Opinion
G051957
01-10-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL ARCEO, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland, Supervising Deputy Attorney General, Brendon W. Marshall, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 97CF2677) OPINION Appeal from an postjudgment order of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland, Supervising Deputy Attorney General, Brendon W. Marshall, Deputy Attorney General, for Plaintiff and Respondent.
* * *
The court denied defendant Juan Manuel Arceo's petition under Penal Code section 1170.126 for recall of his third-strike sentence and for resentencing as a second strike offender. We conclude the court correctly ruled defendant was ineligible for recall of his third-strike sentence because he used a dangerous or deadly weapon (his vehicle) in the commission of the offense. Accordingly, we affirm the postjudgment order.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
We take the facts from a nonpublished opinion affirming defendant's conviction. (People v. Arceo (June 18, 1999, G023324).) "After receiving a dispatch call at approximately 1:15 a.m., regarding a possible drunk driver on Interstate 5 Freeway in the southern part of Orange County, California Highway Patrol (CHP) Officer Rand, driving a marked unit, noticed a red compact car weaving back and forth within a single lane, traveling at approximately 45 miles per hour, 20 to 30 miles slower than the surrounding traffic. Rand followed the car for about half a mile and then turned on his red light. The red car first slowed down and then increased its speed. Rand pursued, reaching a speed of 107 miles per hour. When he realized the car was not going to stop, he turned on his siren. Rand described other traffic as moderate with cars in all the lanes.
"During this portion of the pursuit, defendant, the driver of the red car, used all lanes, 'cutting abruptly in and out of traffic, passing cars on the left, passing cars on the right' and drove well over 100 miles per hour during the entire time. Rand, concerned about the safety of other vehicles on the road characterized the pursuit as 'a hair-raising chase.' He pursued defendant until he 'gave up' defendant's car to another marked CHP unit, driven by Officer Wakeland.
"Wakeland activated his red lights and siren and started to follow defendant's car. Traffic here was fairly light, but there were cars in all lanes. He noted defendant's speed was over 100 miles per hour, at one time it reached 115 miles per hour. Defendant wove between all the lanes, including the carpool lane and the shoulder in getting around other traffic. Wakeland pursued defendant to the Norwalk area, near Florence. There, defendant cut through a Caltrans closure, where construction workers were present, and exited the freeway. Defendant turned off his lights and made a U-turn. Wakeland had to swerve to avoid getting hit by him. After defendant was arrested he was found to have a blood alcohol content of .103."
In 1998, a jury convicted defendant of all three counts with which he was charged: (1) felony evading while driving recklessly (Veh. Code, § 2800.2); (2) misdemeanor driving under the influence of alcohol/drugs (Veh. Code, § 23152, subd. (a)); and (3) driving with blood alcohol content of 0.08 percent or more (Veh. Code, § 23152, subd. (b)). The trial court found true recidivist allegations alleging defendant had two prior strike convictions (§§ 667, subds. (d), (e)(2), 1170.12, subds. (b), (c)(2)) and had served one prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to state prison for 25 years to life on count 1 and stayed punishment on counts 2 and 3. In 1999, we affirmed the judgment.
In 2012, the California electorate approved Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36), which amended sections 667 and 1170.12 and added section 1170.126, which allows inmates currently serving a life sentence under the Three Strikes law to petition for a recall of the sentence. (See People v. White (2014) 223 Cal.App.4th 512, 517 (White).) Section 1170.126 sets forth eligibility criteria that must be satisfied before the three-strike sentence may be recalled. (§ 1170.126, subd. (e).)
In May 2013, defendant filed a petition for recall of his sentence. The People contested defendant's eligibility for resentencing on two grounds, each based on the fact defendant was driving a vehicle in the commission of his third strike offense. First, the People argued defendant's third strike is a disqualified serious offense under section 1192.7, subdivision (c)(23) ["any felony in which the defendant personally used a dangerous or deadly weapon," italics added] and thus ineligible for resentencing under section 1170.126, subdivision (e)(1). Second, the People argued defendant was armed with a deadly weapon when he committed his third strike offense and thus ineligible for resentencing under section 1170.126, subdivision (e)(2). (See § 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii) [during commission of current offense, "the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person"].)
Defendant argued he did not use, and was not armed with, a deadly or dangerous weapon when he drove a vehicle in the commission of felony evading while driving recklessly. The trial court denied defendant's petition, because defendant "personally used a dangerous or deadly weapon in the commission of the reckless driving" when he drove at excessive speeds through a construction zone where construction workers were present, and when he did a U-turn and drove directly at two police units.
DISCUSSION
Standard for Seeking Resentencing
Upon receiving a petition for recall of sentence, the trial court must first determine whether the defendant satisfies the eligibility criteria in section 1170.126, subdivision (e). (§ 1170.126, subd. (f); People v. Guilford (2014) 228 Cal.App.4th 651, 657 (Guilford) [no provision for People to plead or prove anything; burden falls on trial court to make the determination whether a defendant meets the prima facie criteria for recall of sentence].) If the court determines the defendant is eligible for resentencing, he or she shall be resentenced pursuant to section 667, subdivision (e)(1) and section 1170.12, subdivision (c)(1) unless the court, in its discretion, determines that resentencing defendant would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f ); People v. Berry (2015) 235 Cal.App.4th 1417, 1420 [discussing two-part analysis required by section 1170.126].) Here, the court determined defendant was ineligible for resentencing, and therefore the court did not reach the issue whether defendant would pose an unreasonable risk of danger to public safety.
The People fully briefed this argument below; defendant did not.
Section 1170.126, subdivision (e) provides an inmate is eligible for resentencing if: (1) the inmate is serving an indeterminate term of life imprisonment for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by section 667.5, subdivision (c) or section 1192.7, subdivision (c); (2) the inmate's current sentence was not imposed for any of the offenses appearing in section 667, subdivision (e)(2)(C)(i) to (iii) or section 1170.12, subdivision (c)(2)(C)(i) to (iii); (3) the inmate has no prior convictions for any of the offenses appearing in section 667, subdivision (e)(2)(C)(iv) or section 1170.12, subdivision (c)(2)(C)(iv). (§ 1170.126, subd. (e).)
Defendant's Third Strike Is a Disqualifying Serious Felony
There is no dispute defendant is serving an indeterminate term and defendant's previous convictions did not arise under section 667, subdivision (e)(2)(C)(iv) or section 1170.12, subdivision (c)(2)(C)(iv). Further, defendant's current conviction is not a violent felony under section 667.5, subdivision (c). Instead, the People argued defendant is ineligible for resentencing for two reasons. First, defendant's third strike offense is a disqualifying "serious felony" under section 1192.7, subdivision (c)(23), because he "personally used a dangerous or deadly weapon" (his vehicle). (§ 1170.126, subd. (e)(1).) Second, defendant is disqualified under sections 667, subdivision (e)(2)(C)(iii) and 1170.112, subdivision (c)(2)(C)(iii), because defendant was "armed with a . . . deadly weapon" (his vehicle) when he committed the offense. (§ 1170.126, subd. (e)(2).)
Defendant's prior strike convictions were for residential burglary in violation of section 459 and kidnapping in violation of section 207.
The lower court adopted the People's first argument. Although the court did not explicitly state that its disqualification ruling was made under sections 667, subdivision (e)(1) and 1192.7, subdivision (c)(23), the court's reasoning clearly indicates that it grounded its ruling on the personal use of a deadly weapon, and not on a finding that defendant was armed with a deadly weapon. First, the court relied in part on an analogy to People v. Aznavoleh (2012) 210 Cal.App.4th 1181, in which the appellate court concluded that a driver who deliberately raced through a red light at a busy intersection and collided with another vehicle could be convicted of assault with a deadly weapon. (Id. at p. 1183.) Obviously, the driver of a vehicle convicted of assault with a deadly weapon, to wit, the vehicle, has made personal use of the deadly weapon. The court made no mention of defendant being armed with a deadly weapon, a disqualifying circumstance not requiring the personal use of the weapon. Second, in making its ruling, the court mirrored the "personally used a dangerous or deadly weapon" language found in section 1192.7, subdivision (c)(23), which disqualifies defendant from recall of sentence under section 1170.126, subdivision (e)(1)
The distinction between the court having made a finding of personal use of a deadly weapon, as contrasted with a finding of being armed with a deadly weapon, has significance in this appeal because defendant addresses only the armed-with-a weapon exclusion under section 1170.126, subdivision (e)(2) and sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii), a finding the court never made. Defendant has not challenged the court's finding he is ineligible under section 1170.126, subdivision (e)(1). Because of defendant's failure to address the basis of the court's ruling, choosing instead to challenge a ruling the court never made, the issue is waived on appeal, and defendant's argument is wholly irrelevant. "Issues do not have a life of their own. If they are not raised or supported by argument or citation to authority we consider the issues waived." (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99; see also Cal. Rules of Court, rule 8.204(a)(1)(B).) Not only did defendant fail to address the basis of the court's ruling, he boldly proclaims an ipse dixit, that the use of a deadly weapon is a "state of affairs that falls outside of the exclusory provision." Not so. Section 1170.126, subdivision (e)(1) plainly excludes those convicted of a serious offense under section 1192.7, subdivision (c)(23) — the personal use of a deadly weapon.
Despite defendant's waiver of the issue on appeal, we will address the trial court's ruling on the merits to forestall the potential of a subsequent habeas corpus petition.
The record supports the lower court's conclusion that defendant's third strike offense disqualifies him, as it is a "serious felony" under section 1192.7, subdivision (c)(23). Unlike murder, mayhem, rape, sodomy by force, and other serious crimes, evading while driving recklessly is not one of the specifically enumerated felonies in section 1192.7, subdivision (c). Defendant's third strike offense is a "serious felony" under the more general category of section 1192.7, subdivision (c)(23) — "any felony in which the defendant personally used a dangerous or deadly weapon."
Vehicle Code section 2800.2, subdivision (a), makes it a felony to willfully or wantonly disregard the safety of persons or property while fleeing from a pursuing police officer. Vehicle Code section 2800.2 is a felony that can be so inherently dangerous to human life a violation will support a second degree felony murder prosecution. (People v. Johnson (1993) 15 Cal.App.4th 169, 173.) The jury was instructed that to establish a violation of Vehicle Code section 2800.2, subdivision (a), each of the following elements must be proved: (1) a person, while operating a motor vehicle, willfully fled or otherwise attempted to elude a pursuing peace officer; (2) the person did so with the specific intent to evade the pursuing peace officer; (3) the peace officer's vehicle exhibited at least one lighted red lamp visible from the front; (4) the person saw or reasonably should have seen the red lamp; (5) the peace officer's vehicle sounded a siren, as reasonably necessary; (6) the peace officer's motor vehicle was distinctively marked; (7) the peace officer's motor vehicle was operated by a peace officer wearing a distinctive uniform; and (8) the driver of the pursued vehicle drove the vehicle in a willful or wanton disregard for the safety of persons or property. (CALJIC No. 12.85.)
The jury was instructed with CALJIC No. 12.85, long before the publication of the CALCRIM instructions.
Even though there is no mention of "using" a vehicle as a requirement for conviction under Vehicle Code section 2800.2, one cannot be convicted without having driven a vehicle with willful or wanton disregard for the safety of persons and property. Here, defendant used the vehicle when he drove it and evaded police; he was not a passenger. Having convicted defendant of evading while driving recklessly, the jury found the elements in CALJIC No. 12.85 had been met. Thus, the jury found that defendant used the vehicle in the commission of his third strike offense. (See People v. Equarte (1986) 42 Cal.3d 456, 464 ["[I]t would be illogical to exclude a person who personally used a deadly weapon from subdivision (c)(23)'s serious felony category simply because his use of the weapon happens also to be an element of the offense of which he is convicted."]; People v. Russell (2005) 129 Cal.App.4th 776, 782 [finding car "used" as deadly weapon when defendant pushed victim into path of moving car and declining to "distinguish between the actions of one who, while driving or controlling a car, intentionally runs down a victim, and one who opportunistically utilizes, for the purpose of injuring a victim, the force of a moving car driven by an unwitting third party"].)
The only question, then, is whether the vehicle defendant was driving can be considered a dangerous or deadly weapon, and we have no trouble concluding the answer is yes. "There are two categories of 'dangerous or deadly weapons.' First, there are those instrumentalities which are weapons in the strict sense of the word, such as guns, dirks, etc. Second, there are those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such, such as razors, pocket knives, hat pins, canes, hammers, hatchets, and other sharp or heavy objects. These are not weapons in the strict sense of the word and are not 'dangerous or deadly' to others in the ordinary use for which they are designed. As such, they may not be said as a matter of law to be dangerous or deadly weapons. The instrumentalities falling in the first classification are weapons in the strict sense of the word and are 'dangerous or deadly' to others in the ordinary use for which they are designed and may be said as a matter of law to be dangerous or deadly weapons. [Citation.] When it appears that an instrumentality other than one falling within the first category is capable of being used in a dangerous or deadly manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, its character as a dangerous or deadly weapon may be established, at least for purposes of that occasion." (People v. Reid (1982) 133 Cal.App.3d 354, 365.)
While a vehicle is not dangerous or deadly per se, in this case it was capable of being used in a dangerous and deadly manner, and it is fairly inferred from the record defendant intended to use it as a weapon had the circumstances required it. We cannot conclude defendant used the vehicle for a harmless purpose. The People's information alleged defendant "did willfully and unlawfully, while operating a motor vehicle, drive with willful and wanton disregard for the safety of persons and property and with the intent to flee and otherwise attempt to elude a pursuing peace officer's motor vehicle . . . ." (Italics added.) Defendant operated the vehicle with willful and wanton disregard for the safety of persons and property when he reached speeds of up to 115 miles per hour while fleeing CHP, used all lanes to cut abruptly in and out of traffic passing cars on the left and right, wove between lanes including the carpool lane and shoulder, cut through a Caltrans closure where construction workers were present, and made a U-turn back towards Wakeland who had to swerve to avoid being hit by defendant's car, all while intoxicated with a blood alcohol content of 0.103 percent.
The record of conviction, including the evidence introduced in the underlying trial, may be used to support a finding of ineligibility for resentencing, even though the underlying conviction did not necessarily require that finding. (See White, supra, 223 Cal.App.4th at p. 519 [armed-with-a-firearm exclusion applied making defendant ineligible for resentencing where trial record established third strike offender convicted of possession of a firearm by a felon, because the defendant was "armed with the firearm during the commission of that offense" even though accusatory pleading did not allege he or she was armed with a firearm during the commission of the possession offense].)
Defendant used a dangerous or deadly weapon (his vehicle) in the commission of his third strike offense. Defendant is ineligible for resentencing under section 1170.126, subdivision (e)(1), because his third strike offense is a serious felony under section 1192.7, subdivision (c)(23). Because defendant is ineligible for resentencing if the court determines any of the three exceptions contained in section 1170.126, subdivision (e) are found to exist, we need not address defendant's argument he is not ineligible for resentencing under section 1170.126, subdivision (e)(2).
DISPOSITION
The postjudgment order is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.