Filed 3/1/16 P. v. Braziel CA2/7
Opinion on remand from Supreme Court

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B249830

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA183095)
         v.

HOMER RAY BRAZIEL,

         Defendant and Appellant.




                   APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Reversed and remanded with directions.


                   Jonathan B. Steiner and Suzan E. Hier for Defendant and Appellant.


                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William
Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and
Respondent.


                                           ______________________
                                    INTRODUCTION


       Homer Ray Braziel filed a notice of appeal from an order denying his petition for
recall of his sentence under the three strikes law pursuant to Penal Code section
1170.126,1 part of Proposition 36, the Three Strikes Reform Act of 2012. We deemed his
notice of appeal a petition for writ of mandate, issued an order to show cause why we
should not order the trial court to vacate its order denying the petition, and then denied
the petition. The Supreme Court granted review and transferred the matter to this court
for reconsideration in light of People v. Johnson (2015) 61 Cal.4th 674 (Johnson). We
now reverse and remand the matter to the superior court for further proceedings in
accordance with the procedures specified in section 1170.126.


                  FACTUAL AND PROCEDURAL BACKGROUND


       On May 6, 1999 the People charged Braziel by information with two counts of
assault by means likely to produce great bodily injury (former § 245, subd. (a)(1), now
§ 245, subd. (a)(4); counts 1 and 4); assault with a deadly weapon, a knife (id., § 245,
subd. (a)(1); count 2); and making a terrorist threat (now making a criminal threat, see
People v. Moore (2004) 118 Cal.App.4th 74, 78-79) (§ 422; count 3). The People alleged
that Braziel had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and five
prior convictions for which he had served prison terms (§ 667.5, subd. (b)). On August 4,
1999 the jury found Braziel guilty on counts 1 through 3 and found true all prior
conviction allegations.
       The trial court imposed three strikes sentences of 25 years to life on all three
counts. The court ordered that Braziel serve the sentences on counts 1 and 3 concurrently
and stayed sentence on count 2 pursuant to section 654. The court also imposed four
years under section 667.5, subdivision (b), for a total term of 29 years to life.


1      All statutory references are to the Penal Code.

                                              2
       On May 7, 2013 Braziel filed a petition for recall of his sentence pursuant to
section 1170.126. The trial court denied his petition on the ground that one of his current
offenses was a serious felony under section 1192.7, subdivision (c)(38), making him
ineligible for resentencing.
       Braziel filed a notice of appeal, which we deemed a petition for writ of mandate.2
After we denied the petition, Braziel filed a petition for review, which the Supreme Court
granted. The Supreme subsequently transferred the matter to this court for
reconsideration in light of the Supreme Court’s decision in Johnson.


                                        DISCUSSION


       In Johnson, the Supreme Court held that section 1170.126 “requires an inmate’s
eligibility for resentencing to be evaluated on a count-by-count basis. So interpreted, an
inmate may obtain resentencing with respect to a three-strikes sentence imposed for a
felony that is neither serious nor violent, despite the fact that the inmate remains subject
to a third strike sentence of 25 years to life.” (Johnson, supra, at p. 688.) Therefore,
under Johnson, we must evaluate each of Braziel’s convictions on a count-by-count basis,
       Braziel’s conviction for assault by means likely to produce great bodily injury may
or may not be not a serious or violent felony, depending on whether Braziel actually
inflicted great bodily injury on his victim. (§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8);
see People v. Delgado (2008) 43 Cal.4th 1059, 1065 [“assault merely by means likely to
produce [great bodily injury], without the additional element of personal infliction, is not
included in the list of serious felonies”]; People v. Fox (2014) 224 Cal.App.4th 424, 434,
fn. 8 [“assault with force likely to produce great bodily injury is not, by itself, a strike


2      At the time, it was unclear whether an order denying a petition for recall of
sentence under section 1170.126 on the ground that the inmate was ineligible for
resentencing under section 1170.126, subdivision (f), was appealable. In Teal v. Superior
Court (2014) 60 Cal.4th 595, the Supreme Court held that such an order is appealable.


                                               3
offense,” but it is when “‘“the additional element of personal infliction” of great bodily
injury is found present’”].) The People did not allege, and the jury did not find, that
Braziel actually inflicted great bodily injury. The court, however, can still look to the
entire record of conviction to determine whether Braziel inflicted great bodily injury.
(People v. Arevalo (2016) ___ Cal.App.4th ___, ___, 2016 WL 489710, p. 5; People v.
Guilford (2014) 228 Cal.App.4th 651, 659-660; see People v. Estrada (2015) 243
Cal.App.4th 336, 340 [“[a] trial court ‘determining whether an inmate is eligible for
resentencing under section 1170.126 may examine [all] relevant, reliable, admissible
portions of the record of conviction to determine the existence of a disqualifying
factor’”]; People v. Bradford (2014) 227 Cal.App.4th 1322, 1338 [“the statutory
language and framework of Proposition 36 contemplate a determination of a petitioner’s
eligibility for resentencing based on the record of conviction”].) Therefore, on remand
the superior court will have to determine from the record of conviction whether Braziel
inflicted great bodily injury in order to determine whether Braziel is eligible for
resentencing on his conviction for assault by means likely to produce great bodily injury.
       Although at the time of Braziel’s conviction in 1999 his conviction for assault
with a deadly weapon was not a serious felony unless he personally used a deadly
weapon in the commission of the assault, by the time the voters enacted Proposition 36 in
November 2012 all convictions for assault with a deadly weapon were serious felonies.
(§ 1192.7, subd. (c)(31); see People v. Delgado, supra, 43 Cal.4th at p. 1070, fn. 4
[Proposition 21, adopted in March 2000, “made serious felonies of all assaults with
deadly weapons, not just those in which the defendant personally used a deadly
weapon”]; People v. Myers (2007) 148 Cal.App.4th 546, 554 [Proposition 21, adopted in
March 2000, “‘delet[ed] for serious felony purposes the personal use requirement for
assault with a deadly weapon,’” so that the “definition of ‘serious felony’ now includes
any ‘assault with a deadly weapon [or] firearm . . . in violation of Section 245,’ without
reference to personal use”].) And in Johnson, the Supreme Court held that “when a court
resentences a third-strike defendant the classification of an offense as serious or violent is



                                              4
based on the law as of November 7, 2012” (Johnson, supra, 61 Cal.4th at p. 680), at
which time assault with a deadly weapon was a serious felony regardless of personal use.
         Finally, Braziel’s conviction for making a criminal threat is a serious felony.
(§ 1192.7, subd. (c)(38); see People v. Superior Court (2013) 215 Cal.App.4th 1279,
1287.)
         Therefore, although Braziel’s convictions for assault with a deadly weapon and
making a criminal threat are disqualifying convictions under section 1170.126, pursuant
to the Supreme Court’s decision in Johnson Braziel may be eligible for recall of his third
strike sentence for assault by means likely to produce great bodily injury, if the court
determines that Braziel did not inflict great bodily injury. If the court determines that
Braziel did not inflict great bodily injury, then the court must resentence Braziel as a
second strike offender on his conviction for assault by means likely to produce great
bodily injury pursuant to section 1170.126, if he satisfies all of the criteria set forth in
section 1170.126, subdivision (e), “unless the court, in its discretion, determines that
resentencing [Braziel] would pose an unreasonable risk of danger to public safety.”
(§ 1170.126, subd. (f).)


                                       DISPOSITION


         The order is reversed. The matter is remanded with directions to the superior
court to determine from the record of conviction whether Braziel inflicted great bodily
injury. If the court finds that Braziel inflicted great bodily injury, then the court must
deny the petition for recall of sentence. If the court finds that Braziel did not inflict great
bodily injury, then the court must grant the petition for recall of sentence and determine,
in compliance with the provisions of section 1170.126, whether Braziel is eligible under
section 1170.126, subdivision (e), for resentencing on his conviction for assault by means
likely to produce great bodily injury, and, if so, to resentence Braziel on that conviction,




                                               5
unless the court, in its discretion, determines that resentencing Braziel would pose an
unreasonable risk of danger to public safety under section 1170.126, subdivision (f).




              SEGAL, J.


We concur:




              PERLUSS, P. J.




              ZELON, J.




                                             6
