Filed 5/20/15 P. v. Flores CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX

THE PEOPLE,                                                                   2d Crim. No. B251551
                                                                            (Super. Ct. No. CR42976)
     Plaintiff and Respondent,                                                  (Ventura County)

v.

PHILIP EDWARD FLORES,

     Defendant and Appellant.




                   Philip Edward Flores appeals the order denying his petition for
resentencing under the Three Strikes Reform Act of 2012 (the Act). (Pen. Code,1
§§ 667, 1170.12, 1170.126; Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012).)
Appellant challenges the trial court's finding that he was ineligible for resentencing
because his sentence was imposed for a crime in which he "intended to cause great bodily
injury to another person." (§§ 667, subd. (e)(2)(C)(iii), 1170.126, subd. (e)(2), 1170.12,
subd. (c)(2)(C)(iii).) We affirm.
                                                  BACKGROUND
                   Appellant is serving an indeterminate term of 25 years to life under the
three strikes law for assault with force likely to produce great bodily injury (§ 245, subd.



         1 All further statutory references are to the Penal Code.
(a)(4)). His prior strike convictions are for kidnapping (§ 207) and attempted voluntary
manslaughter (§§ 192, 664).
              In 2013, appellant petitioned for resentencing as a second-strike offender
under section 1170.126. The People opposed the petition on the ground that appellant
posed an unreasonable risk of danger to public safety, as provided in subdivision (f) of
section 1170.126. The People stated the facts of appellant's current offense as follows:2
"[Appellant] picked up a . . . prostitute and drove her to a nearby house. As they entered
the house and without provocation [appellant] began punching her repeatedly in the face
and arms. [Appellant] was wearing something sharp on his fingers and used these to cut
into her right lower arm, severing her tendons. . . . The victim tried to crawl away and
[appellant] continued to punch her. She was finally able to get to the door and escape.
She was found by a citizen lying on a sidewalk, bleeding profusely from her arm, with a
bloody nose and a large bump on her left cheekbone. . . ."
              At the hearing on appellant's petition, the trial court tentatively found
appellant was not eligible for resentencing under subdivision (e)(2) of section 1170.126,
because his current offense of assault by means of force likely to produce great bodily
injury was committed with the intent to cause great bodily injury. Although appellant's
intent in that regard was not pled or proved, the court reasoned that "the cursory review
of the jury instructions shows that committing that act requires only general intent;
therefore, if you acted, one could be presumed to have intended to cause the damage and
injuries it [sic] did, i.e., great bodily injury whether it's alleged or proven or not." The
court then referred to the victim's preliminary hearing testimony that "[t]he veins [in her
arm] were sticking out" and "[t]here was blood everywhere" after appellant "stabbed" her
with a knife or a similar weapon. In light of this evidence, the court concluded, "we don't

        2 In his reply brief, appellant contends we cannot rely upon the People's statement
of the facts of the current offense. The statement is consistent, however, with the victim's
preliminary hearing testimony, which was quoted by the court in support of its ruling. In
pleading guilty, appellant agreed the court could rely on that testimony as proof of the
factual basis for the plea. Moreover, appellant did not urge the court to disregard the
People's statement or otherwise challenge its accuracy. As we shall explain, the
preliminary hearing transcript was also properly considered.
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even get to the unreasonable risk of danger to public safety. I'm of the tentative belief
that this offense as [sic] the facts supplementing what happened that he's not eligible for
resentencing under 1170.126."
              The court continued the matter to allow the parties to brief the issue
whether appellant was ineligible for resentencing on the ground he was sentenced for an
offense in which he intended to cause great bodily injury. The prosecution did not submit
any additional briefing, but agreed with appellant's position that he was statutorily
eligible for resentencing. The prosecution continued to assert, however, that appellant
was not entitled to resentencing because he presented an unreasonable risk to public
safety. In denying appellant's request for resentencing, the court disagreed that appellant
was statutorily eligible and found "that this particular offense, as pled and admitted to,
. . . was intended to cause great bodily injury to another person. And I find that by
reading of the materials, including the preliminary hearing transcript that I discussed.
[¶] I'm also relying on my comments from the transcript that I prepared that was going to
be part of this record for the [prior] hearing."
                                        DISCUSSION
              Appellant contends the court erred in finding him statutorily ineligible for
resentencing under section 1170.126 of the Act. He claims the court's finding that he was
sentenced for a crime in which he intended to cause great bodily injury was subject to
pleading and proof requirements and had to be proven beyond a reasonable doubt. He
also argues that the court erroneously believed it only had to find appellant had the
general intent to commit the acts constituting the assault, rather than the specific intent to
cause great bodily injury. Finally, he claims the preliminary hearing transcript from his
prior conviction was inadmissible hearsay and that the court violated his due process
rights by considering it. None of these claims has merit.
              Prior to the Act, a defendant who had previously been convicted of two or
more serious or violent felonies was subject to an indeterminate sentence of 25 years to
life upon his or her conviction of any new felony. "The Reform Act prospectively

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changed the Three Strikes law by reserving indeterminate life sentences for cases where
the new offense is also a serious or violent felony, unless the prosecution pleads and
proves an enumerated disqualifying factor. In all other cases, a recidivist defendant will
be sentenced as a second strike offender, rather than a third strike offender. [Citations.]"
(People v. Chubbuck (2014) 231 Cal.App.4th 737, 740-741 (Chubbuck).) Inmates
already serving a third-strike sentence for a nonserious or nonviolent felony (and who are
not otherwise disqualified) may petition for resentencing as a second-strike offender
unless the court finds it would pose an unreasonable risk of danger to public safety.
(§ 1170.126, subds. (a), (f), (m); Chubbuck, at p. 741.)3
              An inmate is not eligible for resentencing under the Act if his current
offense was imposed for any of the offenses listed in section 667, subdivision
(e)(2)(C)(i)-(iii) or section 1170.12, subdivision (c)(2)(C)(i)-(iii). (§ 1170.126, subd.
(e)(2).) Included are offenses in which the inmate "intended to cause great bodily injury
to another person." (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
              Numerous cases have held that the Act does not contain a pleading and
proof requirement with regard to the statutory factors that disqualify an inmate from
resentencing under section 1170.126. (E.g., People v. Guilford (2104) 228 Cal.App.4th
651, 657-658 (Guilford); People v. Bradford (2014) 227 Cal.App.4th 1322, 1332-1333;
People v. Osuna (2014) 225 Cal.App.4th 1020, 1033; People v. Blakely (2014) 225
Cal.App.4th 1042, 1059-1060; People v. Elder (2014) 227 Cal.App.4th 1308, 1314;
People v. Brimmer (2014) 230 Cal.App.4th 782, 801-803 (Brimmer); People v. White
(2014) 223 Cal.App.4th 512, 519.) This includes the disqualifying factor at issue here.
(Chubbuck, supra, 231 Cal.App.4th at pp. 746-748.) Many of these same cases also
reject appellant's claim that he had a right to have this factor decided by a jury by proof
beyond a reasonable doubt. (E.g., Guilford, at pp. 662-663; Bradford, at pp. 1334-1336;



       3 After the briefs were filed, our Supreme Court resolved a split of authority in
concluding that the denial of an inmate's claim of eligibility for resentencing under the
Act is appealable. (Teal v. Superior Court (2014) 60 Cal.4th 595, 601.)
                                              4
Elder, at p. 1315; Blakely, at pp. 1059-1063; Osuna, at pp. 1038-1040; see also People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304.)
              Appellant's briefs are largely a rehash of the arguments considered and
rejected in the above-cited cases. None of his proffered interpretations of the "plain
language" of section 1170.126 undermines the unanimous authority to the contrary. As
subdivision (f) of the statute makes clear, "'. . . the court shall determine whether the
petitioner satisfies the criteria in subdivision (e).' (Emphasis added.) There is no
provision for the People to plead or prove anything . . . ." (Guilford, supra, 228
Cal.App.4th at p. 657, fn. omitted.) Appellant's attack on certain dicta in Blakely, even if
meritorious, does not undermine the soundness of the conclusion that the retrospective
provisions of the Act do not include a pleading and proof requirement. Moreover, the
rule of lenity does not aid appellant because there is "no ambiguity as to whether section
1170.126, subdivision (e)(2) incorporates the pleading and proof requirements of section
1170.12, subdivision (c)(2)(C)." (Chubbuck, supra, 231 Cal.App.4th at p. 748.)
              Appellant's remaining claims are equally without merit. The record belies
his assertion that the court erroneously believed it only had to find appellant had the
general intent to commit the crime of assault by force likely to produce great bodily
injury, rather than the specific intent to cause such injury. The court simply recognized
that the crime itself merely required a finding of general intent. The court made clear that
its ruling was based on the entire record of appellant's conviction, including the
preliminary hearing transcript, and expressly found that the conduct upon which the
conviction was based was "intended to cause great bodily injury to another person."
              Appellant's contention that the court improperly relied on the preliminary
hearing transcript is also unavailing. His due process and inadmissible hearsay claims
were not raised below and are thus forfeited. (Brimmer, supra, 230 Cal.App.4th at p.
800.) In any event, the transcript was properly considered as part of the record of




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appellant's prior conviction. (People v. Reed (1996) 13 Cal.4th 217, 231; People v.
Crockett (2015) 234 Cal.App.4th 642, 653 (Crockett).)4
              The order denying the petition for resentencing under the Act is affirmed.
              NOT TO BE PUBLISHED.



                                            PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




        4 At oral argument, we granted appellant's request to defer submission of the
matter to allow the parties to file letter briefs addressing Crockett, which was issued after
the briefs were filed. Appellant offers Crockett as support for his assertion that the court
in this case had to find he intended to cause great bodily injury, and not merely the act
resulting in such injury, in order to deem him ineligible for resentencing under the Act.
(234 Cal.App.4th at p. 655.) We do not disagree with this assertion, yet conclude that the
court made such a finding here.
        For the first time in his letter brief, appellant also contends it was improper for the
court to base its finding on "excerpts from the preliminary examination, not the entire
record of that proceeding." This claim is forfeited because it was not raised either below
or in the opening brief. In any event, the fact that the court referred to excerpts from the
preliminary hearing transcript does not support a conclusion that it failed to consider the
entire transcript.
                                                  6
                                Bruce A. Young, Judge

                           Superior Court County of Ventura

                         ______________________________


             Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy,
William M. Quest, Senior Deputy Public Defender, for Defendant and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill,
Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.




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