People v. PerezPeople v. Perez
SEE CONCURRING OPINION
We hold, consistent with our decision in People v. Frierson (2017) 4 Cal.5th 225 (Frierson), that Proposition 36 permits a trial court to find a defendant was armed with a deadly weapon and is therefore ineligible for resentencing only if the prosecutor proves this basis for ineligibility beyond a reasonable doubt. In addition, we hold that the trial court‘s eligibility determination may rely on facts not found by a jury; such reliance does not violate the right to a jury trial under the
In this case, the Court of Appeal was correct to conclude that the trial court‘s determination of Perez‘s eligibility for resentencing was not supported by substantial evidence. The evidence in support of Perez‘s conviction does not reasonably support any inference but that Perez was armed with a deadly weapon during the commission of his current offense.
I.
On March 17, 1994, Perez and an unidentified person wearing a Pendleton wool-type jacket entered an automotive store in Fresno. Fred Sanchez, a sales clerk in the store, saw the other person pick up a car anti-theft device called a “Club.” Perez spoke briefly with Sanchez as the other person left the store and waited by a truck. Perez subsequently left the store, entered the driver‘s side of
Perez then drove the truck in reverse while the other person grabbed Sanchez‘s left arm and pushed it down, preventing Sanchez from pulling his arm out of the truck. Sanchez yelled, “Stop the vehicle,” three times as he was dragged, and he tried to run to maintain balance as the truck moved in reverse. Perez then drove the truck forward, at which point Sanchez pulled his arm free; Sanchez thought he was going to be rolled under the tires and killed. Sanchez suffered a few scrapes but no injury warranting serious medical attention. Perez and the other person left the scene. A witness, Sanchez‘s co-worker, told the police that he saw Sanchez being dragged and “running for his life.” Sanchez originally testified at a preliminary hearing that the truck started at 10 miles per hour and accelerated to around 15 miles per hour when he pulled his arm free, but he later estimated at trial that the speed was 20 miles per hour. Perez estimated the speed was one mile per hour in reverse and two or three miles per hour forward. Perez testified that he had not been at the store on the first day and that
Perez was charged with assault by means of force likely to produce great bodily injury under former section 245 and for robbery under
On August 16, 2013, after passage of Proposition 36, Perez petitioned the trial court for a recall of sentence and a new sentencing hearing pursuant to
We granted review.
II.
The Three Strikes law was enacted in 1994 “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (Former § 667, subd. (b), as amended by Stats. 1994, ch. 12, § 1, p. 72.) Under the law, defendants who commit a felony after two or more prior convictions for serious or violent felonies were sentenced to “an indeterminate term of life imprisonment with a minimum term of” at least 25 years. (Former § 1170.12, subd. (c)(2)(A), added by Prop. 184, § 1, as approved by voters, Gen. Elec. (Nov. 8, 1994).) In 2012, Proposition 36 narrowed the class of third-strike felonies for which an indeterminate sentence could be imposed. Now a defendant convicted of a felony outside of that class can receive at most a sentence enhancement of twice the term otherwise provided as punishment for that felony. (
Proposition 36 also authorizes an inmate currently serving an indeterminate term under the original Three Strikes law to petition the trial court for resentencing. (
Proposition 36 does not specify how the trial court is to determine whether a given criterion for resentencing ineligibility, such as whether the inmate was armed with a deadly weapon during his or her current offense, has been satisfied. We recently clarified that once an inmate has made an initial showing of eligibility for resentencing, the burden is on the prosecution to prove beyond a reasonable doubt that one of the grounds for ineligibility applies. (Frierson, supra, 4 Cal.5th at p. 230.) In this case, it was the prosecution‘s burden to prove beyond a
At the time of Perez‘s offense, a defendant could be convicted of aggravated assault for “an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.” (Former § 245, subd. (a)(1), as amended by Stats. 1993, ch. 369, § 1, p. 2168.) A judgment of conviction specifying that a defendant was convicted for “an assault upon the person of another with a deadly weapon” is undoubtedly sufficient to show that the defendant was armed with a deadly weapon during the commission of the offense and is therefore ineligible for resentencing. But Perez was convicted of aggravated assault upon proof that he committed “an assault . . . by means of force likely to produce great bodily injury.” The jury was not asked to explicitly find that Perez was armed with a deadly weapon.
Perez contends that the
Under the Sixth Amendment, any fact other than the fact of a prior conviction that increases the penalty for a crime beyond the statutory maximum
Proposition 36‘s resentencing scheme, though different in various ways from the sentence modification scheme at issue in Dillon, is also an enactment intended to give inmates serving otherwise final sentences the benefit of
Proposition 36 provides that if a petitioner satisfies the resentencing eligibility criteria, then “the petitioner shall be resentenced . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (
In this case, the Court of Appeal reversed the trial court‘s determination that the evidence at trial did not show Perez was “armed with a . . . deadly weapon” within the meaning of
The parties do not dispute that the term “armed” means having a “weapon available for use, either offensively or defensively.” (People v. Bland (1995) 10 Cal.4th 991, 997, italics omitted.) In addition, our precedent makes clear that a “deadly weapon” under
Perez argues that an object cannot be a deadly weapon unless the defendant intended to use the instrument as a weapon and not for some other purpose. But assault with a deadly weapon is a general intent crime; the required mens rea is “an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790 (Williams).) Whether an object is a deadly weapon under
The Court of Appeal correctly observed that the trial court‘s eligibility determination, to the extent it was “based on the evidence found in the record of conviction,” is a factual determination reviewed on appeal for substantial evidence. (Perez, supra, 3 Cal.App.5th at pp. 821–822.) That is, the reviewing court must determine if there was sufficient evidence for the trial court to conclude that the prosecutor did not prove that the petitioner is ineligible for resentencing
Applying this deferential standard, the Court of Appeal also correctly concluded that the trial court‘s determination of Perez‘s eligibility for resentencing is not supported by substantial evidence. As the Court of Appeal explained: “When the jury convicted [Perez] of assault by means of force likely to produce great bodily injury, they necessarily found the force used by [Perez] in assaulting Sanchez, the victim, was likely to produce great bodily injury. [Citation.] The sole means by which [Perez] applied this force was the vehicle he was driving. Thus, the record of conviction establishes [Perez] used the vehicle in a manner capable of producing, and likely to produce, at a minimum great bodily injury—i.e., as a deadly weapon. [Citations.]” (Perez, supra, 3 Cal.App.5th at p. 825.)
Perez argues that the jury instruction in this case preceded Williams and allowed the jury to convict him of assault with a deadly weapon without finding that he was aware that his use of the truck would probably and directly result in physical force against Sanchez. But as in Williams, although the instruction
The trial court noted that Perez was charged with aggravated assault based on his use of force likely to produce great bodily injury and not on his use of a deadly weapon, and it was in this context that the trial court said Perez‘s use of the vehicle during the offense was “incidental.” To be sure, there is room to question Sanchez‘s testimony as to the speed of the truck, and one could reasonably view the evidence as showing that Perez moved the truck “not to inflict injury but to provide a means of escape.” (Perez, supra, 3 Cal.App.5th at p. 829 (conc. opn. of Poochigian, Acting P. J.); id. at p. 829, fn. 1; see id. at pp. 835–836 & fn. 5 (dis. opn. of Franson, J.).) But Perez‘s specific intent when he moved the car is immaterial, and there is no dispute that Perez willfully continued to move the car even as Sanchez three times yelled, “Stop the vehicle,” as his arm was stuck inside the car. Most importantly, the record contains no evidence of any force employed by Perez other than the force of the moving vehicle that could account for the jury‘s verdict that Perez committed an assault by “means of force likely to produce great bodily injury.” (Former § 245, subd. (a)(1), as amended by Stats. 1993, ch. 369, § 1, p. 2168.) The evidence does not reasonably support any inference but that Perez used the vehicle ” ‘in such a manner as to be capable of producing
The trial court also expressed doubt as to whether the voters who enacted Proposition 36 intended the term “deadly weapon” in
We caution that our reasoning in light of the facts here does not establish a categorical rule that a defendant is armed with a deadly weapon within the meaning of
We affirm the judgment of the Court of Appeal.
LIU, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CUÉLLAR, J.
KRUGER, J.
STREETER, J.**
I concur in the majority‘s holding that “the Sixth Amendment does not bar a trial court from considering facts not found by a jury beyond a reasonable doubt when determining the applicability of a resentencing ineligibility criterion under Proposition 36.” (Maj. opn., ante, at p. 7.) I also concur in the majority‘s holding that defendant was ineligible for resentencing because he was “armed with a . . . deadly weapon” during “the commission of the current offense.” (Pen. Code,1
The relevant facts here are undisputed. (See maj. opn., ante, at pp. 2–4.) The trial court found that defendant had not used his vehicle in a dangerous manner as to constitute a deadly weapon, and therefore could not be said to have been armed with such a weapon, because his vehicle use was only ” ‘incidental’ ” to the offense. (Maj. opn., ante, at p. 4.) The Court of Appeal rejected that reasoning.2 It is true that the Court of Appeal characterized the question as a
We clarified in People v. Frierson (2017) 4 Cal.5th 225 that, once a defendant meets his initial burden to show he is facially eligible for resentencing under
This case is complicated by the fact that neither the trial court nor the Court of Appeal had the benefit of our Frierson decision. The Court of Appeal reversed the trial court‘s finding of eligibility, concluding no substantial evidence supported this finding: “Even under the 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 had to run to keep his balance to such an extent that a witness characterized Sanchez as ’ “running for his life” ’ and expressed surprise Sanchez was able to run that fast.” (Perez, supra, 3 Cal.App.5th at p. 825.) The majority endorses the Court of Appeal‘s reasoning (see maj. opn., ante, at pp. 11–
The substantial evidence standard of review asks whether an affirmative factual finding is supported by ” ’ “evidence which is reasonable, credible, and of solid value.” ’ ” (People v. Clark (2011) 52 Cal.4th 856, 942.) If the trial court had found the People‘s evidence satisfied their burden because it found an ineligibility factor proven beyond a reasonable doubt, a defendant could challenge that affirmative finding on appeal and the substantial evidence standard would apply.
By contrast, when the trial court concludes the prosecution has failed to meet its burden to prove ineligibility, the People may argue on appeal that the trial court made an error of law. Here, the People claim that a legal error required reversal of the court‘s eligibility finding because the trial court reconsidered a factual question already resolved by the jury. This appears to be an assertion of issue preclusion, the existence of which constitutes a legal question. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 895, fn. 24; see Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 [requirements for collateral estoppel].)
Although the majority couches its review in terms of “substantial evidence” (maj. opn., ante, at p. 2), its ultimate conclusion appears to be that the undisputed facts show as a matter of law that defendant was armed with a deadly weapon during the commission of the offense (id. at p. 12). The majority embraces the Court of Appeal‘s reasoning that the jury necessarily found the force used by defendant in assaulting the victim was likely to produce great bodily injury, and that force was solely applied by the vehicle defendant was driving. (Id. at p. 12) Thus, ” ‘the record of conviction establishes [Perez] used the vehicle in a manner capable of producing, and likely to produce, at a minimum great bodily injury—
With this clarification, I join the majority‘s affirmance of the Court of Appeal‘s judgment.
CORRIGAN, J.