In determining a defendant’s eligibility for Proposition 36 resentencing, the trial court may consider the record of conviction and make factual findings, even if those findings were not made by the trier of fact. Newman was convicted of assault by means likely to inflict great bodily injury (GBI) (Pen. Code, former § 245, subd. (a)(1)) and five strike priors were found true. He received a life Three Strikes sentence. After the passage of Proposition 36 (Three Strikes Reform Act), he petitioned for resentencing (Pen. Code, § 1170.126). The trial court found him ineligible for resentencing because, during the commitment offense, he intended to inflict great bodily injury. He appealed, claiming the jury had not made such a finding and had found a GBI enhancement not true (Pen. Code, § 12022.7). Held: Affirmed. Under Proposition 36, a defendant is ineligible for resentencing if during the commission of the nonviolent/nonserious offense he used a firearm, was armed with a gun or deadly weapon, or intended to inflict GBI on another (Pen. Code, §§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)). The Proposition 36 court determines whether there are any disqualifying factors without regard to any factual findings made by the trier of fact. Proposition 36 does not require that disqualifying factors be pled and proved, but provides that the trial court determines a defendant’s eligibility for resentencing (Pen. Code, § 1170.126, subd. (f)). A defendant is not entitled to a jury determination of disqualifying factors because they do not increase punishment beyond the statutory maximum for the commitment offense. The Proposition 36 court is authorized to make such findings based on the record of conviction.

The standard of proof for Proposition 36 eligibility findings is preponderance of the evidence. There are generally three standards of proof: preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. Because Proposition 36 does not set forth the standard of proof applicable to sentencing eligibility findings, as a statutory matter, preponderance of the evidence is the appropriate standard (Evid. Code, § 115 [except as otherwise provided by law, burden of proof is preponderance of the evidence]). As a constitutional matter, the standard of proof is also preponderance of the evidence. The beyond a reasonable doubt standard implicates issues regarding guilt or innocence of a charged crime, not sentencing. The court disagreed with a contrary holding in People v. Arevalo (2016) 244 Cal.App.4th 836.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B266704.PDF