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People v. Perez

Supreme Court of California

May 7, 2018

THE PEOPLE, Plaintiff and Appellant,
v.
ALFREDO PEREZ, JR., Defendant and Respondent.

          Fresno County Super. Ct. Nos. CF94509578, Ct.App. 5 F069020 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 Supreme Court, for Defendant and Respondent.

          LIU, J.

         Under the Three Strikes Reform Act of 2012 (Proposition 36), an inmate who has been sentenced under the “Three Strikes” law for a nonserious, nonviolent felony may petition the trial court for resentencing. (Pen. Code, § 1170.126, subd. (f), added by Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012); all statutory references are to the Penal Code.) Upon receiving such a petition, the trial court “shall determine whether the petitioner satisfies the criteria” as listed in the statute. (Ibid.) If the criteria are met, “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.” (Ibid.) This case involves one of the criteria for resentencing eligibility: the inmate must not have been “armed with a... deadly weapon” during “the commission of the current offense.” (§ 1170.12, subd. (c)(2)(C)(iii) (hereafter § 1170.12(c)(2)(C)(iii).)

         The trial court determined that defendant Alfredo Perez, Jr., was eligible for resentencing. The Court of Appeal reversed, finding that Perez was armed with a deadly weapon during the commission of his current offense. Here we consider the nature of the inquiry that trial courts and Courts of Appeal should apply when determining whether a defendant is ineligible to be resentenced on the ground that he or she was armed with a deadly weapon during the commission of his or her current offense.

         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 Sixth Amendment to the United States Constitution. A reviewing court, in turn, must defer to the trial court’s determination if it is supported by substantial evidence.

         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 the truck, and drove away. Sanchez suspected that the person had stolen the anti-theft device while Perez was attempting to divert his attention, but Sanchez did not call the police or check whether any items were missing from the store. On the next day, March 18, 1994, Sanchez noticed the person enter the store again. He was wearing the same jacket even though the day was very hot, and he appeared nervous. The person did not purchase anything, and Sanchez followed him as he exited the store and entered the passenger side of the same truck as the day before. Perez was in the driver’s seat. Sanchez went to the window of the truck, observed a bulge protruding from the person’s clothing, and told the person that he could leave if he returned the stolen merchandise. Sanchez then reached into the truck and grabbed a package from the person’s jacket; Sanchez identified the object as the anti-theft device. Sanchez said, “Give it up,” and Perez looked toward Sanchez and said, “Give it up.”

         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 on the second day, he had been asked by a friend to give the unidentified person a ride to the store. Perez said that in moving the truck while Sanchez’s arm was inside, he was only trying to escape because he thought Sanchez, whom he did not know was a store employee, was trying to rob the person. The parties do not dispute that Perez’s movement of the truck backward and forward had the potential to seriously injure Sanchez.

         Perez was charged with assault by means of force likely to produce great bodily injury under former section 245 and for robbery under section 211; he was not charged with assault with a deadly weapon. On April 4, 1995, a jury convicted Perez under former section 245, subdivision (a)(1) for the crime of “[a]ssault by means of [f]orce likely to produce [great bodily injury].” Because Perez had two prior strike offenses, he was sentenced to an indeterminate term of 25 years to life plus two one-year enhancements under section 667.5, subdivision (b).

         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 section 1170.126. The district attorney opposed the petition on the ground that Perez had been armed with a deadly weapon during the commission of his current offense. The trial court found that Perez was not statutorily ineligible for resentencing on that ground. The court found it “significant[]” that “the case was not charged or convicted as assault with a motor vehicle. It was charged as force likely [to produce great bodily injury].” “The incidental use of the motor vehicle during the offense,” the court said, did not make Perez statutorily ineligible for resentencing. Moreover, the trial court opined that the voters who enacted Proposition 36 were “informed that an individual would not be eligible [for resentencing] if the offense involved use of a firearm” but were not told that “ ‘if an individual uses something that is not in and of itself a deadly -- for that purpose a deadly weapon, that they would not be eligible.’ ”

         The Court of Appeal reversed. (People v. Perez (2016) 3 Cal.App.5th 812, 816 (Perez).) The court observed that a deadly weapon under section 245, subdivision (a) is “ ‘ “any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.” ’ ” (Perez, at p. 824, quoting People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029 (Aguilar).) The court then reasoned that because the jury, by its verdict, necessarily found that Perez used force likely to produce great bodily injury when he assaulted Sanchez, and because the vehicle was the sole means by which Perez applied this force, the record of conviction establishes that Perez used the vehicle as a deadly weapon. (Perez, at p. 825.) Justice Franson dissented on the ground that the trial court’s finding that Perez did not use the vehicle as a deadly weapon was supported by substantial evidence and did not contradict the jury’s verdict. (Id. at pp. 835–837 (dis. opn. of Franson, J.).)

         We ...


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