Filed 8/7/18
               CERTIFIED FOR PUBLICATION




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION FOUR


THE PEOPLE,                            B280033

       Plaintiff and Respondent,       (Los Angeles County
                                       Super. Ct. No. NA047666)
       v.

CHARLES MAURICE PIPER, JR.,

       Defendant and Appellant.



      APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Reversed and
remanded with directions.
      Stephen M. Vasil, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Noah P. Hill and Gary A. Lieberman, Deputy
Attorneys General, for Plaintiff and Respondent.
             _____________________________________
                         INTRODUCTION
       A jury found appellant 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 appellant was armed in the commission of the
offense. The jury also acquitted appellant of all firearm-related
counts, including being a felon in possession of a firearm and
carrying a loaded firearm. Appellant was sentenced to two
concurrent terms of 25 years to life as a “three-strike” offender.
       In the underlying action, the trial court denied appellant’s
motion under Penal Code section 1170.126 to be resentenced
pursuant to the Three Strikes Reform Act of 2012 (Reform Act).1
The court concluded, after an evidentiary hearing, that the
People had proven beyond a reasonable doubt that appellant was
“armed with a firearm” during the commission of the offenses
targeted in the petition. Appellant contends the court’s
determination is contrary to the jury’s verdict and must be
reversed. For the reasons set forth below, we conclude the trial
court erred in determining that appellant was ineligible for
resentencing. We remand for further proceedings on appellant’s
resentencing petition.




1
     All further statutory citations are to the Penal Code, unless
otherwise stated.




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FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       A.    Convictions and Acquittals2
       Shortly after midnight on January 24, 2001, Los Angeles
Police Sergeant Danny Contreras effected a traffic stop on Pacific
Coast Highway of a car matching the description of one carrying
suspects in a recent drive-by shooting. Appellant was driving the
vehicle and codefendant Andre Luzano was a passenger. When a
backup unit arrived, appellant was directed to exit his vehicle.
He responded by asking, “Why are you stopping me? Why are
you hassling me?” Appellant then drove away and the two patrol
vehicles gave chase. During the ensuing pursuit, appellant drove
through a residential neighborhood, slowed down, and then
accelerated. Officers did not see any item being thrown from the
vehicle. Hours later, a resident of the neighborhood reported
finding a .38-caliber handgun in front of his home. No
fingerprints were recovered from the handgun. Later in the
pursuit, appellant slowed down while on a railway bridge, and
officers observed a “dark,” “boxy” and “shiny” object, which
appeared to be a handgun, fly out the passenger’s window and
over the edge of the bridge. After searching the area, police
recovered a black box containing two live .45-caliber bullets.
Appellant eventually stopped the vehicle. Both men fled on foot,
but were apprehended. When appellant was discovered, seven
live rounds of .45-caliber ammunition fell from his pocket.
During the postarrest search of appellant, a live round of .45-
caliber ammunition was recovered from his front pants pocket.
2
      The factual background is based on the trial testimony and
on our prior unpublished opinion affirming appellant’s
convictions. (See People v. Piper (Oct. 28, 2003, B162352).)




                                3
       The drive-by shooting targeted the home of Gilbert
Montalvo and his girlfriend Jannet Quintana. The shooting left
multiple bullet holes in the front window and west wall of the
residence, and police recovered five .45-caliber shell casings at
the scene. Officer Contreras testified that at an in-field showup,
Montalvo identified appellant as the driver of the vehicle involved
in the drive-by shooting. However, Montalvo testified that
during the showup, he told the police he could not identify either
the driver or the passenger of the suspect vehicle, but was
pressured to do so. He stated he told the officers that appellant
and Luzano were not the suspects he saw, and claimed he signed
the police incident report identifying appellant as the driver
without being given an opportunity to read the report. Montalvo
testified that appellant’s vehicle was “very different” -- in terms
of color, styling and amount of tinted windows -- from the vehicle
that he had seen drive by his home.
       On October 31, 2001, appellant and Luzano were charged
in a second amended information with shooting at an inhabited
dwelling (§ 246; count 1), assault with a firearm on Montalvo and
Quintana (§ 245, subd. (a)(2); counts 2 and 3), and discharge of a
firearm with gross negligence (§ 246.3; count 4). Appellant was
separately charged with being a felon in possession of a firearm
(former § 12021, subd. (a)(1); count 5), being a felon in possession
of ammunition (former § 12316, subd. (b)(1); count 7), carrying a
loaded firearm after suffering a prior conviction (former § 12031,
subd. (a)(1); count 8), and evading a pursuing peace officer (Veh.
Code, § 2800.2; count 10).3 The information alleged that

3
      Count 6 (being a felon in possession of a firearm) and count
9 (carrying a loaded firearm) were alleged only against Luzano.



                                 4
appellant committed all the offenses “[o]n or about January 24,
2001.” As to count 10 (evading police), the information further
alleged that appellant was armed with a firearm in the
commission and attempted commission of the offense. Finally,
the information alleged that appellant had suffered seven prior
serious or violent felony convictions.
       On November 5, 2001, a jury convicted appellant of being a
felon in possession of ammunition (count 7) and evading a
pursuing peace officer (count 10). The jury found not true the
allegation that while evading the police, appellant was armed
with a handgun. It acquitted appellant of the remaining counts,
including being a felon in possession of a firearm and carrying a
loaded firearm. Codefendant Luzano was acquitted of all
charges.



       Former section 12021, subdivision (a)(1) (counts 5 and 6)
was repealed and reenacted without substantive changes as
section 29800, subdivision (a); former section 12316 (count 7) was
repealed and reenacted without substantive changes as section
30305, subdivision (a); and former section 12031, subdivision
(a)(1) (counts 8 and 9) was repealed and reenacted without
substantive change as section 25850, subdivision (a).
       Although the second information alleged in count 5 (being a
felon in possession of a firearm) that appellant was armed with a
.45-caliber handgun, the trial court permitted the prosecutor to
amend the information midtrial to allege that appellant was
armed with a .38-caliber handgun. As to count 8 (carrying a
loaded firearm), the second amended information did not allege
the specific handgun. However, the prosecutor explained to the
judge, and later argued to the jury, that this count related to the
charge that appellant had been carrying a loaded .45-caliber
handgun.



                                 5
       In a bifurcated court trial, the trial court found true the
prior conviction allegations. The court found appellant had
suffered five strikes and sentenced appellant to two concurrent
terms of 25 years to life under the Three Strikes law. In an
unpublished opinion, this court affirmed the judgment. (See
People v. Piper (Oct. 28, 2003, B139604).)
       B.     Petition for Recall of Sentence
       In 2012, the electorate enacted the Three Strikes Reform
Act (Reform Act) by approving Proposition 36. (People v.
Yearwood (2013) 213 Cal.App.4th 161, 167-170.) The Reform Act
amended the Three Strikes law to provide that absent specified
exceptions, an offender with two or more prior strikes is to be
sentenced as a two-strike offender unless the new offense also is
a strike, that is, a serious or violent felony. (See ibid.) The
Reform Act also added section 1170.126, which creates a
postconviction resentencing proceeding for specified inmates
sentenced under the prior version of the Three Strikes law.
(People v. Yearwood, supra, at pp. 167-170.) Under that statute,
a defendant sentenced as a three-strike offender may petition for
recall of the sentence and for resentencing, subject to certain
eligibility criteria. (§ 1170.126, subd. (e).) “The Reform Act’s
resentencing mechanism has three separate aspects: (1) the
initial petition for recall of the sentence, (2) a determination of
eligibility, and (3) the court’s discretionary decision whether the
defendant poses an unreasonable risk of danger to public safety.”
(People v. Frierson (2017) 4 Cal.5th 225, 234 (Frierson).)
       On January 11, 2013, appellant filed a petition for recall of
sentence and resentencing pursuant to section 1170.126. The
People opposed the resentencing petition, arguing that appellant
was ineligible for resentencing under an exclusion that applies if,



                                 6
“[d]uring the commission of the current offense, [that is, the
offense which the resentencing petition targets] the
defendant . . . was armed with a firearm or deadly weapon . . . .”
(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126,
subd. (e)(2).) The parties disputed whether the standard of proof
for the ineligibility determination was beyond a reasonable doubt
or by a preponderance of the evidence. On October 31, 2016, the
trial court held an evidentiary hearing on appellant’s
resentencing petition. On December 5, 2016, the trial court
denied the petition with prejudice, concluding that “regardless of
whether the correct standard of proof is beyond a reasonable
doubt or by a preponderance of the evidence,” appellant was
ineligible for resentencing because he “was armed with a firearm”
during his commission of the target offenses. This appeal
followed.
                            DISCUSSION
       The key issue before us concerns the circumstances under
which a jury’s verdict and findings in the petitioner’s trial
preclude or limit the trial court’s eligibility determination under
the Reform Act. On this issue, we draw guidance from Frierson,
supra, 4 Cal.5th 225, and People v. Arevalo (2016) 244
Cal.App.4th 836 (Arevalo). In Frierson, our Supreme Court
discussed the second aspect of a resentencing petition -- the
eligibility determination. After concluding that the People had
the burden of persuasion on this issue, the court discussed the
standard of proof. (See id. at p. 234.) The court first noted that
the Reform Act applies prospectively to defendants who have not
yet been sentenced and retrospectively to petitioners who have
already been sentenced. “‘[T]he parallel structure of the Act’s
amendments to the sentencing provisions and the Act’s



                                   7
resentencing provisions reflects an intent that sentences imposed
on individuals with the same criminal history be the same,
regardless of whether they are being sentenced or resentenced.
Both the sentencing scheme and the resentencing scheme provide
for a second strike sentence if the current offense is not a serious
or violent felony, and they set forth identical exceptions to the
new sentencing rules.’” (Frierson, supra, 4 Cal.5th at p. 236,
quoting People v. Johnson (2015) 61 Cal.4th 674, 686 (Johnson).)
The court reasoned that “the parallel construction of the
prospective and retrospective portions of the Reform Act reflects
an electoral intent to apply the same standard for proof of
ineligibility for second strike sentencing in both contexts.”
(Frierson, at p. 236.) The court rejected the People’s argument
that a lower standard of proof should apply on resentencing
because the case had been “fully litigated.” It found that “nothing
in the Reform Act’s language suggests the electorate
contemplated that a lower standard of proof should apply at
resentencing to compensate for any potential evidentiary
shortcoming at a trial predating the Act.” (Id. at p. 238.) The
court concluded that the People had the burden of proving beyond
a reasonable doubt that the petitioner was ineligible for
resentencing under the Reform Act. (Id. at p. 240, fn. 8.)
       In concluding that the standard of proof was beyond a
reasonable doubt, the Frierson court quoted extensively from
Arevalo. (See Frierson, supra, 4 Cal.5th at pp. 235-236 [noting
that defendant’s argument for a beyond a reasonable doubt
standard mirrors the reasoning in Arevalo and that defendant
has the “better view”].) In Arevalo, following a bench trial, the
defendant was found guilty of grand theft auto and driving a
vehicle without the owner’s consent. He was acquitted of



                                 8
burglary and possession of a firearm charges, and the court found
the “armed with a firearm” allegation not true. After being
sentenced as a third striker, Arevalo filed a resentencing petition
under the Reform Act. (Arevalo, supra, 244 Cal.App.4th at p.
843.) The trial court denied the petition after concluding that
under the preponderance of the evidence standard, Arevalo was
“armed with a firearm” during the commission of the grand theft
auto. (Id. at p. 844.) The appellate court reversed. The court
held that the correct standard of proof was beyond a reasonable
doubt, as “[u]nder a lesser standard of proof, nothing would
prevent the trial court from disqualifying a defendant from
resentencing eligibility consideration by completely revisiting an
earlier trial, and turning acquittals and not-true enhancement
findings into their opposites.” This would violate Johnson’s
“‘equal outcomes’” directive. (Id. at p. 853.) The appellate court
concluded that “[u]nder the applicable beyond a reasonable doubt
standard, Arevalo’s acquittal on the weapon possession charge
and the not-true finding on the allegation of being armed with a
firearm, preclude a finding that he is ineligible for resentencing
consideration.” (Ibid.)
       Under Frierson and Arevalo, on a resentencing petition, the
trial court may not make an eligibility determination contrary to
the jury’s verdict and findings. 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.” (Frierson,
supra, 4 Cal.5th at p. 238.) It also would allow a trial court,
contrary to Johnson, to “turn[] acquittals and not-true
enhancement findings into their opposites.” (Arevalo, supra, 244
Cal.App.4th at p. 853.)




                                 9
       Citing People v. Bradford (2014) 227 Cal.App.4th 1322
(Bradford), respondent argues that the trial court was not
constrained by the jury’s acquittals or not-true findings.
Respondent’s reliance on Bradford is misplaced. There, the
petitioner had argued that the trial court was precluded from
making a determination that he was armed during the
commission of the offenses targeted in his resentencing petition,
as the prosecution “‘neither charged appellant with being armed
with a deadly weapon nor was such an enhancement ever found
true in relation to any of appellant’s current convictions.’” (Id. at
p. 1331.) The appellate court rejected the petitioner’s argument,
holding that the Reform Act permitted the trial court to make the
eligibility determination on evidence found in the record of
conviction. It never addressed the effect of a jury’s acquittal or
not-true finding on an arming enhancement on the trial court’s
eligibility determination.
       Here, appellant was acquitted of all firearm-related
charges, and the jury found not true the allegation that he was
“armed” in the commission of the offense of evading the police.
Respondent argues that the jury’s not-true finding on the arming
enhancement does not preclude a determination that appellant
was ineligible for resentencing under the “armed” exception in
the Reform Act, because the former requires both a facilitative
nexus and a temporal nexus, while the latter requires only a
temporal nexus. (See People v. Cruz (2017) 15 Cal.App.5th 1105,
1111-1112 [jury’s not-true finding on knife use enhancement does
not render defendant eligible for resentencing under the Reform
Act].) We agree 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



                                 10
Act that a defendant was armed. In this case, however, the jury’s
acquittals constituted findings inconsistent with either a
facilitative or temporal nexus between appellant and any firearm.
As noted, the jury was presented with evidence about only two
firearms -- the .38-caliber handgun found in front of a residence
and a .45-caliber handgun never recovered but used in the drive-
by shooting. With respect to the .45, the jury acquitted appellant
of all related charges, including count 8 (carrying a loaded
firearm). With respect to the .38, the jury acquitted appellant of
count 5 (being a felon in possession of a firearm). All the firearm-
related charges encompassed the same time period as the
underlying convictions for evading the police and possession of
live ammunition, viz., “[o]n or about January 24, 2001.” The
jury’s determinations thus conclusively rejected the claim that
appellant was “armed with a firearm” on or about that date.
That rejection foreclosed any later finding beyond a reasonable
doubt that appellant was “armed with a firearm,” either while
evading the police or while in possession of live ammunition.
Accordingly, appellant was not ineligible for resentencing under
the “armed” exception.4
      Having reversed the trial court’s eligibility determination,
we remand the matter to the trial court to exercise its discretion
whether to deny resentencing to a defendant who poses an
unreasonable danger to the public. “In exercising its discretion,

4
      Appellant could not be found “armed” under the doctrine of
vicarious arming, as appellant’s codefendant was acquitted of all
charges. Nor could appellant be found “armed” with “a deadly
weapon,” as no evidence suggests that during the chase,
appellant drove his vehicle in such a manner as to render the
vehicle a deadly weapon.



                                11
the court may consider a wide variety of factors, such as the
petitioner’s whole criminal history, including ‘the extent of injury
to victims, the length of prior prison commitments, and the
remoteness of the crimes,’ [the] petitioner’s ‘disciplinary record
and record of rehabilitation while incarcerated,’ and any other
relevant evidence.” (See Frierson, supra, 4 Cal.5th at p. 240.)
“‘[T]he facts upon which the court’s finding of unreasonable risk
is based must be proven by the People by a preponderance of the
evidence.’” (Id. at p. 239, quoting People v. Buford (2016) 4
Cal.App.5th 886, 901.)
                           DISPOSITION
       The order denying appellant’s resentencing petition is
reversed. The matter is remanded for further proceedings
consistent with this opinion.

      CERTIFIED FOR PUBLICATION




                                      MANELLA, Acting P.J.



COLLINS, J.



MICON, J.*


_____________________________________________________
*Judge of the Los Angeles County Superior Court assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.


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