Back in 2000, Mr. Newman phoned his local Pizza Hut to order a pie. The order taker placed him on hold and Newman became pissed. Five minutes after eventually placing his order, Newman went to the Pizza Hut and created a scene, cussing at the staff. The staff offered Newman a couple of free pies if he would just settle down. Newman declined this generous offer and instead punched a delivery man, breaking the poor guy's jaw. Not satisfied, Newman then choked the delivery man and took 50 bucks from him. For his actions, Newman was charged with assault by means likely to cause great bodily injury (then PC 245(a)(1)) with an enhancement for causing great bodily injury, and second degree robbery (PC 211).
The case proceeded to trial and a jury found Newman guilty of the 245(a)(1). It found Newman not guilty of the robbery and found not true the enhancement for great bodily injury. Since Newman had five prior strike convictions, he was eventually sentenced to 25-life under the then-in-effect "2 strikes and any subsequent felony" law.
Following the change in the law from "2 strikes and any subsequent felony" to "2 strikes and any subsequent strike or disqualifying felony", Newman petitioned for relief under PC 1170.126. The trial court found Newman ineligible for relief because it determined from the trial transcript that Newman "intended to cause great bodily injury to another person" during the commission of the 245(a)(1). Newman appealed.
The Second District affirms.
Two issues are presented. The first is whether the trial court can make factual findings of ineligibility from the record of conviction. The second is, if it can, what is the applicable standard of proof.
The first issue arises due to the rules of eligibility. Section 1170.126 conditions eligibility for resentencing upon the petitioner's relevant conviction not falling within a list of convictions from cited code sections. Most of these convictions of ineligibility are convictions for violating specific sections of the penal code. Newman's PC 245(a)(1) is not one of the listed sections, so he is fine so far. However, the list of ineligible convictions also includes convictions for any felony during which the petitioner "used a firearm, was armed with a firearm or dangerous weapon, or intended to cause great bodily injury [GBI] to another person." I refer to this section as the "conduct grounds" of ineligibility because it is the conduct that renders the petitioner ineligible, not the statute of conviction. You could be convicted of a rather innocuous felony (stealing 250 dollars worth of avocados), but if during the theft you were armed with a pair of nunchuks, you'd be ineligible.
Newman used no weapons, so the only thing that can disqualify him is if he "intended to cause GBI". Newman argues that unless the jury made such a finding, as a necessary element of a crime or enhancement, the court must conclude Newman had no such intent. The State disagrees and responds that because the jury had no reason to make any finding as to whether Newman had such an intent (it was not an element of any of the charged crimes or the enhancement) the trial court may now make the finding after looking at the trial transcript.
The panel agrees with the State, finding that Newman's interpretation would render the relevant portion of 1170.126 meaningless (It actually overstates its case by claiming it would render all of Proposition 36 meaningless-it wouldn't). So the next issue is what standard of proof is applicable. There is a split of opinion on this issue as one appellate court has found "beyond a reasonable doubt" is the proper standard (P v. Arevalo), while other courts have held "by the preponderance of evidence" to be applicable.
The panel here holds that the preponderance standard is the one to use. And applying the preponderance standard to the trial transcript, it affirms the trial court's finding of ineligibility finding because the transcript supports the fact Newman punched the Pizza Hut driver with an intent to inflict great bodily injury.
It was probably, in retrospect, a tactical mistake not to have accepted the offer to just calm down and receive two free pies.
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