Filed 9/12/19

                CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION TWO


 THE PEOPLE,                               B290614

         Plaintiff and Respondent,         (Los Angeles County
                                           Super. Ct. No. BA215317)
         v.

 RAYNOULD THOMAS,

         Defendant and Appellant.




      APPEAL from an order of the Superior Court of Los
Angeles County. William C. Ryan, Judge. Affirmed.
      Three Strikes Project, Stanford Law School, Michael S.
Romano and Susan L. Champion for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven D. Matthews, Supervising Deputy
Attorney General, Noah P. Hill, Roberta L. Davis and Charles S.
Lee, Deputy Attorneys General, for Plaintiff and Respondent.
               _________________________________
       A jury found appellant Raynould Thomas guilty of battery
with serious bodily injury (Pen. Code,1 § 243, subd. (d)), but
found not true an allegation under section 12022.7, subdivision
(a) that in the commission of the offense, appellant personally
inflicted great bodily injury on the victim. After finding true four
prior strike conviction allegations, the trial court sentenced
appellant to an indeterminate term of 25 years to life under the
Three Strikes law. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(e).)
This court affirmed appellant’s conviction and sentence in a
nonpublished opinion filed May 22, 2002. (People v. Thomas,
B151924.)
       Thomas appeals an order of the superior court denying his
petition for recall of his sentence pursuant to section 1170.126.
Following an eligibility hearing, the trial court found beyond a
reasonable doubt that during the commission of the offense,
appellant “ ‘intended to cause great bodily injury to another
person,’ ” and was therefore ineligible for resentencing pursuant
to section 1170.12, subdivision (c)(2)(C)(iii). Appellant contends
the trial court erred in denying the petition for resentencing on
the basis of an inference, which he asserts was unsupported by
the evidence, that appellant intended to cause great bodily injury
in the commission of his offense. We disagree and affirm.
                           BACKGROUND
       On March 16, 2001, appellant and a woman spent the night
in the apartment of appellant’s friend, Alton Chillious. Appellant
and the woman left together early the next morning but returned
a few hours later asking to use the apartment again for the day.
Chillious objected and told appellant he did not want them using


      1   Undesignated statutory references are to the Penal Code.




                                  2
his apartment that day. Appellant and Chillious argued, and
appellant began raising his voice and pacing the floor.
       As Chillious was removing his jacket from a closet,
appellant suddenly punched him hard on the left side of his jaw,
knocking him into the closet door. While Chillious was still
down, appellant punched him again, this time on the right side of
his jaw. Chillious fell backward, slid down the wall, and “saw
stars.” When Chillious touched his jaw, he felt his tooth had
moved and he found a big gash in his jaw. After punching
Chillious, appellant stood over him for a few minutes, pacing and
angry. Before appellant punched him, Chillious had not
challenged appellant to fight, nor did he strike, punch, kick,
push, or otherwise threaten appellant. After the attack appellant
and the woman left Chillious’s apartment.
       Chillious’s jaw was broken in two places. He underwent
surgery during which screws and plates were inserted into the
jawbone to stabilize the jaw. His jaw was wired shut after the
surgery and he received stitches for the gash. Over the next
three and a half weeks Chillious lost 20 pounds, and the attack
left him with permanent nerve damage.
       After Chillious was released from the hospital, appellant
went to Chillious’s apartment and apologized. Chillious was
reluctant to testify in the case because he felt sympathy for
appellant and his daughter. Before trial, Chillious wrote
appellant a letter in which he said, “ ‘I don’t want you to be sent
away. But Ray, you can’t be sucker punching people because
things aren’t going your way.’ ” He also told appellant he
planned to lie at the next court hearing by testifying that
appellant punched him in self-defense after Chillious pushed
appellant. Chillious wrote that he knew appellant did not mean




                                 3
to break his jaw, and he did not “ ‘want to see [appellant] in the
system for something [he] didn’t mean to do.’ ” Finally, Chillious
said that he considered appellant to be a friend, and he hoped
appellant would be out of custody within a couple of months.
                            DISCUSSION
I.     Proposition 36
       Passed by the electorate on November 6, 2012, the Three
Strikes Reform Act of 2012 (Proposition 36 or the Act) “reduced
the punishment to be imposed with respect to some third strike
offenses that are neither serious nor violent, and provided for
discretionary resentencing in some cases in which third strike
sentences were imposed with respect to felonies that are neither
serious nor violent.” (People v. Johnson (2015) 61 Cal.4th 674,
679 (Johnson).) In addition to the prospective reduction of
sentences for qualifying third strike convictions, “the Act provides
a procedure by which some prisoners already serving third strike
sentences may seek resentencing in accordance with the new
sentencing rules.” (Id. at p. 682.) The procedure allows an
inmate currently serving a third strike sentence for a nonserious,
nonviolent felony conviction to file a petition to recall the third
strike sentence and be resentenced as a second strike offender.
(§ 1170.126, subd. (b); People v. Perez (2018) 4 Cal.5th 1055, 1059
(Perez); Johnson, at p. 682.)
       Not every inmate who is currently serving a third strike
sentence for a nonserious, nonviolent felony is eligible for
resentencing under the Act. (See §§ 667, subd. (e)(2)(C), 1170.12,
subd. (c)(2)(C); People v. Estrada (2017) 3 Cal.5th 661, 667
(Estrada).) Among other disqualifying factors, a petitioner is
ineligible for resentencing if, “[d]uring the commission of the
current offense, [he or she] used a firearm, was armed with a




                                 4
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); Estrada, at p. 667; Johnson, supra, 61 Cal.4th
at p. 682.) As our Supreme Court has explained, “section
1170.12, subdivision (c)(2)(C)(iii) is best read as excluding from
resentencing ‘broadly inclusive categories of offenders who,
during commission of their crimes—and regardless of those
crimes’ basic statutory elements—used a firearm, were armed
with a firearm or deadly weapon, or intended to cause great
bodily injury to another person.’ ” (Estrada, at p. 670, quoting
People v. Blakely (2014) 225 Cal.App.4th 1042, 1055 (Blakely).)
       In determining Proposition 36 eligibility on a petition for
recall and resentencing, a trial court makes findings of fact
drawn from the entire record of conviction and “is not limited by
a review of the particular statutory offenses and enhancements of
which petitioner was convicted.” (People v. Bradford (2014) 227
Cal.App.4th 1322, 1332; People v. Cruz (2017) 15 Cal.App.5th
1105, 1110.) Thus, “ ‘the court may examine relevant, reliable,
admissible portions of the record of conviction to determine the
existence or nonexistence of disqualifying factors.’ ” (Cruz, at
p. 1110; Blakely, supra, 225 Cal.App.4th at p. 1063.) As Estrada
held, “Proposition 36 permits a trial court to examine facts
beyond the judgment of conviction in determining whether a
resentencing ineligibility criterion applies.” (Perez, supra, 4
Cal.5th at p. 1063; Estrada, supra, 3 Cal.5th at p. 672.)
II.    The Standard of Proof for Ineligibility and the
       Standard of Review on Appeal
       The petitioning defendant has the initial burden of
establishing a prima facie case for eligibility for recall of the third
strike sentence. (People v. Frierson (2017) 4 Cal.5th 225, 234;




                                   5
People v. Johnson (2016) 1 Cal.App.5th 953, 963.) Once that
requirement is satisfied, however, the burden shifts to the
prosecution to prove beyond a reasonable doubt that one of the
disqualifying factors applies. (Perez, supra, 4 Cal.5th at pp. 1059,
1062; Frierson, at p. 236; People v. Arevalo (2016) 244
Cal.App.4th 836, 853 (Arevalo).) Our Supreme Court has
expressly held that in determining a petitioner’s eligibility, the
trial court may rely on facts not found by a jury, and “[a]
reviewing court, in turn, must defer to the trial court’s
determination if it is supported by substantial evidence.” (Perez,
at p. 1059.)
       In reviewing the trial court’s eligibility determination, we
view the evidence in the light most favorable to the trial court’s
findings without reassessing the credibility of witnesses or
resolving evidentiary conflicts. (People v. Gomez (2018) 6 Cal.5th
243, 278; Perez, supra, 4 Cal.5th at p. 1066 [“reviewing court does
not reweigh the evidence; appellate review is limited to
considering whether the trial court’s finding of a reasonable
doubt is supportable in light of the evidence”].) “A reversal for
insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial
evidence to support” ’ ” the court’s findings. (People v. Zamudio
(2008) 43 Cal.4th 327, 357.)
       With regard to proof of intent, our Supreme Court has
explained that although “ ‘[e]vidence of a defendant’s state of
mind is almost inevitably circumstantial,’ ” such evidence may
nevertheless be sufficient by itself to support a court’s factual
finding of intent. (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
Indeed, the same deferential standard of review applies when a
court’s finding is based on circumstantial evidence and requires




                                 6
that we “accept logical inferences that the [trial court] might
have drawn from the circumstantial evidence.” (People v. Maury
(2003) 30 Cal.4th 342, 396; Manibusan, at p. 87.)
III. The Trial Court’s Determination that Appellant
       Intended to Inflict Great Bodily Injury Is
       Supported by Substantial Evidence
    A. The trial court properly inferred appellant’s intent from the
circumstances surrounding the battery
       Because a defendant’s intent is rarely susceptible of direct
proof and must be proven circumstantially, a defendant’s actions
leading up to the crime become relevant in proving his or her
mental state and intent in the commission of the offense. (People
v. Thomas (2011) 52 Cal.4th 336, 355; Hudson v. Superior Court
(2017) 7 Cal.App.5th 1165, 1171 [“a person’s intent ‘is a question
of fact to be determined from all the circumstances of the case’ ”].)
The intent to inflict great bodily injury thus “may be shown by,
and inferred from, the circumstances surrounding the doing of
the act itself.” (People v. Phillips (1989) 208 Cal.App.3d 1120,
1124 (Phillips).)
       Here, substantial evidence supports the trial court’s finding
that appellant acted with intent to cause great bodily injury
based on the circumstances of the offense. As Chillious was
taking his jacket out of the closet, appellant—suddenly and
without provocation—punched Chillious hard on the left side of
his jaw. The blow caused Chillious to fall into the closet door,
landing on his knee and hitting his head on the wall. While
Chillious was still down, appellant punched him again on the
right side of his jaw. The force of the two blows broke Chillious’s
jawbone in two places, caused a gash on the right side of his jaw,
and dislocated a tooth. The trial court emphasized that its




                                 7
finding that appellant intended to inflict great bodily injury was
based on the evidence of appellant’s conduct, and not on the
severity of the victim’s injuries.
      Appellant asserts that the trial court improperly rejected
the only actual evidence of appellant’s intent: Chillious’s
statements in his letter to appellant that he believed appellant
did not intend to break his jaw, and he did not want to see
appellant punished for “something [he] didn’t mean to do.” But
as the trier of fact, the trial court was entitled to give Chillious’s
statements whatever weight it deemed appropriate, or to
disregard them altogether. (See People v. Henderson (1949) 34
Cal.2d 340, 346 [questions regarding the weight of evidence and
the credibility of witnesses are solely for the trier of fact].)
Certainly, the trial court had good reason to put little stock in the
statements, given that Chillious admitted he wrote the letter
because he felt sorry for appellant and appellant’s daughter, and
he did not want appellant to be sent to prison. Chillious also told
appellant in the letter that he was prepared to testify falsely that
he had pushed appellant and appellant then struck him in self-
defense. Chillious explained that his willingness to lie was
because he has “a very kind heart, . . . and even though this
happened to [his] jaw, [he] still had a heart that didn’t want the
person to be sent away or whatever.”
      In light of appellant’s actions in carrying out the battery
and Chillious’s motives for writing the letter, the trial court
reasonably accorded little weight to Chillious’s statement about
appellant’s intent. “Of course, ‘it is not a proper appellate
function to reassess the credibility of the witnesses’ ” (People v.
Friend (2009) 47 Cal.4th 1, 41), and we will not reweigh the trial
court’s assessment of Chillious’s credibility here.




                                  8
    B. Actual infliction of great bodily injury is not a prerequisite
to finding intent to cause such injury
       Declaring that “[n]o California court has ever found that a
defendant intended to cause great bodily injury in the face of a
jury finding that the defendant did not actually cause the injury
in question,” appellant contends the jury’s finding precluded any
inference of intent to cause great bodily injury. Citing Phillips,
supra, 208 Cal.App.3d at page 1123, appellant claims that the
only circumstances in which intent to cause great bodily injury
can be inferred are when (1) the defendant applied force in a
manner reasonably certain to produce great bodily injury, and
(2) the defendant’s application of force actually produced great
bodily injury.
       Phillips, however, announced no such rule. Rather, the
court held that “where one applies force to another in a manner
reasonably certain to produce, and actually producing, great
bodily injury, the requisite intent can be presumed, since the
intent with which an act is done may be inferred from the
circumstances attending the act, including the manner in which
the act was done and the means used.” (Id. at p. 1124.) This
statement simply does not support appellant’s claim that a court
can infer an intent to inflict great bodily injury only where the
defendant actually caused great bodily injury. To the contrary,
Phillips allows the factfinder to infer intent apart from the
infliction of great bodily injury based on the facts and
circumstances of the defendant’s actions alone.
       People v. Guilford (2014) 228 Cal.App.4th 651 (Guilford)
illustrates the principle. There, the defendant was convicted of
spousal abuse (§ 273.5) and sentenced based on three prior
strikes. (Id. at p. 654.) There had been no finding of great bodily




                                  9
injury in connection with the spousal abuse conviction.
Nevertheless, in denying defendant’s petition to recall the
sentence, the trial court found that during the commission of the
current offense, the defendant “ ‘intended to cause great bodily
injury to another person’ ” (Guilford, at p. 657, italics omitted;
§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126,
subd. (e)), and was therefore ineligible for recall of his sentence
under the Act (Guilford, at pp. 654–655). In reaching its
conclusion, the trial court summarized the prior opinion from the
direct appeal of defendant’s conviction and inferred an intent to
commit great bodily injury based on the evidence of continuous
spousal abuse. The Court of Appeal upheld the trial court’s
finding. (Id. at pp. 661–662.)
       Appellant attempts to distinguish Guilford on the grounds
that (1) the jury in this case found the allegation that appellant
had personally inflicted great bodily injury on the victim to be not
true, whereas there was no jury finding on great bodily injury in
Guilford; (2) the trial court here expressly found appellant “did
not actually inflict great bodily injury,” while Guilford involved a
history of continuous spousal abuse; and (3) while in this case
there was some evidence the victim did not believe appellant had
intended to hurt him, there was no such evidence in Guilford.
These factors, however, amount to a distinction without a
difference between the two cases. The bottom line is that in
Guilford, as in the instant case, the trial court could
properly⎯and did⎯infer the defendant’s intent to cause great
bodily injury based on the whole record of conviction, even in the
absence of a finding of actual infliction of great bodily injury.
       Appellant’s argument, carried to its logical conclusion,
would have us hold as a matter of law that the jury’s finding that




                                 10
the battery did not result in great bodily injury to the victim
precluded a finding by the trial court that appellant intended to
cause such injury. This is plainly not the law. The jury in this
case was charged only with determining whether appellant
“personally inflicted great bodily injury” on Chillious. As the
trial court observed, the jury “was not tasked with finding
whether or not [appellant] intended to cause great bodily injury.”
In determining appellant’s eligibility for resentencing, it was
therefore up to the trial court to make the necessary findings that
were not addressed by the jury’s verdict or findings.
       Appellant further contends that because the trial court’s
inference of intent is contrary to the jury’s verdict and findings,
the eligibility determination violates the holdings in Arevalo,
supra, 244 Cal.App.4th 836, and People v. Piper (2018) 25
Cal.App.5th 1007 (Piper). In contrast to those cases, however,
the issue of appellant’s intent to inflict great bodily injury was
not decided by the jury, and the jury’s finding that appellant did
not cause great bodily injury did not resolve the question of his
intent.
       In Arevalo the defendant was convicted following a bench
trial of grand theft auto and driving a vehicle without the owner’s
consent. The trial judge acquitted the defendant of the charge of
possession of a firearm by a felon and found not true the
allegation that the defendant had been armed with a firearm
during the offense. While serving his third strike sentence, the
defendant petitioned for recall and resentencing under the Act.
(Arevalo, supra, 244 Cal.App.4th at p. 841.) Applying a
preponderance of the evidence standard, the trial court found
that, despite the acquittal and not true finding, the defendant
had been armed with a weapon when he committed his offenses




                                11
and was therefore ineligible for resentencing. (Id. at pp. 841–
842.) The Court of Appeal reversed, holding that “[u]nder the
applicable beyond a reasonable doubt standard, [defendant’s]
acquittal on the weapon possession charge and the not-true
finding on the allegation of being armed with a firearm, preclude
a finding that he is ineligible for resentencing consideration.”
(Id. at p. 853.)
       Similarly, in Piper, a jury convicted the defendant of
evading a pursuing peace officer and being a felon in possession
of ammunition but found not true the allegation that the
defendant was armed in the commission of the offense, and
acquitted defendant of all firearm-related counts, including being
a felon in possession of a firearm and carrying a loaded firearm.
The defendant was sentenced as a “three-strike” offender and
later petitioned for recall and resentencing pursuant to section
1170.126. (Piper, supra, 25 Cal.App.5th at pp. 1010, 1013.)
Following an evidentiary hearing the trial court found defendant
ineligible for resentencing because he “ ‘was armed with a
firearm’ ” during the commission of the offenses. (Id. at p. 1013.)
       Piper framed the issue on appeal as follows: Under what
circumstances would “a jury’s verdict and findings in the
petitioner’s trial preclude or limit the trial court’s eligibility
determination under the Reform Act?” (Piper, supra, 25
Cal.App.5th at p. 1013.) The court recognized that, “as a matter
of law, a jury’s not-true finding on an arming enhancement does
not necessarily preclude a trial court from making an eligibility
determination under the Reform Act that a defendant was
armed.” (Id. at p. 1015.) However, the court held that in
acquitting the defendant on all firearm-related charges, including
being a felon in possession of a firearm and carrying a loaded




                                12
firearm, the jury “conclusively rejected the claim that [defendant]
was ‘armed with a firearm,’ ” and “[t]hat rejection foreclosed any
later finding beyond a reasonable doubt that [defendant] was
‘armed with a firearm,’ either while evading the police or while in
possession of live ammunition.” (Id. at p. 1016.)
       In stark contrast to Arevalo and Piper, the jury’s findings
and verdict in this case were not inconsistent with the trial
court’s eligibility determination. The jury’s finding that
appellant did not actually inflict great bodily injury did not
address the issue before the trial court, whether appellant
intended to cause great bodily injury in the commission of the
offense. Accordingly, the not true finding on the great bodily
injury allegation did not preclude the trial court from finding that
appellant intended to cause great bodily injury for purposes of his
eligibility for resentencing under the Act.




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                        DISPOSITION
      The order denying appellant’s resentencing petition is
affirmed.
      CERTIFIED FOR PUBLICATION.




                                    LUI, P. J.
We concur:




     ASHMANN-GERST, J.




     HOFFSTADT, J.




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