Filed 4/20/16 P. v. Herrera CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,
                                                                                           F070531
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 95CM7163)
                   v.

CARLOS HERRERA,                                                                          OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Thomas
DeSantos, Judge.
         Brandie Devall, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Gomes, Acting P.J., Kane, J. and Smith, J.
       Carlos Herrera petitioned the trial court to be resentenced pursuant to the Three
Strikes Reform Act of 2012 (the Act). The trial court denied the petition finding Herrera
was ineligible for resentencing under the terms of Penal Code section 1170.126.1 We
affirm the trial court’s order.
                     FACTUAL AND PROCEDURAL SUMMARY
       In 1994, Herrera was an inmate in Corcoran State Prison serving a 13-year
sentence for two counts of voluntary manslaughter. In October of that year, Herrera and
his cell were searched. During the search, correctional officers observed a dark object in
Herrera’s nose. The object was removed in the prison hospital and found to be a razor
blade encased in a piece of paper. Herrera was tried and convicted of violating
section 4502, subdivision (a), possession of a sharp instrument by a prisoner. He was
sentenced to a third strike term of 25 years to life.2
       In 2014, Herrera filed a petition seeking resentencing pursuant to
section 1170.126. This petition focused primarily on Herrera’s numerous positive
accomplishments while incarcerated, but failed to focus on the issue in this case, whether
Herrera was eligible for resentencing under the terms of the statute. The trial court
determined Herrera was ineligible for resentencing because he possessed a deadly
weapon when he committed the act that led to his conviction for violating section 4502.
                                        DISCUSSION
       Section 1170.126, enacted as part of the Act, defines those eligible for
resentencing as inmates serving an indeterminate third strike sentence and:
       (1) not serving a sentence for a crime that is listed as a serious or violent felony
(§§ 667.5, subd. (c) & 1192.7, subd. (c));


1      All further statutory references are to the Penal Code unless otherwise indicated.
2       These facts were obtained from the opinion this court issued in Herrera’s appeal from his
section 4502 conviction. (People v. Herrera (June 13, 1997, F024362) [nonpub. opn.].)


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       (2) not serving a sentence for a crime that is listed in section 667,
subdivision (e)(2)(C), clauses (i) through (iii), or section 1170.12, subdivision (c)(2)(C),
clauses (i) through (iii); and
       (3) who do not have a prior conviction for an offense appearing in section 667,
subdivision (e)(2)(C), clause (iv), or section 1170.12, subdivision (c)(2)(C), clause (iv).
(§ 1170.126, subd. (e).)
       If an inmate is eligible under the statute, then he must be resentenced “unless the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)
       This statute requires the trial court to conduct a two-step analysis. First, the trial
court must determine if the inmate is eligible for resentencing. If the inmate is eligible
for resentencing, then the trial court must decide if resentencing the inmate would pose
an unreasonable risk of danger to public safety. An inmate will be resentenced only if he
or she is eligible, and the trial court concludes he or she does not pose an unreasonable
risk of danger to public safety. (People v. Superior Court (Kaulick) (2013) 215
Cal.App.4th 1279, 1299.) If the inmate is ineligible for resentencing, or the trial court
concludes in the exercise of its discretion the inmate would pose an unreasonable risk of
danger to public safety, then the petition is denied.
       In this case, the trial court’s analysis did not proceed beyond the first step of the
analysis because it concluded Herrera was ineligible for resentencing, relying on
section 667, subdivision (e)(2)(C)(iii). As relevant, this section reads “[d]uring the
commission of the current offense, the defendant used a firearm, was armed with a
firearm or deadly weapon, or intended to cause great bodily injury to another person.” In
this case, the trial court concluded the item possessed by Herrera, which resulted in his
conviction for violating section 4502, was a deadly weapon.
       Section 667, subdivision (e)(2)(C)(iii) does not define the term deadly weapon.
Therefore, we accord to the phrase the definition that has evolved through case law.

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Under this definition, a deadly weapon is either an instrument designed to cause death or
great bodily injury (such as a firearm or knife), or an instrument used in such a fashion as
to be capable of causing death or great bodily injury. (People v. Brookins (1989) 215
Cal.App.3d 1297, 1307; see People v. Pruett (1997) 57 Cal.App.4th 77, 81–86.) “Some
few objects, such as dirks and blackjacks, have been held to be deadly weapons as a
matter of law; the ordinary use for which they are designed establishes their character as
such. [Citations.] Other objects, while not deadly per se, may be used, under certain
circumstances, in a manner likely to produce death or great bodily injury. In determining
whether an object not inherently deadly or dangerous is used as such, the trier of fact may
consider the nature of the object, the manner in which it is used, and all other facts
relevant to the issue. [Citations.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.)
       The determination of whether an inmate is eligible for resentencing pursuant to
section 1170.126 is a factual determination that must be based on the record of
conviction. (People v. Hicks (2014) 231 Cal.App.4th 275, 285–286 (Hicks); People v.
Bradford (2014) 227 Cal.App.4th 1322, 1331 (Bradford).) No discretion is involved in
this determination. (Bradford, supra, at p. 1336.) The record of conviction includes the
appellate opinion from the prior conviction. (Hicks, supra, at p. 286.) We review factual
finding such as this one to determine if it is supported by substantial evidence. (Ibid.)
Evidence is sufficient if it is reasonable, credible, and of solid value so as to permit a
reasonable trier of fact to find the fact true. (People v. Hillhouse (2002) 27 Cal.4th 469,
496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.)
       The trial court relied on the appellate opinion filed after Herrera appealed from his
section 4502 conviction. (People v. Herrera, supra, [nonpub. opn.].) The relevant
portions of this opinion are brief. On page two of the opinion we summarized the
relevant facts.

              “On October 23, 1994, correctional officer Frank Nunez conducted a
       search of [Herrera] and his cell. He had [Herrera] tilt his head backward


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       and he looked into [Herrera’s] nose with the aid of a flashlight. Officer
       Nunez saw a dark foreign object in [Herrera’s] nose. [¶] [Herrera] was
       taken to the prison hospital. The nurse removed the dark object from
       [Herrera’s] nose. Prison staff inspected the object and determined it was a
       razor blade encased in a piece of paper. The blade looked like it came from
       the type of disposable razor issued to inmates when they showered. The
       object was constructed so that the sheath covering the blade could be pulled
       back and would act as a handle for a weapon.”
       Later in the opinion, when discussing Herrera’s ineffective assistance of counsel
argument, we noted that Herrera told the probation officer he possessed the razor blade
“because he felt he needed it to protect himself.” (People v. Herrera, supra, at p. 11
[nonpub. opn.].) Thus, the trial court had before it evidence that Herrera possessed a
razor blade extracted from a disposable razor with an improvised handle he intended to
use as a weapon. This is sufficient evidence that Herrera possessed a deadly weapon
when he committed the act that led to his conviction for violating section 4502.
       Case law supports this conclusion. The Supreme Court has addressed the issue of
whether razor blades extracted from a disposable razor are deadly weapons in at least two
cases. In People v. Gutierrez (2002) 28 Cal.4th 1083, Gutierrez had in his cell numerous
razor blades removed from disposable razors. The Supreme Court concluded Gutierrez’s
possession of the razor blades constituted a violation of section 4574, possession of a
deadly weapon by an inmate in county jail. “The evidence that defendant possessed
numerous razor blades that had been removed from safety razors in the manner
commonly used to construct jailhouse weapons, and placed ‘randomly’ throughout his
cell, all in contravention of jailhouse rules, constituted a violation of section 4574.
Although defendant was not observed using the razor blades as deadly weapons, his
possession of the blades and their placement throughout the cell (supportive of inferences
that defendant wanted to be able to gain easy access to the blades from anywhere in his
cell, or alternatively, that if his cell was searched it would be less likely that all the blades
would be found) was sufficient to support an inference that they were being possessed for
use as deadly weapons. Defendant’s assertion that there was no direct evidence he

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actually intended to ‘manufacture a weapon’ (i.e., affix handles to the blades) does not
undermine our conclusion that a violation of section 4574 was demonstrated.” (People v.
Gutierrez, supra, at pp. 1152–1153.)
       The Supreme Court reached the same conclusion in People v. Pollock (2004) 32
Cal.4th 1153. “Section 4574 makes it a felony for a county jail inmate to possess a
‘deadly weapon[].’ Within the meaning of this penal statute, an object is a deadly
weapon if it has a reasonable potential of inflicting great bodily injury or death.
[Citations.] Even without a handle, a razor blade could be used to slice a victim’s throat,
wrist, or other vital spot, and thus a detached razor blade has a reasonable potential of
causing great bodily injury or death. Accordingly, a county jail inmate’s possession of
detached razor blades violates section 4574, and evidence of such violations is admissible
under section 190.3, factor (b). [Citations.]” (Id. at p. 1178.)
       These cases establish that a razor blade from a disposable razor is a deadly
weapon. Accordingly, Herrera is ineligible for resentencing pursuant to
section 1170.126, subdivision (e). This conclusion renders most of Herrera’s remaining
arguments moot.
       Herrera repeatedly asserts the razor blade found in his possession was issued to
him by the prison and, thus, could not be a deadly weapon. This argument distorts the
record. The prison did not issue to Herrera a razor blade; it issued a disposable razor.
Herrera then modified the disposable razor, which dramatically changed its character.
While one would be hard pressed to argue a disposable razor was a deadly weapon, a
razor blade extracted from a disposable razor is a significantly different item. The
conclusion the razor blade possessed by Herrera was a deadly weapon is even more
compelling in this case because Herrera admitted he possessed the razor blade to use as a
weapon.
       Much of Herrera’s brief, both here and in the trial court, is focused on asserting
that he does not pose an unreasonable risk of danger to public safety. Since Herrera is

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ineligible for resentencing, whether he poses an unreasonable risk of danger to public
safety is irrelevant. As explained above, this issue is addressed only if the inmate filing a
petition for the recall of his sentence is eligible for resentencing. For the same reason,
Herrera’s argument that the definition of unreasonable risk to public safety was changed
by the passage of Proposition 47 is irrelevant.
       Similarly, Herrera’s claim in his reply brief that the trial court found his
section 4502 violation was a serious or violent felony misconstrues the record. The trial
court clearly informed defense counsel that the issue was whether the razor blade was a
deadly weapon.
       Finally, we note Herrera argues his sentence for violating section 4502 constitutes
cruel and unusual punishment. We rejected the identical argument when he made it on
the direct appeal from that conviction, and see no need to revisit the issue again.
                                      DISPOSITION
       The order denying Herrera’s petition for recall of his sentence is affirmed.




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