Trial court’s granting of Proposition 36 petition reversed because defendant personally used his vehicle as a deadly weapon, rendering him armed during the commission of the offense. In 1994 Perez was convicted of assault by means of force likely to cause great bodily harm (Pen. Code, § 245, former subd. (a)(1)). Two strike priors (Pen. Code, § 667, subds. (b)-(i)) and two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) were found true. He received a life Three Strikes sentence. After Proposition 36 (Three Strikes Reform Act) was enacted, Perez requested resentencing. The trial court granted the petition and the prosecutor appealed. Held: Reversed. Pursuant to Proposition 36, a Three Strikes sentence is reserved for cases where the defendant is convicted of a serious or violent felony and has two or more serious felony priors. The Act created a postconviction procedure whereby qualified defendants serving a Three Strike sentence for a nonserious and nonviolent felony can petition for resentencing (Pen. Code, § 1170.126, subd. (e)). However, a defendant is ineligible for resentencing if, during the commission of the current offense, he was armed with a deadly weapon or intended to cause great bodily injury to another person. In this case, Perez drove his car while a store employee had his arm inside the car, trying to retrieve stolen merchandise from Perez’s passenger. The employee had to run to avoid falling down as Perez drove the car. Contrary to the trial court’s finding, Perez’s use of the car was not merely “incidental” to the offense, it was used as a means of force likely to cause great bodily injury. Perez was therefore “armed with a deadly weapon” during the commission of the offense.

The eligibility determination made by the trial court was not supported by substantial evidence. In determining the facts attendant to the commission of the current offense, the trial court makes its determination based on the evidence in the record of conviction. This finding is subject to review based on sufficiency of the evidence. The record does not support the trial court’s finding that Perez’s use of the vehicle was merely “incidental” to the offense or that the store employee was only “dragged slightly” by the car. The vehicle was the instrumentality by which Perez committed the offense. His intent to use the vehicle as a weapon was shown by evidence that the store employee asked Perez three times to stop the car and only managed to free his arm from the vehicle as Perez drove it out of the parking lot. The trial court’s application of the statute to the facts is a question of law subject to independent review. Although a vehicle is not a deadly weapon per se, Perez actually and personally used the car as a deadly weapon. Therefore, he necessarily had it available for use in either offense or defense and was armed within the meaning of the statute.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F069020.PDF