Opinion
F079775
02-15-2022
THE PEOPLE, Plaintiff and Respondent, v. VICTOR GUDINO, Defendant and Appellant.
Three Strikes Project and Michael S. Romano for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 07CM7087HTA Valerie R. Chrissakis, Judge.
Three Strikes Project and Michael S. Romano for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION 1
DETJEN, J.
INTRODUCTION
This is defendant Victor Gudino's second appeal from the denial of a petition for recall of sentence pursuant to Penal Code section 1170.126. Defendant is presently serving a sentence of 25 years to life for possession of a weapon while confined in a penal institution (§ 4502, subd. (a)). On appeal, defendant contends the record is insufficient to support the trial court's finding he was armed with a deadly weapon and the court therefore erred in concluding he was ineligible for resentencing. We conclude substantial evidence supports the trial court's finding defendant is ineligible for resentencing pursuant to section 1170.126. Accordingly, we affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL BACKGROUND
The trial court and both parties rely extensively on the facts detailed in our nonpublished opinion in defendant's direct appeal. We include these facts in full:
We grant the People's request for judicial notice and take judicial notice of our nonpublished opinions in defendant's prior appeals, People v. Gudino (Sept. 26, 2008, F054876) [nonpub. opn.] (Gudino I), and People v. Gudino (Sept. 21, 2016, F071563) [nonpub. opn.] (Gudino II). (Evid. Code, §§ 452, 459, subd. (d); Mayer v. C.W. Driver (2002) 98 Cal.App.4th 48, 61 [taking judicial notice of background facts from prior nonpublished opinion arising from the same underlying case].)
"At 5:50 a.m. on September 15, 2006, correctional officer Enrique Chavez of Corcoran State Prison was in his office when he heard a door banging and someone calling for an officer. Chavez could tell the noise came from B section and followed the sound to cell 34. Through a small side window, Chavez saw Jaime Cuevas and [defendant] standing next to their bunks. Cuevas was distressed, breathing heavily and seemed frightened.
"Cuevas told Chavez there was a misunderstanding and everything was fine. [Defendant] appeared calm. Chavez did not notice any injuries. Cuevas told Chavez that he needed to come out of the cell. As Chavez went downstairs to retrieve a key from the key booth operator, he heard a commotion and banging like two inmates fighting and ran back to the cell. 2
"When Chavez looked back into the same cell, the lights were off and he could not see anything. Chavez pulled out a flashlight and saw Cuevas and [defendant] facing each other throwing punches to their faces, upper torsos, and chests. Chavez ordered them to stop fighting before spraying both inmates with pepper spray.
"Chavez did not initially see any weapons. After [defendant] turned on the lights, Chavez could see that Cuevas had red marks on his face and chest and a laceration on his chest down to his stomach. Cuevas had a lot of blood on his chest and shoulder. [Defendant] and Cuevas were then placed in handcuffs. The laceration on Cuevas's chest was between 20 and 24 inches long. Cuevas was taken to a prison hospital.
"Cuevas had convictions for assault, carjacking, and second degree robbery. [Defendant] was Cuevas's cellmate at Corcoran. The morning of the attack, Cuevas was awakened by a bad burning pain in his back. When Cuevas awoke, he saw [defendant] who started swinging at Cuevas. [Defendant] was holding a sock full of soap and a blade. The blade was the kind used for shaving and Cuevas remembered it had a handle.
"Cuevas began calling and screaming for help. Cuevas was bleeding from his stomach. Cuevas told the correctional officer that he had to get out of the cell. The correctional officer left for a few minutes before returning. Cuevas argued with [defendant], who rushed Cuevas attempting to cut him up more. Cuevas was trying to get away from [defendant] who still had the blade. The correctional officer pepper sprayed Cuevas and [defendant] when he returned. Cuevas had seen the blade before under his own mattress but denied that it belonged to him. Cuevas acknowledged he did not initially tell authorities that he saw a blade because he was scared.
"In September 2006, Cuevas was taking medication for psychological problems. Cuevas was going to the psychiatric facility in Corcoran after the incident. Cuevas said he had never been found incompetent to stand trial. Cuevas wanted to change cells because [defendant] would boss him around and made Cuevas feel disrespected. [Defendant] would whisper into Cuevas's ear. Before the incident, Cuevas had a feeling something was going to happen.
"Cuevas was cut on his shoulders, back, stomach, and chest. Cuevas received 10 to 20 stitches on his back and about 20 stitches on his stomach. Cuevas saw [defendant] flush the blade down the toilet. 3
"Matthew [Bejarano] is a correctional officer with the prison's Investigative Services Unit and is responsible for investigating crimes within the prison. Bejarano watched Cuevas being removed by gurney after the attack. Bejarano took photographs of [defendant] and then of the cell area. The photographs depicted blood stains on the wall, showing a possible struggle. There were blood stains on a shirt, above [defendant's] bunk, on Cuevas's bed sheets, and at the foot of Cuevas's bed.
"Robert Adame, another investigating officer, collected a white sock containing a bar of soap from the cell. Medical Technical Assistant Rolando Pobleto, LVN, examined Cuevas's injuries. Cuevas was bleeding profusely so Pobleto called an ambulance. Pobleto believed the injuries were caused by a sharp object. Pobleto also examined [defendant] that day. [Defendant] had superficial scratches and a cut lip.
"David Ruiz, a correctional lieutenant, inspected [defendant's] hands and saw cut marks on the inside of his hands consistent with having a blade used to slash or stab. Because inmate weapons do not have stops, when they are used the inmate's hand will slip up the blade and the inmate will cut himself. When Ruiz observed Cuevas's injuries, it was clear, given the length of the wound, that Cuevas had suffered deliberate slashing. There were multiple slashes made over and over again in one area. Ruiz described the attack as 'real violent.'
"[Defendant] had packaged up his personal property in preparation for a cell search. A bloody sheet had been folded. Based on his observations of the cell and the inmates, Ruiz identified [defendant] as the suspect and Cuevas as the victim. [Defendant] could have suffered injuries to his hands if he was holding a weapon to defend himself or to be aggressive.
"Ruiz believed [defendant] initially attacked Cuevas by slashing his back. Ruiz explained that there was a sock found in the cell that was tied up in a knot and state-issued soap caked up together. Soap placed in the sock can be used as a sling with which an inmate can hit others. Ruiz testified that soap in the sock could be used as a weapon, a sling or a slungshot. The slungshot is usually made with hardened pieces of soap inside a sock. This type of weapon causes serious bruising and injury. [Defendant] did not have any bruising on his body. The jury was shown photographs taken of [defendant] after the fight. Ruiz explained that an injury on [defendant's] cheek was likely made by a fist. 4
"The day before the fight, [defendant] told Correctional Officer Baer that he had no problems with his cellmate. Baer talked to Cuevas who said he had no safety concerns. The two convinced Baer there were no problems, though Cuevas preferred to be moved into a section with some 'homies.'
"[Defendant] testified that he shared a cell with Cuevas for 10 or 11 days prior to the fight. The two agreed to be cellmates. [Defendant], however, described Cuevas as 'fucked up.' Casual conversation upset Cuevas. Cuevas accused [defendant] of whispering into his ear. [Defendant] asked Cuevas what was wrong with him. [Defendant] asked Cuevas if he needed medication and told him to take his medication because Cuevas was under the impression he could not take it.
"On the morning of September 15, 2006, [defendant] woke up, washed up, and put his things away. [Defendant] told Cuevas to go ahead, meaning he could use the facilities. [Defendant] said that Cuevas jumped out of bed and attacked him, hitting him several times using the sock later found on the cell floor. The two men exchanged blows. Cuevas threw [defendant's] television at [defendant]. It was then that the correctional officer came to the cell door.
"[Defendant] was trying to wash his face after the correctional officer initially left. Cuevas was digging in his bed. The two struggled, ending up by the door. [Defendant] grabbed Cuevas and then saw a small blade in Cuevas's hand. Cuevas dropped the blade and [defendant] picked it up. Cuevas quickly grabbed [defendant]. Cuevas still had a hold on [defendant]. [Defendant] reached up and cut Cuevas who was still fighting. As soon as he was free of Cuevas, [defendant] threw the blade down. The two men continued to fight until the officer returned and pepper sprayed them.
"During cross-examination, [defendant] said he picked up the blade because he was in fear of his life. [Defendant] further admitted he cut Cuevas with the blade. [Defendant] asserted that he just threw the blade to the ground. [Defendant] denied flushing the blade down the toilet." (Gudino I, supra, F054876, fn. omitted.)
PROCEDURAL HISTORY
We previously summarized the procedural history preceding the instant petition as follows: 5
"On December 19, 2007, a jury found [defendant] guilty of unlawfully carrying 'upon the person a sharp instrument or a slungshot' under section 4502, subdivision (a). The jury further found true allegations that [defendant] had suffered two prior convictions, one in 1999 under section 245, subdivision (a)(2), and the other in 1995 under sections 664 and 211. At the same time, however, the jury found appellant not guilty 'of committing an assault upon Jaime Cuevas with a deadly weapon, to wit, a sharp instrument or a slungshot, or by means of force likely to produce great bodily injury' under section 4501. Similarly, the jury found not true the allegation that [defendant] 'personally inflicted great bodily injury upon Jaime Cuevas' under section 12022.7, subdivision (a). [Defendant] was subsequently sentenced to a term of 25 years to life under the three strikes laws in effect at the time. On appeal, we upheld [defendant's] conviction.
"On November 4, 2014, [defendant] filed a petition for recall of sentence pursuant to section 1170.126. Noting the facts contained in our [non]published opinion from [defendant's] prior appeal, the trial court ordered additional briefing regarding whether [defendant] had 'intent to cause great bodily injury' or was 'armed with a deadly weapon' during the commission of his current conviction. Following this briefing, the trial court concluded [defendant] was not statutorily eligible for recall of his sentence because the facts supported his conviction and demonstrated [defendant] was armed with a deadly weapon." (Gudino II, supra, F071563, fn. omitted.)
In Gudino II, this court affirmed the trial court's holding defendant was ineligible for resentencing under section 1170.126. Relying on People v. Osuna (2014) 225 Cal.App.4th 1020, 1040, which was subsequently overruled by People v. Frierson (2017) 4 Cal.5th 225, 240, fn. 8 (Frierson), we held the" 'trial court need only find the existence of a disqualifying factor by a preponderance of the evidence.'" (Gudino II, supra, F071563.) On that basis we concluded substantial evidence supported the court's finding defendant was armed with a deadly weapon and thus was ineligible for resentencing. (Gudino II, supra, F071563.) 6
As discussed further below, we also held the trial court was permitted to consider facts relating to the assault charge on which defendant was acquitted. (Gudino II, supra, F071563.)
On January 11, 2017, our Supreme Court granted defendant's petition for review and deferred further action pending disposition in People v. Estrada, S232114. (People v. Gudino (Jan. 11, 2017, S238074).) Our Supreme Court then decided People v. Estrada (2017) 3 Cal.5th 661, 674 (Estrada) (holding a trial court may rely on facts connected to dismissed charges to find a defendant ineligible for resentencing) and Frierson, supra, 4 Cal.5th at page 240 (holding that facts relied on to determine a defendant's eligibility for resentencing under § 1170.126 must be established beyond a reasonable doubt). Thereafter, our Supreme Court dismissed defendant's petition for review. (People v. Gudino (Mar. 28, 2018, S238074).)
On November 5, 2018, defendant filed a renewed petition for recall of his sentence pursuant to section 1170.126. Defendant argued Frierson overruled the standard of proof applied by this court in affirming the denial of his previous petition in Gudino II, supra, F071563. Defendant further alleged the People had not proved beyond a reasonable doubt he was armed with a deadly weapon during the offense.
He also argued Frierson provided good cause to permit the filing of the renewed petition beyond the two-year window set forth in section 1170.126, subdivision (b). The trial court found good cause to consider the renewed petition.
On June 12, 2019, the trial court denied the renewed petition for recall of sentence. The trial court determined the record established beyond a reasonable doubt defendant possessed a deadly weapon, inasmuch as he possessed a razor blade and used the blade in a manner causing significant injury to Cuevas. The trial court considered the following facts as relevant to its determination:
"(1) Defendant was holding a sock with soap and a blade. [Citation.];
"(2) [T]he blade was the kind used for shaving. [Citation.];
"(3) Correctional Lieutenant [D.] Ruiz saw cut marks on the inside of [d]efendant's hands consistent with having a blade used to slash or stab. [Citation.]; 7
"(4) Cuevas, a fellow inmate, suffered deliberate and 'violent' slashing, with multiple slashes made over and over again in one area. [Citation.];
"(5) Cuevas received 10-20 stitches on his back and about 20 stitches on his stomach as a result of the incident. [Citation.];
"(6) Cuevas may have had initial possession of the blade, but he dropped it; [d]efendant picked up the blade and used it to cut Cuevas, who was still fighting. [Citation.];
"(7) Defendant admitted he cut Cuevas with the blade. [Citation.]; and;
"(8) The medical technician who responded to the scene believed the injuries sustained by Cuevas were caused by a sharp object. [Citation.]"
The trial court concluded, "[t]he foregoing facts establish beyond a reasonable doubt that Defendant utilized the weapon in a manner causing significant injury to Inmate Cuevas."
Defendant subsequently filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court's finding he was armed with a deadly weapon, i.e., a razor blade, is inconsistent with the following statement from this court's opinion in Gudino I: "We cannot discern from the verdict whether the jury unanimously agreed that [defendant] possessed a slungshot, a sharp instrument, or both a slungshot and a sharp instrument." (Gudino I, supra, F054876.) Defendant further contends the trial court erred in concluding his claim of self-defense on the assault charge did not affect his eligibility for resentencing. Lastly, defendant contends the trial court erred in relying on acquitted conduct, i.e. causing Cuevas's injuries, to find he was armed with a deadly weapon. For the reasons stated below, we reject defendant's contentions.
I. Applicable Law.
The Three Strikes Reform Act of 2012 (hereinafter sometimes referred to as Proposition 36) "reduced the punishment to be imposed with respect to some third strike offenses that are neither serious nor violent, and provided for discretionary resentencing in some cases in which third strike sentences were imposed with respect to felonies that 8 are neither serious nor violent." (People v. Johnson (2015) 61 Cal.4th 674, 679.) "[T]he Act provides a procedure by which some prisoners already serving third strike sentences may seek resentencing in accordance with the new sentencing rules." (Id. at p. 682.) "The procedure allows an inmate currently serving a third strike sentence for a nonserious, nonviolent felony conviction to file a petition to recall the third strike sentence and be resentenced as a second strike offender." (People v. Thomas (2019) 39 Cal.App.5th 930, 934 (Thomas).)
"[T]he petitioning defendant has the initial burden of establishing eligibility, and if that burden is met, then the prosecution has the opportunity to establish ineligibility on other grounds." (People v. Johnson (2016) 1 Cal.App.5th 953, 963, italics in original; see Thomas, supra, 39 Cal.App.5th at p. 935 ["The petitioning defendant has the initial burden of establishing a prima facie case for eligibility for recall of the third strike sentence." (italics omitted)].) Once a prima facie showing is established, the burden shifts to the prosecution to establish ineligibility beyond a reasonable doubt. (Frierson, supra, 4 Cal.5th at p. 240.)
However, "[n]ot every inmate who is currently serving a third strike sentence for a nonserious, nonviolent felony is eligible for resentencing . . . ." (Thomas, supra, 39 Cal.App.5th at p. 934.) Relevant here, an inmate is ineligible for resentencing if, "[d]uring the commission of the current offense, [he or she] used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." (§ 667, subd. (e)(2)(C)(iii); see § 1170.126, subd. (e)(2); Estrada, supra, 3 Cal.5th at p. 667.) A deadly weapon 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.'" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029; see People v. Pollock (2004) 32 Cal.4th 1153, 1178 [holding that possession of a razor blade within a custodial setting is a "deadly weapon"].) "A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively." (People v. Bland (1995) 10 Cal.4th 991, 997, 9 italics omitted.) A defendant may be considered armed for purposes of determining resentencing eligibility even if he or she is convicted solely of a weapon possession offense. (See People v. White (2016) 243 Cal.App.4th 1354, 1362-1363 [holding that a defendant was "armed" with a firearm even though he was only convicted of being a felon in possession of a firearm.]; see also People v. Valdez (2017) 10 Cal.App.5th 1338, 1356-1357 [affirming the defendant's § 4502, subd. (a) conviction and holding, "where, as here, a defendant constructively possessed a weapon and simultaneously had it available for use offensively or defensively, he was armed at that point in time"].)
"Our Supreme Court has expressly held that in determining a petitioner's eligibility, the trial court may rely on facts not found by a jury, and '[a] reviewing court, in turn, must defer to the trial court's determination if it is supported by substantial evidence.'" (Thomas, supra, 39 Cal.App.5th at p. 935; quoting People v. Perez (2018) 4 Cal.5th 1055, 1059.) "In reviewing the trial court's eligibility determination, we view the evidence in the light most favorable to the trial court's findings without reassessing the credibility of witnesses or resolving evidentiary conflicts." (Thomas, at pp. 935-936.)" 'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'"' the court's findings." (Id. at p. 936.)
II. The Trial Court's Finding Defendant Was Armed with a Deadly Weapon is not Inconsistent with Gudino I.
In Gudino I, defendant alleged there was insufficient evidence to support a finding he possessed a slungshot, as he alleged was necessary to support his conviction for possession of a weapon while confined in a penal institution (§ 4502, subd. (a)). (Gudino I, supra, F054876.) We found the evidence sufficient to support the conviction, regardless of whether the verdict was based on defendant's possession of a slungshot or a razor blade. In so doing, we noted: 10
"The jury was given the unanimity instruction. We cannot discern from the verdict whether the jury unanimously agreed that [defendant] possessed a slungshot, a sharp instrument, or both a slungshot and a sharp instrument. There was substantial evidence that [defendant] possessed a sharp instrument given the lacerations on the victim's body and the cuts on [defendant]'s hand. There is also evidence from Cuevas's testimony that [defendant] attached the sharp instrument to the slungshot." (Gudino I, supra, F054876.)
Based on our statement in Gudino I that it was impossible to discern whether the jury convicted defendant based on his possession of a slungshot, a sharp instrument, or both, defendant now contends it was impossible for the trial court to conclude beyond a reasonable doubt defendant was armed with the razor blade for purposes of resentencing eligibility pursuant to section 1170.126. We disagree.
As defendant correctly notes, a trial court may not make a finding regarding resentencing ineligibility factors that is contrary to a jury's findings. (People v. Piper (2018) 25 Cal.App.5th 1007, 1015 (Piper); accord, Frierson, supra, 4 Cal.5th at p. 235; see People v. Arevalo (2016) 244 Cal.App.4th 836, 853 [§ 1170.126 does not permit a trial court to turn "acquittals and not-true enhancement findings into their opposites"].) "To do so would allow the People, contrary to the Reform Act, to 'compensate for any potential evidentiary shortcoming at a trial predating the Act.'" (Piper, at p. 1015.) With this limitation, the trial court otherwise is tasked with making an independent determination of whether a defendant is eligible for section 1170.126 resentencing. (§ 1170.126, subd. (f).) In making its determination, the trial court can consider all pertinent facts within the record. (People v. Cruz (2017) 15 Cal.App.5th 1105, 1110 (Cruz) [" '[T]he court may examine relevant, reliable, admissible portions of the record of conviction to determine the existence or nonexistence of disqualifying factors.' "].) This includes facts not found by a jury beyond a reasonable doubt. (See People v. Perez, supra, 4 Cal.5th at p. 1063 [holding 6th Amend. does not bar a trial court from considering facts not found by a jury beyond a reasonable doubt when determining 11 resentencing eligibility]; see also Estrada, supra, 3 Cal.5th at p. 676 [trial court was permitted to rely on preliminary hearing transcript in making eligibility determination].)
We find two cases instructive to our analysis. First, in Cruz, the jury convicted the defendant of false imprisonment by violence and misdemeanor assault, but acquitted the defendant of assault with a deadly weapon and assault with intent to commit rape. (Cruz, supra, 15 Cal.App.5th at p. 1109.) Additionally, "[o]n the false imprisonment conviction by violence, the jury returned a not true finding that [the defendant] personally used a knife." (Ibid.) On a subsequent petition for resentencing, the trial court found, beyond a reasonable doubt, the defendant was armed with the knife during the commission of the false imprisonment by violence offense. (Ibid.) The Court of Appeal rejected the defendant's argument the jury's acquittal on the assault with a deadly weapon count and the not true finding on the knife use enhancement constituted findings the defendant was not armed during the commission of the false imprisonment by violence offense. (Id. at p. 1111.) As to the defendant's acquittal on the assault with a deadly weapon charge, the court noted the acquittal was "not dispositive of whether he was armed during the commission of the false imprisonment": "Appellant had a kitchen knife and struggled with the victim while holding it. He was 'armed' with a knife." (Ibid.) As for the not true finding on the knife enhancement, the court noted the enhancement required a facilitative nexus between the arming and the offense, whereas the resentencing ineligibility factor required only a temporal nexus. (Id. at pp. 1111-1112.) Thus, the not true finding on the enhancement did not necessarily render the defendant eligible for resentencing. (Id. at p. 1112.)
In contrast, in Piper, "[a] jury found [the defendant] guilty of evading a pursuing peace officer and being a felon in possession of ammunition. In connection with the evading charge, the jury found not true the allegation that [the defendant] was armed in the commission of the offense. The jury also acquitted [the defendant] of all firearm-related counts, including being a felon in possession of a firearm and carrying a loaded 12 firearm." (Piper, supra, 25 Cal.App.5th at p. 1010.) On a subsequent petition for resentencing, the trial court found the defendant was armed with a firearm during the commission of the offenses and therefore ineligible for resentencing. (Ibid.) The Court of Appeal agreed with Cruz "that as a matter of law, a jury's not-true finding on an arming enhancement does not necessarily preclude a trial court from making an eligibility determination under the Reform Act that a defendant was armed." (Piper, at p. 1015.) In the case before it, however, the Court of Appeal determined "the jury's acquittals constituted findings inconsistent with either a facilitative or temporal nexus between appellant and any firearm." (Ibid.) "The jury's determinations thus conclusively rejected the claim that appellant was 'armed with a firearm' . . . ." (Id. at p. 1016.)
These cases stand for the proposition a trial court is precluded from making resentencing determinations inconsistent with specific findings necessarily made by a jury in rendering its verdict. Here, the issue before the trial court was whether defendant was armed with a deadly weapon. None of the jury's findings specifically resolve that issue. The jury acquitted defendant of count I of the offense of assault with a deadly weapon while in prison and found the associated great bodily injury allegation not true. (Gudino I, supra, F054876.) As we explained in Gudino I, defendant advanced a claim of self-defense as to this charge:
"[Defendant]'s theory of self-defense was not predicated on use of the slungshot. [Defendant] testified, and we acknowledge his testimony constituted substantial evidence of self-defense, that the victim grabbed a blade from his bed and attacked [defendant] with it. During a struggle, according to [defendant], Cuevas dropped the blade and [defendant] grabbed it from the floor and used it in self-defense to stop Cuevas who was still attacking him. [Defendant] never admitted using the slungshot in self-defense.
"Cuevas's testimony was that [defendant] started attacking him with the slungshot and/or the blade while he was sleeping and that Cuevas only fought back in self-defense. Cuevas did not state that he used either weapon in the fight but did explain that he was fighting defensively. There 13 was no evidence from either witness that [defendant] used the slungshot in self-defense. The only instrument [defendant] admitted using in self-defense was the sharp instrument." (Gudino I, supra, F054876.)
The jury may have found defendant's claim of self-defense raised a reasonable doubt as to defendant's intent to commit assault. Such finding does not resolve whether defendant was armed with a deadly weapon at the time he committed the separate offense of possession of a weapon while confined in a penal institution. (See Cruz, supra, 15 Cal.App.5th at p. 1109.) We cannot deduce from the not guilty verdict that the jury "conclusively rejected" the argument that petitioner had a sharp instrument available for use, either offensively or defensively. (Piper, supra, 25 Cal.App.5th at p. 1016; see People v. Bland, supra, 10 Cal.4th at p. 997.) Moreover, as we explain in greater detail in part III. below, the assault and possession offenses involve different burdens of proof with respect to self-defense. (See People v. Saavedra (2007) 156 Cal.App.4th 561, 569-571 (Saavedra) [offense of possession of a sharp object does not require any specific mental state, and burden of proof for self-defense claim as to possession charge is properly placed on the defendant, who must prove the applicability of the defense by a preponderance of the evidence].) Accordingly, it was possible for the jury to find defendant not guilty of assault with a sharp instrument, but guilty of possession of a sharp instrument, without any logical inconsistency.
As to count II, we acknowledge it is unclear whether the jury convicted defendant of possession of a weapon while confined in a penal institution based on possession of a razor blade, a slungshot, or both a razor blade and slungshot. (Gudino I, supra, F054876.) In light of this ambiguity, we cannot conclude the jury necessarily found defendant possessed only a slungshot, nor can we conclude the jury "conclusively rejected" the argument defendant possessed a sharp instrument. (See Piper, supra, 25 Cal.App.5th at p. 1016.) We also note the trial court's finding defendant was armed with a deadly weapon required only a temporal nexus between the arming and the offense, not a facilitative nexus. (Cruz, supra, 15 Cal.App.5th at pp. 1111-1112.) Thus, even 14 assuming the jury's guilty verdict was based on defendant's possession of a slungshot, the trial court nonetheless was free to consider the entire record of conviction and to find, beyond a reasonable doubt, defendant was armed with the razor blade in the commission of the offense. (See People v. Perez, supra, 4 Cal.5th at p. 1063; see also People v. Valencia (2017) 3 Cal.5th 347, 354 [holding the trial court has broad discretion in considering resentencing eligibility]; Piper, supra, 25 Cal.App.5th at p. 1015.) In light of the foregoing, we conclude the trial court's determination defendant was armed with a deadly weapon is not inconsistent with our prior determination the factual basis for the jury's verdict was unclear.
Finally, although defendant does not challenge the sufficiency of the evidence to support the trial court's finding, we note the record of conviction contains substantial evidence to support the finding defendant was armed with a razor blade. Our Supreme Court has held a razor blade in the possession of an inmate is a deadly weapon (People v. Pollock, supra, 32 Cal.4th at p. 1178), and one is "armed" if the weapon is "available for offensive or defensive use." (People v. Bland, supra, 10 Cal.4th at p. 1001.) Here, Chavez testified he went to the cell shared by defendant and Cuevas when he heard banging sounds like two inmates fighting. When Chavez looked into the cell, the lights were off and he saw Cuevas and defendant fighting but did not see any weapons. After Chavez sprayed both inmates with pepper spray, defendant turned on the lights and Chavez noticed Cuevas had red marks on his face and chest, and a 20- to 24-inch laceration on his chest and stomach. Cuevas had cuts on his shoulders, back, stomach, and chest, which required 10 to 20 stitches on his back and 20 stitches on his stomach. Defendant had "cut marks on the inside of his hands consistent with having a blade used to slash or stab." Defendant admitted picking up the blade after Cuevas dropped it and 15 using it to cut Cuevas. Cuevas saw defendant flush the blade down the toilet. (Gudino I, supra, F054876.) Cuevas's injuries, which were consistent with being caused by a sharp object, coupled with defendant's own injuries and his own admission he possessed the blade and used it to cut Cuevas, constitute substantial evidence to support the trial court's finding defendant was armed with a deadly weapon.
Moreover, defendant in his opening brief states, "Mr. Gudino does not dispute that he possessed a razor blade."
III. The Trial Court Was Permitted to Disregard Defendant's Self-defense Claim for Purposes of Determining Resentencing Eligibility.
Defendant further contends the trial court was incorrect as a matter of law in finding defendant's self-defense claim was "irrelevant" in determining whether he was armed with a deadly weapon. We disagree that the trial court determined defendant's claim was "irrelevant," and instead conclude the trial court correctly stated and applied the law.
In the trial court, defendant argued his acquittal on count I rendered it impossible for the court to find, beyond a reasonable doubt, that he was ineligible for resentencing. The trial court rejected this argument as follows:
"Since Penal Code section 4502[, subdivision ](a) does not contain an element negated by self-defense, an acquittal on the assault charge -which contains an intent element for purpose of possession - does not undermine the possession conviction. [Citation.] Defendant would have had to prove self-defense as to Count II by a preponderance of the evidence, whereas the burden to disprove self-defense regarding the assault charge was on the People. [Citation.] Defendant's jury was instructed on self-defense as to [section] 4502[, subdivision ](a), yet convicted him anyways. [Citation.] An acquittal on one charge does not mean there is insufficient evidence for a finding of guilt on another charge."
The trial court accurately stated the law. "To show a violation of section 4502 the prosecution must prove that the defendant knew the prohibited object was in his or her possession, but need not prove the intent or purpose for which the weapon was 16 possessed." (Saavedra, supra, 156 Cal.App.4th at p. 571, citing People v. Reynolds (1988) 205 Cal.App.3d 776, 779, overruled on other grounds by People v. Flood (1998) 18 Cal.4th 470.) The Saavedra court explained:
"Thus, to establish the section 4502 offense, the prosecution need not prove that the inmate carried the weapon for an unlawful purpose. Unlike such offenses as murder, assault, and firearm discharge which require (respectively) proof of malice, unlawful use of force, and gross negligence, the section 4502 offense does not contain an element that is negated by self-defense. Because self-defense for inmate weapon possession is not a defense related to the elements of the offense, the burden of proof may properly be placed on the defendant . . . [who must] prove by a preponderance of the evidence [the defense is applicable]." (Saavedra, at p. 571, italics added.)
The court went on to state "it may be permissible for an inmate to raise a narrow claim of self-defense when the inmate was 'confronted with an emergency that . . . justified his seizing one of the prohibited weapons in order to protect himself.'" (Id. at p. 568, italics omitted.) However, to prevail on a self-defense claim, the defendant must "turn[] the weapon over to the authorities as soon as possible after the danger had ended." (Id. at p. 572.)
Here, there is no inconsistency in the jury acquitting defendant on count I of assault with a deadly weapon while in prison based on a self-defense theory, while also rejecting defendant's self-defense claim as to count II on the charge of possession of a weapon in prison. As to count I, the People had the burden to prove beyond a reasonable doubt defendant did not act in self-defense. (See People v. Adrian (1982) 135 Cal.App.3d 335, 340-341 [prosecution must disprove self-defense to prove unlawful use of force for assault].) The jury may have concluded the evidence raised reasonable doubt as to defendant's intent to commit assault with a deadly weapon. However, as to count II, the jury may have rejected a "narrow claim of self-defense" on various grounds, including by finding defendant had not proved self-defense on count II by a preponderance of the evidence. (See Saavedra, supra, 156 Cal.App.4th at p. 568; id. at 17 p. 571 [holding the burden of proof is on the defendant to prove by a preponderance of the evidence that self-defense applies to the § 4502 charge].) Regardless, the jury found defendant's claim of self-defense inapplicable to count II, and thus the trial court was correct in concluding it was not limited by defendant's self-defense claim when determining defendant's resentencing eligibility.
IV. The Trial Court was Permitted to Consider Cuevas's Injuries in Determining Whether Defendant was Armed with a Deadly Weapon.
Defendant argues the trial court erroneously found defendant ineligible for resentencing on the ground he "intended to cause great bodily injury to another person." (§ 667, subd. (e)(2)(C)(iii) [excluding from eligibility a defendant who "used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury"]; see 1170.126, subd. (e)(3).) Defendant contends such finding is inconsistent with the jury's acquittal on the offense of assault with a deadly weapon. Defendant further contends that, because the jury acquitted him of assault with a deadly weapon, the trial court was not permitted to consider Cuevas's injuries for purposes of determining resentencing eligibility. We disagree.
As an initial matter, we reject the contention that the court found defendant ineligible for resentencing on the ground he "intended to cause great bodily injury to another person." (§ 667, subd. (e)(2)(C)(iii).) The focus of the court's analysis was whether defendant was armed with a deadly weapon. To the extent the court considered Cuevas's injuries, it appears to have considered those injuries as evidence defendant was armed with a deadly weapon. Moreover, the court's finding that defendant was armed with a deadly weapon, on its own, excludes defendant from resentencing eligibility. Thus, even if the court erroneously considered Cuevas's injuries to conclude defendant intended to cause great bodily injury, such error was harmless.
We also reject defendant's contention that the court could not consider Cuevas's injuries in determining whether defendant was armed with a deadly weapon. As 18 explained above, a trial court can consider conduct relating to a charge on which the defendant was acquitted so long as the conduct is not inconsistent with the jury's findings. (Piper, supra, 25 Cal.App.5th at p. 1015.) Here, the most we can deduce from the jury's not guilty verdict on the assault charge is that defendant's claim of self-defense may have raised a reasonable doubt as to defendant's intent to commit assault. We therefore disagree with defendant's contention the jury's not guilty verdict constituted a finding defendant did not "actually use[] the blade in a manner causing significant injury to . . . Cuevas."
Evidence of Cuevas's injuries was relevant to prove assault with a deadly weapon and the associated great bodily injury allegation, as well as the offense of possession of a weapon while in prison. Cuevas's injuries - specifically the 10 to 20 stitches on his back and 20 stitches on his stomach - were evidence defendant possessed a sharp instrument while in prison and therefore the jury could have considered this evidence in finding defendant guilty of count II. The trial court was not precluded from considering Cuevas's injuries for resentencing purposes because there is nothing in the record to indicate the jury made any specific findings Cuevas was not injured during the altercation or that defendant did not cause the injuries. The jury's acquittal did not constitute a "finding[] inconsistent with either a facilitative or temporal nexus" between defendant and the razor blade. (Piper, supra, 25 Cal.App.5th at p. 1015.) Therefore, the trial court's finding, that defendant was armed with a deadly weapon because he used a razor blade against Cuevas in either an offensive or defensive manner causing significant injury, was not inconsistent with the jury's verdict. (See People v. Bland, supra, 10 Cal.4th at p. 997.) In sum, Cuevas's injuries were relevant in determining whether defendant was armed with a deadly weapon in the commission of the offense and the jury made no findings to the contrary. Accordingly, the trial court was permitted to consider Cuevas's injuries in determining whether defendant was armed with a razor blade during the commission of the offense. 19
Finally, we find unpersuasive defendant's reliance on Piper, supra, 25 Cal.App.5th at page 1015 and People v. Berry (2015) 235 Cal.App.4th 1417, disapproved by Estrada, supra, 3 Cal.5th at page 675. In Berry, the trial court found the defendant was ineligible for resentencing because he was armed with a firearm during the commission of possession of a fraudulent check. (Berry, at pp. 1422-1423.) However, "counts alleging he was in possession of a firearm had been dismissed in conjunction with his plea agreement." (Id. at p. 1420, italics omitted.) The Court of Appeal reversed, reasoning that a" 'defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count.' " (Berry, at p. 1426.) The court opined the same analysis would apply to an acquittal, inasmuch as it would be "inappropriate" for a court to determine a defendant possessed a firearm when a jury had been unable to find the defendant guilty of such conduct beyond a reasonable doubt. (Id. at p. 1428.) Piper reached a similar conclusion: where the jury acquitted the defendant of all firearm-related counts and found not true the allegation that he was armed in the commission of the offense, the trial court was precluded from making a finding inconsistent with those determinations. (Piper, at pp. 1010, 1016.) The reasoning of both cases is inapposite here because the jury's not guilty verdict does not conclusively resolve the question before the trial court, which was whether defendant had a sharp instrument available for use, either offensively or defensively. 20
Our Supreme Court disapproved of Berry's reasoning on this point: "What we do instead is to disapprove People v. Berry, supra, 235 Cal.App.4th 1417 to the extent it holds that a court is precluded from considering facts demonstrating that an inmate was armed during a third strike offense, simply because those facts also support a count the court dismissed. The view that such a limitation is implicit in Proposition 36 is one for which we find no support." (Estrada, supra, 3 Cal.5th at p. 675, italics & fn. omitted.) However, the high court declined to resolve whether a court's resentencing determination may rely on facts that underlie counts on which a defendant was acquitted. (Id. at p. 675, fn. 6.)
DISPOSITION
The order denying the petition for recall of sentence is affirmed.
WE CONCUR: POOCHIGIAN, Acting P. J. SMITH, J. 21