P v. Arevalo (2nd Dist., Div.3) The Standard for Determining Ineligibility Under 1170.126 is Beyond a Reasonable Doubt

The victim here left the keys in his car while he ran into a relatives' home.  When he returned, the car was gone.  Mr. Arevalo was found shortly after exiting the victim's car.  An unloaded pistol was found upon the passenger seat.  Arevalo choose to have a bench trial.  The court's verdict was guilty on grand theft auto, guilty on driving a stolen car, not guilty on being a felon in possession of a gun, and a not-true finding on the allegation Arevalo was armed with a firearm during the crimes.

Under the, two-strikes-and-a-felony, law then in effect, Arevalo, having at least two previous strikes, was sentenced to 25 to life.

Following the passage of Proposition 36, Arevalo petitioned the court under PC 1170.126 to have his sentence reduced.  The trial court (different judge) found that Arevalo was ineligible for the relief requested under the language that prohibits resentencing for a defendant, regardless of the crime of conviction, who "used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another."   The trial court read the transcript of the bench trial and, respecting the verdict that the gun charge and allegation was not proven beyond a reasonable doubt, found the standard for 1170.126 was the lesser preponderance of the evidence standard, and that the evidence rose to that standard.  Arevalo appealed arguing that the correct standard is beyond a reasonable doubt and that the verdict foreclosed any subsequent judicial finding.

This Second District panel agrees with Arevalo.  The finding of ineligibility is reversed and remanded for further proceedings.

The panel disagrees with Osuna, 225 Cal. App. 4th 1020, which held the preponderance of evidence the correct standard.  Instead, along with a thoughtful discussion on the policy reasons underlying when a particular standard is appropriate, the panel finds the California Supreme Court's language in People v. Johnson 61 Cal. 4th 674, describing the "parallel" proceedings for pre-sentence and post-sentence defendants in Proposition 36, support application of the beyond a reasonable doubt standard to those seeking relief under 1170.126.