People v. Perez
3 Cal. App. 5th 812
Cal. Ct. App.2016Background
- In 1994 Perez was convicted by jury of assault by means likely to produce great bodily injury (§ 245, former (a)(1)); he had two prior strikes and two prior prison terms.
- Facts: store clerk Fred Sanchez grabbed a stolen item through the passenger window of a Blazer; the passenger held Sanchez’s arm while Perez (driver) reversed then drove forward, dragging Sanchez ~50 feet until Sanchez freed his arm; Sanchez and a coworker identified Perez.
- Perez filed a Proposition 36 (Three Strikes Reform Act, § 1170.126) petition in 2013 seeking recall/resentencing; the People opposed, arguing Perez was "armed with a deadly weapon" because he used his vehicle as one.
- The trial court found Perez eligible and resentenced him as a second‑strike offender; the People appealed the eligibility ruling.
- The Court of Appeal held the vehicle, as used, qualified as a deadly weapon and that Perez personally used it as such, making him ineligible under § 1170.126(e)(2); it reversed and remanded to reinstate the original sentence.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Perez) | Held |
|---|---|---|---|
| Whether Perez was "armed with a deadly weapon" under clause (iii) of § 667(e)(2)/§ 1170.12(c)(2)(C)(iii) because he used a vehicle during the assault | Vehicle may be a deadly weapon when intentionally used to apply force; Perez personally and intentionally used the Blazer to commit the assault, so clause (iii) applies | Mere possession or ordinary use of a vehicle (or incidental movement during getaway) does not render it a deadly weapon; arming requires more than potential for harm | Held: A vehicle used personally and intentionally in a manner likely to produce great bodily injury is a "deadly weapon"; on this record Perez used the vehicle as such and is ineligible for resentencing. |
| Level and standard of review for eligibility findings | People: factual findings drawn from the record of conviction may be reviewed for substantial evidence; statutory interpretation reviewed de novo | Perez: trial court’s factual/credibility findings (e.g., vehicle speed, "incidental" use) should be respected | Held: Mixed review—factual findings from the record reviewed for substantial evidence; statutory interpretation reviewed independently. |
| Whether intent to use vehicle as deadly weapon must be proven | People: intent (or personal use) can be inferred from conduct; use suffices to show "armed" | Perez: must show intent to use vehicle as weapon; ordinary getaway/use insufficient | Held: Intent need not be separately proved in all cases, but where vehicle is the sole means by which force likely to cause great bodily injury was applied, conviction already reflects that use; here record supports intent/use. |
| Whether judicial factfinding on eligibility violates the Sixth Amendment | People: eligibility is a collateral determination; factual findings by preponderance from record are permitted | Perez: judicial factfinding that contradicts jury verdict raises constitutional concerns | Held: No Sixth Amendment violation; eligibility factfinding from the record by preponderance is permissible (court follows People v. Blakely and related authority). |
Key Cases Cited
- People v. Aguilar, 16 Cal.4th 1023 (Cal. 1997) (framework for when non‑intrinsically deadly objects may be used as deadly weapons: consider nature, manner of use, and other facts)
- People v. McGee, 15 Cal.App.4th 107 (Cal. Ct. App. 1993) (assault by means can encompass use of a deadly weapon where the weapon was the sole means of committing the assault)
- People v. Graham, 71 Cal.2d 303 (Cal. 1969) (discusses intent to use an item as a weapon as evidence that a non‑deadly instrumentality may be treated as deadly on a particular occasion)
- People v. Colantuono, 7 Cal.4th 206 (Cal. 1994) (clarifies intent element in assault with a deadly weapon context)
- People v. Bradford, 227 Cal.App.4th 1322 (Cal. Ct. App. 2014) (eligibility under § 1170.126 requires the trial court to make factual determinations from the record of conviction)
- People v. Oehmigen, 232 Cal.App.4th 1 (Cal. Ct. App. 2014) (addresses scope of record of conviction and whether evidentiary hearings are contemplated for eligibility)
- People v. Osuna, 225 Cal.App.4th 1020 (Cal. Ct. App. 2014) (discusses Proposition 36 purpose and permissibility of judicial factfinding on eligibility)
- People v. Reed, 13 Cal.4th 217 (Cal. 1996) (defines "record of conviction" scope for postconviction proceedings)