Filed 7/31/14
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                              ----




THE PEOPLE,                                                      C073329

                  Plaintiff and Respondent,              (Super. Ct. No. 94F04208)

        v.

MICHAEL GUILFORD,

                  Defendant and Appellant.



     APPEAL from a judgment of the Superior Court of Sacramento County,
Lawrence G. Brown, Judge. Affirmed.

      Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney
General, Eric L. Christoffersen, Supervising Deputy Attorney General, Ivan P. Marrs,
Deputy Attorney General, for Plaintiff and Appellant.




                                               1
        Defendant Michael Guilford appeals from an order denying his petition to recall
his sentence under the Three Strikes Reform Act of 2012 (Pen. Code, §§ 667, 1170.12,
1170.126,1 Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012) (the Act)).
        Although the Act contains some provisions affecting sentencing taking place after
its operative date, as relevant to this appeal, the Act also sets forth a mechanism for relief
for some existing three strikes inmates. That part of the Act creates a two-step process.
First, the trial court determines whether a defendant is qualified or disqualified from
seeking a recall of sentence. Second, if and only if a defendant is found to be qualified,
the trial court conducts a hearing, and then applies certain standards to determine whether
the defendant’s sentence should be lessened. (See People v. Superior Court (Kaulick)
(2013) 215 Cal.App.4th 1279, 1292-1294 (Kaulick); People v. Yearwood (2013)
213 Cal.App.4th 161, 167-168 (Yearwood).) This appeal involves only the first step.
        Defendant contends (1) the trial court improperly considered our prior opinion on
direct appeal from defendant’s convictions in finding him ineligible for resentencing
under the Act, (2) our prior opinion does not show he was ineligible under the Act, and
(3) he was entitled to have a jury determine his eligibility under the Act. He folds into
his first claim the underdeveloped argument that pleading and proof were required to
support the trial court’s disqualifying determination. As we will explain, we disagree and
affirm the trial court’s order finding defendant ineligible for resentencing under the Act.
                                     BACKGROUND
        Defendant’s petition alleged he was convicted of spousal abuse (§ 273.5) in 1994,
and it had been proven that he had three prior strikes; a 1977 arson conviction (former
§ 449a; see Stats. 1976, ch. 1139, § 200, p. 5119); a 1983 arson conviction (§ 451, subd.
(b); and a 1985 assault with a deadly weapon conviction (§ 245, subd. (a)(2)).



_______________________________________________________________
1   Further undesignated statutory references are to the Penal Code.

                                              2
       The Act makes ineligible for resentencing those persons who, inter alia, “[d]uring
the commission of the current offense . . . intended to cause great bodily injury to another
person.” (§§ 667, subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(B)(iii); see § 1170.126, subd.
(e).) After reviewing our opinion on appeal from the judgment, the trial court found
defendant intended to cause great bodily injury, and therefore found defendant ineligible
for relief and denied his petition. Defendant timely appealed.2
                                       DISCUSSION
                                               I
                       Use of Prior Opinion to Determine Eligibility
       Defendant contends it was improper for the trial court to consider the facts stated
in our prior opinion on direct appeal to determine whether or not he had the intent to
commit great bodily injury in committing the current offense. He claims that the trial
court’s consideration of our opinion denied him due process because it denied him his
right to notice and the opportunity to be heard as to the facts set forth in the opinion, as
“there was no finding that was pled and proven that supported” the court’s finding of the
requisite intent.
       A. The Act Generally
       The Act amended sections 667 and 1170.12 and added section 1170.126, changing
the requirements for sentencing a third strike offender to an indeterminate life term.

               “Under the original version of the three strikes law a recidivist with two or
       more prior strikes who is convicted of any new felony is subject to an
       indeterminate life sentence. The Act diluted the three strikes law by reserving the
       life sentence for cases where the current crime is a serious or violent felony or the
       prosecution has pled and proved an enumerated disqualifying factor. In all other
       cases, the recidivist will be sentenced as a second strike offender. [Citations.]

_______________________________________________________________
2 The People agree with defendant that the trial court’s denial of defendant’s petition for
recall of sentence is an appealable order. The issue is currently pending before our
Supreme Court. (See Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted
July 31, 2013, S211708.) We assume without deciding that the appeal lies.

                                              3
         The Act also created a postconviction release proceeding whereby a prisoner who
         is serving an indeterminate life sentence imposed pursuant to the three strikes law
         for a crime that is not a serious or violent felony and who is not disqualified, may
         have his or her sentence recalled and be sentenced as a second strike offender
         unless the court determines that resentencing would pose an unreasonable risk of
         danger to public safety.” (Yearwood, supra, 213 Cal.App.4th at pp. 167-168.)
         “Thus, there are two parts to the Act: the first part is prospective only, reducing
the sentence to be imposed in future three strike cases where the third strike is not a
serious or violent felony [citations]; the second part is retrospective, providing similar,
but not identical, relief for prisoners already serving third strike sentences in cases where
the third strike was not a serious or violent felony [citation].” (Kaulick, supra,
215 Cal.App.4th at p. 1292.) “The main difference between the prospective and the
retrospective parts of the Act is that the retrospective part of the Act contains an ‘escape
valve’ from resentencing prisoners whose release poses a risk of danger.” (Id. at p.
1293.)
         In approving the Act, the electorate declared that its purpose was both to prevent
the early release of dangerous criminals and to relieve prison overcrowding by allowing
low-risk, nonviolent inmates serving life sentences for petty crimes, to receive shorter
sentences, thereby saving money while protecting public safety. (Ballot Pamp., Gen.
Elec. (Nov. 6, 2012) text of Prop. 36, § 1, subds. (3), (4) & (5), p. 105.) The electorate
also mandated that the Act be liberally construed to effectuate the protection of the
health, safety, and welfare of the People. (Ballot Pamp., supra, text of Prop. 36, § 7, p.
110.) Such findings in voter ballot pamphlets may be used to illuminate ambiguous or
uncertain provisions of an enactment. (See Yearwood, supra, 213 Cal.App.4th at p. 171.)
         B. Pleading and Proof
         The Act requires pleading and proof when ineligibility for lenient treatment under
the Act applies prospectively, that is, to persons currently charged with a three strikes
offense that is not itself defined as serious or violent. (§§ 667, subd. (e)(2)(C) [“unless
the prosecution pleads and proves any of the following”]; 1170.12, subd. (c)(2)(C)


                                                4
[“unless the prosecution pleads and proves any of the following”].) No pleading and
proof language appears in the part of the Act addressing relief to persons previously
sentenced under the three strikes law, which reads in relevant part as follows:

              “An inmate is eligible for resentencing if:

               “(1) The inmate is serving an indeterminate term of life imprisonment
       imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision
       (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined
       as serious and/or violent felonies by subdivision (c) of Section 667.5 or
       subdivision (c) of Section 1192.7.

              “(2) The inmate’s current sentence was not imposed for any of the offenses
       appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of
       subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C)
       of paragraph (2) of subdivision (c) of Section 1170.12.

              “(3) The inmate has no prior convictions for any of the offenses appearing
       in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section
       667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of
       Section 1170.12.” (§ 1170.126, subd. (e).)
       Nowhere in the resentencing provisions of the Act--section 1170.126, subdivision
(e), quoted above--is there any reference to pleading and proof of disqualifying factors.
Generally speaking, a pleading and proof requirement will not be implied. (See People v.
Griffis (2013) 212 Cal.App.4th 956, 962-965.)
       Instead, section 1170.126, subdivision (f) provides that, “Upon receiving a petition
for recall of sentence under this section, 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, the burden falls on the trial court to make the
determination whether a defendant meets the prima facie criteria for recall of sentence.3

_______________________________________________________________
3 If the trial court finds those criteria satisfied there is then a hearing at which the parties
may address whether defendant would pose an unreasonable risk to public safety, and if
not, what the new sentence should be. (See Kaulick, supra, 215 Cal.App.4th at pp. 1296-
1300.)

                                               5
       In this case, the trial court determined the current offense fell within the bar of
section 667, subdivision (e)(2)(C)(iii), and section 1170.12, subd. (c)(2)(C)(iii), each of
which describes the circumstance where “During the commission of the current offense,
the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to
cause great bodily injury to another person.” (Emphasis added.)
       Because the electorate required pleading and proof of these disqualifying facts in
the prospective part of the Act, but not the retrospective part, we presume the intention
was to dispense with a pleading and proof requirement in the latter case. “We presume
the [electorate] intended everything in a statutory scheme, and we do not read statutes to
omit expressed language or to include omitted language. [Citation.] When ‘ “ ‘ “a statute
on a particular subject omits a particular provision, the inclusion of such a provision in
another statute concerning a related matter indicates an intent that the provision is not
applicable to the statute from which it was omitted.” ’ ” ’ ” (Tyrone W. v. Superior Court
(2007) 151 Cal.App.4th 839, 850.)
       Defendant nonetheless contends that because the resentencing portion of the Act
cross-references the prospective portions of the Act, it necessarily incorporated the
pleading and proof requirement in the prospective portions. This claim has some
superficial appeal. (Accord, Palermo v. Stockton Theaters, Inc. (1948) 32 Cal.2d 53, 58-
59 [where a statute references another statute, it presumably references it as it existed at
the time of the reference, and not as it may be amended later].) However, on closer
inspection, this contention is not persuasive.4
_______________________________________________________________
4 In response to defendant’s contention, the People in part claim that there is no
enhancement for intending to inflict great bodily injury, only for personally inflicting
great bodily injury on a non-accomplice during the commission of a felony or attempted
felony. (§ 12022.7.) That does not require an actual intent to inflict great bodily injury.
(People v. Poroj (2010) 190 Cal.App.4th 165, 172-176; see Couzens & Bigelow, The
Amendment of the Three Strikes Sentencing Law (Nov. 4, 2013) Petition for
Resentencing, p. 29 [“indeed, there is no crime or special penalty for committing a crime
with the intent to cause great bodily injury”].) In their briefing, the People reasoned that

                                              6
       If the electorate meant to impose a pleading and proof requirement, they would
have done so in clear terms, but instead directed trial courts to find ineligible those
persons who “[d]uring the commission of the current offense, . . . used a firearm, [were]
armed with a firearm or deadly weapon, or intended to cause great bodily injury to
another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Although
some persons may have had such disqualifying factors plead and proved in the current
case, in most cases such factors would not have been adjudicated. To adopt defendant’s
reasoning would be to undermine one purpose of the People, acting via their reserved
initiative powers, viz., to preclude dangerous persons from the recall provision.
       Again, in the portion of the Act dealing with prospective application of the
reformed three strikes law to new cases, the statute requires the prosecution to plead and
prove any factor which would qualify the defendant for a life term sentence, including,
where appropriate, that the defendant intended to inflict great bodily injury. (§§ 667,
subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) In the portion of the Act seeking to
shorten the sentences of nonviolent and nondangerous prisoners, no such pleading and

nobody sentenced in California before the Act could have been subject to pleading and
proof of this factor. Thus, the People contended, a pleading and proof requirement would
be “absurd” because each part of a statute must be deemed to have effect (see People v.
Clark (1992) 10 Cal.App.4th 1259, 1266) and in their view, defendant’s interpretation
would nullify part of the Act because nobody would be subject to that provision.
        But, as the People conceded in argument, section 12022.7 originally applied where
and only where a “person, who, with the intent to inflict such injury, personally inflicts
great bodily injury” on a non-accomplice during a felony or attempted felony. (Stats.
1993, ch. 608, § 1, p. 3262, emphasis added; see Stats. 1979, ch. 146, § 17, p. 341 [prior
similar language]; Stats. 1976, ch. 1139, § 306, p. 5162 [similar original language].) The
intent to inflict injury element was eliminated in 1995. (Stats. 1995, ch. 341, §1, p. 1851;
see People v. Carter (1998) 60 Cal.App.4th 752, 755-756.) Therefore, there presumably
exists a class of persons who were adjudicated--after appropriate pleading and proof--to
have intended to inflict great bodily injury, that is, all persons charged and found liable
for the section 12022.7 enhancement between the effective date of the determinate
sentencing law and the 1995 amendment rewriting section 12022.7. Indeed, defendant
could have been one of those persons had the enhancement been pled and proven, as he
was convicted in 1994. Thus, the People’s argument is unsound.

                                              7
proof requirement is stated. The differences in approach make sense. Prospectively, the
prosecution is seeking, in the case of nonserious or nonviolent third strikes, to impose a
life term, which would not be possible without the added factors. But in a retrospective
analysis of sentences, the increased punishment has already been lawfully imposed.
       For this reason, we agree with the court in Kaulick, supra, 215 Cal.App.4th 1279.
“Had the drafters of the Act intended [defendant’s] interpretation, the retrospective part
of the Act would have provided that if the petitioner were eligible for resentencing, the
sentence would be recalled and the petitioner sentenced to a second strike sentence
‘unless the prosecution pleads and proves’ that such a sentence would constitute an
unreasonable risk of danger to the community. They did not do so.” (Id. at p. 1303, fn.
26.)
       This quotation from Kaulick directly addresses the second step in a recall of
sentencing case, that is, whether a person statutorily eligible to petition for retrospective
relief is found to be too dangerous to release. (See Kaulick, supra, 215 Cal.App.4th at
pp. 1302-1303.) However, in our view Kaulick’s reasoning applies equally to all of the
retrospective part of the Act. Our conclusion is bolstered by People v. White (2014)
223 Cal.App.4th 512. White had been convicted of possession of a firearm by a felon,
which is not a disqualifying fact, that is, it had never been pled or proven that he was
armed with a firearm, only that he was in possession of a firearm. (Id. at pp. 518-519.)
However, White held that it was appropriate in considering White’s recall petition for the
trial court to consider the facts of the crime, as shown by the record, to disqualify him,
following the logic of Kaulick: The requirement of pleading and proof for prospective
application of the Act, and the absence of such requirement for retrospective application,
indicates that pleading and proof is not a requirement for the latter. (Id. at pp. 524-527.)
We agree with this interpretation.




                                              8
       C. Use of Prior Opinion to Establish Ineligibility
       Beyond his pleading and proof argument, which we have addressed ante,
defendant argues the trial court’s reliance on facts “beyond the record of conviction” was
error, contending that the court should not have looked at our prior opinion to determine
whether the facts showed he was ineligible because he intended to inflict great bodily
injury. He contends that if the face of the judgment does not reflect a disqualifying
factor, the time to consider the underlying facts would be at the next step contemplated
by the Act, the hearing to determine whether defendant is dangerous. We disagree.
       Under the three strikes law generally, a trial court may look to the whole record of
a prior conviction to determine whether the facts meet the definition of a strike, including
looking to a prior appellate decision. (See People v. Woodell (1998) 17 Cal.4th 448,
454-457 (Woodell) [foreign state appellate opinion used to show defendant’s prior
conviction qualified as a strike under California law because it showed he personally
used a deadly weapon]; see 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 246, p.
1112.) We see no reason why Proposition 36 would change this rule. (See Couzens &
Bigelow, supra, p. 38 [“It is likely the court could consider any documentary evidence
that is part of the ‘record of conviction:’ ‘those record documents reliably reflecting the
facts of the offense for which the defendant has been convicted’ ”].)5
       If the prior opinion does not sufficiently establish the facts, “the defendant, who
suffered the conviction and took the appeal, would know of and be able to challenge any
material flaws or omissions in the opinion.” (Woodell, supra, 17 Cal.4th at p. 457.)
Although defendant has indicated he wants to air those facts at a hearing on future
dangerousness, and claims he was denied a hearing to contest the trial court’s
interpretation of the facts, he makes no claim that our prior opinion misstated them. In

_______________________________________________________________
5 Indeed, trial counsel, in a document annexed to the notice of appeal, conceded the trial
court was “correct that it can rely upon facts from an appellate decision” under Woodell,
although she argued defendant should be allowed to contest those facts.

                                              9
such circumstances, we see no reason why the trial court’s use of our prior opinion to
determine the facts was improper.
       To the extent our prior appellate opinion may be viewed as “hearsay,” it is still
admissible in the context of a Proposition 36 eligibility review. Reliable hearsay is
deemed sufficient for purposes of revoking probation or parole, somewhat analogous
proceedings where a defendant’s due process rights are less than those at the initial
criminal proceeding. (See In re Miller (2006) 145 Cal.App.4th 1228, 1234-1235 [parole
revocation hearing]; People v. Brown (1989) 215 Cal.App.3d 452, 454 [probation
revocation hearing]; see also People v. O’Connell (2003) 107 Cal.App.4th 1062, 1065-
1067 [deferred entry of judgment revocation].) If defendant had thought the facts stated
in our prior opinion were materially inaccurate, he had the remedy of petitioning for a
rehearing. “[I]f a party disagrees with the Court of Appeal’s selection of the material
facts or identification of the applicable law, the party can petition for a rehearing and
point out the deficiencies in the court’s opinion.” (People v. Garcia (2002)
97 Cal.App.4th 847, 854-855; see Torres v. Parkhouse Tire Service Inc. (2001)
26 Cal.4th 995, 1000, fn. 2 [Supreme Court’s policy is to decline to review facts of
appellate court decision if no petition for rehearing challenging the facts was filed]; Cal.
Rules of Court, rule 8.500(c)(2).) Defendant did not file a petition for rehearing in this
court. Therefore, we presume the facts previously stated by this court were faithful to the
appellate record before us and reliably summarized the evidence against defendant.
                                              II
                      Sufficiency of the Evidence from Prior Opinion
       Defendant contends our prior opinion does not adequately establish that he
intended to inflict great bodily injury on his victim. He acknowledges the opinion
describes facts supporting spousal abuse, but contends they lack “specificity” to show an
intent to inflict great bodily injury. We disagree.



                                             10
       Defendant acknowledges we review the trial court’s finding under the familiar
sufficiency of the evidence standard. “We review the whole record in a light most
favorable to the [order] to determine whether it contains substantial evidence, i.e.,
evidence that is credible and of solid value, from which a rational trier of fact could find
beyond a reasonable doubt that the accused committed the offense.” (In re Ryan D.
(2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.)
       The trial court summarized our prior opinion and found the facts reflected an
intent to commit great bodily injury. Substantial evidence supports that finding.
       The jury heard evidence that on May 12, 1994, defendant took his wife to the
hospital for a bloody nose. Although the victim told an experienced emergency room
nurse that defendant accidentally hit her with his elbow while they were in bed, the nurse
did not believe the fracture was accidental, but was caused by a closed fist or other
object. The nurse also observed the victim had a bruised chin, swollen lip, and had red
fingerprints on her neck. Other bruises on the victim appeared to be of different ages.
After the nurse had defendant leave the room, she asked if defendant had beaten her and
the victim eventually admitted he had, but then said she would deny it. Officers who
arrested defendant that night also saw the victim’s injuries.
       The trial court also stated that evidence of prior violence by defendant was
introduced under Evidence Code section 1101, subdivision (b), but did not summarize
that evidence. “Where a defendant is charged with a violent crime and has or had a
previous relationship with a victim, prior assaults upon the same victim, when offered on
disputed issues, e.g., identity, intent, motive, etcetera, are admissible based solely upon
the consideration of identical perpetrator and victim without resort to a ‘distinctive modus
operandi’ analysis of other factors.” (People v. Zack (1986) 184 Cal.App.3d 409, 415;
see People v. Hoover (2000) 77 Cal.App.4th 1020, 1026 [“Even before the enactment of
[Evidence Code] section 1109, the case law held that an uncharged act of domestic
violence committed by the same perpetrator against the same victim is admissible”].)

                                             11
The prior act evidence shows, in summary, that defendant physically abused his spouse
almost daily. During one particularly violent incident:

               “Cathy McCain and Deputy Sheriff Robert Davenport testified about the
       incident in Nevada City. McCain was in her front yard when she saw a man in a
       car strike a woman with his full weight. After he hit her about six times, McCain
       yelled for him to stop. She had her boyfriend block the dead-end street and called
       the police. The man she saw hitting the woman was defendant.

               “Deputy Davenport was dispatched to the scene. Both of Mrs. Guilford’s
       eyes were bruised, her cheeks were red, and there was a bruise on her chin. She
       told the officer she had fallen in Sacramento and denied defendant hit her. When
       Davenport said defendant admitted slapping her, she admitted it, but said he did
       not mean to. She maintained her injuries were the result of a fall. Photographs of
       her injuries were admitted at trial. Defendant told the officer he hit his wife just
       three times. When asked why, defendant responded, ‘no reason.’ ” (People v.
       Guilford (Oct. 30, 1996, C019691) [nonpub. opn.] slip opn. at pp. 6-7.)


       Based on this evidence, the trial court could rationally have found that defendant
intended to inflict great bodily injury when he punched his wife in the nose.
                                            III
                                   Right to a Jury Trial
       Defendant contends he is entitled to a jury trial under the Sixth Amendment as to
whether he is eligible for resentencing under the Act.
       This contention already has been resolved against defendant. “[T]he United States
Supreme Court has already concluded that its opinions regarding a defendant’s Sixth
Amendment right to have essential facts found by a jury beyond a reasonable doubt do
not apply to limits on downward sentence modifications due to intervening laws.”
(Kaulick, supra, 215 Cal.App.4th at p. 1304; see Dillon v. United States (2010) 560 U.S.
817, 828-829 [177 L.Ed.2d 271, 285].)
       Contrary to defendant’s view, nothing in Alleyne v. United States (2013) 570 U.S.
__ [186 L.Ed.2d 314] assists him. As described by our Supreme Court, in Alleyne, “the
United States Supreme Court held that the federal Constitution’s Sixth Amendment

                                            12
entitles a defendant to a jury trial, with a beyond-a-reasonable-doubt standard of proof, as
to ‘any fact that increases the mandatory minimum’ sentence for a crime.” (People v.
Nunez & Satele (2013) 57 Cal.4th 1, 39, fn. 6.) The denial of a recall petition does not
increase the mandatory minimum sentence for a defendant’s crime.6
                                     DISPOSITION
       The order denying the recall petition under the Act is affirmed.



                                                        DUARTE                , J.



We concur:



      BUTZ                  , Acting P. J.



      HOCH                  , J.




_______________________________________________________________
6
  In the reply brief, defendant purports to compare his case and Dillon to Pepper v.
United States (2011) 562 U.S. __ [179 L.Ed.2d 196], a case decided well before the
opening brief was filed. By withholding this case until the reply brief, defendant has
deprived the People of the opportunity to address Pepper, and defendant offers no
justification therefore. We therefore deem the belated argument about Pepper to be
forfeited. (See Kahn v. Wilson (1898) 120 Cal. 643, 644; People v. Baniqued (2000)
85 Cal.App.4th 13, 29.)

                                             13
