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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 

v. 

THE SUPERIOR COURT OF 

RIVERSIDE COUNTY, 

 Respondent; 

THE PEOPLE, 

 Real Party in Interest. 

 E059598 

 (Super.Ct.No. HEF970146) 

 ORDER MODIFYING OPINION 

 NO CHANGE IN JUDGMENT 

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. 
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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.
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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 

v. 

THE SUPERIOR COURT OF 

RIVERSIDE COUNTY, 

 Respondent; 

THE PEOPLE, 

 Real Party in Interest. 

 E059598 

 (Super.Ct.No. HEF970146) 

 OPINION 

 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. 
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 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. 
3

 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. 
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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. 
5

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. 
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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].) 
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 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 
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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, 
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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. 
10

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-
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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 
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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 
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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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