*1 F069020. Fifth Dist. Sept. [No. 2016.] PEOPLE,
THE Plaintiff and Appellant, PEREZ, JR.,
ALFREDO Defendant and Respondent. THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER Court, 11, 2017, (see 8.1105(e)(1)(B), 8.1115(e)) Cal. Rules of rules S238354. January *4 Counsel
Elizabeth A. and Lisa A. District Carillo Egan Smittcamp, Attorneys, Rudy Fritzler, Treisman, and Traci Chief District O. Deputy Attorneys, Douglas District for Plaintiff and Deputy Attorney, Appellant.
Elizabeth under the Court of for Defend- Campbell, appointment by Appeal, ant and Respondent.
Opinion Perez, DETJEN, J.— (defendant), Jr. was convicted by jury Alfredo harm, assault with force a violation of Penal produce great bodily (a)(1).1 Code section former subdivision further found he jury (§ (b)-(i)) suffered two strike convictions subds. and served two prior 667.5, 4, 1995, (§ (b)). terms subd. On he was sentenced to prior prison May a total of two to fife years plus years prison. statutory All references are to the Penal Code unless otherwise stated. *5 (§ the Three Strikes Reform Act of 2012 1170.126 et seq.) Act)
(hereafter created a release for third strike postconviction proceeding offenders indeterminate life sentences for nonserious and nonviolent serving 1170.126, An felonies. inmate who meets the criteria enumerated section (e), subdivision is to be resentenced as a second strike offender unless the court determines such would an unreasonable risk of resentencing pose 1170.126, (§ (1); (2013) to subd. v. Yearwood danger public safety. Defendant’s conviction was for a crime that was neither a serious nor a violent felony. Act, however,
An if inmate is for under the his or ineligible resentencing (i) (iii), her current sentence is “for of the offenses clauses to any appearing inclusive, (C) (2) (e) of of of subdivision of Section subparagraph paragraph inclusive, (i) (iii), (C) (2) 667 or clauses of of of subparagraph paragraph 1170.126, Thus, (c) (§ (e)(2).) subdivision of Section 1170.12.” subd. an if, alia, inmate is from inter the commis- disqualified resentencing “[djuring offense, sion of the current . . . was armed with a . . . deadly [he she] (§§ or intended to cause to another weapon, great bodily injury person.” 1170.12, (e)(2)(C)(iii), (c)(2)(C)(iii).) subd. subd. effect,
After the Act went into defendant filed a for recall of petition sentence and for under the Act. The request resentencing People opposed alia, (and on the inter defendant was armed with petition ground, actually used) a the commission of his offense. deadly weapon during Following the trial court found defendant and that hearing, eligible resentencing, defendant would not an unreasonable risk of pose danger The court and resentenced defendant as a public safety. granted petition second strike offender. the trial court’s determination. People appeal, challenging eligibility
We hold an inmate is armed with a within the deadly weapon (iii) (C) (e) of clause of of of subdivision meaning subparagraph paragraph (iii) (C) of section 667 and clause of subparagraph paragraph (c) (hereafter subdivision of section 1170.12 referred to as clause collectively (iii)) when he or she uses a vehicle a manner personally intentionally On the evidence found the record of produce great bodily injury. conviction, is, therefore, defendant used a vehicle as a He deadly weapon. 1170.126, (e)(2). to section subdivision ineligible resentencing pursuant we reverse the trial court’s order defendant’s Accordingly, granting petition.
FACTS AND PROCEDURAL HISTORY2 17, 1994, “On March Fred Sanchez was approximately p.m., working man, as a sales clerk at Grand Auto Fresno. He observed and a [defendant] who hereinafter will be referred to as the enter the store. The ‘passenger,’ Club, device, raised a an auto anti-car theft of feet above passenger couple the aisle and then lowered it. The was a Pendleton passenger wearing and had his back to Sanchez. wool-type jacket spoke briefly [Defendant] him the and then went to Sanchez and about some passenger up spoke tires. While this conversation was left the store. taking place, passenger Sanchez could see the out into the lot of the store and passenger go parking wait at the side of a truck. went to the passenger Blazer-type [Defendant] driver’s side and drove Sanchez that the had stolen away. suspected passenger the Club from the store and had to divert his attention attempted [defendant] However, from the theft. he did not call the over the incident nor away police if did he check the store to determine items were inventory any missing. 18, 1994, noon, “The next March around Sanchez saw the same day, from the before enter the store. He was the same passenger day wearing even was hot. He nervous and jacket, though day ‘incredibly’ appeared if his back toward Sanchez. Sanchez asked the he kept turning passenger needed assistance and then followed the out of the rear of the store passenger after the other store that he needed assistance. He heard alerting employee in the The had not item rustling passenger’s clothing. passenger paid any from the store.
“The entered the side of the same Blazer as the passenger passenger day before. The side window was rolled down. Sanchez was passenger wearing red smock shirt with the of Grand Auto and his name insignia tag. inwas the Blazer less than a minute when Sanchez came to its passenger up window. was the driver. Sanchez observed a bulge protruding [Defendant] from the Sanchez told the passenger’s clothing. passenger please give merchandise back and he could leave. Sanchez then reached into the vehicle at the Sanchez identified the grabbed package passenger’s jacket. said, $59.55. as an Ultra Club which had a retail value of Sanchez package said, ‘Give it then looked toward Sanchez and ‘Give it up.’ up.’ [Defendant] then drove the vehicle reverse. The passenger grabbed “[Defendant] down, Sanchez’s left arm and it which Sanchez from pushed prevented his arm out of the vehicle. Sanchez the vehicle’ three pulling yelled, ‘Stop quote they nonpub- We the facts of defendant’s commitment offense as are stated in our 5, 1996, (Nov. F023703), opinion People lished which was submitted Perez response petition, transcript in their' initial to defendant’s and is contained in the clerk’s present appeal. *7 in times as the vehicle was reverse. He was when the vehicle moving dragged went into reverse. He had to run to his balance. then drove keep [Defendant] the vehicle forward. Sanchez was able to his arm free once the vehicle pull forward, if moved but he was afraid he fell he could be run over. hour, “Sanchez estimated the of the Blazer to be 20 miles but speed per admitted that at the he had testified that the vehicle preliminary hearing started at 10 miles hour and was 15 when he his arm free. per doing pulled minute, in He estimated the entire incident took a his arm was the vehicle seconds, in after it was drive for 15 and that the vehicle traveled put 50 feet forward. approximately free,
“After he broke Sanchez saw the vehicle leave the scene. Sanchez never recovered the merchandise from the arrived and passenger. police Sanchez them with a of the vehicle and the license provided description plate number. The vehicle was to and his wife. Sanchez’s registered [defendant] co-worker, Tatum, Don testified to Sanchez run the truck. seeing alongside He characterized the incident as Sanchez being dragged ‘running life.’[3] his Both Sanchez and Tatum out from various picked [defendant] photographs. in testified that he was not the store on March 17. On that
“[Defendant] he had with his father to the to visit the day gone Sanger cemetery grave his and then went to the father’s house until 3:30 His father grandmother p.m. testified testified that on March he was similarly. looking [Defendant] friend, a Universal Tire store when he met a woman Elizabeth Ornelas. Dan, $5 Ornelas offered to her male a ride to give acquaintance, [defendant] fix an auto store to her vehicle which had broken down. parts get part in testified he drove to the Grand Auto store but his stayed [Defendant] vehicle and the Dan went into the store. When Dan returned to the passenger vehicle he was with another man. was not aware the man angry [Defendant] said, was a store When ‘Give it he was employee. up,’ talking [defendant] his and meant passenger quit fighting. stated he was afraid and admitted one mile an hour driving
“[Defendant] reverse and two-to-three miles an hour drive. He stated at no time did Sanchez have to run. He admitted that Sanchez had his arm the passenger side of his vehicle when he his vehicle reverse and forward. After he put lot, left the he told his out and returned the parking passenger get gas to him. money appeal, expounded In our discussion of one of defendant’s claims on we that Tatum running surprised
testified “he saw Sanchez for his life and was that Sanchez was able to run that fast.” *8 admitted the officer that the man outside telling investigating
“[Defendant] the vehicle was dressed ‘like and me.’ wanted to leave. you just [Defendant] He admitted not officer about Ornelas and never telling investigating mentioned to the officer he had a witness that the could contact. police admitted he told the officer that his had investigating passenger [Defendant] him told to leave since the man outside the vehicle was to rob him. trying “Elizabeth Ornelas testified that she asked to a man she give [defendant] had met a ride to an auto store to a for the recently parts help buy part disabled vehicle had been Her trial that she made this they driving. testimony, as he was at a red differed from her request stopped light, [defendant] in statement that this conversation took lot.” pretrial place parking rev.), (1994 in The was instructed to CALJIC No. 9.00 jury pursuant A that an assault “1. committed pertinent part, required proof person willfully an act that its nature would and result by probably directly application force on another 2. At the time the act was physical person; [¶] committed, such had the to force to the person present ability apply physical 9.02, of another.” Pursuant to CALJIC No. were told assault person they by means of force of an assault committed means of force required proof by were further told likely produce great bodily injury. They great bodily referred to or substantial and not to injury significant bodily injury damage harm, trivial or or moderate and that while actual insignificant injury bodily crime, if was not a element of the such was injury necessary bodily injury inflicted, its nature and extent were to be considered connection with all the evidence whether the means used and the manner which determining it was used were such that were they likely produce great bodily injury.4 convicted defendant of assault means of force jury produce (§ (a)(1)). former subd. great bodily injury 16, 2013, On defendant the trial court for a recall of August petitioned sentence to section 1170.126. Defendant he was pursuant represented eligible relief, in for such that neither his current conviction nor his serious or prior (both violent convictions of which were for first felony degree burglary) stated, him. As on the disqualified previously People opposed petition alia, used) (and inter defendant was armed with ground, actually deadly was, therefore, the commission of his current offense and weapon during Defendant countered that the ineligible resentencing. People’s position was neither the law nor the facts of the case. supported by pertinent part, 2, 2014, by separate compliance On December order and in with Evidence Code section granted People’s request judicial jury this court notice of these selected given by jury instructions the trial court to the in the trial of defendant’s commitment offense. (See judicial beyond Superior We do not take notice that order. Haworth v. Court 372, 379, Cal.4th fn. 2 235 P.3d *9 he the fact that because could be used argued virtually any object harmful did not mean constituted the item way possession arming qualified as a deadly weapon. 5, 2014,
On was held on defendant’s The trial February hearing petition.5 court characterized defendant’s use of the vehicle the offense as during “incidental,” resentenced, and found defendant “not to be due to the ineligible method which the motor vehicle was used . . . .” It continued the hearing on the whether defendant an unreasonable risk to question posed public if resentenced and released. safety likely 21, 2014,
On filed further to defendant’s February People opposition therefor, defendant was and he resentencing, again claiming ineligible arguing if an unreasonable released. on the posed danger Specifically, eligibility asserted defendant was armed with a question, People necessarily deadly the commission of the assault of which he was weapon during aggravated convicted, an automobile as the having employed instrumentality assault. Defendant filed a which he focused on the response dangerousness 7, 2014, issue. At the March the trial court reiterated its hearing, finding It further found defendant did not an unreasonable risk to eligibility. pose sentence, recalled the and resentenced public safety, previously imposed defendant to the term of four doubled to due to the upper years, eight years offenses, strike two for the term enhancements. prior plus years prior prison Defendant was awarded credits and ordered to to custody report parole on placement postrelease community supervision.
DISCUSSION The contend the trial court erred defendant People finding eligible because defendant was “armed with a . . . resentencing, deadly weapon”—to wit, a vehicle—in the commission of the current offense within the meaning (iii).6 of clause While we somewhat from the line of depart People’s we reach the same conclusion. The record of conviction reflects reasoning, defendant committed assault means of force by likely produce great bodily The facts show defendant and used a vehicle injury. personally intentionally in the commission of that assault. When a vehicle is used as a means of force was, it is a Defendant produce great bodily injury, deadly weapon. bench, judge originally longer As the who sentenced defendant was no on the the matter 1170.126, (See judge. (j).) was heal'd a different subd. § 6 Although People’s appeal they appealing finding eligibility notice of stated were “orders, judgment resentencing,” appeal they only eligibility as well as the on contest finding. right appeal finding pursuant have the such a to section subdivision (a)(5). (Martinez) (People Superior Court 987-988
821 therefore, “armed with a . . . within the of clause deadly weapon” meaning (iii). defendant is to section Accordingly, ineligible resentencing pursuant 1170.126, (e)(2).7 subdivision determinations,
I. Because the trial court made both and legal factual standards review multiple apply. The standard of review to an determination applicable eligibility depends on the nature of the or a trial court is called to make finding findings upon case, In the trial court necessar- given resentencing proceeding. present made both factual and determinations. ily legal (iii) criteria contained clause refer to the “facts eligibility (2014) attendant to commission of the actual offense . . . .” v. (People Bradford 1322, 499].) In 227 1332 whether a Cal.App.4th Cal.Rptr.3d deciding [174 criteria, defendant’s current offense falls within those a trial court “make[s] factual determination that is not limited a review of the particular statutory (Ibid.)8 offenses and enhancements of which was convicted.” petitioner [the] The trial court makes this factual determination based on the evidence found 275, (2014) in the record of conviction. v. Hicks 231 (People Cal.App.4th 1331; 703]; 285-286 v. Cal.Rptr.3d People Bradford, supra, p. [179 543, 678].)9 (2004) v. Blake 117 559 It is People Cal.App.4th Cal.Rptr.3d [11 to review for substantial evidence under the familiar of the subject sufficiency 7 conclusion, light People’s “personally of our we need not reach the claim defendant also 1192.7, (c)(23), dangerous deadly weapon” meaning used a within the of section subdivision 1170.126, (e)(1). (See ineligible pursuant generally so as to render him to section subdivision 601, (2005) 315].) People Cal.App.4th Cal.Rptr.3d v. Banuelos 130 604-605 [30 8 evidentiary healing In its discussion of whether a defendant is entitled to an on the issue of (2014) eligibility resentencing, appellate People Oehmigen Cal.App.4th court in v. 232 1 Cal.Rptr.3d eligibility question requiring states is not a of fact the resolution of [181 569] issues; rather, disputed question the trial com! decides is a of law. whether the facts in “[w]hat consideration, proper subject they the record of conviction are the and whether establish (Id. 7.) eligibility.” p. validity respect petitioner’s Whatever the of this statement with to a right evidentiary hearing, legal to an we believe it overstates the nature of our review. 9 technically, equivalent The term “record of conviction” has been “used as to the record on [citation], appeal narrowly, referring only reliably or more as to those record documents reflecting (People the facts of the offense for which the defendant was convicted.” v. Reed 217, 106, (1996) (1998) 184]; Cal.Rptr.2d 13 Cal.4th 223 914 P.2d see v. Houck 66 [52 350, Cal.App.4th Cal.Rptr.2d reports part 356 Police are not of the record of [77 13, 205, (see (2005) Shepard conviction v. United States 544 U.S. L.Ed.2d 125 S.Ct. [161 1511, (1999) 1254]; 378]), Draeger Cal.App.4th Cal.Rptr.2d v. Reed nor are a [82 postconviction report defendant’s statements made after conviction and recounted in a of the 165, 718, (2006) probation (People Trujillo Cal.Rptr.3d officer v. 40 Cal.4th 146 P.3d [51 include, however, 1259]). preliminary healing transcript The record of conviction does Reed, 223), (People at p. transcript jury (People 13 Cal.4th trial v.Bartow record, 482]), Cal.Rptr.2d appellate including 1579-1580 and the [54 appellate opinion (People v. Woodell 17 Cal.4th 950 P.2d *11 822 651, (2014)
evidence standard. v. 228 661 (People Cal.App.4th [175 Guilford see, 482, 640]; (2013) v. Maciel 57 Cal.4th 514-515 Cal.Rptr.3d e.g., People 305, 983].)10 304 P.3d Cal.Rptr.3d [160
When the issue is one of the
of a statute and its
interpretation
situation, however,
to a
it is a
of law we review
applicability
given
question
(Cervantes) (2014)
v.
Court
225
independently. (People Superior
Cal.App.4th
1007,
accord,
86];
(2015)
1013
v. Tran
61 Cal.4th
Cal.Rptr.3d
People
[171
85]).
probation
report may may
part
Portions of the
officer’s
or
not be
of the record of
Reed,
230;
(See
(2015)
People
supra,
p.
People
conviction.
v.
13 Cal.4th at
v. Burnes
242
1452,
903].)
Cal.App.4th
Cal.Rptr.3d
1459 [195
conviction,
paid
automatically
Even when an item is
of the record of
it is not
relevant or
179-181;
(See
particular' purpose.
People Trujillo, supra,
pp.
admissible for a
v.
40 Cal.4th at
(1988)
Woodell,
457;
343, 356,
People
supra,
p.
People
v.
17 Cal.4th at
v. Guerrero
44 Cal.3d
688,
1150].)
Cal.Rptr.
comport
fn. 1
evidence,
748 P.2d
Its admission must
with the rules of
[243
Woodell,
(See
particularly
hearsay
exceptions
People
supra,
rule and
thereto.
v.
17
457-460;
Reed,
220, 224-228, 230-231;
pp.
People
supra,
pp.
Cal.4th at
v.
13 Cal.4th at
Bartow,
Thus,
1579-1580.)
People
supra,
Cal.App.4th
pp.
although part
v.
46
at
of the record
conviction,
appellate opinion
necessarily
of
will not
be relevant or admissible in its
entirety.
may
especially
This
be
true where the facts recited therein have their source in the
(See
probation
report
People Trujillo, supra,
officer’s
rather than the trial evidence.
v.
40 Cal.4th
180-181;
Reed,
220,
case,
230-231.)
pp.
People
pp.
present
at
v.
13 Cal.4th at
In the
appellate opinion
presented
facts in the
were derived from the evidence
at trial.
10
allowing
petitioner ineligible
resentencing
Defendant contends
a trial court to find a
for
by jury deprives
petitioner
right
jury
based on facts not found true
of his or her
to a
trial
People
under the Sixth and Fourteenth Amendments to the United States Constitution. In
v.
1042,
(2014)
Blakely
Cal.App.4th
Cal.Rptr.3d
(Blakely),
rejected
225
1059-1062
we
[171
70]
seeking resentencing pursuant
the claim an inmate
to section 1170.126 had a Sixth Amendment
right
disqualifying
pled
proven
beyond
to have
factors
to a trier of fact
a reasonable doubt.
435,
(2000)
Apprendi
Jersey
We found
v. New
823 1160, 251, 148]; (2014) 1166 354 P.3d v. Christman Cal.Rptr.3d [191 810, 884]; 229 815 see Hermosa Beach Oil Cal.App.4th Cal.Rptr.3d Stop [176 534, Coalition v. Hermosa Beach City Cal.App.4th [103 of“ ‘ ’ ‘, 447].) “In a voter initiative” . . . “we Cal.Rptr.2d interpreting apply the same principles that govern statutory construction. [Citation.] Thus, [1] statute, ‘we turn first to the the words their language giving ordinary must also be construed the meaning.’ statutory language [Citation.] [2] context of the statute as a whole and the overall scheme statutory light [in the electorate’s When the is ‘we language ambiguous, intent]. [Citation.] [3] intent, refer to other indicia of the voters’ the and particularly analyses ” ’ ‘In contained the official ballot other arguments pamphlet.’ [Citation.] words, our “task is to the initiative’s so simply interpret apply language ’ Arroyo (2016) as to effectuate the electorate’s intent.” (People [Citation.]” 589, 122, 62 Cal.4th 364 P.3d Cal.Rptr.3d II. used his vehicle as a in commission the deadly weapon Defendant assault. offense, 245,
At the time defendant committed his current section (a)(1) subdivision the who commits prescribed punishment “[a]ny person an assault of another with a or instrument upon person deadly weapon other than a firearm or means of force to by any likely produce great bodily ,”11 . . . injury 245, offense, wit, (a)(1) only subdivision . . . ‘defines one to “assault “[S]ection [former] upon person deadly weapon by of another with a or instrument than a [other firearm] any likely produce great bodily injury by means of force to ...."’ The offense of assault means likely produce great bodily injury separate of force is not an offense from . . . the offense of 107, deadly weapon.’ (People Cal.App.4th assault with a v. McGee [Citation.]” (McGee).) 114-115 [19 12] deadly weapon given At issue in McGee was whether a use enhancement had to be stricken 12022, (b) by precluded imposition that section former subdivision its terms of such an (McGee, deadly weapon underlying enhancement where use of a was an element of the offense. 110.) p. concluding improper, appellate the enhancement was determining deadly weapon court reasoned: whether use of a other than a firearm is an “[I]n conviction, (a)(1) question simply element of a section whether, subdivision is not [former] abstract, Rather, using weapon. in the the section can be violated without such a accused, i.e., statute, by conduct of the the means which he or she violated the must be Here, deadly weapon considered. . . . defendant’s use of a other than a firearm was the [¶] [¶] (a)(1). by by sole means which he violated section subdivision The assault [former] likely produce great bodily injury stabbing means of force was defendant’s of the victim Hence, offense, deadly weapon with a knife. his use of this was an element of the within the (b), meaning though pleaded of section subdivision even the crime was as an [former] by produce great bodily injury assault means of force rather than as an assault with a (Id. 115.) deadly weapon p. other than a firearm.” reads, currently deadly weapon Under section 245 as it assault with a is addressed in (a)(1), (a)(4). subdivision while assault means of force is addressed in subdivision *13 824
It is assault means of force can be committed without the apparent by involvement of sort of or the intent to cause any weapon great bodily injury. it does not an inmate from Accordingly, automatically disqualify (iii). under clause
Nevertheless, the use of a does not a conviction deadly weapon preclude (McGee, for assault means of force. 15 at 109 by supra, Cal.App.4th p. [the defendant convicted of assault means of force after he stabbed the victim by knife].)
with a
245,
(a)(1),
“As used
section
subdivision
is
‘deadly weapon’
‘any
instrument,
or
which is used
such a manner as to be
object,
weapon
and
death or
capable
producing
likely
produce,
great bodily injury.’
Some few
such as dirks and
have been held to
objects,
blackjacks,
[Citation.]
law;
be
as a matter of
use for which
are
deadly weapons
ordinary
they
establishes their character as such.
Other
while
designed
objects,
[Citation.]
se,
used,
circumstances, in
not
be
under certain
a manner
deadly per
may
death or
whether an
produce
great bodily injury.
determining
such,
not
or
is used as
the trier of fact
object
inherently deadly
dangerous
used,
consider the nature of the
the manner which it is
and all
may
object,
(1997)
other facts relevant to the issue.
v.
16
(People Aguilar
[Citations.]”
1023,
655,
Cal.4th
1028-1029
945 P.2d
Cal.Rptr.2d
(Aguilar).)12
[68
1204]
se,
one,
a vehicle is not a
it can become
Although
deadly weapon per
(See,
on how it is used.
v.
232
depending
e.g., People Oehmigen, supra,
5, 11
at
defendant
drove his car at
Cal.App.4th
pp.
purposefully
police
[the
1181,
vehicle];
(2012)
v.
1183
People
Cal.App.4th
[148
Aznavoleh
defendant
raced vehicle
red
Cal.Rptr.3d
deliberately
through
light
901] [the
vehicle,
intersection and collided with another
to an
busy
causing injury
101,
other];
(2008)
v. Golde
People
Cal.App.4th
Cal.Rptr.3d
[77
120]
defendant accelerated toward victim at about 15 miles
hour three or
per
[the
vehicle];
four times as victim ran back and forth to avoid
v. Russell
776, 779,
(2005) 129
781-782
defend
Cal.App.4th
[28
862] [the
ant
victim into
ve
knowingly
intentionally pushed
path
oncoming
703, 705,
hicle];
707-709
People Wright
Cal.App.4th
[123
Aguilar
deadly weapons,
At issue in
was whether hands and feet could constitute
deadly weapon
meaning
object
whether a
within the
of the statute had to be an
extrinsic to the
1026-1027,
context,
1034.)
body. (Aguilar, supra,
pp.
Aguilar
human
16 Cal.4th at
Within that
inference,
deadly weapon
found “sound” the
based on inclusion of both the
and the assault
245,
(a)(1)
Legislature
means of force clauses in former subdivision
of section
that the
meaningful
(Aguilar,supra,
intended a
difference to exist between the two clauses.
825 defendant drove truck close to Cal.Rptr.2d intentionally pickup 494] [the relations].)13 with whom he had contentious persons case, In the was instructed that assault means of present jury by force of an assault committed means of force to required proof by likely were told referred to produce great bodily injury. They great bodily injury or substantial not trivial or significant bodily injury damage, insignificant or moderate harm. “Jurors are to understand and follow the injury presumed 619, (1997) court’s instructions. v. Holt 15 Cal.4th 662 (People [Citation.]” “ 782, 213].) 937 P.2d That is crucial Cal.Rptr.2d assumption [63 ‘[t]he our constitutional of trial v. underlying system by jury.’ (People [Citations.]” 93, 186, see, 1166]; (2003) Yeoman 31 Cal.4th 139 72 P.3d Cal.Rptr.3d [2 307, 324, 344, (1985) Francis v. Franklin 471 U.S. fn. 9 L.Ed.2d e.g., [85 1965].) 105 S.Ct. When the convicted defendant of assault means of jury by force found the force likely produce great bodily injury, they necessarily Sanchez, victim, used defendant was by assaulting likely produce 1060, (See (1992) v. 8 great bodily injury. People Armstrong Cal.App.4th 1065-1066 The sole means which defendant Cal.Rptr.2d by [10 Thus, this force was the vehicle he was the record of applied driving. conviction establishes defendant used the vehicle a manner capable and at a minimum as a producing, produce, great bodily injury—i.e., 115; McGee, 110, (See 15 cf. deadly weapon. Cal.App.4th pp. 1342-1343.) v. 227 Even under People Bradford, supra, Cal.App.4th pp. review, the deferential substantial evidence standard of the record of convic tion does not the trial court’s that defendant’s use of support contrary findings “incidental,” the vehicle the offense was or that Sanchez was during merely wasn’t more than “dragged slightly, though dragging anything keeping with the car.” The vehicle was the which defendant pace instrumentality by offense, committed the and whatever defendant was Sanchez speed driving, was and had to run to his balance to such an extent that a dragged keep “ ” witness characterized Sanchez as for his life’ and ‘running expressed Sanchez was able to run that fast.14 surprise 13 that, law, objects deadly weapons Other while not as a matter of have been found to have purposes deadly weapon, been used as such for of convictions of assault with a include a “ ” 693, 697, (In (2015) ‘sharp’ ‘pointy’ Cal.App.4th Cal.Rptr.3d knife re D.T. 237 699 [188 1466, 1468, (D.T.)): (2004) sharp pencil (People Page Cal.App.4th a 123 1472 273] [20 (In (1982) 857]); Cal.Rptr.3d apple straight pin an with a embedded in it re Jose R. 137 269, (1943) 898]); Cal.App.3d Cal.Rptr. fingernail (People file v. Russell 59 [186 661]); Cal.App.2d pillow (People P.2d and even a v. Helms 484]). Cal.App.2d Cal.Rptr. 486-487 [51 quotes The dissent the statement in v. Newman 721 [206 relief, (Newman), determining eligibility Proposition that a court 427] “[i]n empowered findings by is to consider the record of conviction and to make factual evidence, preponderance findings jury even if those were not made or the trial convicting agree may court in a defendant of the current offense.” We court *15 826
Defendant
the record of conviction must establish he intended to
argues
In
use the vehicle as a
he relies on
v. Graham
deadly weapon.
part,
People
217,
153],
(1969)
827 D.T., 702, 237 at the Court of supra, Cal.App.4th page Appeal the “does no more than establish that intent to use an explained foregoing sufficient, circumstances, in item as a can be some to the item weapon qualify in as a It no states that of such intent is deadly weapon. way proof necessary (1994) to this The court v. Colantuono 7 inquiry.” appellate pointed People 206, 908, 704], 214 in Cal.4th 865 P.2d which the California Cal.Rptr.2d [26 “ Court held that ‘the intent for an assault with a is Supreme deadly weapon the intent to to commit a willful and attempt battery, battery being “any ” unlawful use of force or violence the of another.” upon person [Citation.]’ Aznavoleh, (See
We tend to with D.T v. 210 agree People 1183, 1186-1187 out elements of assault and Cal.App.4th pp. [setting vehicle].) in assault with a case use of Even deadly weapon involving shown, however, such an intent must be it is established assuming in record of conviction case. Sanchez the vehicle” present yelled “Stop reverse, in three times as the vehicle was defendant then drove moving yet the vehicle forward “at a Sanchez his arm great speed.” only managed pull free before defendant drove out of the store lot onto Black- shortly parking stone without even at the stopping stop sign.
III. Because used the vehicle as a personally deadly weapon defendant assault, commission he was armed with a deadly weapon during the commission his current and so was ineligible offense under section 1170.126.
It has been the law that is ‘armed’ with a long person deadly “[a] when he carries a or has it available for use either weapon simply weapon 216, (1982) offense or defense. v. Stiltner 132 (People Cal.App.3d [Citation.]” 790]; 1051.) 230 see 225 Cal.Rptr. Blakely, supra, Cal.App.4th p. [182 Here, because defendant used the vehicle as a he personally deadly weapon, had it available for use and so was armed with it necessarily during offense, (See, commission of his current since “use” subsumes “arming.” e.g., 946, 632, (1974) 11 v. Strickland Cal.3d 961 523 P.2d People Cal.Rptr. [114 950, 672]; (1993) v. People Cal.Rptr.2d [22 Schaefer 658, 536]; 614], (1983) v. Turner People Cal.App.3d Cal.Rptr. [193 413, on other v. Newman Cal.4th disapproved grounds 415, 422-423, fn. 6 981 P.2d & Cal.Rptr.2d People Majors [87 98] 18 Cal.4th 956 P.2d then, (iii) is whether voters intended clause question, encompass based on use as a of an that is not a arming personal deadly weapon object se. The trial court found defendant’s use of the motor deadly weapon per vehicle case was “not the use of a present anticipated deadly weapon 1170.126.” this of law inde- contemplated by Reviewing question [section] we pendently, disagree.
“ ‘The is deemed to be aware of laws and enacting body existing [citation], constructions effect at the time is enacted’ judicial legislation [citation], ‘and to have enacted or amended a statute thereof’ ‘This light enacted initiative. principle applies legislation by [Citation.]’ [Citation.] “Where, here, as ‘the of a statute uses terms that have been language “ ” construed, ‘the is almost irresistible’ that the terms judicially presumption “ ‘in have been used the and technical sense which had been precise placed ” them the courts.’ This . . . upon principle applies [Citations.] the initiative legislation adopted through process. [Citation.]’ [Citation.]” 1052.) at (Blakely, supra, Cal.App.4th p. of the we conclude the electorate intended “armed light foregoing, (iii),
with a . . . as that is used clause to mean deadly weapon,” phrase or it available for offensive or defensive carrying deadly weapon having 1052.) (See use. at When the at Blakely, supra, Cal.App.4th p. object se, issue is a the or it deadly weapon per simply carrying object having available for use is sufficient to render a defendant ineligible resentencing contrast, where, here, under the Act. as is not a By object deadly weapon se, not, it available for use will per merely carrying object having more, without be a defendant within the of clause enough bring scope Here, however, (iii).15 defendant and used the as a actually personally object Because was a deadly weapon. enhancing public safety key purpose “ ” Act, the fact the Act ‘diluted’ the three strikes law somewhat despite 1054), we conclude the electorate did (Blakely, supra, Cal.App.4th p. circumstances, not intend to under such between that are distinguish, objects se and those whose characterization as such deadly weapons per depends Osuna, (See the use to which are v. upon they put. generally People supra, intent].) 1034-1038 Act’s and voters’ pp. [discussing purpose
DISPOSITION sentence, The order for recall of granting petition recalling previ- 1170.126, sentence to Penal Code section and ously imposed pursuant defendant is reversed. The matter is remanded to the trial court example, getaway robbery merely puts For the driver of a vehicle in a who the vehicle to ordinary designed—transportation—technically use for which it was has the vehicle weapon. available for offensive or defensive use as a Yet we have no doubt the electorate did conduct, (iii) type unaccompanied by not intend clause to reach that at least when some sort Graham, (See 327-328.) pp. of nefarious intent. 71 Cal.2d at We are not presented question, express opinion, actually using object with the no whether not an as a arise, (iii). deadly weapon, intending but to do so should the need falls within clause *18 with directions to find defendant the ineligible resentencing, deny petition, and reinstate defendant’s sentence. original J.,P. concurred.
Poochigian, Acting POOCHIGIAN, J., P. concur to view Acting Concurring.—I express my the of certain facts the conviction below. concerning significance underlying cites several cases motor vehicles were majority opinion whereby deemed as a result of intentional and dangerous weapons demonstrably conduct calculated to others at risk of or with threatening place injury reckless for such assault an intentional act disregard peril. Clearly, requires and actual of those facts sufficient to establish that the act its knowledge in nature will and result the force. directly application physical case, this of the use of the vehicle was not to inflict purpose arguably Indeed, but to a means of the court’s conclusion at the injury provide escape. on the that the use of the vehicle was hearing petition “incidental” was based on that It seems clear that presumably understanding. determination whether the vehicle was as a any regarding employed deadly under such circumstances should take into account the element of weapon speed.
The evidence indicated that the of the vehicle’s movement involved a path distance of 50 feet. The victim Sanchez’s left arm roughly passenger grabbed down, him it which from his arm out of the pushed prevented pulling reverse, vehicle as it was motion. As the vehicle was Sanchez moving the vehicle” three times. While the defendant contended that the yelled, “Stop vehicle moved at the rate of one to three miles hour per during episode, the victim stated that the vehicle was about 20 miles hour as he traveling per ran he had stated that at the time alongside. During preliminary hearing, free, he his arm the vehicle was at a of about 15 miles pulled moving speed hour and that the ordeal lasted one minute. Under the circumstances per which the victim’s arm was held as he ran apparently alongside moving vehicle, the the victim’s seems speed suggested by testimony questionable.1 Indeed, that fact have affected the trial court’s conclusion that the victim may was contrast to a coworker’s observation that Sanchez “dragged slightly”—in was for his life.” “running about the
Despite any misgivings accuracy lay testimony regarding vehicle, the coworker’s observation about the is speed peril presented relevant whether the vehicle was as a certainly assessing operated deadly noteworthy sprint Olympic It is that the winner of the 100-meter in the 2016 Games won per with a time of 9.81 seconds—a rate of 22.8 miles hour. *19 It is also instructive that the found of assault weapon. jury appellant guilty with force to When with testi- produce great bodily injury. coupled that the held onto Sanchez’s extended arm while the vehicle mony passenger motion, inwas that Sanchez for the driver to that he yelled stop, presumably hold, to be released from the and that he was struggled passenger’s finally in able to free himself when Perez the vehicle drive after put moving reverse, I am satisfied with the conclusion that the vehicle was as a employed the defendant deadly weapon—thus rendering ineligible resentencing. FRANSON, J., the trial court’s order Dissenting.—The People appeal grant- Perez, sentence, defendant Alfredo Jr.’s to recall his ing petition contending Perez was armed with and used a the commission of deadly weapon during an assault. The and reverses the trial court’s order majority agrees granting defendant’s Based on the trial court’s factual petition. underlying findings determination, I dissent and would affirm. respectfully Factual and Procedural Background
The of facts to this come from the following summary pertinent appeal conviction, Perez’s current which is appellate opinion affirming repeated trial, verbatim the At Fred Sanchez testified he was majority opinion. 17, 1994, as a sales clerk at Grand Auto Fresno on March when working (the Perez and another man entered the store midafternoon. The passenger) Sanchez, Club, with his back to was seen an automobile passenger, holding anti-theft device. Perez to the and then went spoke briefly passenger up conversation, him Sanchez and about tires. this the spoke During passenger left the store and went to stand the side of a vehicle. passenger Blazer-type store, vehicle, Perez left the went to the driver’s side of the and the two drove Sanchez the had stolen the Club from the store away. suspected passenger and that Perez had tried to divert his attention from the theft. away Sanchez saw the enter the store. following day, passenger again assistance, and, if Sanchez the asked he needed after approached passenger, assistance, him other store that he needed followed out of alerting employees the rear of the store. While Sanchez heard following passenger, rustling he had not items from the passenger’s clothing, although paid any store. store,
Once out of the entered the side of the same passenger passenger Blazer as the before. Perez was Sanchez day again driving. approached window and observed a from the open passenger bulge protruding passen- Sanchez told the the merchandise back and ger’s clothing. passenger give he could leave. Sanchez then reached into the vehicle and grabbed under the which turned out to be an “Ultra Club.” package passenger’s jacket, said, Sanchez “Give it Perez looked toward Sanchez and said the same. up.” *20 in Perez then drove the vehicle reverse while the held onto passenger Sanchez’s arm. Sanchez Perez to the vehicle as it continued to implored stop in move reverse. Sanchez was the movement of the vehicle and dragged by had to run to his balance. Perez then the vehicle drive and the keep put feet, vehicle moved forward when Sanchez was able to approximately pull his arm free.1 Sanchez estimated the Blazer was about 20 miles going per hour, he admitted that at the he estimated the although prelintinary hearing vehicle started at 10 miles hour and was about 15 miles hour per going per when he his arm free. Sanchez estimated that the entire incident took pulled minute, about a 15 seconds of that with his arm the vehicle as it was forward. moving free, A
After he broke Sanchez saw the vehicle leave. coworker of Sanchez described Sanchez as for his life” the Blazer. “running alongside
A convicted Perez of assault means of force to jury produce great Code, (Pen. (a)(1))2 former subd. and found true the bodily injury § that Perez had sustained two strike convictions and suffered allegations prior two terms. The trial court sentenced Perez to an indeterminate prior prison life, term of 25 two enhancements for the years plus one-year prison priors. Under
Resentencing Proposition The trial court’s consideration of a for under petition First, 36 is a the court determines whether the Proposition two-step process. If is for is the court petitioner eligible resentencing. petitioner eligible, to the second and resentences the under proceeds step, petitioner Proposition 36 unless it determines that so would “an unreasonable risk of doing pose 1170.126, (§ (1).) subd. danger public safety.” At issue here is the first initial determi- step process—the eligibility nation. Section 1170.126 the trial court grants power ultimately if, determine whether a third strike offender is for eligible resentencing only matter, (e) as an initial the inmate satisfies the criteria set out subdivision here, section 1170.126. those criteria are: Generally, purposes inmate is a life term under the three strikes law for a conviction of a serving or felonies not defined as serious and/or violent under section felony 1170.126; (2) the inmate’s current sentence was not for an offense imposed which the defendant used or was armed with a firearm or deadly weapon; injured subsequent healing There is no indication Perez was as a result. At the on the petition resentencing, parties injury major” scrapes.” described the as “not and “a few injury required hospitalization no or medical treatment. statutory All further references are to the Penal Code unless otherwise stated. *21 832
(3) If the inmate has no convictions for certain offenses. the prior specified criteria, inmate does not each of the the trial court must satisfy deny for Perez satisfies the first and third This request resentencing. requirements. relates to the second criteria. appeal
DISCUSSION Determination Eligibility 1170.126, (e) determination section subdivision eligibility required by
is not a determination the trial court. v. discretionary by (People Bradford 1322, (2014) 227 1336 The Three Cal.App.4th Cal.Rptr.3d [174 Act) (§ (the Strikes Reform Act of 2012 1170.126 et that “the seq.) provides in court shall determine whether the satisfies the criteria subdivision petitioner 1170.126, (e). (§ (f).) . . .” subd. And because the Act fixes not on ineligibility enhancements, violations or but on “facts attendant to commission statutory offense, of the actual the trial court to express statutory language requires make a determination that is not limited a review of the by particular factual offenses and enhancements of which was convicted.” statutory petitioner 1332, added.) v. at italics (People Bradford, supra, p. Instead, “the trial court must make this determination based solely factual in
on evidence found the record of conviction . . . .” v. (People Bradford, 1331, added.) 227 italics As stated Cal.App.4th p. 569], is Oehmigen Cal.App.4th Cal.Rptr.3d “[Eligibility [181 not a of fact that the resolution of issues. The question requires disputed facts are limited to the record of conviction a defendant’s commitment underlying offense; the statute neither an to establish contemplates evidentiary hearing facts, these nor other new evidence any procedure receiving beyond record of conviction. What the trial court decides is a question [Citation.] law: whether the facts the record of conviction are the proper subject consideration, (Id. and whether establish they eligibility.” p. original italics.) As stated v.Newman recently People relief, 427], “In determining eligibility Proposition court is to consider the record of conviction and to make empowered factual evidence, if even those were not findings by preponderance findings made or the trial court a defendant of the current by jury convicting added.) (Italics offense.”3 the trial court takes the facts from the Simply put, 3 People In v. Newman the defendant was convicted of assault means of force (a)(1)) (§ produce great bodily injury allegation former subd. but found not true the that 12022.7). (§ great bodily injury during he inflicted on the victim the assault Defendant subsequently Proposition petition resentencing. denying petition, filed a for recall and defendant, case, great bodily the court found the based on the facts of the intended to cause
833 determines, facts, record of conviction and from its of those interpretation whether a is for petitioner eligible resentencing. factors need not be and to a trier of fact
“[Disqualifying pled proved doubt; hence, a reasonable a trial court whether an beyond determining inmate is under section 1170.126 examine eligible resentencing may relevant, reliable, admissible of the record of conviction to determine portions Blakely (2014) the existence of a factor.” v. 225 disqualifying (People 70].) 1048-1049 For this Cal.App.4th Cal.Rptr.3d purpose, [171 motions, record of conviction includes trial pleadings, transcripts, pretrial (See, (2014) v. 226 any appellate opinion. e.g., People Manning Cal.App.4th 560]; (2014) 1140-1141 v. Osuna 225 Cal.Rptr.3d People [172 1020, 1027, 55]; 1030 v. White Cal.App.4th Cal.Rptr.3d [171 328].) trial court need find Cal.App.4th Cal.Rptr.3d only [167 “[A] the existence of a factor of the evidence. disqualifying preponderance 115; Code, Osuna, [citation].)” 1040.) (Evid. v. at (People p. § Standard Review
The trial court’s factual determination that Perez was underlying eligible is reviewed on for substantial evidence. v. appeal (People 1331; 3 Witkin & Cal. Bradford, supra, Cal.App.4th p. Epstein, Punishment, 421C, 128.) (4th Criminal Law ed. 2016 Further- supp.) p. § more, “the task of an court is to ‘review the correctness of the appellate ‘ “ ‘If not of the used to reach it.’ challenged ruling, analysis right [Citation.] case, of the law to the it must be sustained upon any theory applicable of the considerations which have moved the trial court to its regardless may ’ ” conclusion.’ v. (People Hughes [Citation.]” Trial Court and Order Hearing
At the on the the trial court reviewed the facts and hearing petition, circumstances of the conviction and made the determination prior preliminary that did not The court was they support finding ineligibility. provided with a of this court’s 1996 Perez’s conviction and the copy opinion affirming of the facts from that The court described its People’s summary opinion. conviction, of the facts of the as the victim interpretation being “dragged wasn’t more than with slightly, though dragging anything keeping pace the car.” It further described the use of the vehicle as “incidental.” assault, injury disqualifying resentencing. (People in the commission of the him from Newman, 722-723.) supra, Cal.App.5th pp. *23 The that Perez became armed with the vehicle for People argued purposes statute, of the moment that Mr. Perez chose to use the vehicle as a ‘“[t]he stated, in as a means of his assault.” The trial court Perez’s weapon reviewing file, that he was never with assault with a The charged deadly weapon.4 that, crime, at the time Perez committed his ‘“itwould have People explained had little to file an assault with a The trial very meaning deadly weapon.” that, in ‘“if court that it had ruled earlier cases there acknowledged previously are facts that use of a even are not support deadly weapon, though they conviction, and there is not a is still excluded from charged, person reconsideration.” [resentencing]
The court then focused on the difference between a defendant who ‘“used” a firearm or and a defendant who ‘“wasarmed” with a firearm deadly weapon that, or The with the trial court when Perez deadly weapon. People agreed was his vehicle and the vehicle was not the vehicle was not sitting moving, that, The trial court had Perez had a knife a sheath weapon. explained time, him under his shirt at the the court would find ineligible. continued, that when Sanchez his arm into the People arguing put vehicle, Perez had an “election” to make: to leave the vehicle as a vehicle vehicle, Sanchez to remove his arm from the turn off the vehicle by asking issue; and resolve the to use the vehicle as the mechanism of the assault, which would convert the vehicle into a to the weapon. According Perez chose the second As Perez was People, option. argued by People, “armed,” armed with a because “use” whereas deadly weapon encompasses “armed” does not “use.” encompass the trial court read from an order it had issued earlier response, its of the rationale behind
resentencing hearings, explaining understanding 36, which stated that it did not think the voters of Proposition Proposition “in ‘if were told at that an individual uses any way being point, something that is not and of itself a . . . that would not be deadly weapon, they ” that line of the trial court eligible.’ Following reasoning, posed hypotheti- cal, if what their would be had asking argument passenger device, into the vehicle with the anti-theft Sanchez gotten approached leave,“ device, vehicle and said Perez the anti-theft threw it grabbed “[d]on’t at Sanchez and drove Under the the trial court away. People’s argument, device, reasoned Perez would have converted the anti-theft which is not jury only theory “by produce I note the was instructed on the means of force (CALJIC 9.02) great bodily injury.” judicial appeal No. I take notice of the record in the Perez, F023703) underlying (People supra. prosecutor offense and also note that the did not argue deadly weapon during at trial that the use of the vehicle constituted use of a the assault. *24 him a into the use of a inherently deadly weapon, deadly weapon, making for ineligible resentencing. made the distinction between someone a stolen item releasing back,
and it and the item and the victim the skull giving throwing hitting or to hit the victim with the item. The latter attempting example, argued by that, club, the Club into a and it was People, exactly being “convert[s] used then as an instrument for the assault and was a or dangerous deadly weapon.” that, I
With the trial court then issued its understand ruling, stating: ‘“Okay. I understand . . . is . . . well- your position. your argument. very [I]t clear, further, I if reasoned. ... think is want to take this your argument you I the fact that the Court is it. am to finalize the order. going deny going [is] I For that ... am that the is not to be purpose, finding ineligible defendant resentenced, due to the method in which the motor vehicle was used in this (Italics I I So have tried to as clear as can.” give you language offense. added.)
Analysis facts,
The trial court reviewed and weighed including credibility determined, the estimated and of time for the incident5 and speeds length facts, based on its review and that the method used interpretation by Perez his car to the scene did not convert an maneuvering depart object otherwise not into one. this factual inherently deadly weapon, Utilizing determination, Conklin reached the conclusion that Perez was not Judge legal with, used, armed and was therefore deadly weapon eligible This determination was not made because of misunder- resentencing. any record, 36. Based on the and the trial court’s standing Proposition comments, he understood the mandates of 36 and clearly Proposition properly facts, them, them to the as he to reach his decision. The applied interpreted record the trial court’s determination of based on the supports eligibility, method which the vehicle was used the offense Perez was convicted of. not, ante, The trial court did to the assertion contrary majority’s (maj. opn. 825-826, 14), fn. contradict the verdict. It made factual pp. jury’s simply that went those made findings beyond jury. aside, judicial sprint As an I take notice of the fact that the world record for the 100-meter seconds, such, per speed suggested by
is 9.58 a rate of 23.35 miles hour. As the victim’s testimony implausible provides support implied seems additional for the trial court’s Code, 452, (Evid. (h); credibility findings. subd. In re Jessica C. § witness, trier of fact is free to disbelieve a even one 597] [“A uncontradicted, so.”].) any ground doing if there is rational
IWhile that an not be made agree object inherently deadly may deadly by issue, its use and all other factors relevant to the the factual determinations in made the trial court this case fail to this conclusion. by support legal in of vehicles used as are cited the Examples deadly weapons by majority Discussion, II. of the but are much more than the facts part clearly egregious case, of this as the trial court. especially interpreted by in As a further v. Claborn example, Cal.App.2d [36 132], a vehicle was found to be a within the Cal.Rptr. deadly weapon defendant, of a section 245 assault when the meaning upset by family and, car, into his vehicle an dispute, got upon seeing approaching police car, swerved and aimed his vehicle at the officer’s a head-on directly causing “ shouted, collision. The defendant then out of his vehicle and ‘You got ” bitch, now,’ I kill I kill son-of-a didn’t this but will you way, you Claborn, 41.) attacked the officer. v. physically (People p. whether a defendant is under the determining ineligible Act, a trial court examines the “conduct that occurs the commission of during Here, 1333.) an offense.” (People Bradford, supra, p. in the record does not show Perez with Sanchez’s arm sped away trapped car; vehicle, him him he did not ram with his nor did he aim for while Instead, record, in the facts contained as and cited driving. interpreted court, when, in the trial were that Perez assaulted Sanchez while he was vehicle, in driver’s seat of the Sanchez reached into the window an passenger device, to retrieve the anti-theft Sanchez’s arm attempt passenger grabbed reverse, and Perez then drove the vehicle to effect a while slowly getaway, held onto Sanchez. Sanchez Perez to the vehicle passenger implored stop as it continued to move reverse. Sanchez was the movement of dragged by the vehicle and had to run to his balance. Perez then the vehicle keep put drive and the vehicle moved forward. Sanchez was able to his arm free. pull Sanchez received no other than a few While Sanchez injuries scrapes. estimated the Blazer was between 10 and 20 miles hour and that going per minute, the entire incident took about a common sense dictates otherwise. (a)(1) Perez’s section former subdivision conviction was based on an assault means of force and does by any produce great bodily injury, 1192.7, (c)(23) not come within section subdivision use of a deadly weapon him exclusion v. Williams making ineligible resentencing. (People Nor does it come within the Cal.App.3d Cal.Rptr. “armed with a . . . exclusions to section deadly weapon” pursuant 1170.12, (e)(2)(C)(iii) (c)(2)(C)(iii), subdivision and section subdivision as 1170.126, (e)(2). referenced section subdivision *26 Substantial evidence the trial court’s determination that Perez’s supports use of the vehicle was not a within the of the use of deadly weapon meaning and, thus, exclusions he was for a recall of his life deadly weapon eligible sentence and for under the Act. for review Court was
Respondent’s petition Supreme granted 11, 2017, S238354. January