strikes Reform Act 12 B. Had the Court Found 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 Amendments to the United States Constitution. 16 C. In Orderto Find That Perez Was Armed with a Deadly Weapon, the Trial Court Had to Find That He Intended to Use the Car as a Deadly Weapon. 19 D. The Court ofAppeal Erred in Failing to Defer to the Trial Court’s Factual Finding that Perez Was Not Armed With a Deadly Weaponin the Commission of the Offense 25 1. A Reviewing Court Should Uphold the Factual Findings of a Court Determining a Petitioner’s Eligibility Under Penal Codesection 1170.126 If Those Findings Are Supported by Substantial Evidence. eee e ee eee eee e eect eee eens 26 2. The Court’s Finding That Perez Was Not Armed Was Supported by Substantial Evidence. .......... 0. eee eee eee 30 CONCLUSION 32 CERTIFICATE OF WORD COUNT 32 EXHIBIT A 33 ii ‘d h TABLE OF AUTHORITIES Page Cases Alleyne v. United States (2013) 183 S.Ct. 2151 .............. 17 Apprendi v. New Jersey (2000) 530 U.S. 466 ............. 6, 18 Dillon v. United States (2010) 560 U.S. 817 ............. 18, 19 Harris v. United States (2002) 536 U.S. 466 ..............2.. 17 In re D.T. (2015) 237 Cal.App.4th 693 ........... 0000000 4,5 People v. Aguilar (1997) 16 Cal.4th 1023................ 20, 24 People v. Aznavoleh (2012) 210 Cal.App.4th 1181 ........ 21, 22 People v. Banuelos (2005) 180 Cal.App.4th 601 ............. 14 People v. Bradford (2014) 227 Cal.App.4th 13822 ..... 5, 6, 26, 27 People v. Brookins (1989) 215 Cal. App. 3d 1297 ............ 24 People v. Brown (2012) 210 Cal.App.4th1.......... 4, 23, 24, 30 People v. Cervantes (2014) 225 Cal.App.4th 1007 ......... 28, 29 People v. Colantuono (1994) 7 Cal.4th 206 ..............04-. 5 People v. Delgado (2008) 43 Cal.4th 1059 .............0006. 14 People v. Elder (2014) 227 Cal.App.4th 1808 ..............4. 26 People v. Fox (2014) 224 Cal.App.4th 424 ...............05- 13 People v. Gaitan (2001) 92 Cal.App.4th 540 .............0.4. 24 People v. Graham (1969) 71 Cal. 2d 303 ............4-. passim People v. Haykel (2002) 96 Cal.App.4th 146 ............. 13, 15 People v. Hazelton (1996) 14 Cal.4th 101 ...............0.. 15 People v. Kaulick (2013) 215 Cal.App.4th 1279 .............. 18 People v. Lochtefeld (2000) 77 Cal.App.4th 5383 ............. 24 People v. Luna (2003) 118 Cal.App.4th 395 .............-4.. 14 People v. Martinez (2014) 225 Cal.App.4th 979 ........... 28, 29 People v. McCoy (1944) 25 Cal.2d 177 ..... 0... 6c ee eee 24, 25 People v. Moran (1973) 33 Cal.App.3d 724 ........... 0000 24 People v. Oehmigen (2014) 232 Cal.App.4th1............ 20, 21 People v. Page (2004) 123 CalApp.4th 1466 ...............-. 24 People v. Raleigh (1932) 128 Cal.App. 105 ....... 4,6, 11, 23, 24 People v. Ray (1975) 14 Cal.3d 20 ........ 0. cee eee eee 4,11, 23 People v. White (2014) 228 Cal.App.4th 1040 ............... 26 People v. Williams (2001) 26 Cal.4th 779. ......... 21, 22, 25, 30 People v. Winters (2001) 93 Cal.App.4th 273 ............. 13, 14 iii TABLE OF AUTHORITIES Page Cases People v. Wright (2002) 100 Cal.App.4th 7038 ............... 21 People v. Wyatt (2010) 48 Cal.4th 776 .......... cee eee eee 22 Rossi v. Brown (1995) 9 Cal.4th 688 .......... 0.0.0.0. 00 15 Williams v. Superior Court (2001) 92 Cal.App.4th 612 ........ cece eee 12, 13, 15, 21, 22 Codes Pen. Code, § 21lla 2...cteee eens 24 Pen. Code, § 240. 2...ceeeet ees 14 Pen. Code, § 245, subd. (a)(1) .... 0... cc eee eee passim Pen. Code, § 1197.2, subd. (c)(81)..... 0.0... eee 13 Pen. Code, § 667, subd. (e)(2)(C)Gii) . 2.eee passim Pen. Code, § 667.5, subd. (b) . 0... eecee eee 10 Pen. Code, § 1170.12, subd. (c)(2)(C)ii) «we. eee passim Pen. Code, § 1170.126 .. 0...es passim iv 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. PETITION FOR REVIEW F069020 Fresno County Superior Court No. CF94509578 Pursuant to California Rules of Court, rule 8.500(a), Alfredo Perez, Jr. hereby petitions for review of the September 29, 2016, opinion of the Court of Appeal, Fifth Appellate District, reversing the trial court’s order finding him eligible for relief under Penal Code section 1170.126. A copy of the opinion, which is published at People v. Perez (2016) 3 Cal.App.5th 812, is attachedto this petition as Exhibit A. Respondent requests that this court grant review, and uponfull consideration, reverse the Court of Appeal’s holding and affirm the order grantinghis petition. QUESTIONS PRESENTED This petition presents the following important questions of statewide significance and constitutional magnitudefor the court’s resolution: 1. Is a prisonerineligible for recall of his sentence under Penal Code section 1170.126 where he personally and intentionally used a vehicle in a mannerlikely to result in great bodily injury, even if the evidence in the record of conviction did not demonstrate an intent to use the vehicle as a deadly weapon? Wherea trial court makesa factual determination regarding a petitioner’s eligibility for resentencing under Penal Code section 1170.126, and that factual determination is supported by substantial evidence in the record of conviction, should a Court of Appeal defer to those factual findings? Did the Court of Appeal, in reversing the order grantingtherecall petition based on facts not found true by a jury, deprive appellant of his right to jury trial as guaranteed by the Sixth Amendmentto the United States Constitution? NECESSITY FOR REVIEW Respondent Alfredo Perez served 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)), before a Fresno County judge grantedhis petition to recall his sentence under Penal Codesection 1170.126. In granting the petition, the trial court found that, based on the facts contained in the record of conviction, Perez had not used a deadly weaponin the 2 commission of the offense. (RT 26.)' In a published decision, the Court of Appeal for the Fifth Appellate District reversed the holding of the trial court, rejected that court’s factual findings, and remanded with directions to the lower court to reverse the finding of eligibility and reinstate thelife sentence. (Slip opn., p. 18.) The Court of Appeal held that, although 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 defendantapplied force likely to result in a great bodily injury, the defendantis ineligible for relief under Penal Codesection 1170.126, under the exclusionary language of Penal Codesection 667, subdivision (e)(2)(C)(iii) and section 1170.12, subdivision (c)(2)(C)(Gii) (hereinafter “clause (iii)”). (Slip opn., p. 8.) The problems with the court’s opinion are myriad.First, as pointed out at length by the dissenting justice, the lead opinion fails to grant proper deferenceto the factual findings of thetrial court judge.(Slip opn., diss. opn. of Franson, J., pp. 1-9.) Instead, as highlighted by the concurring opinion(slip opn., conc. opn. of Poochigian, J., pp. 1-2), the Court of Appeal substituted its own reweighing of the evidence for the sound judgmentof thetrial court, in spite of that judgment being supported by substantial evidence. (Slip opn., diss. opn. of Franson, J., pp. 7-9.) In granting the petition under Penal Code section 1170.126, the trial court here madeexpress factualfindings that the use of 1“CT” refers to the clerk’s transcript on appeal; “RT”refers to the reporter’s transcript. the car in the assault was “incidental” and that the defendant’s intent was to escape,not to use the car as a deadly weapon. (RT 12, 22.) Moreover, in spite of the Court of Appeal’s conclusion that the automobile was the “sole means” by whichthe petitioner applied the force involved in the assault, the record of conviction does not support this assertion. (See slip opn., p. 14; see also slip opn., conc. opn. of Poochigian, J., p. 1; see also slip opn., diss. opn. of Franson, J., p. 9.) As demonstrated bythe fact that even the three justices in this appellate court panel could not agree as to the proper standard of deference to be applied, this court’s guidance is necessary to clarify the proper standardofreview to be applied where an appellate court reviews an order granting a petition under Penal Codesection 1170.126. Second, the Court of Appeal parted company from other appellate courts that have held that, where the People seek to prove that a defendant was armed with an instrument that was not inherently dangerous, they must prove that the defendant possessed the instrumentwith the intent to use it as a deadly weapon. (People v. Graham (1969) 71 Cal. 2d 308, 327-328, disapproved on other groundsin People v. Ray (1975) 14 Cal.3d 20, 30; People v. Raleigh (1932) 128 Cal.App. 105, 108-109; see also People v. Brown (2012) 210 Cal.App.4th 1, 7, 10.) Instead, the Court of Appeal followed the holdingin 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 intended to use a knife il as a deadly weaponin orderto obtain show that the minor had committed assault with a deadly weapon.(In re. D.T., supra, 237 Cal.App.4th at p. 702.) The opinion in D.T.is flawed by thecourt’s failure to illuminate whetherit was treating the knife at issue in that case as an inherently deadly or dangerous weapon.(See People. v. Graham, supra, 71 Cal.2d at pp. 327-328.) The opinion in D.T. relied, in turn, on this court’s opinion in People v. Colantuono (1994) 7 Cal.4th 206, a case in which the alleged assault involved an inherently deadly weapon,i.e. a gun. Aswill be discussed in more detail below, this case involves a more difficult question: whether a defendant maybe said 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. In spite of the Court of Appeal’s conclusion that no proofof intent to use an object as a deadly weaponis required in order to show that a petitioner was “armed with” a deadly weapon,this conclusionflies in the face of simple logic, as it leads to the absurd result that any person whodrives a car is armed with a deadly weapon. In People v. Bradford (2014) 227 Cal.App.4th 1322, the Court of Appeal reversed an order denyinga petition to recall a sentence under Penal Codesection 1170.126 because the record of 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 carrying the wire cutters, i.e., whether he intendedto use them as a deadly weapon.(People v. Bradford, supra, 227 Cal.App.4th at pp. 1831-1332.) Although the court does 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 Court of Appeal’s opinion in the instant case thus sets up a clear conflict with both Bradford, the case mostfactually similar to the instant case, and with the holdings in Graham and Raleigh. This court should grant review to resolve this conflict. Finally, the Court of Appeal rejected the argumentthat, in substituting its own judgmentfor the judgmentof the jury — which madeno finding that Perez was armed with a deadly weapon in the commission of the offense — the court deprived Perez of his Sixth Amendmentright to a jury trial. (Slip opn., p. 10, fn. 10.) The court thus hasjoined the other appellate courts in this state, which have uniformly erred in misconstruing the intent of the voters and depriving petitioners of their rights under Apprendiv. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348; 147 L. Ed. 2d 435] and its progeny. This court should grant review to settle these issues, which are of overwhelming importance to prisoners serving life terms under the Three Strikes Law. 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 Alfredo Perez, along with a manreferredto in the court’s opinion as “the passenger,” enter the store. (CT 52.) The passenger was wearing a wool jacket and hadhis back to Sanchez, and Sanchez saw him raise a Club, an anti-theft device, above his head and then lower it. (CT 52.) Perez spokebriefly to the passenger and then spoke to Sanchez about sometires. While the conversation was taking place, the passengerleft the store, and Sanchez saw him goto the parking lot and wait in a Blazer-type truck. (CT 52.) Perez went to the driver’s side of the truck and drove away. (CT 52.) Sanchez suspected that the passenger had stolen the club while Perez had attempted to divert Sanchez’s attention. (CT 52.) Sanchez did not, however, notify police or check the store”s inventory to see if a Club had beenstolen. (CT 53.) The next day, March 18, 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 Sanchez. Sanchez asked him if he needed help, and then followed the passengerout of the rear of the store after alerting another employee. (CT 53.) Sanchez heard For purposesof this petition, respondent summarizes the statementof facts from the Court of Appeal opinion in case number F023703, filed on November5, 1996. (CT 50.) 7 rustling in the passenger’s clothes. (CT 53.) The passenger had not paid for any items from thestore. (CT 53.) The passenger entered the same Blazer, again with Perez in the driver’s seat; the passenger side window wasrolled down. (CT 58.) Sanchez was wearing a red smockshirt with the store insignia and his nametag. (CT 53.) The passenger had been in the car for less than a minute when Sanchez cameupto his window. Sanchez saw a bulge in the passenger’s clothing, and told the passenger to please give the merchandise back and then he could leave. (CT 53.) Sanchez reachedinto the car and grabbed at the package in the passenger’s jacket. Sanchez identified it as a Club with a retail value of $59.55. Sanchezsaid, “Give it up.” Perez then looked toward Sanchez andsaid, “Give it up.” (CT 53.) Perez then drove the vehicle in reverse. The passenger grabbed Sanchez’s arm and pushedit down, preventing Sanchez from pulling his arm out of the window. Sanchez yelled, “Stop the vehicle,” three times as the vehicle was moving in reverse. (CT 53.) He was dragged and had to runto keep his balance. (CT 53.) Perez then drove the vehicle forward; Sanchez wasableto pull his arm free at that point, but feared that if he fell he would be run over. (CT 53.) Sanchez variously estimated the speed of the Blazer between 10 and 20 milesper hour. (CT 53.) He estimated that the entire incident took a minute and that his arm was in the moving vehicle for about 15 seconds, and that the vehicle traveled about 50 feet forward. (CT 53-54.) Sanchez wasable to providea license plate for the vehicle; it wasregistered to Perez and his wife. (CT 54.) Another store employee witnessed the events and characterized it as Sanchez being dragged and “runningforhislife.” (CT 54.) Both store employees identified photographsof Perez. (CT 54.) Perez testified and denied being in the store on March 17; he andhis father bothtestified that he had been elsewhereat the time. (CT 54.) Perez testified that on March 18, he was looking for a tire store when he met a 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.) Perez testified that he drove to the store and waited in the car while Don went inside. When Don returnedto the car, he was angry with another man; Perez was not aware that the man was a store employee. (CT 54.) When Perez said “give it up,” he was talking to his passenger, not to Sanchez. (CT 54.) Perez testified that he had been afraid; he admitted driving one or two miles an hourin reverse and twoto three miles an hour in drive, and stated that at no time did Sanchez haveto run. (CT 54.) He admitted that Sanchez’s arm had been inside the vehicle whenheputthe car into reverse and when he drove forward. (CT 54.) Perez testified that after leaving the parkinglot, he told the passengerto get out and returned the gas money. (CT 54.) Perez told the investigating officer that the passenger had told him to leave because the man wastrying to rob him.(CT 55.) Ornelas testified that she had asked Perez to give a ride to man she had recently 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, Perez was convicted of one violation of Penal Code section 245, subdivision (a)(1), assault by meansof force likely to produce great bodily injury. (CT 6.) Due to his two prior serious felony convictions, 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, Perez filed a petition to recall his sentence under Penal Codesection 1170.126. (CT 8.) Following a hearing, the court found Perez eligible for resentencing on February 5, 2014. (CT 967, RT 26.) On March 7, 2014, the court further found that Perez’s release would not pose an unreasonable risk to public safety. (CT 1016, RT 40.) The court accordingly denied probation and sentenced Perez to the upper term of four years in state prison, doubled to eight years, with two additional years for the prior prison term enhancements. (CT 1017, RT 43.) On March7, 2014, the People filed 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.) 10 ARGUMENT THE COURT DID NoT ERR IN FINDING THAT PEREZ WAS NOT ARMED WITH A DEADLY WEAPONIN THE COMMISSION OF THE OFFENSE Before finding that Perez did not pose an unreasonablerisk 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 Code sections 667, subdivision (e)(2)(iii), and 1170.12, subdivision (c)(2)(C)Gii). (Slip opn., p. 8.) 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 mustprovethat the defendant possessed the instrumentwith the intent to useit as a weapon. (See People v. Graham (1969) 71 Cal. 2d 308, 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.) Moreover, as the dissenting justice below urged, the reviewing court should have deferred to the factual findings of the trial court, which concluded that Perez was not armed with the automobile. (Slip opn., diss. opn. of Franson, J., pp. 1-9.) This 11 court should grant review, and upon full consideration, reinstate the order granting the petition to recall the life sentence. A. A Conviction for Aggravated Battery under Former Section 245, subdivision (a)(1), Does Not Render a Defendant Facially Ineligible for Resentencing under the Three Strikes Reform Act At the timeof the instant offense, Penal Code section 245, subdivision (a)(1), applied to any person who committed an assault with a deadly weapon “or by meansofforce likely to produce great bodily injury.” (Pen. Code, § 245, subd. (a)(1).)? The abstract of judgmentlists the offense of which respondent was convicted as “assault by meansofforce likely to produce GBI.” (CT 6.) Moreover, the instructions providedto the jury defined only “by meansof force likely to produce great bodily injury;” it does not appearthat the jury wasinstructed on use of a deadly weapon. (See Attachment B, Appellant’s Notice and Request for Judicial Notice.) Thus, there is no question in this case as to whether Perez was convicted under the deadly weapon theory of Penal Code section 245, subdivision (a)(1), or the “use of force by meanslikely °For ease of reference, respondentwill refer to this offense as “aggravated assault.” A violation of section 240, "an unlawful attempt, coupled with a presentability, 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 theory of liability under Penal Code section 245, subdivision (a)(1), will be referred to as “assault with a deadly weapon.” 12 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 Code section 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. A person violates former section 245, subdivision (a)(1), by committing an assault upon the person of another with a deadly weapon other than a firearm or by meansofforce likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1); People v. Winters (2001) 93 Cal.App.4th 273, 275.) A conviction under the first of these theories is a serious felony within the meaning of the Three Strikes Law; the otheris 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, standingalone,is not. Because of the longstanding distinction between the two types of violations of Penal Code section 245, subdivision (a)(1), for purposesof the Three Strikes Law, courts have been called upon many timesto elaborate on the distinctions between these two offenses. “An assault is an unlawful attempt, coupled with a 13 presentability, to commit a violent injury on the person of another.” (Pen. Code, § 240.) A person violates former section 245, subdivision (a)(1), by committing an assault upon the person of another with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1); People v. Winters, supra, 93 Cal.App.4th 273, 275.) A prior conviction qualifies as a strike if it is listed as a serious felony undersection 1192.7, subdivision (c). Section 1192.7, subdivision (c)(31) provides that “assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peaceofficerorfirefighter, in violation of section 245" is a serious felony.” Assault with a deadly weapon,in violation of Section 245, counts as a seriousfelony 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) 113 Cal.App.4th 395, 398, disapproved on other groundsin People v. Delgado (2008) 43 Cal.4th 1059, 1070,fn. 4.) Assault “by any meansofforce likely to produce great bodily injury” does not count as a serious felony unless it also involves the use of a deadly weapon orresults in the personal infliction of great bodily injury. (People v. Banuelos (2005) 130 Cal.App.4th 601, 605.) Any assault with a deadly weaponis a strike. (People v. Delgado, supra, 43 Cal.4th at p. 1067,fn. 3.)* * In the trial court, the People made light 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 meansofforce likely to result in great 14 i. The drafters of Proposition 36° could have expressly included the crime of assault by meanslikely to produce great bodily injury (former Pen. Code, § 245, subd. (a)(1)) as a disqualifying offense in the Reform Act. Instead, the electorate excluded only those defendants whowere found to have been armed with or used a firearm or deadly weapon during the commission of anotheroffense. This court should presume from this clear statutory language that the electorate intended to exclude aggravated assault as a disqualifying event, except where such an assault involves use of a deadly weapon. (People v. Haykel (2002) 96 Cal.App.4th 146, 149; Williams v. Superior Court, supra, 92 Cal.App.4th 612.) In a related context, several appellate courts have held that a conviction for being a felon in possession of a firearm does not bodily injury” wasinsignificant, as it would not have affected the 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 Perez to a five-year enhancement under Penal Codesection 667, subdivision (a). Although the prosecution in this case occurred before the Three Strikes Law was amended to make any assault with a deadly weapon a strike, personal use of a deadly weapon wasa serious felony at the timeof the offense. 5When construing an initiative measure, and in the absence of evidence to the contrary, courts generally presumethat the drafters' intent and understanding of 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.) 15 rendera petitioner facially ineligible for relief under Penal Code section 1170.126. (People v. Elder (2014) 227 Cal.App.4th 1308, 1311; People v. Blakely (2014) 225 Cal.App.4th 1042, 1052.) Instead, a person convicted of being a felon in possession of a firearm is only ineligible for relief if he or she had the firearm available for offensive or defensive use. (People v. Blakely, supra, 225 Cal.App.4th at p. 1052.) Accordingly, it appears the electorate did not intend to exclude from eligibility those defendants who were convicted under Penal Code section 245, subdivision (a)(1), under a theory of assault by meanslikely to produce great bodily injury, but instead intended only that a defendant would beineligible for resentencing when it was pleaded and proved that he or she had used a deadly weapon in the commission of the offense. B. Had the Court Found 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 Amendments to the United States Constitution. As explained above, when a previously sentenced third-strike defendant applies for relief, the Act vests thetrial court with the responsibility to determine whether he or she met the criteria for sentencing as a second-strike offender. (Pen. Code § 1170.126, subd. (f).) This includes a determination of whether the defendant’s current offense is serious or violent. (Pen. Code § 176.126, subd.(e).) If the defendant meets the criteria for relief, he shall be resentenced, unless the trial court finds he poses an 16 unreasonable risk 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 Perez of liberty without trial by jury. Because the jury in this case did not find 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 (2018) 570 U.S.___ [133 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 which triggers a mandatory minimumin federal sentencing and increased the floor of a proscribed sentence is tantamountto an elementof an offense and must be submitted to the jury and proven beyond a reasonable doubt. (Alleyne v. United States, supra, 570 U.S.__, [133 8.Ct. 2151, 2164].) The principles outlined in Alleyne govern the proceedings in the present case. Oncethe electorate approved Proposition 36 and evinced an intent for those whopetition 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 fact determination and deny Perez that opportunity without violating his right to a jury trial under the Sixth and Fourteenth Amendmentsto the United States Constitution. 17 In the instant case, the Court of Appeal opinion reverses the determinate term of ten years imposed by thetrial court, and requires reimposition of the term of 27 yearsto life. Thus, the court’s ruling deprives Perez of a vast liberty interest. The United States Supreme Courthasconsistently held that facts which subject a defendant to an increased term must be pleaded and proved to a jury beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348; 147 L.Ed.2d 435].) In Alleyne, that court held that a fact was an elementof the crimeif it either increased thefloor or ceiling of the sentence to which the defendant was subjected: “Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and so in a mannerthat aggravates the punishment. [Citations.]” (Alleyne v. United States, supra, 183 S.Ct. at p. 2158.) In the present case, 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 weapon at the time of the offense. Hadthetrial court made such finding,it would haveviolated Perez’s Sixth and Fourteenth Amendment rights. Respondent acknowledges that numerous cases have disagreed with this argument, following People v. Kaulick (2013) 215 Cal.App.4th 1279. The analysis is incorrect, as it relies on a United States Supreme Courtcase interpreting a statute thatis distinguishable from Prop. 36. The Kaulick court relied on Dillon v. United States (2010) 560 U.S. 817 [130 S.Ct. 2683; 177 L.Ed.2d 18 271], which construed a reduction in the federal sentencing guidelines to determine whetherit should benefit previously sentenced prisoners. The Dillon court held that when a statute permits a court discretion to make only a limited sentencing modification, Sixth Amendmentrestrictions on using facts found by a judge by a preponderance do not comeinto play. (Dillon v. United States, supra, 560 U.S.at p. 828.) The analogy to Dillon misses because, unlike Proposition 36, the statute at issue in Dillon did not establish a presumption for resentencing. Instead, it provided that the court “may” resentence. (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. It does not provide the court with limited discretion to modify an existing sentence; it requires that the sentence be reduced absent additional findings. Thus Dillon is inapt. The record of conviction in the instant case, however, does not exclude 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 Perez ineligible at the outset. C. In Order to Find That Perez Was Armed with a Deadly Weapon,the Trial Court Had to Find That He Intended to Use the Car as a Deadly Weapon. The Court of Appeal here held that the aggravated assault of which the jury convicted Perez necessarily involved the use of a deadly weapon,i.e., the car, because by committing an assault by 19 meansofforce likely to result in great bodily injury, he necessarily used deadly force. (Slip opn., p. 14.) This is not the law of assault andit 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 longstandingdistinction between the two offenses would be meaningless. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1030-1031 [noting that “force likely” language was addedto section 245 in 1874 in orderto encompassthose aggravated assaults that did not involve a weaponextrinsic to the body, such as handsandfeet].) Respondent does not disagree that, under some circumstances, an automobile may be used as a deadly weapon and maythusdisqualify a defendant from resentencing under Penal Codesection 1170.126. (See slip opn., p 13.) For instance, in People v. Oehmigen (2014) 232 Cal.App.4th 1, the Third District found that a petitioner wasnot eligible for resentencing because the factual recitation at the time he entered his 1998 plea established that he was armed with a deadly weapon when he purposefully drove a car at a police vehicle. (People v. Oehmigen, supra, 232 Cal.App.4th at p. 11.) Oehmigenis both factually and legally indistinguishable from the instant case, however. 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 in a reckless mannerfor several miles with police in pursuit, and at the end of the pursuit, he turned the car around andintentionally 20 drove it at one of the police cars, which had to make an evasive maneuverto avoid a collision. Defendant then crashed into a house, and police found a small-borepistol in the vicinity of the car, and three pipe bombsin thecar.(Id. at p. 5.) The trial 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. Oehmigen, supra, 232 Cal.App.4th at p. 6.) The Court of Appeal (People v. 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.(Id. at p. 11.) Oehmigen relied in part on the Third District’s earlier holding in People v. Wright (2002) 100 Cal.App.4th 703, in whichit opined that, under this court’s precedent reinterpreting assault as a crime that may be committed by negligent rather than purposeful conduct, “any operation of a vehicle by a person knowing facts that would lead a reasonable personto realize a 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; see People v. Williams (2001) 26 Cal.4th 779.) 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 21 city street, was repeatedly told to slow down byhis passengers, and saw anothervehicle in the intersection as he approached the but madenoeffort 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 the Supreme Courtin Williams, the jury could properly find that the defendant wasguilty of assault with a deadly weapon.(Id. at p. 1189.) The court noted that, under California law, “assault does not require intent to commit a battery.” (Ud. 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 awareof facts that would lead a reasonable person to 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 order to prove that a defendant is armed with a deadly weapon, however, the People must either prove that the weapon wasone that was inherently dangerous or deadly, or prove that the defendant intended to use the instrument as a deadly or dangerous weapon.This requires a proofof intent that is not 22 required, and here was not 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 dangerousor deadly, such as a firearm,a dirk, or a dagger. These instruments are considered to be weapons as a matter of law. The instrumentalities falling into the second class, such as pocket knives, canes, hammers, hatchets and other sharp or heavy objects, “which are not weaponsin the strict sense of the word and are not ‘dangerous or deadly’ to others in the ordinary use for which they are designed, may not be said as a matter of law to be ‘dangerous or 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 uponthe perpetrator’s intent. “Although the mannerofthe use of an object does not automatically determine whethera defendant was ‘armed with a dangerousor 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 maybefairly inferred from the evidence that its possessor intended on a particular occasion to 23 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 instrumentthat is not inherently dangerous or deadly, the People must prove that the defendant intendedto use it as a weapon. The evidence must demonstrate that the defendant intended to use the instrument as a weapon andnot for 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 know that 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 ®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 appears to define a ‘deadly weapon’ for purposesof section 245 differently than it is defined in other contexts underother statutes.” (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, 1305-1307.) 24 dangerousis possessed as a deadly weapon is 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 requirementthat 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; see also Attachment B, Appellant’s Notice and Request for Judicial Notice.) Because this element of arming was not presentedto or found true by the jury, the court could not find him ineligible unless the record of conviction established that he intendedto use the car as a deadly weapon. D. The Court of Appeal Erred in Failing to Defer to the Trial Court’s Factual Finding that Perez Was Not Armed With a Deadly Weapon in the Commission of the Offense. As noted above, in order for Perez to have been “armed with” the vehicle so as to render him ineligible for relief under Penal Code section 1170.126, the record of conviction would have to have shownthat he intendedto use the vehicle in that fashion. Thetrial court, however, made expressfindings that this was not Perez’s intent. The court instead found that Perez’s use of the vehicle was “incidental” and that his intent in driving the car was simply to escape. (RT 12, 17, 22.) Thus, the intent element was not necessarily established by the jury verdict on the underlying offense, and thetrial court, upon reviewingthefacts, simply found, as a factual matter, that Perez was not so armed. The reviewing court should have deferred to those factual findings and affirmed the judgment. 25 1. 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. Thus far, the intermediate appellate courts considering eligibility determinations under Penal Code section 1170.126 have uniformly held that the determination of whether a prisoneris excludable due to the nature of the current conviction must be determined by the trial court from the record of conviction. (People v. White (2014) 228 Cal.App.4th 1040, 1044; People v. Bradford (2014) 227 Cal.App.4th 1322, 1331-1332; People v. Elder (2014) 227 Cal.App.4th 1308, 1314-1316; People v. Hicks, supra, 231 Cal.App.4th at p. 285; People v. Blakely, supra, 225 Cal.App.4th at p. 1063.) An appellate court reviews those findings for substantial evidence. (People v. Hicks, supra, 231 Cal.App.4th at p. 286.) The factual determination of whether the felon-in-possession offense was committed under circumstancesthat disqualify defendant from resentencing under the Act is analogous to the factual determination of whethera prior conviction wasfor a seriousor violent felony underthethree strikes law. Such factual determinations about prior convictions are madeby the 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 maylook to entire record of conviction].) 26 In People v. Bradford, 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 supportedby sufficient evidence. (Peoplev. 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 commission of the offense. (Jd. at pp. 1331-1332.) The petitioner in Bradford had been convicted of three counts of second degree burglary and four counts of petty theft with a prior. (Id. at p. 1327.) The jury had acquitted him of robbery, and no deadly weapon allegation was foundtrue. (Ibid.) The facts on the record of conviction indicated that the petitioner 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 notactually 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 thetrial court’s conclusion. (Ibid.) Rather than reversing the 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.) 27 Here, as noted, the abstract ofjudgmentlists the offense of which respondent wasconvicted as “assault by meansofforce likely to produce GBI.” (CT 6.) Moreover, the jury was instructed only on the theory of “by meansofforce likely to produce great bodily injury.” (See Attachment B, Appellant’s Notice and Request for Judicial Notice.) In considering thepetition, the court reviewed the facts and circumstancesof the case (RT 11-12) and found that they did not supporta findingof ineligibility. (RT 12.) The court described the use of the motor vehicle as “incidental.” (RT 12.) The court opined that, as 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 Perez wasnot ineligible “due to the method in which the motorvehicle was usedin this case.” (RT 26.) Unlike the scenarios confronted by the court in People v. 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 atp. 28 it 986.)In each of those cases, the court found that the trial 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 Perez’s “incidental” use of the car to effect a getaway from the auto store did not amountto being “armed with a deadly weapon”within the meaning of Penal Code section 1170.12, subdivision (c)(2)(C)(iii). Asthe dissenting justice emphasized: The trial court reviewed and weighedthefacts, including thecredibility of the estimated speeds and length of time for the incident and determined, based on its review andinterpretation of the facts, that the method used by Perez in maneuveringhis car to depart the scene did not convert an object otherwise not inherently a deadly weapon,into one. Utilizing this factual determination, Judge Conklin reached the legal conclusion that Perez was not armed with, or used, a deadly weapon and wasthereforeeligible for resentencing. This determination was not made because of any misunderstandingof Proposition 36. Based on therecord, and thetrial 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. (Slip opn., diss. opn. of Franson, J., pp. 7-8, emphasis in original.) In other words,thetrial court’s finding necessarily involved a factual finding, and the Court of Appeal should have deferred to that finding to the extent that it was supported by substantial evidence. 29 2. The Court’s Finding That Perez Was Not Armed Was Supported by Substantial Evidence. As noted, because Perez was not charged with use of a deadly weapon, the question of his intent was not settled by the jury. Thetrial court made a factual finding that his use of the car was “incidental” and that, as he sat in the parking lot, Perez was not “armed with” a deadly weapon. (RT 12, 22.) The evidence, as summarizedin the opinion from his prior appeal, supportsthis conclusion: Perez’s intent was to get away from the store, 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 harbored the necessary intent to use the car as a deadly weapon should the need arise. (People v. Brown, supra, 210 Cal.App.4th at p. 7.) The court ultimately found that Perez was notineligible “due to the method in which the motorvehicle was used in 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 wasthus not armed with a deadly weapon within the meaning of the Reform Act. In sum, the question of whether Perez was armed with a deadly weapon wasneverpresented to thefirst trier of fact, the jury. Thesecondtrier of fact, the court reviewing thepetition to recall the sentence, conclusively found that Perez was not so armed. 30 IE The Court of Appeal should have deferred to this ruling, as even the concurring justice noted that it was supported by a | significant amountofevidence. (Slip opn, conc. opn., Poochigian, J., pp. 1-2.) Justice Franson, writing in dissent, unequivocally found that the record supported the findingsof the trial judge. (Slip opn., diss. opn., Franson, J., pp. 8-9.) Accordingly, Perez asks this court to grant review, and upon full consideration, reinstate the order recalling his life sentence. 31 CONCLUSION For the foregoing reasons, respondent requests that this court grant review, and upon full consideration, reverse the Court of Appeal’s holding andaffirm the orderrecalling his sentence. Dated: November8, 2016 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 8,182 words, as determined by the word processing program usedto createit. Elizabeth Campbell Attorney at Law 32 EXHIBIT A Filed 9/29/16 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F069020 Plaintiff and Appellant, (Super. Ct. No. CF94509578) Vv. ALFREDO PEREZ,JR., OPINION Defendant and Respondent. APPEALfrom a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Elizabeth A. Egan and Lisa A. Smittcamp, District Attorneys, Rudy Carillo and Traci Fritzler, Chief Deputy District Attorneys, and Douglas O. Treisman, Deputy District Attorney, for Plaintiff and Appellant. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Respondent. -00Q000- SEE CONCURRING AND DISSENTING OPINIONS Alfredo Perez, Jr., (defendant) was convicted by jury of assault with force likely to produce great bodily harm,a violation of Penal Code section 245, former subdivision (a)(1).1 The jury further found he suffered twoprior strike convictions (§ 667, subds. (b)-(i)) and served twoprior prison terms (§ 667.5, subd. (b)). On May4, 1995, he was sentencedto a total of two years plus 25 yearsto life in prison. In 2012, the Three Strikes Reform Act (hereafter the Act) created a postconviction release proceeding forthird strike offenders serving indeterminatelife sentences for nonserious and nonviolent felonies. An inmate who meets the criteria 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 danger to 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. 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) of paragraph (2) of subdivision (c) of Section 1170.12.” (§ 1170.126, subd. (e)(2).) Thus, an inmateis disqualified from resentencingif, inter alia, “[d]uring the commission of the current offense, [he or she] . .. was armed with a ... deadly weapon,or intended to cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) After the Act went into effect, defendant filed a petition for recall of sentence and request for resentencing under the Act. The People opposedthe petition on the ground, inter alia, defendant was armed with (and actually used) a deadly weapon during the commission of his offense. Following a hearing,the trial court found defendanteligible 1 All statutory references are to the Penal Code unless otherwise stated. for resentencing, and that resentencing defendant would not pose an unreasonablerisk of danger to public safety. The court granted the petition and resentenced defendantas a secondstrike offender. The People appeal, challenging thetrial court’s eligibility determination. We hold an inmate is armed with a deadly weapon within the meaning of clause (iii) of subparagraph (C) of paragraph (2) of subdivision (e) of section 667 and clause (iii) 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 and intentionally uses a vehicle in a mannerlikely to produce great bodily injury. On 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 (c)(2). Accordingly, we reversethe trial court’s order granting defendant’s petition. FACTS AND PROCEDURALHISTORY? “On March 17, 1994, at approximately 2 p.m., Fred Sanchez was workingas a sales clerk at Grand Auto in Fresno. He observed [defendant] and a man, whohereinafter will be referred to as the ‘passenger,’ enter the store. The passengerraised a Club,an auto anti-car theft device, a couple of feet above the 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 went up to Sanchez and spoke to him about sometires. While this conversation was taking place, the passengerleft the store. Sanchez could see the passenger go out into the parking lot of the store and wait at the passengerside of a Blazer-type truck. [Defendant] went to 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 thetheft. However, he did not call the police over the incident nor did he check the store inventory to determineifany items were missing. 2 Wequote the facts of defendant’s commitmentoffense as they are stated in our nonpublished opinion in People v. Perez (Nov. 5, 1996, F023703), which was submitted by the Peoplein their initial response to defendant’s petition, and is contained in the clerk’s transcript of the present appeal. “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 of the store after alerting the other store employee that he needed assistance. He heard rustling in the passenger’s clothing. The passenger had notpaid for any item from thestore. “The passenger entered the passenger side of the same Blazeras 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 came upto its window. [Defendant] was the driver. Sanchez observed a bulge protruding from the passenger’s clothing. Sanchez told the passenger to please give the merchandise back and he could leave. Sanchez then reachedinto the vehicle and grabbed at the 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 and said, ‘Give it 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 when the vehicle went into reverse. He hadto runto keephis balance. [Defendant] then drove the vehicle forward. Sanchez wasableto pull his arm free once the vehicle moved forward, but he wasafraid 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 whenhepulled 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, and that 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. The police 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 ‘runningforhis life.’'3! 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 cemeteryto visit the grave of his grandmother and then wentto the father’s house until 3:30 p.m. Hisfather testified similarly. [Defendant] testified that on March 18, he was looking for a 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 went into the store. When Dan returned 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 was talking to his passenger and meant quit fighting. “[Defendant] stated he was afraid and admitted driving one mile an hour in reverse and two-to-three miles an hourin drive. He stated at no time did Sanchez have to run. He admitted that Sanchez had his arm in the passengerside of his vehicle whenheput his vehicle in reverse and forward. After he left the parking lot, he told his passenger to get out and returned the gas money to 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 mentioned to the officer he had a witness that the police could contact. [Defendant] admitted he told the investigating officer that his passengerhadtold him to leave since the man outside the vehicle was trying to rob him. “Elizabeth Ornelastestified that she asked [defendant] to give a man she had recently met a ride to an auto parts store to help buy a part for the disabled vehicle they had been driving. Hertrial testimony, that she made this request of [defendant] as he was stoppedata red light, differed from her pretrial statement that this conversation took place in a parkinglot.” 3 In our discussion of one of defendant’s claims on appeal, we expoundedthat Tatum testified “he saw Sanchez runningforhis life and was surprised that Sanchez was able to runthatfast.” The jury wasinstructed pursuant to CALJIC No. 9.00 (1994rev.), in pertinent part, that an assault required proof “1. A person willfully committed an actthatby its nature would probably anddirectly result in the application of physical force on another person; and [§] 2. At the time the act was committed, such person hadthe presentability to apply physical force to the person of another.” Pursuant to CALJIC No. 9.02, they were told assault by meansof force required proof of an assault committed by means of force likely to produce great bodily injury. They were further told great bodily injury referred to significant or substantial bodily injury or damage andnotto trivial or insignificant injury or moderate harm, and that while actual bodily injury was not a necessary elementofthe crime, if such bodily injury wasinflicted, its nature and extent were to be considered in connection withall the evidence in determining whether the means used and the mannerin which it was used were suchthat they were likely to produce great bodily injury.4 The jury convicted defendant of assault by means of force likely to produce great bodily injury (§ 245, former subd.(a)(1)). On August 16, 2013, defendant petitioned thetrial court for a recall of sentence pursuant to section 1170.126. Defendant represented he waseligible for suchrelief, in that neither his current conviction norhis prior serious or violent felony convictions (both of which werefor first degree burglary) disqualified him. As previously stated, the People opposed the petition on the ground,inter alia, defendant was armed with (and actually used) a deadly weapon during the commission ofhis current offense and was, therefore, ineligible for resentencing. Defendant countered that the People’s position was supported by neither the law northe facts of the case. In pertinent part, he argued the fact 4 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. We do nottake judicial notice beyond that order. (See Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.) i that virtually any object could be used in a harmful way did not mean possession constituted arming or qualified the item as a deadly weapon. On February 5, 2014, a hearing was held on defendant’s petition.> Thetrial court characterized defendant’s use of the vehicle during the offense as “incidental,” and found defendant “not ineligible to be resentenced, due to the method in which the motor vehicle was used ....” It continued the hearing on the question whether defendant posed an unreasonable risk to public safety if resentenced andlikely released. On February 21, 2014, the People filed further opposition to defendant’s resentencing, again claiming defendant wasineligible therefor, and arguing he posed an unreasonable dangerif released. Specifically, on the eligibility question, the People asserted defendant necessarily was armed with a deadly weapon during the commission of the aggravated assault of which he was convicted, having employed an automobile as the instrumentality of the assault. Defendantfiled a response in which he focused on the dangerousness issue. At the March 7, 2014, hearing,the trial court reiterated its finding of eligibility. It further found defendant did not pose an unreasonable risk to public safety, recalled the previously imposed sentence, and resentenced defendant to the upper term of four years, doubled to eight years dueto the prior strike offenses, plus two years for the prior prison term enhancements. Defendant was awarded custodycredits and ordered to report to parole for placement on postrelease community supervision. DISCUSSION The People contendthe trial court erred in finding defendanteligible for resentencing, because defendant was “armed witha... deadly weapon” — to wit, a vehicle — in the commission of the current offense within the meaningofclause(iii). 5 Asthe judge whooriginally sentenced defendant was no longer on the bench, the matter was heard bya different judge. (See § 1170.126, subd. (j).) 6 Although the People’s notice of appeal stated they were appealing the finding of eligibility as well as the “orders, judgment and resentencing,” on appeal they contest only While we depart somewhat from the People’s line of reasoning, we reach the same conclusion. The record of conviction reflects defendant committed assault by means of force likely to produce great bodily injury. The facts show defendant 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. Defendant was, therefore, “armed with a... deadly weapon” within the meaning of clause(iii). Accordingly, defendant is ineligible for resentencing pursuant to section 1170.126, subdivision (e)(2).” I. BECAUSE THE TRIAL COURT MADE BOTH FACTUAL AND LEGAL DETERMINATIONS, MULTIPLE STANDARDS OF REVIEW APPLY, The standard of review applicable to an eligibility determination depends on the nature of the finding or findingsa trial court is called upon to makein a given resentencing proceeding. In the present case, the trial court necessarily made both factual and legal determinations. Theeligibility criteria contained in clause(iii) refer to the “facts attendant to commission of the actual offense... .” (People v. Bradford (2014) 227 Cal.App.4th 1322, 1332.) In deciding whether a defendant’s current offense falls within thosecriteria, a trial court “make[s] a factual determination thatis not limited by a review of the particular statutory offenses and enhancements of which [the] petitioner was convicted.” the eligibility finding. The People have the right to appeal such a finding pursuantto section 1238, subdivision (a)(5). (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 987-988.) 7 In light of our conclusion, we need not reach the People’s claim defendant also “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). (See generally People v. Banuelos (2005) 130 Cal.App.4th 601, 604- 605.) (Ibid.).8 Thetrial court makes this factual determination based on the evidence found in the record of conviction. (People v. Hicks (2014) 231 Cal.App.4th 275, 285-286; People v. Bradford, supra, at p. 1331; People v. Blake (2004) 117 Cal.App.4th 543, 559.)® It is 8 In its discussion of whether a defendantis entitled to an evidentiary hearing on the issue ofeligibility for resentencing, the appellate court in People v. Oehmigen (2014) 232 Cal.App.4th 1 states eligibility is not a question of fact requiring the resolution of disputed issues; rather, “[w]hatthe trial court decides is a question of Jaw: whether the facts in the record of conviction are the proper subject of consideration, and whether they establish eligibility.” (Ud. at p. 7.) Whatever the validity of this statement with respect to a petitioner’s right to an evidentiary hearing, we believe it overstates the legal nature of our review. 9 The term “record of conviction” has been “used technically, as equivalent to the record on appeal[citation], or more narrowly, as referring only to those record documents reliably reflecting the facts of the offense for which the defendant was convicted.” (People v. Reed (1996) 13 Cal.4th 217, 223; see People v. Houck (1998) 66 Cal.App.4th 350, 356.) Police reports are not part of the record of conviction (see Shepard v. United States (2005) 544 U.S. 13, 16; Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1521), nor are a defendant’s statements made after conviction and recounted in a postconviction report of the probation officer (People v. Trujillo (2006) 40 Cal.4th 165, 179). The record of conviction does include, however, the preliminary hearing transcript (Peoplev. Reed, supra, 13 Cal.4th at p. 223), transcript of the jury trial (People v. Bartow (1996) 46 Cal.App.4th 1573, 1579-1580), and the appellate record, including the appellate opinion (People v. Woodell (1998) 17 Cal.4th 448, 456). Portions of the probation officer’s report may or may notbepart of the record of conviction. (See People v. Reed, supra, 13 Cal.4th at p. 230; People v. Burnes (2015) 242 Cal.App.4th 1452, 1459.) Even whenanitem is part of the record of conviction,it is not automatically relevant or admissible for a particular purpose. (See People v. Trujillo, supra, 40 Cal.4th at pp. 179-181; People v. Woodell, supra, 17 Cal.4th at p. 457; People v. Guerrero (1988) 44 Cal.3d 343, 356, fn. 1.) Its admission must comport with the rules of evidence, particularly the hearsay rule and exceptions thereto. (See People v. Woodell, supra, 17 Cal.4th at pp. 457-460; People v. Reed, supra, 13 Cal.4th at pp. 220, 224-228, 230-231; People v. Bartow, supra, 46 Cal.App.4th at pp. 1579-1580.) Thus, although part of the record of conviction, the appellate opinion will not necessarily be relevant or admissible in its entirety. This may be especially true where the facts recited therein have their source in the probation officer’s report rather than the trial evidence. (See Peoplev. Trujillo, supra, 40 Cal.4th at pp. 180-181; People v. Reed, supra, 13 Cal.4th at pp. 220, 230-231.) In the present case, the facts in the appellate opinion were derived from the evidence presentedattrial. subject to review for substantial evidence under the familiar sufficiency of the evidence standard. (People v. Guilford (2014) 228 Cal.App.4th 651, 661; see, e.g., People v. Maciel (2013) 57 Cal.4th 482, 514-515.)!9 Whentheissueis one ofthe interpretation of a statute and its applicability to a given situation, however, it is a question of law we review independently. (People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1013; accord, People v. Tran (2015) 61 Cal.4th 1160, 1166; People v. Christman (2014) 229 Cal.App.4th 810, 815; see Hermosa Beach Stop Oil Coalition v. City ofHermosa Beach (2001) 86 Cal.App.4th 534, 549.) “‘ “In interpreting a voterinitiative” ’ ..., ‘ “we apply the same principlesthat 10 Defendant contends allowinga trial court to find a petitioner ineligible for resentencing based on facts not foundtrue by a jury deprives the petitionerofhis or her right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution. In People v. Blakely (2014) 225 Cal.App.4th 1042, 1059-1062 (Blakely), werejected the claim an inmate seeking resentencing pursuant to section 1170.126 had a Sixth Amendmentright to have disqualifying factors pled or provento trier of fact beyond a reasonable doubt. We found Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny (e.g., Alleyne v. United States (2013)570 U.S. [133 S.Ct. 2151]; Cunningham v. California (2007) 549 U.S. 270; Blakely v. Washington (2004) 542 US. 296) “do not apply to a determination ofeligibility for resentencing under the Act.” (Blakely, supra, 225 Cal.App.4th at p. 1060.) We and other courts have adheredto this conclusion, since “[a] finding an inmateis not eligible for resentencing under section 1170.126 does not increase or aggravate that individual’s sentence; rather, it leaves him or her subject to the sentence originally imposed. Thetrial court’s determination . . [does] not increase the penalty to which defendant[is] already subject, but instead disqualifie[s] defendant from an act oflenity on the part of the electorate to which defendant[is] not constitutionally entitled.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1040; accord, People v. Chubbuck (2014) 231 Cal.App.4th 737, 748; People v. Brimmer (2014) 230 Cal.App.4th 782, 805; People v. Guilford, supra, 228 Cal.App.4th at pp. 662-663; People v. Bradford, supra, 227 Cal.App.4th at pp. 1334-1336; but see People v. Arevalo (2016) 244 Cal.App.4th 836, 852-853.) Whatever implications recent pronouncements may have with respect to the determination whether, for purposes of imposing an initial sentence, a prior conviction constitutesa strike (see, e.g., Descampsv. United States (2013)570 U.S., ei, [133 S.Ct. 2276, 2281-2286, 2293]; People v. Saez (2015) 237 Cal.App.4th 1177, 1198-1208), defendantfails to convince us his constitutional rights are violated by judicial factfinding on the question ofeligibility for resentencing under the Act. (See Blakely, supra, 225 Cal.App.4th at p. 1063.) 10. govern statutory construction. [Citation.] Thus, [1] ‘we turn first to the language of the statute, giving the wordstheir ordinary meaning.’ [Citation.] [2] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme[in light of the electorate’s intent]. [Citation.] [3] When the languageis ambiguous, ‘werefer to other indicia of the voters’ intent, particularly the analyses and arguments containedin the official ballot pamphlet.’” ’ [Citation.] ‘In other words, our “task is simply to interpret and apply the initiative’s language so as to effectuate the electorate’s intent.” ’ [Citation.]” (People v. Arroyo (2016) 62 Cal.4th 589, 593.) II. DEFENDANT USED HIS VEHICLE AS A DEADLY WEAPONIN COMMISSION OF THE ASSAULT. Atthe time defendant committed his current offense, section 245, subdivision (a)(1) prescribed the punishmentfor “[a]ny person who commitsan assault upon the person of another with a deadly weaponor instrument other than a firearm or by any meansofforce likely to produce great bodily injury... .”! 11 “{S]ection 245, [former] subdivision (a)(1) . . . ‘defines only one offense, to wit, “assault upon the person of another with a deadly weaponor instrument[other than a firearm] or by any meansofforce likely to produce great bodily injury ....” The offense of assault by meansofforce likely to produce great bodily injury is not an offense separate from . . . the offense of assault with a deadly weapon.’ [Citation.]” (People v. McGee (1993) 15 Cal.App.4th 107, 114-115 (McGee).) At issue in McGee was whether a deadly weapon use enhancementhadto be stricken given that section 12022, former subdivision (b) by its terms precluded imposition of such an enhancement where use of a deadly weapon wasan elementofthe underlying offense. (McGee, supra, 15 Cal.App.4th at p. 110.) In concluding the enhancement was improper, the appellate court reasoned: “[I]n determining whether use of a deadly weaponother than a firearm is an element of a section 245, [former] subdivision (a)(1) conviction, the question is not simply whether, in the abstract, the section can be violated without using such a weapon. Rather, the conduct of the accused, i.e., the means by which he or she violated the statute, must be considered. [] .. . [{] Here, defendant’s use of a deadly weapon other than a firearm was the sole means by which heviolated section 245, [former] subdivision (a)(1). The assault by meansof force likely to produce great bodily injury was defendant’s stabbing of the victim with a knife. Hence,his use of this deadly weapon wasan elementofthe offense, within the meaning 11. It is apparent assault by means of force can be committed without the involvement of any sort of weaponorthe intent to cause great bodily injury. Accordingly, it does not automatically disqualify an inmate from resentencing underclause(iii). Nevertheless, the use of a deadly weapon doesnot preclude a conviction for assault by meansof force. (McGee, supra, 15 Cal.App.4th at p. 109 [the defendant convicted of assault by meansofforce after he stabbed the victim with a knife].) “As used in section 245, subdivision (a)(1), a ‘deadly weapon’is ‘any object, instrument, or weapon whichis used in such a manneras to be capable of producing and likely to produce, death or great bodily injury.’ [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weaponsas a matter of law; the ordinary use for which they are designed establishes their character as such. [Citations.] Other objects, while not deadly per se, may be used, 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 mannerin whichit is used, and all other facts relevantto the issue. [Citations.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 (Aguilar).)}? of section 12022, [former] subdivision (b), even though the crime was pleaded as an assault by meansofforce likely to produce great bodily injury rather than as an assault with a deadly weapon other than a firearm.” (/d. at p. 115.) Undersection 245 asit currently reads, assault with a deadly weaponis addressed in subdivision (a)(1), while assault by means of force is addressed in subdivision (a)(4). 12 At issue in Aguilar was whether hands and feet could constitute deadly weapons, or whether a deadly weapon within the meaning ofthe statute had to be an object extrinsic to the human body. (Aguilar, supra, 16 Cal.4th at pp. 1026-1027, 1034.) Within that context, Aguilar found “sound”the inference, based on inclusion of both the deadly weapon andthe assault by meansof force clauses in former subdivision (a)(1) of section 245, that the Legislature intended a meaningful difference to exist between the two clauses. (Aguilar, supra, 16 Cal.4th at p. 1030.) We do not read Aguilar as undermining McGeeor In re Mosley (1970) 1 Cal.3d 913, 919, footnote 5, on which McGee relied. (McGee, supra, 15 Cal.App.4th at pp. 110, 114.) 12. Although a vehicle is not a deadly weaponperse, it can become one, depending on how it is used. (See, e.g., People v. Oehmigen, supra, 232 Cal.App.4th at pp. 5, 11 [the defendant purposefully drove his car at police vehicle]; People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1183 [the defendant deliberately raced vehicle through red light at busy intersection and collided with another vehicle, causing injury to another]; Peoplev. Golde (2008) 163 Cal.App.4th 101, 109 [the defendant accelerated toward victim at about 15 miles per hour three or four times as victim ran back and forth to avoid vehicle]; People v. Russell (2005) 129 Cal.App.4th 776, 779, 781-782 [the defendant knowingly and intentionally pushed victim into path of oncoming vehicle]; People v. Wright (2002) 100 Cal.App.4th 703, 705, 707-709 [the defendantintentionally drove pickup truck close to persons with whom hehadcontentiousrelations].)!5 In the present case, the jury was instructed that assault by means of force required proof of an assault committed by meansofforce likely to produce great bodily injury. They weretold great bodily referred to significant or substantial bodily injury or damage, nottrivial or insignificant injury or moderate harm. “Jurors are presumed to understand and follow the court’s instructions. [Citation.]” (People v. Holt (1997) 15 Cal.4th 619, 662.) That is “ ‘[t]he crucial assumption underlying our constitutional system oftrial by jury.’ [Citations.]” (People v. Yeoman (2003) 31 Cal.4th 93, 139; see, e.g., Francis v. Franklin (1985) 471 U.S. 307, 324, fn. 9.) When the jury convicted defendantof assault by meansofforce likely to produce great bodily injury, they necessarily found the force used by defendantin assaulting Sanchez, the victim, was likely to produce great bodily 13 Other objects that, while not deadly weaponsas a matter of law, have been found to have been used as such for purposes of convictions of assault with a deadly weapon, include a “ ‘sharp’ and ‘pointy’ ” knife Un re D.T. (2015) 237 Cal.App.4th 693, 697, 699 (D.T.)); a sharp pencil (People v. Page (2004) 123 Cal.App.4th 1466, 1468, 1472); an apple with a straight pin embeddedin it (/n re Jose R. (1982) 137 Cal.App.3d 269, 276); a fingernail file (People v. Russell (1943) 59 Cal.App.2d 660, 665); and even a pillow (People v. Helms (1966) 242 Cal.App.2d 476, 486-487). 13. ik injury. (See People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066.) The sole means by which defendant applied this force was the vehicle he was driving. Thus, the record of conviction establishes defendant used the vehicle in a mannercapable of producing, andlikely to produce, at a minimum great bodily injury — i.e., as a deadly weapon. (See McGee, supra, 15 Cal.App.4th at pp. 110, 115; cf. People v. Bradford, supra, 227 Cal.App.4th at pp. 1342-1343.) Even underthe deferential substantial evidence standard of review, the record of conviction does not support the trial court’s contrary findings that defendant’s use of the vehicle during the offense was merely “incidental,” or that Sanchez was “dragged slightly, though the dragging wasn’t anything more than keeping pace with the car.” The vehicle was the instrumentality by which defendant committed the offense, and whatever speed defendant was driving, Sanchez was dragged and hadto run to keep his balance to such an extent that a witness 299characterized Sanchezas “ ‘running forhislife’ and expressed surprise Sanchez was able to run that fast.14 14 The dissent quotes the statement in People v. Newman (2016) 2 Cal.App.Sth 718, 721 (Newman),that “[i]n determining eligibility for Proposition 36 relief, a court is empoweredto consider the record of conviction and to makefactual findings by a preponderance of the evidence, even if those findings were not made bythe jury or the trial court in convicting a defendantof the current offense.” We agree the resentencing court maydoso,at least whereeligibility under clause (iii) is concerned. Thus, for example, a resentencing court could properly find a defendant disqualified from resentencing based on the defendant’s intent to cause great bodily injury to another person, even though the jury in the defendant’s case was never asked to make such a finding or found the defendantdid not actually inflict great bodily injury — the situation in Newman. To hold otherwise would be to render nugatory a portion of clause(iii). Contrary to the apparent positions of the resentencing court and dissentin this case, however, this does not meanthe jury’s verdict can be disregarded altogether, or that the resentencing court can decline to find, by the applicable standard of preponderance of the evidence,a fact the jury necessarily found beyond a reasonable doubt. We do not read Newman as countenancing sucha result; despite its occasionally sweeping statements, “we must remember‘ “ ‘ “the language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.” ’” [Citations.]’ [Citation.]” (Moon v. Superior Court 14. Defendantargues the record of conviction must establish he intended to use the vehicle as a deadly weapon. In part, he relies on People v. Graham (1969) 71 Cal.2d 303, disapproved on another ground in People v. Ray (1975) 14 Cal.3d 20, 32, wherein the California Supreme Court stated: “Although the mannerofthe use of an object does not automatically determine whether a defendant was ‘armed with a dangerousor deadly weapon,’ the method of use may be evidenceofthe intent of its possessor. In People v. Raleigh (1932) 128 Cal.App. 105, the District Court of Appeal ... adopted a position appropriate to the present case, ‘that a distinction should be made between twoclasses of “dangerous or deadly weapons”. Thereare,first, those instrumentalities which are weaponsin thestrict sense of the word, and, second, those instrumentalities which are not weaponsin the strict sense of the word, but which may be used as such... . The instrumentalities falling into the secondclass, . . . 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, may notbe said as a matter of law to be “dangerous or deadly weapons.” Whenit appears, however, that an instrumentality . . . falling within the [second] class 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 occasionto 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 purposes of that occasion.’ (128 Cal.App.at pp. 108-109.) (People v. Graham, supra, 7\ Cal.2d at pp. 327-328; see People v. McCoy (1944) 25 Cal.2d 177, 188-189; People v. Page, supra, 123 Cal.App.4th at p. 1471; People v. Moran (1973) 33 Cal.App.3d 724, 730.) In D.T., supra, 237 Cal.App.4th at page 702, the Court of Appeal explained the foregoing “does no more than establish that intent to use an item as a weapon can be sufficient, in some circumstances, to qualify the item as a deadly weapon. It inno way states that proof of such intent is necessary to this inquiry.” The appellate court pointed to People v. Colantuono (1994) 7 Cal.4th 206, 214, in which the California Supreme (2005) 134 Cal.App.4th 1521, 1532, quoting Trope v. Katz (1995) 11 Cal.4th 274, 284.) Newman deals only with a situation in which the resentencing court made factual findings that went beyond those made bythe jury, not that contradicted the jury’s verdict. 15. Court held that “ ‘the intent for an assault with a deadly weaponis the intent to attemptto commit a battery, a battery being “any willful and unlawful use of force or violence upon the person of another.” [Citation.]’ ” Wetend to agree with D.7. (See People v. Aznavoleh, supra, 210 Cal.App.4th at pp. 1183, 1186-1187 [setting out elements of assault and assault with a deadly weapon in case involving use of vehicle].) Even 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 moving in reverse, yet defendant then drove the vehicle forward “at a great speed.” Sanchez only managed to pull his arm free shortly before defendant drove outofthe store parking lot onto Blackstone without even stopping at the stop sign. Ill. BECAUSE DEFENDANT PERSONALLY USED THE VEHICLE AS A DEADLY WEAPON IN COMMISSION OF THE ASSAULT, HE WAS ARMED WITH A DEADLY WEAPON DURING THE COMMISSION OF HIS CURRENT OFFENSE AND SO WASINELIGIBLE FOR RESENTENCING UNDERSECTION 1170.126. It has long been the law that “[a] person is ‘armed’ with a deadly weapon whenhe simply carries a weaponorhasit available for use in either offense or defense. [Citation.]” (People v. Stiltner (1982) 132 Cal.App.3d 216, 230; see Blakely, supra, 225 Cal.App.4th at p. 1051.) Here, because defendantpersonally used the vehicle as a deadly weapon,he necessarily had it available for use and so was armed with it during the commission of his current offense, since “use” subsumes “arming.” (See, e.g., People v. Strickland (1974) 11 Cal.3d 946, 961; People v. Schaefer (1993) 18 Cal.App.4th 950, 951; People v. Turner (1983) 145 Cal.App.3d 658, 684, disapproved on other groundsin People v. Newman (1999) 21 Cal.4th 413, 415, 422-423, fn. 6 & People v. Majors (1998) 18 Cal.4th 385, 411.) The question, then, is whethervoters intended clause(iii) to encompass arming based on personaluse as a deadly weaponofan object that is not a deadly weaponperse. Thetrial court found defendant’s use of the motor vehicle in the present case was “not the 16. anticipated use of a deadly weapon contemplated by [section] 1170.126.” Reviewing this question of law independently, we disagree. “ «The enacting body is deemed to be aware of existing laws and judicial constructionsin effect at the time legislation is enacted’ [citation], ‘and to have enacted or amendeda statute in light thereof? [citation]. ‘This principle applies to legislation enacted by initiative. [Citation.]’ [Citation.] “Where,as here, ‘the language of a statute uses terms that have been judicially construed, “ ‘the presumption is almostirresistible’ ” that the terms have been used “ ‘in the precise and technical sense which had been placed upon them bythe courts.’ ” [Citations.] This principle... applies to legislation adopted throughtheinitiative process. [Citation.]’ [Citation.]” (Blakely, supra, 225 Cal.App.4th at p. 1052.) In light of the foregoing, we conclude the electorate intended “armed witha... deadly weapon,”as that phrase is used in clause (iii), to mean carrying a deadly weapon or having it available for offensive or defensive use. (See Blakely, supra, 225 Cal.App.4th at p. 1052.) When the object at issue is a deadly weaponperse, simply carrying the object or havingit available for use is sufficient to render a defendant ineligible for resentencing under the Act. By contrast, where, as here, the object is not a deadly weaponperse, merely carrying the object or having it available for use will not, without more, be enoughto bring a defendant within the scopeofclause(iii).!5 Here, however, defendant actually and personally used the object as a deadly weapon. Because enhancing public safety was a key purpose of the Act, despite the fact the Act “ ‘diluted’ ” the three strikes law somewhat (Blakely, supra, 225 Cal.App.4th at p. 1054), 15 For example, the driver of a getaway vehicle in a robbery who merely puts the vehicle to the ordinary use for which it was designed — transportation— technically has the vehicle available for offensive or defensive use as a weapon. Yet we have no doubt the electorate did not intend clause(iii) to reach that type of conduct, at least when unaccompanied by somesort of nefarious intent. (See People v. Graham, supra, 71 Cal.2d at pp. 327-328.) We are not presented with the question, and express no opinion, whether not actually using an object as a deadly weapon,but intending to do so should the need arise, falls within clause(iii). 17. vi ne s p e M S R R i e S E R g y i e s we conclude the electorate did not intend to distinguish, under such circumstances, between objects that are deadly weaponsper se and those whose characterization as such depends uponthe use to which they are put. (See generally People v. Osuna, supra, 225 Cal.App.4th at pp. 1034-1038 [discussing Act’s purpose and voters’ intent].) DISPOSITION The order granting the petition for recall of sentence, recalling the previously imposed sentence pursuant to Penal Code section 1170.126, and resentencing defendant is reversed. The matter is remandedtothetrial court with directions to find defendant ineligible for resentencing, deny the petition, and reinstate defendant’s original sentence. DETJEN,J. I CONCUR: POOCHIGIAN,Acting P.J. 18. POOCHIGIAN,J., Concurring I concur to express my view concerning the significance of certain facts underlying the conviction below. The majority opinion cites several cases whereby motor vehicles were deemed dangerous weaponsasa result of demonstrably intentional and threatening conduct calculated to place othersatrisk of injury or with reckless disregard for such peril. Clearly, assault requires an intentional act and actual knowledgeofthose facts sufficient to establish that the act by its nature will likely and directly result in the application of physical force. In this case, the purpose of the use of the vehicle was arguably not to inflict injury but to provide a means of escape. Indeed, the court’s conclusion at the hearing on the petition for resentencing that the use of the vehicle was “incidental” was presumably based on that understanding. It seemsclear that any determination regarding whetherthe vehicle was employed as a deadly weapon under such circumstances should take into account the elementof speed. The evidence indicated that the path of the vehicle’s movement involved a distance of roughly 50 feet. The passenger grabbed victim Sanchez’s left arm and pushed it down, which prevented him from pulling his arm out of the vehicle as it was in motion. Asthe vehicle was moving in reverse, Sanchez yelled, “Stop the vehicle” three times. While the defendant contended that the vehicle movedat the rate of one to three miles per hour during the episode, the victim stated that the vehicle was traveling about 20 miles per hour as he ran alongside. During the preliminary hearing, he hadstated that at the time he pulled his arm free, the vehicle was moving at a speed of about 15 miles per hour and that the ordeal lasted one minute. Underthe circumstances in which the victim’s arm was apparently held as he ran alongside the moving vehicle, the speed suggested by the victim’s testimony seems questionable.l!] Indeed, that fact may haveaffectedthetrial [1] Tt is noteworthy that the winner ofthe 100-meter sprint in the 2016 Olympic Games won with a time of 9.81 seconds — a rate of 22.8 miles per hour. court’s conclusion that the victim was “dragged slightly” — in contrast to a coworker’s observation that Sanchez was“runningforhislife.” Despite any misgivings about the accuracy oflay testimony regarding the speed of the vehicle, the coworker’s observation about the peril presented is certainly relevant in assessing whether the vehicle was operated as a deadly weapon.It is also instructive that the jury found appellant guilty of assault with force likely to produce great bodily injury. When coupled with testimony that the passenger held onto Sanchez’s extended arm while the vehicle was in motion, that Sanchez yelled for the driver to stop, that he presumably struggled to be released from the passenger’s hold, and that he wasfinally able to free himself when Perez put the vehicle in drive after moving in reverse, I am satisfied with the conclusion that the vehicle was employed as a deadly weapon — thus rendering the defendantineligible for resentencing. POOCHIGIAN,Acting P.J. FRANSON,J., Dissenting. The People appealthe trial court’s order granting Alfredo Perez, Jr.’s petition to recall his sentence, contending Perez was armed with and used a deadly weapon during the commission of an assault. The majority agrees and reversesthe trial court’s order granting defendant’s petition. Based onthetrial court’s underlying factual findings and determination,I respectfully dissent and would affirm. Factual and Procedural Background The following factual summaryof facts pertinent to this appeal come from the appellate opinion affirming Perez’s current conviction, which is repeated verbatim in the majority opinion. Attrial, Fred Sanchez testified he was working as salesclerk at Grand Auto in Fresno on March 17, 1994, when Perez and another man (the passenger) entered the store midafternoon. The passenger, with his back to Sanchez, was seen holding a Club, an automobile anti-theft device. Perez spoke briefly to the passenger and then went up to Sanchez and spoke to him about tires. During this conversation, the passengerleft the store and wentto stand by the passengerside of a Blazer-type vehicle. Perez left the store, went to the driver’s side of the vehicle, and the two drove away. Sanchez suspected the passenger had stolen the Club from the store and that Perez had tried to divert his attention away from the theft. The following day, Sanchez saw the passenger again enter the store. Sanchez approachedthe passenger, asked if he neededassistance, and, after alerting other store employees that he neededassistance, followed him outof the rear of the store. While following the passenger, Sanchez heard rustling in the passenger’s clothing, although he had not paid for any items from thestore. Onceoutofthe store, the passenger entered the passengerside of the same Blazer as the day before. Perez was again driving. Sanchez approached the open passenger windowandobserved a bulge protruding from the passenger’s clothing. Sanchez told the passenger to give the merchandise back and he could leave. Sanchez then reachedinto the vehicle and grabbed the package under the passenger’s jacket, which turned outto be an “Ultra Club.” Sanchezsaid, “Give it up.” Perez looked toward Sanchez andsaid the same. Perez then drove the vehicle in reverse while the passenger held onto Sanchez’s arm. Sanchez implored Perez to stop the vehicle as it continued to movein reverse. Sanchez was dragged by the movementof the vehicle and had to run to keep his balance. Perez then put the vehicle in drive and the vehicle moved forward approximately 50feet, when Sanchez wasable to pull his arm free.! Sanchez estimated the Blazer was going about 20 miles per hour, although he admitted that at the preliminary hearing he estimated the vehicle started at 10 miles per hour and was going about 15 miles per hour when he pulled his arm free. Sanchez estimated that the entire incident took about a minute, 15 secondsofthat with his arm in the vehicle as it was moving forward. After he broke free, Sanchez saw the vehicle leave. A coworker of Sanchez described Sanchezas “runningforhislife” alongside the Blazer. A jury convicted Perez of assault by meansof force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))? and foundtrue the allegations that Perez had sustained twopriorstrike convictions and suffered twoprior prison terms. Thetrial court sentenced Perez to an indeterminate term of 25 yearsto life, plus two one-year enhancements for the prison priors. Resentencing Under Proposition 36 Thetrial court’s consideration ofa petition for resentencing under Proposition 36 is a two-step process. First, the court determines whether the petitioneris eligible for 1 There is no indication Perez wasinjured as a result. At the subsequent hearing on the petition for resentencing, the parties described the injury as “not major” and “a few scrapes.” The injury required no hospitalization or medical treatment. 2 All further statutory references are to the Penal Code unless otherwisestated. resentencing. If the petitioner is eligible, the court proceeds to the second step, and resentencesthe petitioner under Proposition 36 unless it determines that doing so would pose “an unreasonablerisk of dangerto public safety.” (§ 1170.126, subd.(f).) Atissue hereis the first step of the process — the initial eligibility determination. Section 1170.126 grantsthetrial court the powerto ultimately determine whethera third strike offenderis eligible for resentencing only if, as an initial matter, the inmatesatisfies the criteria set out in subdivision (e) of the statute. Generally, for purposes here, those criteria are: (1) the inmate is serving a life term under the three strikes law for a conviction ofa felony or felonies not defined as serious and/or violent undersection; (2) the inmate’s current sentence was not imposed for an offense in which the defendant used or was armed with a firearm or deadly weapon; and (3) the inmate has no prior convictionsfor certain specified offenses. If the inmate does not satisfy each ofthe criteria, the trial court must deny the request for resentencing. Perez satisfies the first and third requirements. This appealrelates to the secondcriteria. DISCUSSION Eligibility Determination Theeligibility determination required by section 1170.126, subdivision(e) is not a discretionary determination bythe trial court. (People v. Bradford (2014) 227 Cal.App.4th 1322, 1336.) The Three Strikes Reform Act of 2012 (the Act) provides that “the court shall determine whetherthe petitioner satisfies the criteria in subdivision (e)....” (§ 1170.126, subd. (f).) And because the Act fixes ineligibility not on statutory violations or enhancements, but on “facts attendant to commission ofthe actual offense, the express statutory language requiresthe trial court to make afactual determination that is not limited by a review ofthe particular statutory offenses and enhancements of which petitioner is convicted.” (People v. Bradford, supra, at p. 1332, italics added.) Instead, “thetrial court must make this factual determination basedsolely on evidence foundin the record of conviction ....” (People v. Bradford, supra, 227 S U M M E R U U e e i g e Cal.App.4th at p. 1331, italics added.) As stated in People v. Oehmigen (2014) 232 Cal.App.4th 1, “[E]ligibility is not a question of fact that requires the resolution of disputed issues. Thefacts are limited to the record of conviction underlying a defendant’s commitment offense; the statute neither contemplates an evidentiary hearing to establish these facts, nor any other procedure for receiving new evidence beyondthe record of conviction. [Citation.] 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.” (Jd. at p. 7, originalitalics.) As stated recently in People v. Newman (2016) 2 Cal.App.Sth 718, 721, “In determining eligibility for Proposition 36 relief, a court is empowered to consider the record of conviction and to make factualfindings by a preponderanceofthe evidence, even if those findings were not madeby the jury orthe trial court in convicting a defendantofthe current offense.” (Italics added.) Simply put, the trial court takes the facts from the record of conviction and determines, from its interpretation of those facts, whethera petitioneris eligible for resentencing. “(D]isqualifying factors need not be pled and provedto a trier of fact beyond a reasonable doubt; hence,a trial court determining whether an inmate iseligible for resentencing under section 1170.126 may examinerelevant, reliable, admissible portions of the record of conviction to determine the existence of a disqualifying factor.” (People v. Blakely (2014) 225 Cal.App.4th 1042, 1048-1049.) For this purpose, the record of conviction includes pleadings, trial transcripts, pretrial motions, and any appellate 3 In People v. Newman the defendant was convicted of assault by meansof force likely to produce great bodily injury (§ 245, subd. (a)(1)) but found nottrue the allegation that he inflicted great bodily injury on the victim during the assault (§ 12022.7). Defendant subsequently filed a Proposition 36 petition for recall and resentencing. In denying the petition, the court found the defendant, based on the facts of the case, intended to cause great bodily injury in the commission ofthe assault, disqualifying him from resentencing. (People v. Newman, supra, 2 Cal.App.5th at pp. 722-723.) opinion. (See, e.g., People v. Manning (2014) 226 Cal.App.4th 1133, 1140-1141; People v. Osuna (2014) 225 Cal.App.4th 1020, 1027, 1030; People v. White (2014) 223 Cal.App.4th 512.) “[A]trial court need only find the existence of a disqualifying factor by a preponderance of the evidence. (Evid. Code, § 115; [citation].)” (People v. Osuna, supra, at p. 1040.) Standard of Review Thetrial court’s underlying factual determination that Perez waseligible for resentencing is reviewed on appeal for substantial evidence. (People v. Bradford, supra, 227 Cal.App.4th at p. 1331; 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2016 supp.) Punishment, § 421C.) Furthermore, “the task of an appellate court is to ‘review the correctness of the challenged ruling, not of the analysis used to reach it.’ [Citation.] ““‘If right upon any theory ofthe law applicableto the case, it must be sustained regardless of the considerations which may have movedthetrial court to its conclusion.’ [Citation.]””” (People v. Hughes (2012) 202 Cal.App.4th 1473, 1481.) Trial Court Hearing and Order At the hearing on the petition, the trial court reviewed the facts and circumstances of the prior conviction and madethe preliminary determination that they did not support a finding ofineligibility. The court was provided with a copy ofthis court’s 1996 opinion affirming Perez’s conviction and the people’s summaryofthe facts from that opinion. The court described its interpretation of the facts of the conviction, as the victim being “dragged slightly, though the dragging wasn’t anything more than keeping pace with the car.” It further described the use of the vehicle as “incidental.” The People argued that Perez became armed with the vehicle for purposes of the statute, “[t]he moment that Mr. Perez chose to use the vehicle as a weapon as a meansof his assault ....” The trial court stated, in reviewing Perez’s file, that he was never charged with assault with a deadly weapon.* The People explainedthat, at the time Perez committed his crime,“it would have had verylittle meaning to file an assault with a deadly weapon.” Thetrial court acknowledgedthat it had previously ruled in earlier casesthat, “if there are facts that support use of a deadly weapon, even though theyare not charged, and there is not a conviction, the personisstill excluded from [resentencing] reconsideration....” The court then focused on the difference between a defendant who “used” a firearm or deadly weapon and a defendant who “was armed” with a firearm or deadly weapon. The People agreed withthetrial court that, when Perez wassitting in his vehicle and the vehicle was not moving, the vehicle was not a weapon. Thetrial court explained that, had Perez had a knife in a sheath underhis shirt at the time, he would find him ineligible. The People continued, arguing that when Sanchez puthis arm into the vehicle, Perez had an “election” to make:(1) to leave the vehicle as a vehicle by asking Sanchez to remove his arm from the vehicle, turn off the vehicle and resolve the issue; or (2) to use the vehicle as the mechanism of the assault, which would convert the vehicle into a weapon. According to the People, Perez chose the second option. As argued by the People, Perez was armed with a deadly weapon because “use” encompasses “armed,” whereas ‘“‘armed” does not encompass “use.” In response,the trial court read from an orderit had issued in earlier resentencing hearings, explaining its understanding of the rationale behind Proposition 36, which stated that it did not think the voters of Proposition 36 “in any way were being told at that 4 I note the jury wasinstructed only on the theory of “by meansofforce likely to produce great bodily injury.” (CALJIC No. 9.02) I take judicial notice ofthe record in the appeal of the underlying offense (People v. Perez, case No. F023703) and also note that the prosecutor did not argueattrial that the use of the vehicle constituted use of a deadly weapon during the assault. point, ‘if an individual uses somethingthat is not in andofitself'a ... deadly weapon,that they would not be eligible.’” Following that line of reasoning, the trial court posed a hypothetical, asking the People what their argument would be if the passenger had gotten into the vehicle with the anti-theft device, Sanchez approached the vehicle and said “{djon’t leave,” Perez grabbedthe anti-theft device, throwsit at Sanchez and drove away. Under the People’s argument, the trial court reasoned Perez would have converted the anti-theft device, which is not inherently a deadly weapon,into the use of a deadly weapon, making him ineligible for resentencing. The People madethe distinction between someonereleasing a stolen item and giving it back, and throwing the item andhitting the victim in the skull or attempting to hit the victim with the item. The latter example, argued by the People, “convert[s] the Club into exactly that, a club, and it was being used then as an instrumentfor the assault and was a dangerous or deadly weapon.” With that, the trial court then issued its ruling, stating: “Okay. I understand your position. I understand your argument.... [I]t is ... very well-reasoned.... I think your argumentis clear, if you want to take this further, the fact [is] that the Court is going to deny it. I am going to finalize the order. For that purpose, ... J amfinding that the defendantis not ineligible to be resentenced, due to the method in which the motor vehicle was usedin this offense. So I havetried to give you as clear language as I can.” (Italics added.) Analysis Thetrial court reviewed and weighedthe facts, including the credibility of the estimated speeds and length oftimeforthe incident5, and determined, based onits review 5 Asan aside,I take judicial notice of the fact that the world record for the 100- meter sprint is 9.58 seconds, a rate of 23.35 miles per hour. As such, the speed suggested by the victim’s testimony seems implausible and provides additional support for the trial court’s implied credibility findings. (Evid. Code, § 452, subd. (h); Jn re Jessica C. (2001) 93 Cal.App.4th 1027, 1043 [‘A trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so.”].) and interpretation of the facts, that the method used by Perez in maneuveringhis car to depart the scene did not convert an object otherwise not inherently a deadly weapon,into one. Utilizing this factual determination, Judge Conklin reached the legal conclusion that Perez was not armed with, or use, a deadly weapon and wastherefore eligible for resentencing. This determination was not made because of any misunderstanding of Proposition 36. Based on the record, andthe 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. The record supportsthetrial court’s determination ofeligibility, based on the method the vehicle was usedin the offense Perez was convicted of. Thetrial court did not, contrary to the majority’s assertion (maj. opn. ante, at pp. 14-15, fn. 14), contradict the jury’s verdict. It simply madefactual findings that went beyond those made bythe jury. While I agree that an object not inherently deadly may be made deadly byits use and all other factors relevant to the issue, the factual determinations made bythetrial court in this case fail to support this legal conclusion. Examples of vehicles used as deadly weaponsare cited by the majority in section II of the Discussion, but are clearly much more egregious than the facts of this case, especially as interpreted by the trial court. As a further example, in People v. Claborn (1964) 224 Cal.App.2d 38, a vehicle was found to be a deadly weapon within the meaning of a section 245 assault when the defendant, upset by a family dispute, got into his vehicle and, upon seeing an approaching police car, swerved and aimedhis vehicle directly at the officer’s car, causing a head-on collision. The defendant then got out of his vehicle and shouted, “*You son-of-a bitch, I didn’t kill you this way, but I will kill you now,’” and physically attacked the officer. (People v. Claborn, supra, at p. 41.) In determining whether a defendantis ineligible for resentencing underthe Act, a trial court examines the “conduct that occurs during the commission of an offense.” (People v. Bradford, supra, 227 Cal.App.4th at p. 1333.) 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 andcited bythe trial court, were that Perez assaulted Sanchez when,while he wasin the driver’s seat of the vehicle, Sanchez reached into the passenger window in 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 miles per hour and that the entire incident took about a minute, common sensedictates otherwise. Perez’s section 245, subdivision (a)(1) conviction was based on an assault by any meansofforce likely to produce great bodily injury, and does not come within section 1192.7, 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 pursuantto section 667, subdivision (e)(2)(C)Gii) and section 1170.12, subdivision (c)(2)(C)(iii), as referenced in section 1170.126, subdivision (e)(2). Substantial evidence supportsthe trial court’s determination that Perez’s use ofthe vehicle was not a deadly weapon within the meaning of the use of a deadly weapon exclusions and, thus, he waseligible for a recall of his life sentence and for resentencing underthe Act. FRANSON,J. Age A g e o H M E DECLARATION OF SERVICE I, the undersigned, declare as follows: I am a memberofthe State Bar of California anda citizen of the United States. I am over the age of 18 years and not a party to the within-entitled cause; my business address is PMB 334, 3104 O Street, Sacramento, California, 95816. On November 8, 2016, I served the attached PETITION FOR REVIEW (by mail) - by placing a true copy thereof in an envelope addressed to the person(s) named belowatthe 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 Mailat each ofthe places so addressed,or there is regular communication by mail between the place of mailing and each ofthe places so addressed. Alfredo Perez, Jr. Fresno County Superior Court Respondent 1100 Van Ness Avenue 843 12th Street Fresno, CA 93724 Sanger, CA 93657 (by electronic transmission) - I 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 PDFandthenserved by electronic mail to the party listed below, by close of business on the date listed above: Central California Appellate Program Office of the Attorney General 2150 River Plaza Dr., Ste. 300 P.O. Box 944255 Sacramento, CA 95833 Sacramento, CA 94244-2550 eservice@capcentral.org SacAWTTrueFiling@doj.ca.gov Douglas O. Treisman California Court of Appeal Office of the District Attorney Juvenile Division Fifth Appellate District 3333 E. American Avenue, Bldg 701, Suite F 2424 Ventura Street Fresno, CA 93725 Fresno, CA 93721 dtreisman@co.fresno.ca.us served via Truefiling.com I declare under penalty of perjury that the foregoing is true and correct. Executed on November8, 2016, in Sacramento, California. DECLARANT