P. v. Gann CA3
Defendant John David Gann appealed from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1170.126. He claimed the trial court erred in finding him ineligible for resentencing, and we could reach claims of error not previously articulated in the trial court because trial counsel was ineffective in failing to argue—with respect to his statutory ineligibility—that the People needed to plead and prove that defendant “used or was armed with a deadly weapon,” that a jury finding of that fact beyond a reasonable doubt was required, and that his acquittal on the greater charge of assault with a deadly weapon in one case precluded a finding of ineligibility as to that conviction.
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