A defendant must be provided an opportunity to be heard before the trial court determines him to be ineligible for Three Strike Reform resentencing based on unadjudicated facts. In 1999 Bradford was convicted of three counts of second degree burglary and other crimes. The trial court found two prior serious felonies true. Bradford received multiple 25-years-to-life third-strike terms. His convictions were affirmed on appeal. Following passage of the Strike Reform Act in 2012 (Proposition 36), Bradford petitioned for resentencing. The trial court determined he was ineligible based on a finding that Bradford was armed with a deadly weapon during the commission of the offense. The finding was based on the Court of Appeal opinion in the 1999 case, which stated that Bradford had a pair of wire cutters at or near the time of the commitment offenses. He appealed. Held: Reversed. In addition to reforming the Three Strikes law to provide a potential life term only if the current offense is serious/violent or an enumerated exception applies, the Act provides a procedure whereby an eligible defendant serving a previously imposed indeterminate term may seek resentencing. (Pen. Code, § 1170.126, subd. (f).) However, an inmate is ineligible if his or her current sentence was imposed for certain offenses, including offenses during the commission of which the defendant was armed with a deadly weapon. (Pen. Code, §§ 1170.126, subd. (e), 667, subd. (e)(2)(C)(iii).) By referring to facts attendant to the commission of the commitment offense, this eligibility exception requires the trial court to make factual findings related to conduct that is not limited to a review of the offenses and enhancements of which defendant was convicted. A “trial court must be careful to avoid making a precipitous decision [on the issue of eligibility] without input from the parties.” “[I]f the petitioner has not addressed the issue and the matter of eligibility concerns facts that were not actually adjudicated at the time of the petitioner’s original conviction (as here), the trial court should invite further briefing by the parties before finding the petitioner ineligible for resentencing.”

The type of factual finding required by section 1170.126 does not require a jury trial. Bradford claimed that allowing the court to make factual findings regarding his prior that were not previously adjudicated violated his jury trial right (Apprendi v. New Jersey (2000) 530 U.S. 466). But the Apprendi rule, which requires a jury trial on any fact which increases the penalty beyond the statutory maximum, does not apply to postconviction proceedings such as a section 1170.126 hearing because such a limited reduction proceeding differs from a plenary sentencing hearing. (Dillon v. U.S. (2010) 560 U.S. 817 [statute permitting sentencing reduction was act of lenity; such modification proceedings are not constitutionally compelled and do not implicate Sixth Amendment jury trial right].)

Because it is retrospective in nature, the trial court’s determination of eligibility for resentencing is limited to a review of the record of conviction. The statute does not expressly require the court to hold a hearing at the initial eligibility stage; upon receipt of a petition for resentencing it requires the court to determine whether the petitioner is eligible. The procedure by which this determination is made is not detailed. However, in considering a factual issue regarding a prior conviction allegation, a trial court looks to the record of conviction. The language of Proposition 36 contemplates an eligibility determination based on the record of conviction, as used with respect to priors, and detailed in cases such as People v. Guerrero (1988) 44 Cal.3d 343, and People v. Woodell (1998) 17 Cal.4th 448. This is so because determination of ineligibility based on unadjudicated facts is retrospective in nature. Further, the statute contains no provision allowing the trial court to consider new evidence when considering eligibility.

The trial court erred in concluding petitioner was armed with a deadly weapon during the commission of the commitment offense. A deadly weapon is any object, instrument, or weapon that is either inherently dangerous or used in such a way it is capable of causing great bodily injury. There is no support in the record for a finding the wire cutters possessed by Bradford were designed for use as a weapon, used as a weapon, or that petitioner threatened anyone with them. Because the Court of Appeal concluded the evidence was insufficient under even a preponderance of the evidence standard, it did not determine the appropriate standard of proof. [Editor’s Note: In a concurring opinion, majority author Presiding Justice Raye stated an appropriate standard of proof is clear and convincing evidence, given the significant due process concerns involved in such hearings.]