Filed 12/4/14 Aston v. Super. Ct. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



DANIEL JOSEPH ASTON,

         Petitioner,                                                     E059598

v.                                                                       (Super.Ct.No. HEF970146)

THE SUPERIOR COURT OF                                                    ORDER MODIFYING OPINION
RIVERSIDE COUNTY,
                                                                         NO CHANGE IN JUDGMENT
         Respondent;

THE PEOPLE,

         Real Party in Interest.




THE COURT:

         The opinion herein, filed on November 26, 2014, is modified as follows:

         1. The superscript number 4 indicating a footnote in the last sentence on page 4 is

              deleted.

         2. The footnote numbered 5 on page 5 is renumbered 4.

         3. The footnote numbered 6 on page 5 is renumbered 5.


                                                             1
       4. The footnote numbered 7 on page 9 is renumbered 6.

       5. The footnote numbered 8 on page 13 is renumbered 7.

          There is no change in the judgment.




                                                          MILLER
                                                                   J.
We concur:

RAMIREZ
                      P. J.

KING
                         J.




                                           2
Filed 11/26/14 unmodified version

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



DANIEL JOSEPH ASTON,

         Petitioner,                                                     E059598

v.                                                                       (Super.Ct.No. HEF970146)

THE SUPERIOR COURT OF                                                    OPINION
RIVERSIDE COUNTY,

         Respondent;

THE PEOPLE,

         Real Party in Interest.




         ORIGINAL PROCEEDINGS; petition for writ of mandate. Timothy F. Freer,

Judge. Petition granted.

         Steven L. Harmon, Public Defender, Joshua A. Knight and Joseph J. Martinez,

Deputy Public Defenders, for Petitioner.

         No appearance for Respondent.




                                                             1
       Paul E. Zellerbach, District Attorney, and Emily Hanks, Deputy District Attorney,

for Real Party in Interest.

       Petitioner Daniel Joseph Aston sought to be resentenced under Penal Code section

1170.126, known as the Three Strikes Reform Act of 2012 (Prop. 36, as approved by

voters, Gen. Elec. (Nov. 6, 2012)) (the Act). The superior court found that he was not

eligible for resentencing under that provision. He now challenges the ruling in the instant

petition for writ of mandate. Although disqualifying factors need not be pled or proven,

we 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.

                    FACTUAL AND PROCEDURAL BACKGROUND

       A jury convicted petitioner of unlawfully driving/taking a vehicle (Veh. Code,

§ 10851) and fleeing from a pursuing officer with willful and wanton disregard for safety

(Veh. Code, § 2800.2). In bifurcated proceedings, the trial court found he had suffered

four prior convictions for which he served prison sentences (Pen. Code, § 667.5,

subd. (b)),1 and three strike priors (Pen. Code, § 667, subds. (c), (e)). He was sentenced

to four years, plus 50 years to life. In a nonpublished opinion (People v. Aston (May 19,

1999, E022332)), this court reversed the conviction due to instructional error.


       1   Further statutory references are to the Penal Code, unless otherwise stated.



                                              2
       During the retrial, the trial court granted petitioner’s Faretta2 motion and he then

entered into a plea agreement. He pleaded guilty to the vehicle theft and admitted the

four prison priors and three strike priors. The charge of fleeing from a pursuing officer

was dismissed at sentencing. Petitioner was sentenced to four years plus 25 years to life

in prison under the three strikes law.

       After the passage of Proposition 36 in November 2012, petitioner filed a petition

to recall his sentence pursuant to section 1170.126. After reviewing the petition, Judge

Dugan appointed the public defender to represent petitioner, notified the district attorney,

and set the matter for a recall sentence conference. This conference was continued

several times, and the matter was ultimately heard by Judge Freer.

       The People filed opposition, arguing that petitioner was not eligible for

resentencing because he had agreed to serve an indeterminate term of 25 years to life,

plus four years, pursuant to a negotiated plea agreement. They contended the sentence

was a material term of the agreement and the People are entitled to the benefit of the plea

bargain. In addition, the People asserted petitioner was armed with a dangerous weapon,

a machete, during the commission of the offense and, thus, ineligible for recall of his

sentence.

       In order to determine whether he was armed with a dangerous weapon during the

commission of the offense, petitioner contended that the armed allegation had to have

been pled and proven and the court could not go outside the record of conviction. He

       2   Faretta v. California (1975) 422 U.S. 806.


                                             3
pointed to the fact he was never charged with, nor was there any evidence, that he

possessed the machete. The trial court indicated that section 1170.126 contains no

pleading and proof requirement. Furthermore, it could look beyond the record of

conviction and consider any other relevant evidence to make a determination as to

whether or not a person is eligible for resentencing.3

       An evidentiary hearing was conducted on July 16, 2013, and certain exhibits were

admitted. Petitioner’s prison records, including parole revocation hearing documents

relating to the incident that led to the current conviction were admitted as Exhibit 1

(Charge Sheet/Revocation Tracking/Scheduling Request). The court considered the trial

testimony of Sheriff Sergeant Scott Baeckel (exhibit 3); California Highway Patrol

Officer Michael Judge (exhibit 4); a map (exhibit 5); and the declarations of Riverside

Sheriff’s Investigator Robert Masson and Deputy District Attorney Michael Silverman.

Masson’s declaration attached a copy of a photograph he took depicting the machete at

the scene of petitioner’s arrest. Silverman declares that the copy of the map was used to

create an exhibit referenced in Baeckel’s trial testimony. With the exception of a copy of

the police report that was withdrawn,4 the trial court overruled petitioner’s objections to

these items on the grounds of hearsay, relevance, and lack of foundation.




       3  The record initially submitted with his petition did not include the transcript of
the entire hearing of June 28, 2013. Petitioner submitted a transcript of the previously
omitted portions of the hearing. We grant his request for judicial notice of this transcript.



                                              4
       At the conclusion of the evidentiary hearing, Judge Freer found by clear and

convincing evidence that petitioner was not eligible for resentencing because he had been

armed with a dangerous weapon.

                                        DISCUSSION

       Petitioner seeks writ review5 of the superior court’s denial, contending that Judge

Freer exceeded his jurisdiction when he found petitioner was not eligible for resentencing

after Judge Dugan had previously found that he was. Further, he contends that the

finding of ineligibility was erroneous because the superior court based its ruling on facts

outside the record of his conviction. We reject the first contention, but conclude that we

must grant the petition and remand for a new hearing because we cannot determine

whether the trial court based its finding of ineligibility on reliable, admission portions of

the record of conviction.

       Jurisdiction.

       Petitioner alleges that Judge Dugan is the judge assigned to review all petitions for

recall of sentence under section 1170.126,6 and that she ruled that he was eligible for


       5  The Supreme Court has determined that the order is appealable. (Teal v.
Superior Court (S211708, filed 11/6/14.) However, we issued the order to show cause in
this case before the Supreme Court’s decision when the issue of appealability of the order
was still uncertain.

       6   The People respond that that petitioner has failed to cite to anything in the
record supporting the assertion that Judge Dugan is the bench officer assigned to screen
all recall petitions. While petitioner disputes this in his traverse, resolution of this matter
is irrelevant to our decision. In this case, Judge Dugan was the bench officer who
reviewed the petition initially.


                                               5
resentencing. He contends that Judge Freer overruled a prior order from Judge Dugan,

thus exceeding his authority.

       Petitioner points out that it is settled law that one judge of the superior court

cannot overrule another judge of the superior court. (Ford v. Superior Court (1986) 188

Cal.App.3d 737.) In Ford, the superior court entered judgment in a cause, consisting in

part of an order regarding the disposition of documents made part of the record at trial.

The court declared that some documents could not be returned to the litigants in the

action, and ordered that some documents remain sealed, while others were available for

public inspection and comment. Plaintiffs, who were not parties to the original action but

alleged they were persons named in these documents, sought an injunction in another

department of the superior court to restrain execution of the part of the judgment relating

to the disposition of the documents. The reviewing court affirmed the order of the second

superior court dismissing plaintiffs’ action. It reasoned that because the superior court is

but one court, one department of a superior court cannot review and restrain the judgment

entered by another department. Accordingly, it concluded that “judgment rendered in

one department of the superior court is binding on that matter upon all other departments

until such time as the judgment is overturned.” (Ford, at p. 742; see also Elsea v. Saberi

(1992) 4 Cal. App. 4th 625 [when one department of superior court has entered judgment

and an order denying a motion to vacate judgment is on appeal, another department

cannot permit intervention of a third party and order the judgment set aside as to that

party].)



                                              6
       This is not such a case. As petitioner concedes, Judge Dugan never made an

explicit finding of his eligibility. He contends, however, that her actions in appointing

the public defender, noticing the district attorney, and setting further court proceedings

imply that she found he was statutorily eligible for resentencing. Judge Dugan never

entered an order to this effect. Judge Dugan merely made a preliminary determination

and continued the matter for further hearing. Judge Freer’s order did not interfere with

any prior order. He was assigned to preside over the case and make a final ruling.

       Moreover, Judge Dugan’s assessment, even if it had been reduced to a formal

order, could not be binding upon the People because it was reached before they were

given notice and an opportunity to be heard. (See People v. Superior Court (Kaulick)

(2013) 215 Cal.App.4th 1279, 1297.) Kaulick holds that the prosecution has a due

process right to notice and an opportunity to be heard on the issue of dangerousness. The

decision suggested that the prosecution might also have the right to notice and a hearing

on the issue of whether a prisoner is initially eligible for resentencing, especially to the

extent that determination may be based on anything other than the undisputed record of

conviction. (Id. at pp. 1297-1298, fn. 21.) The Kaulick court indicated that in such

circumstances the prosecution could present evidence on the issue whether the

dangerousness exception applies. We believe that the prosecution’s role in assessing

eligibility is not limited to the presentation of evidence, but also includes its views on the

construction and application of relevant statutes. The prosecution has a due process right




                                              7
to notice and an opportunity to be heard before a binding ruling is made finding a

petitioner eligible for resentencing under the Act.

       The People also assert that petitioner failed to raise an objection to Judge Freer

considering his eligibility for resentencing and, therefore, he has forfeited this argument.

Petitioner concedes that he made no objection, but responds that forfeiture does not occur

where the court acted in excess of its jurisdiction or beyond its legal authority. (In re

Stier (2007) 152 Cal.App.4th 63.) Neither doctrine applies here as discussed ante.

       Eligibility for Resentencing.

       To be eligible for recall of sentence under the Act, the inmate’s current offense

must not have been imposed for statutorily enumerated crimes or certain conduct

specified in sections 667, subdivision (e)(2)(C)(i)-(iii), or 1170.12,

subdivision (c)(2)(C)(i)-(iii). If the third strike is not a serious or violent felony, the

inmate is entitled to be resentenced, unless one of the exceptions applies. One such

exception is where the defendant “used a firearm, was armed with a firearm or deadly

weapon, or intended to cause great bodily injury” in the commission of the offense.

(§§ 667, subd. (e)(2)(C)(i)-(iii), 1170.12, subd. (c)(2)(C)(i)-(iii).)

       The People contend that petitioner is statutorily ineligible for resentencing

pursuant to section 1170.126 because he was armed in the commission of the current

offense. It appears that he 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 petitioner’s machete and, thus,



                                                8
concluded by clear and convincing evidence that he was armed with a deadly weapon

during the commission of the offense.7

       Neither section 667 nor section 1170.12 defines “armed with a firearm or deadly

weapon.” In such circumstances the plain, ordinary meaning of “armed” should be used

to implement the voters’ intent. (Robert L. v. Superior Court (2003) 30 Cal.4th 894,

900.) The plain meaning of “armed with” means to carry a weapon or have it available

for use in either offense or defense. (People v. Pitto (2008) 43 Cal.4th 228, 236.) This

court has recently concluded that the electorate intended “armed with a firearm,” as that

phrase is used in the Act, to mean having a firearm available for offensive or defensive

use. (People v.Brimmer (2014) 230 Cal.App.4th 782 (Brimmer).) This decision is in

accord with the decisions of our colleagues in other courts. (People v. Blakely (2014)

225 Cal.App.4th 1042, 1052 (review denied July 9, 2014, S218914) (Blakely); People v.

White (2014) 223 Cal.App.4th 512.) We conclude that “armed with a deadly weapon”

has the same meaning under the Act.

       For the reasons explained in Brimmer, the trial court is not limited to the factual

elements of the conviction offense or enhancement in determining whether the defendant

was armed with a deadly weapon during the commission of the conviction offense or

enhancement. Rather, it may examine relevant, reliable, admissible portions of the record

of conviction to determine the existence of the disqualifying factor. (Brimmer, supra,

       7 The People argued that the vehicle was a deadly weapon as well, but the judge
apparently did not base its ruling on this factor.



                                             9
230 Cal.App.4th at pp. 800-801.) In accord are the decisions in White, Blakely, and

People v. Osuna (2014) 225 Cal.App.4th 1020.

       Petitioner contends that the trial court improperly considered items outside the

record of conviction in finding he is ineligible for resentencing. The People respond that

petitioner forfeited this claim by failing to object to the admission of these documents on

this ground. (See Evid. Code, § 353; People v. Abel (2012) 53 Cal.4th 891, 924; People

v. Nelson (2011) 51 Cal.4th 198, 223; People v. Rivera (2011) 201 Cal.App.4th 353, 360-

361.) In a brief filed in the trial court, petitioner argued that the prosecution had the

burden of proving the existence of disqualifying factors within the parameters of the rules

pertaining to the “record of conviction.” Although conceding that the parameters of the

“record of conviction” were somewhat undefined, he asserted that the court could look to

the record of the conviction, but no further. His oral arguments were focused on urging

the pleading and proof requirement, but he did incorporate the arguments in the pleading.

A distinct issue raised at oral argument was what evidence the court could consider to

determine the existence of a disqualifying factor. The trial court concluded that it could

consider any relevant evidence. Under these circumstances, petitioner did not forfeit the

argument that the trial court erred in considering matters outside the record.


       As we stated in Brimmer, the trial court may look to the “relevant, reliable,

admissible portions of the record of conviction to determine disqualifying factors.”

(Brimmer, supra, 230 Cal.App.4th at pp. 800-801, quoting Blakely, supra, 225

Cal.app.4th at p. 1063; see also People v. Bradford (2014) 227 Cal.App.4th 1322, 1336-


                                              10
1338; People v. Bartow (1996) 46 Cal.App.4th 1573, 1579 (Bartow) [threshold

admissibility question is whether item is within entire record of conviction; if it is, court

must determine whether rules of evidence authorize its admission].)

       In People v. Bradford (2014) 227 Cal.App.4th 1322, the court held that

determination of the “armed with a deadly weapon” disqualifying factor was limited to

the record of conviction because the language and framework of Proposition 36

contemplate a determination of a petitioner’s eligibility was similar to the determination

of a prior conviction as an enhancement under Guerrero. “Regarding eligibility, the

current statute contains no procedure permitting the trial court to consider new evidence

outside of the record of conviction, and we decline to imply such a procedure. To do so

would impose a cumbersome two-step process in which the trial court would be required

to consider new evidence at two stages of the proceedings. Had the drafters of

Proposition 36 intended the trial court to consider newly offered ‘evidence’ at the

eligibility stage, they would have include express language of the type they did to

describe the nature of the court’s later, discretionary sentencing determination.”

(Bradford, at p. 1339.)

       While the exact parameters of “record of conviction” are somewhat ill-defined

(see People v. Woodell (1998) 17 Cal.4th 448, 454), it has been held that the record of

conviction includes the charging document and court records reflecting a defendant’s

admission, no contest plea, or guilty plea (People v. Reed (1996)13 Cal.4th 217, 224

(Reed)). It also includes those portions of a probation officer’s report that contain the



                                              11
defendant’s admissions. (People v. Garcia (1989) 216 Cal.App.3d 233, 237.) “[F]acts

established within the record of conviction, even if those facts were not essential to the

judgment” may be considered. (People v. Smith (1988) 206 Cal.App.3d 340, 344 [court

considered the defendant’s admission that he entered a residence, although this fact was

not essential to his second degree burglary conviction].) The record of conviction also

includes pretrial motions and closing arguments (White, supra, 223 Cal.App.4th at

p. 525) and the prior opinion in defendant’s appeal (Brimmer, supra, 230 Cal.App.4th at

pp. 800-801). A preliminary hearing transcript is also considered part of the record of

conviction and admissible to support a determination that a prior conviction was a serious

felony. (People v. Reed, supra, 13 Cal.4th at p. 230; People v. Trujillo (2006) 40 Cal.4th

165, 177.) In addition, a transcript of testimony given in a trial that resulted in a mistrial

may constitute part of the record of conviction. (Bartow, supra, 46 Cal.App.4th at

p. 1579.)

       However, documents prepared after the conviction and sentencing are not part of

the record of conviction. (People v. Lewis (1996) 44 Cal.App.4th 845, 851-852.)

Moreover, by requiring that the trier of fact look to the entire record of conviction but no

further, the prosecution is precluded from calling live witnesses to the criminal acts in a

prior case to prove that conviction was for a serious felony. The People may not

relitigate the facts behind the record. (Reed, supra, 13 Cal.4th 217, 226.)

       Here, the trial court erred in admitting the California Department of Corrections

and Rehabilitation records. It is unclear from the other items whether the machete, or a



                                              12
photograph of it, was referenced at the trial. We cannot tell whether the finding of

ineligibility finding was based on reliable, admissible portions of the record of

conviction, or whether there was sufficient evidence to support that finding.

Accordingly, we must grant the petition.

                                       DISPOSITION

       Let a peremptory writ of mandate issue directing the Superior Court of Riverside

County to vacate its order finding petitioner ineligible for resentencing and to conduct

further proceedings in accordance with this opinion.8

       Petitioner is directed to prepare and have the peremptory writ of mandate issued,

copies served, and the original filed with the clerk of this court, together with proof of

service on all parties.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 MILLER
                                                                                             J.
We concur:

RAMIREZ
                          P. J.

KING
                             J.

       8 Even if the trial court ultimately determines that petitioner is eligible for
resentencing because there is insufficient evidence based on the record of conviction to
support a finding that petitioner was armed with a deadly weapon, it has the discretion to
consider any evidence, including whether he was armed with the machete, to determine
whether resentencing petitioner would pose an unreasonable risk of danger to public
safety. (§ 1170.126, subd. (f).)


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14
