Opinion
E065566
12-01-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JOSEPH ASTON, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. HEF970146) OPINION APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Reversed. Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court found defendant and appellant Daniel Joseph Aston ineligible for resentencing under the Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)). (Pen. Code, § 1170.126.) The trial court denied defendant's petition for resentencing. Defendant contends the trial court erred by finding him ineligible for resentencing and denying his petition. We reverse the judgment with directions.
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. FIRST TRIAL AND REVERSAL
1. CHARGES
In January 1998, in a second amended information, defendant was charged with (1) willfully and unlawfully driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)); and (2) fleeing from a pursing peace officer (Veh. Code, § 2800.2). The crimes were alleged to have occurred in December 1996. The second amended information further alleged defendant suffered four prior convictions for which he served prison terms (Pen. Code, § 667.5, subd. (b)), and three prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e), 1170.12, subd. (c)).
2. PRETRIAL MOTIONS
Defendant allegedly drove a stolen car, evaded police, crashed the stolen car, and was arrested. During pretrial motions, defendant's trial counsel said she presumed the prosecutor would try to introduce items found at the crash site—a flashlight, screwdrivers, a rubber mallet, a pair of vise grips, and gloves. The prosecutor asserted a mask and machete were also among the items. The prosecutor argued, "The mask goes hand-in-hand with the machete, and that is the motive for stealing the car. The mask and machete show he was off to do some other crime." The prosecutor then asserted the evidence was relevant to show defendant intended to keep the car, because defendant put his possessions in the car. The trial court concluded the mask and machete were more prejudicial than probative and excluded evidence related to them. (Evid. Code, § 352.) The trial court allowed the prosecutor to use the evidence of the other tools found at the crash site.
We use the term "crash site" as opposed to "vehicle," because items were found both inside and outside the vehicle following the crash.
Despite the trial court's ruling, the court permitted the prosecutor to introduce a photograph of the car crash scene, which included the machete. The photograph showed the vehicle upside down with the machete on the ground (Exh. 3-A). The court permitted the photograph to be introduced because the machete was difficult to identify, appearing only as a "dark stripe on the pavement." One could only know the "stripe" on the pavement was a machete if one were told by another person that the stripe was actually a machete.
The original exhibit 3-A was destroyed in June 2002. A copy of exhibit 3-A is included in the record on appeal.
3. TRIAL: PROSECUTION'S CASE
During the trial, Riverside County Sheriff's Sergeant Baeckel testified that, on December 17, 1996, at approximately 2:30 a.m., he saw a pickup truck being driven on the wrong side of the road. Due to the wrong-way driving, it appeared to Baeckel that the driver was intoxicated. Baeckel, in a marked patrol car, followed the truck with the patrol car's lights and sirens activated. Baeckel caught up to the truck, and had a "real good view of the driver and the truck." Baeckel saw only one person in the truck; he did not see a passenger.
Eventually, the truck struck a drainage ditch along the road. The truck became airborne and rolled three or four times along the road. The truck landed upside down. Riverside County Sheriff's Deputy Judge saw defendant exit the driver's side of the truck and run into a field. Defendant left the driver's side door open. Judge looked inside the truck to see if anyone was injured; there was no one in the truck. Judge ran after defendant, but lost sight of him. Approximately 15 minutes after Judge lost sight of defendant, Baeckel found defendant and arrested him. Defendant "was covered in blood." No tests were conducted to determine if defendant was intoxicated.
The truck was searched. A screwdriver was found lying on the ground, next to the open driver's side door. A pair of vise grips, a mallet, gloves, and a flashlight were inside the truck.
The victim lived in apartment 16 at 178 Yale, in Hemet. In the early morning of December 17, a person from the Sheriff's Department telephoned the victim. When the victim looked outside, he saw his truck was missing. The victim did not give defendant permission to drive the victim's truck.
4. TRIAL: DEFENDANT'S CASE AND PROSECUTOR'S MOTION
Defendant testified at his trial. On the night of December 16, 1996, defendant went to a friend's apartment for a social gathering. The apartment was number 35 at 178 Yale, in Hemet. Defendant drank alcohol while at the friend's apartment. Defendant became intoxicated, and defendant's friends would not give defendant his car keys, so defendant planned to call a taxi. Defendant's friend did not have a telephone, so defendant went outside in order to use a pay phone.
While defendant was outside, a pickup truck drove up, and defendant's friends put him in the passenger seat. Defendant believed the pickup truck was driven by his friend, Ruben. When defendant was in the truck, he could not see what items were inside the truck because it was dark. Defendant was not wearing a seatbelt. The crash caused defendant to slide under the dashboard. Defendant used the steering wheel to pull himself up.
The prosecutor moved to introduce evidence of the machete. The prosecutor asserted that the machete was large, and if defendant were inside the truck and fell onto the floorboard, he would have seen the machete at some point. Defense counsel argued that defendant was intoxicated, it was dark, and defendant had to be placed into the truck.
The court asked, "But inasmuch as he's denied that anything in the vehicle was his, that it was this Ruben person that was driving the vehicle; and, therefore, how does it harm him?" The trial court permitted the prosecutor to use evidence of the machete.
Defendant denied having seen gloves in the truck. Defendant denied seeing the mallet, screwdriver, vice grips, and flashlight prior to being in the truck or while in the truck. Defendant described the vehicle as a "little Toyota truck." The prosecutor asked how defendant could not have seen a machete inside a small truck. Defendant responded, "[I]t was kind of dark." Defendant denied feeling a machete when he fell onto the floorboard. Defendant denied seeing a machete inside the truck. Defendant did not recall running away from the truck.
The prosecutor moved to admit a machete into evidence. Defense counsel objected. The trial court received the machete into evidence.
5. VERDICT AND REVERSAL
The jury found defendant guilty of vehicle theft/driving a stolen vehicle (Veh. Code, § 10851, subd. (a)) and evading a law enforcement officer (Veh. Code, § 2800.2). Defendant appealed. (People v. Aston (May 19, 1999, E022332).) This court concluded the trial court erred by refusing to instruct the jury on the law of voluntary intoxication, i.e., that defendant was too intoxicated to form the required mental states. (E022332 opn. at p. 4) This court reversed the judgment. (E022332 opn. at p. 6.)
B. SECOND TRIAL
In May 2000, a second trial commenced. At the trial, the following prosecution witnesses testified: (1) a parole agent; (2) the victim; and (3) Deputy Judge. A reporter's transcript of the second trial is not included in the record on appeal. A minute order from the second trial reflects the machete was discussed during pretrial motions.
C. GUILTY PLEA AND SENTENCING
After a noon recess during the second trial, defendant entered into a plea agreement. Defendant pled guilty to vehicle theft/driving a stolen vehicle. (Veh. Code, § 10851, subd. (a).) Defendant admitted the four prison priors (Pen. Code, § 667.5, subd. (b)) and the three prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e), 1170.12, subd. (c)).
The trial court dismissed the charge of evading a law enforcement officer (Veh. Code, § 2800.2). (Pen. Code, § 1385.) The trial court sentenced defendant to prison for a determinate term of four years for the four prison priors (Pen. Code, § 667.5, subd. (b)) and an indeterminate term of 25 years to life for the vehicle theft/driving a stolen vehicle (Veh. Code, § 10851, subd. (a)), pursuant to the "Three Strikes" law (Pen. Code, § 667, subd. (e)(2)(A)).
D. PETITION TO RECALL SENTENCE AND WRIT
In December 2012, defendant filed a petition for recall of his sentence pursuant to the Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)). (§ 1170.126.) Defendant asserted a 25 year to life sentence for vehicle theft/driving a stolen vehicle was "extreme."
The People opposed defendant's petition. The People asserted defendant was ineligible for resentencing because he was armed with the machete during the vehicle theft/driving a stolen vehicle. Defendant responded to the People's opposition. Defendant argued he was eligible for resentencing and he had not been charged with being armed during the offense.
At the hearing on defendant's petition, the trial court concluded "the prison records would be reliable and trustworthy," and would fall within the business records exception to the hearsay rule. The court concluded it could "consider reliable and trustworthy hearsay information" in reaching its decision. The trial court found "by clear and convincing evidence that the defendant was, in fact, personally armed and, thus, does not qualify for any resentencing." The trial court denied defendant's petition, finding defendant was ineligible for resentencing.
Defendant petitioned this Court for a writ of review and/or writ of mandate. Defendant asserted the trial court erred by finding defendant was ineligible for resentencing because defendant's vehicle theft conviction did not involve any weapons enhancements or weapons convictions.
This court issued an opinion concerning defendant's writ petition. (Aston v. Superior Court (Nov. 26, 2014, E059598) .) This court explained that "documents prepared after the conviction and sentencing" are not to be used in determining eligibility for resentencing. (Id. at p. *14) Because (1) the trial court admitted prison records, and (2) it was unclear from the exhibits whether the machete was discussed at defendant's trial, this court could not determine if the trial court's finding of ineligibility was based upon reliable and admissible portions of the record of conviction or whether there was sufficient evidence to support the trial court's finding. (Id. at p. *15.) This court issued a peremptory writ of mandate directing the trial court to vacate its finding of ineligibility and to conduct further proceedings. (Ibid.)
E. MANDATED FURTHER PROCEEDINGS
1. BRIEFS
Defendant filed a brief in support of his trial court petition for resentencing. Defendant asserted his petition had to be decided on the record of conviction. Defendant argued the court could not use the machete in determining if defendant was eligible for resentencing because defendant was not charged with possession of the machete, so information about the machete fell outside the record of conviction. Further, defendant asserted the evidence presented at trial did not reflect defendant was aware of a machete inside the truck.
In defendant's resentencing brief, he cited to a reporter's transcript. Because there is no reporter's transcript of the second trial included with the record on appeal, we infer defendant was referencing the evidence produced at his first trial.
The People filed an opposition. The People asserted "evidence of defendant being armed was presented in front of a jury. This jury found the defendant guilty on all charges." The People noted a photograph (Exh. No. 3-A), which included the machete, was admitted at trial, and the actual machete was an exhibit at trial (Exh. No. 6). The People further asserted defendant testified about the machete. The People contended information about the machete was included in the record of conviction, and the trial court should find defendant ineligible for resentencing.
Defendant filed a reply to the People's opposition. Defendant asserted there was no evidence at trial connecting the machete to defendant. Defendant contended the truck did not belong to defendant, defendant was not seen with the machete, there were no fingerprints on the machete, there was no blood on the machete, and there was no evidence defendant had seen the machete.
2. RULING
The trial court concluded the record of conviction "proved . . . beyond a reasonable doubt that the defendant was personally armed." In support of its finding, the trial court noted the machete was discussed during pretrial motions. The trial court concluded that, from the pretrial motions and trial testimony it was clear there was a machete at the scene of the crash. The trial court said, "The only logical, reasonable inference . . . that the court can draw, based on the testimony that's been presented in the trial, was that he was personally armed. And there is no logical or reasonable inference that it can be used for any nonthreatening manner."
The trial court reiterated, "The transcript makes it clear that the defendant did have a machete. It was possessed for offensive or defensive purposes. There was no other reason and logical inference. The Court believes based on the testimony and the location that it was available for him. It wasn't enclosed or some distance away, or belonged to somebody else, or just happened to be found at the debris field at the time of the rollover. [¶] Thus, the Court's convinced, without looking at any post-conviction materials[,] that the defendant was personally armed with a dangerous or deadly weapon."
The trial court said if it erred in its finding, and the evidence does not support a finding that defendant was armed, then, in regard to the next step, the People failed to prove defendant posed a future danger.
DISCUSSION
A. ELIGIBILITY
Defendant contends the trial court erred by finding defendant was armed during the vehicle theft/driving a stolen vehicle and therefore ineligible for resentencing.
Any person serving an indeterminate life sentence pursuant to the Three Strikes law may file a petition for a recall of the sentence, if the sentence is not being served for a serious and/or violent felony. (§ 1170.126, subd. (b).) A defendant is not eligible for resentencing if his current sentence was imposed for an offense, during the commission of which, the defendant was armed with a deadly weapon. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii).) A defendant is "armed" when the weapon is "'available for use, either offensively or defensively.'" (People v. Pitto (2008) 43 Cal.4th 228, 236.)
It is not required that a jury made a finding that the defendant was armed in order to establish the defendant is ineligible for resentencing. (People v. Bradford (2014) 227 Cal.App.4th 1322, 1333.) The trial court can make the finding that the defendant was armed. (Id. at p. 1337.) The trial court's finding must be based upon the record of conviction. (Id. at p. 1338.) The term "record of conviction" does not have a precise definition. (People v. Woodell (1998) 17 Cal.4th 448, 454.) The transcript of a trial, which ends in a mistrial, is part of the record of conviction. (People v. Bartow (1996) 46 Cal.App.4th 1573, 1579.) Concessions by the defendant made during pretrial motions and during closing arguments are part of the record of conviction. (People v. White (2014) 223 Cal.App.4th 512, 525.)
There is a split of authority as to the standard of proof the trial court should employ when determining a defendant's eligibility for resentencing. (People v. Newman (2016) 2 Cal.App.5th 718, 728 [preponderance of the evidence]; People v. Arevalo (2016) 244 Cal.App.4th 836, 852 [beyond a reasonable doubt]; People v. Bradford, supra, 227 Cal.App.4th at p. 1350 (conc. opn. of Raye, P.J.) [clear and convincing evidence].)
This court implied (within a discussion about the right to a jury trial in relation to Prop. 36 relief) that the preponderance of the evidence standard is applicable to eligibility findings for resentencing because the proceedings concern decreasing—not increasing—a defendant's sentence. In other words, this court has implied that because the proceedings concern an act of lenity, a heightened standard of review is not required. (People v. Brimmer (2014) 230 Cal.App.4th 782, 803-805.) We follow the indications in our prior opinion, and apply the preponderance of the evidence standard.
We review the trial court's eligibility finding under the substantial evidence standard of review. (People v. Guilford (2014) 228 Cal.App.4th 651, 661; People v. Perez (2016) 3 Cal.App.5th 812, 821-822.) Under this standard, we must determine if there is evidence of reasonable, credible, and solid value supporting the trial court's finding. (People v. Hovarter (2008) 44 Cal.4th 983, 996-997.)
During the evidentiary portion of the first trial, the machete was only discussed during the cross-examination of defendant. Defendant testified he had never before seen the machete that the prosecutor introduced at trial. The prosecutor asked if defendant had seen the machete depicted in the photograph of the crash site. The prosecutor showed defendant the photograph (Exh. No. 3-A). Defendant responded, "I can't see what that is."
Thus, during the evidentiary portion of the trial, there was no evidence produced reflecting a machete was at the crash site. Defendant did not see a machete in the photograph, and defendant did not recognize the machete the prosecutor introduced. As a result, there was no evidence produced at trial connecting the machete to the crash site. The prosecutor did not recall the law enforcement officers to lay a foundation for the machete or to otherwise rebut defendant's testimony. As a result, the trial evidence does not constitute substantial evidence reflecting defendant was armed.
Concessions by the defendant made during pretrial motions and closing argument are part of the record of conviction. (People v. White, supra, 223 Cal.App.4th at p. 525.) Therefore, we examine the record to determine if, during pretrial motions and closing argument, defendant conceded a machete was at the crash site.
At the beginning of the motion to exclude evidence, defense counsel listed various items that were at the crash site, but did not state a machete was at the scene. When the trial court began to pivot the pretrial discussion away from the machete, and toward the other items found at the crash site, defense counsel said, "Before we get to the tools, there is also the matter of the machete, which has an inscription on it 'silent death,' or something to that effect." Counsel's comment could be interpreted as implicitly conceding a machete existed.
During the cross-examination of defendant, when the prosecutor moved to introduce evidence of the machete, defense counsel explicitly argued there was no evidence reflecting defendant possessed a machete. Thus, there was no concession during that motion.
During closing argument, defense counsel argued, "[Defendant] was pretty oblivious to what was going on around him on this evening, and so you can't impute knowledge of facts to him; just because something may have existed, doesn't necessarily mean that [defendant] would have been in a position to observe it or process it. [¶] It was late, it was dark, he was intoxicated." Defendant did not concede facts related to the machete during closing argument.
In sum, the examination of defense counsel's statements reveals only an implied concession that a machete existed. This is not substantial evidence reflecting defendant was armed because there is nothing connecting the machete to defendant or the crash site.
Thus, we are left with the prosecutor's comments and the trial court's comments. We confront the issue of whether comments by the prosecutor and trial court can satisfy the substantial evidence standard. We conclude they cannot, because comments by the prosecutor and trial court are not evidence. (In re Calvin S. (2016) 5 Cal.App.5th 522, 528-529 [statement by the trial court is not evidence]; People v. Kiney (2007) 151 Cal.App.4th 807, 815 ["unsworn statements of counsel are not evidence"].)
A preliminary hearing transcript can provide evidence for an eligibility finding. (People v. Trujillo (2006) 40 Cal.4th 165, 177.) Accordingly, we examine the preliminary hearing transcript for evidence related to the machete. Deputy Judge testified at the preliminary hearing. Judge described seeing the truck crash, seeing defendant climb out of the driver's side window of the overturned truck, and seeing defendant run away from Judge after Judge told defendant to stop.
Sergeant Baeckel also testified at the preliminary hearing. Baeckel described seeing defendant driving on the wrong side of the street. Baeckel followed defendant. Baeckel activated his patrol car's lights and sirens, but defendant did not stop. The victim told Baeckel defendant did not have permission to drive the truck. The preliminary hearing transcript does not provide evidence related to the machete.
We conclude, based upon the record of conviction, there is no substantial evidence reflecting defendant was armed at the time of the vehicle theft/driving the stolen vehicle. The trial court erred in finding defendant was armed, and erred in ruling defendant is ineligible for resentencing.
The People contend there is substantial evidence supporting the trial court's finding that defendant was armed. The People assert there is evidence reflecting the machete was found at the crash site. In support of this assertion, the People cite to the photograph of the overturned truck (Exh. No. 3-A) and the pretrial discussion about whether the photograph could be introduced.
The photograph to which the prosecutor was referring during pretrial discussions showed an upside-down truck (Exh. No. 3-A). When describing the photograph during pretrial motions, the court asked where the machete was located in the photograph. The prosecutor described the machete as appearing "on the right-hand side of the vehicle, . . . on the ground." The prosecutor explained one could only identify the machete if one were told it was a machete. The court asked, "Is that that large sort of dark line?" The prosecutor responded, "Yes." The prosecutor said, "Based on the fact it is so difficult to find, even when you know what they are—" The trial court concluded the "machete just looks like a dark stripe on the pavement." The trial court permitted the photograph to be introduced, despite evidence of the machete being excluded, because it was so difficult to identify the machete in the photograph.
The foregoing pretrial discussion and photograph do not constitute substantial evidence that defendant was armed during the vehicle theft/while driving the stolen vehicle. As explained ante, the comments of the court and prosecutor are not evidence. The discussion reflects that one could only identify the machete in the photograph if one were told the "line" or "stripe" on the ground was a machete. There is no evidence reflecting the "line" or "stripe" on the ground is a machete—there are only the unsworn comments of the prosecutor. Further, the prosecutor never said how he came to believe the "line" or "stripe" on the ground was a machete. Thus, we are not persuaded that there is evidence of a machete at the crash site.
The People assert there is substantial evidence supporting the finding defendant was armed because the victim testified that the other tools found at the crash site did not belong to the victim. The victim testified that the gloves, mallet, screwdriver, and flashlight did not belong to him. This testimony does not place a machete at the crash site.
The People assert there is substantial evidence supporting the trial court's finding that defendant was armed because, during pretrial motions, the prosecutor said, "The evidence kind of points to the fact [the truck] was recently stolen. The victim says, 'That is not my stuff.' The defendant is the only guy who is in the car. It kind of puts everything in the car [as] either the victim's or the defendant's." As explained, ante, unsworn statements by the prosecutor are not evidence. (People v. Kiney, supra, 151 Cal.App.4th at p. 815 ["unsworn statements of counsel are not evidence"].) Therefore, they cannot be used in determining if substantial evidence supports the trial court's finding.
The People characterize the prosecutor's statement as an offer of proof. "An offer of proof is not evidence." (Mundell v. Department of Alcoholic Beverage Control (1962) 211 Cal.App.2d 231, 239; see also Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1398 [a non-stipulated offer of proof is not evidence].) Therefore, if the prosecutor's statement were an offer of proof, we cannot use it in determining if substantial evidence supports the trial court's finding.
The People contend there is substantial evidence supporting the trial court's finding because, during pretrial motions, defense counsel did not contest the prosecutor's assertions concerning the machete. Defense counsel made a motion to exclude the evidence. The prosecutor then argued the evidence was more probative than prejudicial. Defense counsel responded, "I don't want him to use the machete, either. I believe the machete is irrelevant. [The prosecutor's] speculation that [defendant] may have been on his way to—" The foregoing portion of the record reflects defense counsel did respond to the prosecutor's argument. Defense counsel asserted the prosecutor's theory was speculation, i.e., not based on evidence. Accordingly, we are not persuaded that (1) defense counsel failed to respond, and (2) that a failure of defense counsel to respond to an argument would constitute evidence.
The People contend substantial evidence supports the trial court's finding because the jury rejected defendant's testimony. The jury's rejection of defendant's version of the events does not equate with the existence of evidence placing a machete at the crash site. It would be particularly troubling to rely on the jury's verdict in this case because the judgment related to the jury's verdict was reversed due to the jury not being instructed on voluntary intoxication. (People v. Aston (May 19, 1999, E022332) at pp. 4, 6 [nonpub. opn.].) Accordingly, we find the People's argument to be unpersuasive.
At oral argument in this court, the People asserted there was substantial evidence to support the trial court's finding because in a writ opinion we wrote, "It appears that [defendant] was driving the stolen vehicle at high speed while being pursued by police. The pursuit ended when he 'rolled' the vehicle. A machete was found at the scene. Judge Freer found that it was [defendant's] machete and, thus, concluded by clear and convincing evidence that he was armed with a deadly weapon during the commission of the offense." (Aston v. Superior Court, supra, [2014 Cal.App.Unpub.LEXIS 8556, *10], fn. omitted.)
In that 2014 case, defendant had sought resentencing under Proposition 36/Three Strikes Reform Act of 2012 (§ 1170.126). The trial court found defendant was not eligible for resentencing. This court concluded, "[W]e cannot determine whether the trial court based its finding of ineligibility on reliable, admissible portions of the record of conviction. Therefore, we grant the petition and direct the trial court to conduct a new hearing to determine petitioner's eligibility for resentencing." (Aston v. Superior Court, supra, [2014 Cal.App.Unpub.LEXIS 8556, *1-2].) Given that there were evidentiary problems in the 2014 case, we do not rely upon it when analyzing this substantial evidence issue. Therefore, we find the People's reliance on the 2014 case to be unpersuasive.
In sum, the record of conviction reflects a machete existed; however, there is no substantial evidence placing the machete at the crash site. Nobody who was at the crash site testified that (1) there was a machete at the crash site; or (2) that the "line" or "stripe" in the photograph was a machete. Additionally, no foundation was laid for the machete itself, which was received into evidence. (Exh. No. 6.) As a result, there is not substantial evidence that defendant was armed. We conclude the trial court erred in finding defendant ineligible for resentencing.
B. FUTURE DANGEROUSNESS
If a defendant is found to be eligible for resentencing, then the trial court must determine if "resentencing the [defendant] would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)
In the instant case, the trial court said that if it erred in its eligibility finding because the evidence does not support a finding that defendant was armed; then, in regard to the next step, the People failed to prove defendant posed a future danger. The trial court made its dangerousness finding on March 8, 2016.
One of the factors the trial court may consider when making its dangerousness finding is the petitioner's "disciplinary record and record of rehabilitation while incarcerated." (§ 1170.126, subd. (g)(2).) More than a year has passed since the trial court made its dangerousness finding. It is possible the risk posed by defendant has changed since the trial court made its finding. Therefore, we will direct the trial court to hold a hearing where it may receive updated evidence and make a finding concerning the risk of dangerousness posed by defendant.
The People prevailed in the trial court. Therefore, the People could not appeal the trial court's finding concerning dangerousness. (In re K.C. (2011) 52 Cal.4th 231, 236 [appealing party must be aggrieved by the trial court's order]; see also § 1238 [orders from which the People may appeal].) Because the People were unable to appeal the dangerousness finding, we do not address the issues, if any, that may exist with the trial court's March 2016 dangerousness finding.
DISPOSITION
The judgment is reversed. The trial court is directed to hold an evidentiary hearing concerning whether resentencing defendant would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) The trial court is directed to resentence defendant unless the trial court, in its discretion, determines that resentencing defendant would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. I concur: CODRINGTON
J. Slough, J., concurring in part and dissenting in part.
I agree with the majority's opinion except part B of the legal discussion and the disposition, ante at pages 20-21.
The trial court must determine whether resentencing an eligible defendant "would pose an unreasonable risk of danger to public safety." (Pen. Code, § 1170.126, subd. (f).) Here, the trial court found the People had failed to prove defendant posed a future danger. As the majority opinion acknowledges, the correctness of that finding is not a subject of the appeal and is therefore not properly before us. (See Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 731, fn. 3.) I therefore disagree with the portion of the opinion in which my colleagues direct the trial court to hold a hearing to receive evidence of and make a new finding concerning the risk of dangerousness.
I recognize the People may wish to raise objections to the trial court's finding or argue the risk defendant poses may have changed in the year and a half since the trial court made its finding. For example, the defendant's conduct while incarcerated in the interim may provide new evidence of dangerousness. (Pen. Code, § 1170.126, subd. (g) ["In exercising its discretion in subdivision (f), the court may consider [¶] . . . [¶] [t]he petitioner's disciplinary record and record of rehabilitation while incarcerated"].) However, we have neither a record nor briefing by the parties to serve as a basis for deciding whether further proceedings are appropriate. I therefore believe we should leave it to the parties and the trial court to determine whether to hold a new dangerousness hearing.
I would do so by making clear in the disposition that the People may bring a motion opposing resentencing if they have a reasonable basis for asking the trial court to reconsider its prior finding. If the People choose to move for reconsideration and the trial court determines reconsideration is appropriate, the trial court may set a hearing to consider evidence and argument and make a final dangerousness determination.
Absent a motion, however, the trial court's prior finding should govern, and the trial court should simply resentence defendant. (Pen. Code, § 1170.126, subd. (f).)
SLOUGH
J.