Facts that render a defendant ineligible for resentencing under the Three Strikes Reform Act (Prop. 36) must be proven beyond a reasonable doubt. At a bench trial in 1995, the trial court found Arevalo guilty of grand theft auto and driving a vehicle without the owner’s consent, but acquitted him of being a felon in possession and found not true an “armed with a firearm” allegation. The court sentenced Arevalo under the Three Strikes law to 25 years to life. After the Three Strikes Reform Act passed in 2012, Arevalo filed a petition for resentencing. The trial court denied the petition, finding, based on a preponderance of the evidence, that Arevalo was ineligible because he had been armed with a weapon during the commission of the grand theft auto. Arevalo appealed. Held: Reversed and remanded. A person serving a life third strike sentence is ineligible for resentencing under Proposition 36 if “[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.” (Pen. Code, §§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).). However, there is currently no agreement on the burden of proof required to establish a fact leading to ineligibility. (See People v. Osuna (2014) 225 Cal.App.4th 1020 [preponderance of the evidence]; People v. Bradford (2014) 227 Cal.App.4th 1322 (conc. opn. of Raye, P.J. [clear and convincing evidence].) Based on due process considerations, and to safeguard the intended parallel structure of the Act’s sentencing and resentencing provisions, the Court of Appeal here concluded that proof beyond a reasonable doubt is required to establish ineligibility for resentencing. As a result, Arevalo’s acquittal on the weapons 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.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B259998.PDF