Filed 8/7/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES MAURICE PIPER, JR.,

Defendant and Appellant.

B280033

(Los Angeles County

 Super. Ct. No. NA047666)

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.

_____________________________________
2

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.
3

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Convictions and Acquittals

2

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).) 
4

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. 
5

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. 
6

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,
7

“[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 
8

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 
9

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.) 
10

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 
11

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 driveby 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 firearmrelated 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. 
12

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.