Filed 8/18/16 P. v. Halperin CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,                                                          B267317

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA038610)
         v.

ANDREW M. HALPERIN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, William
C. Ryan, Judge. Affirmed.
         Joshua Schraer, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Noah P. Hill and Amanda V.
Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
                                          _______________________
       Defendant and appellant Andrew Mark Halperin was sentenced to an
indeterminate life term under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d))1 after a jury convicted him in 2007 of assault by means of force
likely to produce great bodily injury, in violation of section 245, subdivision (a). After
Proposition 36 was enacted in 2012, defendant petitioned to have his indeterminate life
sentence recalled under section 1170.126. Following a hearing, the trial court denied the
petition. Defendant contends that (1) in denying the petition for recall, the trial court
impermissibly found he intended to cause great bodily injury when the jury made no such
finding; and (2) even if the fact finding was permissible, the trial court applied an
incorrect standard of proof to find the defendant ineligible for resentencing. We affirm.


                   FACTUAL AND PROCEDURAL BACKGROUND


       The facts underlying defendant’s conviction were described in an unpublished
opinion by this court affirming defendant’s conviction and are summarized as follows.
Defendant was charged with: (1) first degree residential robbery, in violation of section
211; (2) assault by means likely to produce great bodily injury, in violation of section
245, subdivision (a); and (3) dissuading a witness from reporting a crime, in violation of
section 136.1, subdivision (b)(1). The victim, Donna Hein, was acquainted with
defendant. In May 2007, both defendant and Hein lived in separate rooms in the same
motel. Hein was an admitted drug addict. On May 16, 2007, defendant went into Hein’s
room looking to purchase drugs. Hein refused because defendant had robbed and choked
a mutual acquaintance. Defendant claimed he had “made it right” with the acquaintance.
As Hein picked up the phone to call the acquaintance, she saw defendant’s fist coming at
her head. Defendant punched her repeatedly, landing between 15 to 20 blows to the back
of the head and kidneys, knocking her to the ground. Defendant threatened to kill Hein if


       1   All further statutory references are to the Penal Code unless otherwise indicated.

                                               2
she called the police. He removed $115 in cash from her purse, warned her again about
reporting what happened, and punched her again. During the assault, Hein accidentally
called the hotel manager, Rosher Sebastian. As a result of the attack, blood from Hein’s
nose splattered the walls and ran down her face.
       Sebastian received a phone call from a room at about 9 p.m. on May 16, 2007. He
heard screaming on the line. He looked out of his office and saw defendant, who
appeared to be intoxicated. He told defendant to sober up in his room. Defendant instead
walked out of the hotel. Sebastian saw Hein come out of her room with her face and
hands scratched and bleeding.
       Deputy Sheriff Steve Owen responded to the hotel within minutes of the attack.
He saw Hein clearly in pain, upset, scared, and bleeding from the chin and nose.
Deputies found defendant nearby, in possession of $115. Hein identified defendant as
her assailant.
       Defendant admitted being in Hein’s room and arguing with her, but denied
touching Hein, threatening her, and stealing from her. He presented bank records that
showed ATM withdrawals that accounted for the money found in his possession. He
drank about a six pack of beer and a margarita before going into Hein’s room but denied
being intoxicated. Defendant admitted that he was more than willing to express his anger
when he was drunk.
       The jury convicted defendant of assault by means of force likely to produce great
bodily injury, but was unable to reach a verdict on the other two charges. In a separate
proceeding, the jury found defendant had suffered four prior convictions under the three
strikes law and had served four prior prison terms as defined in section 667.5, subdivision
(b). Among the aggravating factors identified by the trial court at the sentencing hearing
was that the “crime involved great violence, great bodily harm, threat of great bodily
harm, or other acts disclosing a high degree of cruelty, viciousness or callousness. The
evidence in this case was that the defendant brutally beat Donna Lynn Hein about the
head and body. The defendant punched the victim approximately 15 times causing her to
bleed.” The trial court sentenced defendant to 25 years to life under the three strikes law


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for the section 245, subdivision (a) conviction, enhanced by four years for the prior
prison term findings.
       In 2012, the voters enacted Proposition 36, which “amended the Three Strikes law
so that an indeterminate life sentence may only be imposed where the offender’s third
strike is a serious and/or violent felony or where the offender is not eligible for a
determinate sentence based on other disqualifying factors. (Pen. Code, §§ 667, subd.
(e)(2)(C), 1170.12, subd.(c)(2)(C).) [Proposition 36] also enacted section 1170.126,
establishing a procedure for an offender serving an indeterminate life sentence for a third
strike conviction that is not defined as a serious and/or violent felony to file a petition for
recall of sentence. (§ 1170.126, subd. (b).)” (Teal v. Superior Court, (2014) 60 Cal.4th
595, 596–597, fn. omitted.)
       Defendant filed a petition to recall his indeterminate sentence under the
ameliorative provision of Proposition 36. After briefing and a hearing at which the trial
court accepted into evidence transcripts from defendant’s 2007 criminal trial, the court
denied the petition, finding defendant was ineligible for relief under Proposition 36
because defendant intended to cause great bodily injury during the commission of the
commitment offense. (§§ 667, subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii);
1170.126, subd. (e)(2).)


                                       DISCUSSION


The Trial Court’s Role as Trier of Fact


       Defendant contends that the trial court erred in the process of fact finding. As
defendant views the law, a trial court’s determination of whether a defendant acted with
the intent to cause great bodily injury under section 1170.126 is limited to an examination
of the elements underlying the conviction. (See People v. Trujillo (2006) 40 Cal.4th 165,
179–180; People v. Guerrero (1988) 44 Cal.3d 343, 355; People v. Guilford (2014) 228
Cal.App.4th 651; People v. Bradford (2014) 227 Cal.App.4th 1322 (Bradford); People v.


                                               4
Wilson (2013) 219 Cal.App.4th 500.) Specifically, defendant contends it was improper
for the trial court to find he intended to cause great bodily injury during the commission
of the commitment offense, because the jury was not required to make this finding. As
assault is only a general intent crime, the jury had no occasion to determine whether
defendant acted with the specific intent to cause great bodily injury.
       Defendant’s view of the law has been repeatedly rejected. Section 1170.126,
subdivision (e), sets forth eligibility criteria that a defendant must meet to be resentenced
under Proposition 36. A defendant is ineligible for resentencing if, “[d]uring the
commission of the current offense, [he] . . . intended to cause great bodily injury to
another person.” (§§ 667, subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii); 1170.126,
subd. (e)(2).) This is an inquiry into a defendant’s conduct at the time of the offense. In
ruling on resentencing eligibility, the trial court is required to make a factual
determination on whether defendant intended to inflict great bodily injury on the victim.
(People v. Hicks (2014) 231 Cal.App.4th 275, 285; Bradford, supra, 227 Cal.App.4th at
pp. 1331-1332.)
       A trial court is not, as defendant contends, “limited to a consideration of the
elements of the current offense . . . .” (People v. Blakely (2014) 225 Cal.App.4th 1042,
1063.) Rather, it is appropriate to examine “[all] relevant, reliable, admissible portions of
the record of conviction to determine the existence of a disqualifying factor.” (Id. at
pp. 1048-1049; People v. Brimmer (2014) 230 Cal.App.4th 782, 800 (Brimmer); accord,
People v. Burnes (2015) 242 Cal.App.4th 1452, 1458; People v. Hicks, supra, 231
Cal.App.4th at pp. 279, 285-286; Bradford, supra, 227 Cal.App.4th at pp. 1338-1339;
People v. Elder (2014) 227 Cal.App.4th 1308, 1317.) The record of conviction obviously
includes the trial testimony considered here by the trial court.
       In ruling on defendant’s resentencing petition, the trial court found the following:
“What the evidence appears to be is he punched her and knocked her out cold with the
first punch, and then hit her on the side of the head. As she came to, he hit her repeatedly
15 to 20 times. The testimony has been a little muddy. At one point she didn’t say where
and in another point she said it was five in the head and five in the kidneys and five


                                               5
someplace else. I think that might have been at trial. She started knocking on the wall to
get help. He threatened to kill her. The victim was 55 years old at the time. She said she
was going to be 56 later, I think, but the time of trial. [¶] . . . [¶] She was coughing up
blood at the time of the preliminary hearing, which was 18 days later, and she continued
to have bad headaches.”
       Substantial evidence from the trial record supports the trial court’s finding that
defendant intended to cause great bodily injury to Hein when he punched her about the
head and body between 15 to 20 times after she refused to get him drugs. Two witnesses
saw her almost immediately after the attack, confirming injuries to her face and hands.
The jury’s conviction necessarily rested on this interpretation of the facts, as defendant
claimed at trial that he never touched her. At the very least, the jury found that Hein saw
defendant’s fist repeatedly aimed at her head with force likely to inflict great bodily
injury. Based on defendant’s conduct—repeatedly aiming a fist at Hein’s head—the trial
court could reasonably infer an intent to cause great bodily injury. (People v. Phillips
(1989) 208 Cal.App.3d 1120, 1122.) The trial court did not err in ruling that defendant is
ineligible for resentencing.


Claim Regarding Burden of Proof


       Defendant next raises the issue of the correct standard for a trial court’s
determination of whether a defendant’s conduct shows an intent to cause great bodily
injury. He claims that recent decision by the Court of Appeal, People v. Arevalo (2016)
244 Cal.App.4th 836 (Arevalo), shows that the correct standard is beyond a reasonable
doubt, rather than the preponderance of the evidence standard espoused in People v.
Osuna (2014) 225 Cal.App.4th 1020 (Osuna). We disagree. The appropriate standard is
preponderance of the evidence. (Evid. Code § 115 [“except as otherwise provided by
law, the burden of proof requires proof by a preponderance of the evidence”].)
       “Because a determination of eligibility under section 1170.126 does not implicate
the Sixth Amendment, a trial court need only find the existence of a disqualifying factor


                                              6
by a preponderance of the evidence. (Evid. Code, § 115. . . .)” (Osuna, supra, 225
Cal.App.4th at p. 1040; see People v. Frierson (July 20, 2016, B260774) ___Cal.App.4th
___; People v. Superior Court (2013) 215 Cal.App.4th 1279, 1305 [“the proper standard
of proof is preponderance of the evidence,” citing Evidence Code section 115]; People v.
Flores (2014) 227 Cal.App.4th 1070, 1075 [proof of dangerousness under Proposition 36
is judged by the preponderance of the evidence standard]; cf. Bradford, supra, 227
Cal.App.4th at pp. 1344-1351 (conc. opn. of Raye, P.J) [urging application of clear and
convincing evidence standard]2.)
       Arevalo is readily distinguishable. In Arevalo, at a bench trial, the court acquitted
the defendant of possession of a firearm and at sentencing found not-true that the
defendant was armed with a firearm. (Arevalo, supra, 244 Cal.App.4th at p. 843.)
Despite these trial findings, the trial court found the defendant ineligible for the recall of
the sentence under Proposition 36 by finding the defendant had used a firearm during the
commission of the offense. Reversing, our colleagues in Division Three held, “Under a
properly applied ‘beyond a reasonable doubt’ standard, Arevalo's acquittal on the weapon
possession charge, and the not-true finding on the allegation of being armed with a
firearm, are preclusive of a determination that he is ineligible for resentencing
consideration.” (Id. at p. 842.)
       We reject defendant’s reliance on Arevalo for two reasons. First, the case is
procedurally distinguishable. Unlike the defendant in Arevalo, defendant was not
acquitted of assault by means of force likely to produce great bodily injury at trial, nor
did the jury find defendant did not intend to cause great bodily injury. The jury made no
findings inconsistent with the trial court’s view of the evidence. Second, we are satisfied
the Osuna line of cases correctly determines that the preponderance of the evidence
standard found in the plain language of Evidence Code section 115 is the applicable
burden for determining if a defendant’s commitment offense renders him ineligible for
relief under Proposition 36.


       2   This view has gained no support in published authority.

                                               7
                                    DISPOSITION


      The order denying defendant’s petition for recall of sentence is affirmed.




             KRIEGLER, J.


I concur:



             TURNER, P.J.




                                            8
People v. Andrew Halperin
B267317


BAKER, J., Concurring




         I write separately to address defendant’s argument concerning the standard of
proof that should apply to a trial court’s eligibility determination under Penal Code
section 1170.126, subdivision (e).1 People v. Arevalo (2016) 244 Cal.App.4th 836
(Arevalo) may ultimately prove prescient in adopting the beyond a reasonable doubt
standard of proof, but the legal foundation for that conclusion is not yet strong enough in
my judgment to support application of that standard in all Proposition 36 resentencing
cases.
         Section 1170.126, subdivision (e), which cross-references sections 667 and
1170.12, makes a defendant ineligible for Proposition 36 relief if, among other things, the
defendant used a firearm, was armed with a firearm or deadly weapon, or intended to
cause great bodily injury to another person during commission of the offense for which
an indeterminate life sentence was imposed. (§ 1170.126, subd. (e)(2); see also §§ 667,
subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Section 1170.126 does not specify the
standard of proof a court should employ in making this eligibility determination.
         As the majority opinion explains, a prior decision of the Fifth Appellate District,
backed by Evidence Code section 115, holds the appropriate standard of proof for
eligibility determinations under section 1170.126 is the preponderance of the evidence
standard. (Evid. Code, § 115 [“The burden of proof may require a party to . . . establish
the existence or nonexistence of a fact by a preponderance of the evidence, by clear and
convincing proof, or by proof beyond a reasonable doubt. Except as otherwise provided


         1   Undesignated statutory references that follow are to the Penal Code.
by law, the burden of proof requires proof by a preponderance of the evidence”], italics
added; People v. Osuna (2014) 225 Cal.App.4th 1020, 1040 [“Because a determination of
eligibility under section 1170.126 does not implicate the Sixth Amendment, a trial court
need only find the existence of a disqualifying factor by a preponderance of the
evidence”].)
       Arevalo, of course, came to a different conclusion on facts different from those
here. In Arevalo, at a bench trial, the court acquitted the defendant of possessing a
firearm and found not true an allegation that defendant was armed with a firearm in the
commission of the vehicle offenses at issue. (Arevalo, supra, 244 Cal.App.4th at p. 841.)
Despite these findings at the time of trial, a different judge considering Arevalo’s later
petition for recall of sentence under section 1170.126 concluded he was ineligible for
relief because he had been armed with a firearm during the commission of the vehicle
offenses. (Id. at pp. 841-842.) Our colleagues in Division Three reversed, holding:
“Under a properly applied ‘beyond a reasonable doubt’ standard, Arevalo’s acquittal on
the weapon possession charge, and the not-true finding on the allegation of being armed
with a firearm, are preclusive of a determination that he is ineligible for resentencing
consideration.” (Id. at p. 842.)
       In reaching its holding on the standard of proof that should apply, the Arevalo
court relied on portions of our Supreme Court’s opinion in People v. Johnson (2015) 61
Cal.4th 674 (Johnson) discussing the purpose and structure of Proposition 36. (Arevalo,
supra, 244 Cal.App.4th at pp. 852-853.) Specifically, the Arevalo opinion emphasizes
language in Johnson that suggests the structure of Proposition 36 “appears to
contemplate” identical results for (1) defendants who are prosecuted after the
proposition’s amendments to the Penal Code took effect and (2) defendants who seek
resentencing under section 1170.126 for a conviction sustained before the proposition’s
passage. (Id. at p. 853; see also Johnson, supra, 61 Cal.4th at pp. 686-687.) If it is true
that California voters intended defendants seeking resentencing to be treated the same as
a defendant with an identical criminal background sentenced today, adopting the beyond
a reasonable doubt standard is sensible; after all, today and going forward, the People


                                              2
must shoulder the beyond a reasonable doubt burden of proof when seeking to establish a
defendant who committed a non-serious and non-violent triggering offense should
nevertheless receive an indeterminate life sentence. (§§ 667, subd. (e)(2)(C) [prosecution
must “plead[] and prove[]” ineligibility], 1170.12, subd. (c)(2)(C) [same].)
       I hesitate, however, to divine as much from the language used in Johnson as the
Arevalo court does. The question presented for decision in Johnson, as framed by the
Court itself, was: “[F]or purposes of recall of a sentence under section 1170.126, is the
classification of the current offense as a serious or violent felony determined as of the
date the current offense was committed or as of November 7, 2012, the date Proposition
36 became effective?”2 (Johnson, supra, 61 Cal.4th at p. 682.) It was only in answering
that question that the Supreme Court offered the observations it did concerning the
structure of Proposition 36. The separate question the Arevalo court decided was not
squarely presented in Johnson, and as the Supreme Court has itself cautioned, “‘language
in a judicial opinion is to be understood in accordance with the facts and issues before the
court. An opinion is not authority for propositions not considered.’ (Chevron U.S.A.,
Inc. v. Workers’ Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195, 81 Cal.Rptr.2d 521,
969 P.2d 613.)” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680.) That rule is apt
in this case, especially because there is other language in Johnson that seems to be in
some tension with the portions of Johnson cited in Arevalo. (Johnson, supra, 61 Cal.4th
at p. 686 [“[T]he Act is more cautious with respect to resentencing”].)
       Absent a more definitive ruling from our Supreme Court, I conclude the prudent
course is to consider following Arevalo’s holding concerning the standard of proof only
in a case where a factfinder has returned a not guilty or not true finding that conflicts with
a later determination of a defendant’s eligibility for a sentence reduction under section




       2In a different portion of the opinion, the court considered a second, separate
question raised by defendant Machado. (Johnson, supra, 61 Cal.4th at pp. 687-688.)

                                              3
1170.126.3 This is not such a case, and I therefore agree to affirm the order denying the
sentence recall petition.




                                       BAKER, J.




       3 Even Arevalo itself places some emphasis on the factual predicate for its holding
when it states “we conclude this situation [a court later finding a fact true that was
previously found not true at trial] requires a heightened standard of proof for making
section 1170.126 . . . resentencing eligibility determinations.” (Arevalo, supra, 244
Cal.App.4th at p. 849, italics added.)

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