Substantial evidence supported the trial court’s conclusion that defendant was ineligible for resentencing under Proposition 36 because he intended to cause great bodily injury to the victim during the commission of the offense. In 2001, defendant punched his friend twice, breaking his jaw in two places and requiring surgery. A jury found defendant guilty of battery with serious bodily injury (Pen. Code, § 243, subd. (d)), but found not true an allegation that he personally inflicted great bodily injury (GBI) on the victim (Pen. Code, § 12022.7, subd. (a)). Defendant was sentenced to 25 years to life under the Three Strikes law. After the electorate passed the Three Strikes Reform Act of 2012 (Proposition 36), defendant filed a petition for resentencing as a second strike offender. The trial court denied the petition, finding defendant was ineligible for resentencing because he intended to cause GBI to another person during the commission of the offense. Defendant appealed, arguing the trial court’s inference of intent was unsupported by the evidence. Held: Affirmed. Proposition 36 allows an inmate currently serving a third strike sentence for a nonserious, nonviolent felony conviction to file a petition to recall the third strike sentence and be resentenced as a second strike offender. However, a petitioner is ineligible for resentencing if he used a firearm, was armed with a firearm, or intended to cause GBI during the commission of the current offense. (Pen. Code, §§ 667, subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii).) Here, the trial court properly inferred defendant’s intent to cause GBI from the circumstances of the battery. As his friend was taking off his jacket, defendant punched him hard, suddenly and without provocation, causing his friend to fall into the door and to the ground, and punched him again while he was on the floor. To the extent that the friend stated he did not believe defendant intended to break his jaw, the trial court was not obligated to give great weight to these statements.

The jury’s finding that defendant did not inflict great bodily injury on the victim did not preclude the trial court’s finding that defendant intended to cause great bodily injury during the commission of the offense. Relying on People v. Phillips (1989) 208 Cal.App.3d 1120, defendant argued that intent to cause GBI may only be inferred when (1) the defendant applied force in a manner reasonably certain to produce GBI, and (2) the defendant’s application of force actually produced GBI. However, actual infliction of great bodily injury is not a prerequisite to finding intent to cause such injury. The jury was not tasked with determining whether defendant intended to cause GBI, and the jury finding that defendant did not actually cause GBI did not resolve the question of defendant’s intent. The trial court was entitled to rely on the record of conviction and facts not found by the jury in determining defendant’s intent to cause GBI, and could make such a finding even in the absence of actual infliction of GBI.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B290614.PDF