Filed 7/8/16 P. v. Winn CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE

THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144071
v.
RONNIE WINN,                                                         (Solano County
                                                                     Super. Ct. No. VC142750)
         Defendant and Appellant.


         Ronnie Winn appeals from an order denying his petition for resentencing under
Proposition 36, also known as the Three Strikes Reform Act of 2012 (Reform Act; Pen.
Code, § 1170.126 et seq.).1 He contends the trial court violated his constitutional right to
a jury trial because (1) the court relied on its own findings of the nature of the
commitment offense to declare him ineligible for resentencing; (2) the prosecutor did not
plead and prove the facts that allegedly rendered him ineligible; and (3) the court’s
finding that he intended to cause great bodily injury in perpetrating the commitment
offense was inconsistent with the jury’s verdict. In his reply brief, Winn contends the
order must be reversed because the court found an intent to cause great bodily injury by a
preponderance of the evidence rather than beyond a reasonable doubt.
         We will vacate the order and remand for the trial court to determine Winn’s
eligibility for resentencing under the standard of beyond a reasonable doubt and, if
necessary, whether his resentencing would pose an unreasonable risk of danger by a
preponderance of the evidence.

1
         All statutory references are to the Penal Code.


                                                             1
                       I. FACTS AND PROCEDURAL HISTORY
       Winn was charged with murder and battery after the death of his victim, James
Rendleman, whom he had kicked and “stomped.” For purposes of sentencing, it was
alleged that Winn had suffered two prior felony strikes and served two prior prison terms.
A jury thereafter convicted Winn of involuntary manslaughter (§ 192, subd. (b)) and
misdemeanor battery (§ 242), and the allegations of his prior strike convictions and the
prior prison terms were found to be true. The court sentenced Winn under the Three
Strikes Law to 25 years to life, plus sentence enhancements of one year for each of two
prior prison terms. (§§ 667, subd. (a)(1), 667.5, subd. (b), 1170.12.)
       In May 2002, this court affirmed the judgment of conviction but vacated one of
the two sentence enhancements, reducing Winn’s total sentence to 26 years to life.
       In our opinion affirming the conviction, we described the facts of the case as
follows, based on the record. Winn walked into the apartment of his victim, James
Rendleman, uninvited. He argued with Rendleman over an $8 debt, and after he was paid
only $5, became embroiled in a fight in which he “proceeded to beat, kick, and ‘stomp’
the head of Rendleman, a man of about 60, causing head and brain injuries that resulted
in his death a month later.” Winn also struck another individual in the face, grabbed him
by the throat, raised him off the floor by his neck, and choked him until he began to lose
consciousness. Winn admitted kicking Rendleman, although not in the head, and claimed
he acted in self-defense. Rendleman’s face was bloody and bore the impression of the
sole of a shoe; a forensic pathologist opined that this shoeprint was consistent with
Rendleman being “stomped.” A witness confirmed that Winn kept stomping Rendleman
in the head, kicking him in the side, and “grinding” his shoe into the face of Rendleman,
who was hurt badly, “gurgling,” and having trouble breathing.
       In January 2013, after the enactment of the Reform Act, Winn filed a petition for
resentencing as a second strike offender. The trial court initially ruled Winn eligible for
resentencing and ordered a hearing to decide whether Winn should be resentenced; the
prosecution filed a motion for reconsideration.



                                             2
       After further briefing and argument, the trial court issued its written order in
October 2014, finding Winn ineligible for resentencing under Proposition 36 and denying
his petition, on the ground that during the commission of his offense Winn intended to
cause great bodily injury to his victim.
       This appeal followed.
                                     II. DISCUSSION
       As mentioned, Winn contends the trial court violated his constitutional right to a
jury trial in ruling him ineligible for resentencing under the Reform Act on the ground he
intended to cause great bodily injury during the commission of his offense, arguing that
the court may not make such a finding, the prosecutor did not plead or prove those facts,
and the finding was contrary to findings of the jury. He also challenges the standard of
proof the court applied. We briefly summarize the Reform Act and the court’s findings,
and then turn to Winn’s arguments.
       A. The Reform Act
       In November 2012, voters approved the Reform Act, which amended sections 667
and 1170.12 and added section 1170.126.
       Previously, the Three Strikes Law had provided that an offender with two or more
prior qualifying felony “strike” convictions was subject to an indeterminate life sentence
if convicted of any new felony offense. (See People v. Flores (2014) 227 Cal.App.4th
1070, 1073.) Under the Reform Act, however, life sentences are now reserved for cases
where “the third felony is itself a serious or violent felony.” (Id. at pp. 1073–1074; see §
667, subd. (e)(2)(C); § 1170.12, subd. (c)(2)(C).)
       In addition to this prospective provision, the Reform Act contains a retrospective
provision, relevant here, which establishes a procedure for “persons presently serving an
indeterminate term of imprisonment” under the former Three Strikes Law, and “whose
sentence under this act would not have been an indeterminate life sentence,” to seek
resentencing by filing a “petition for a recall of sentence.” (§ 1170.126, subds. (a), (b);
see People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292 (Kaulick).)



                                              3
       The petitioner is eligible for resentencing if: (1) he or she is serving an
indeterminate term of life imprisonment imposed under the Three Strikes Law for a
conviction of a felony that is not defined as serious and or violent (see §§ 667.5, subd. (c)
& 1192.7, subd. (c)); (2) the current sentence was not imposed for a disqualifying offense
specified in section 667, subdivision (e)(2)(C), or section 1170.12, subdivision (c)(2)(C);
and (3) the petitioner has no prior convictions for offenses listed in section 667,
subdivision (e)(2)(C)(iv), and section 1170.12, subdivision (c)(2)(C)(iv). (§ 1170.126,
subd. (e).) If the trial court determines that the petitioner satisfies this criteria, then it
shall resentence the petitioner as a second strike offender “unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (§ 1170.126, subd. (f).)
       At issue here is whether Winn’s third strike sentence was imposed for a
disqualifying offense as stated in section 1170.126, subdivision (e)(2). That provision
states that an inmate is eligible for resentencing only if “[t]he 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.”
(§ 1170.126, subd. (e)(2).) Section 667, subdivision (e)(2)(C)(iii) and section 1170.12,
subdivision (c)(2)(C)(iii) pertain to an offense in which, during its commission, “the
defendant used a firearm, was 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). Italics added.)
       In short, the question was whether Winn’s third strike sentence was imposed for
an offense in which he intended to cause great bodily injury to another person.
       B. The Trial Court’s Ruling
       In denying Winn’s petition for resentencing, the court rejected his argument that
the prosecution needs to have pleaded and proved any factor that disqualifies a petitioner
from resentencing, including the fact that he intended to cause great bodily injury. The
court further ruled that Winn had no Sixth Amendment right to a jury determination of


                                                4
his resentencing eligibility, and a trial court may rely on the petitioner’s record of
conviction in determining eligibility for resentencing, including the appellate court’s
summary of the facts and evidence. On this record, the court concluded that the appellate
decision in this case supported a finding that Winn intended to cause great bodily injury
during the commission of his involuntary manslaughter offense. In addition, the court
ruled, this finding was not inconsistent with the jury’s verdict: the jury did not
necessarily find that Winn lacked an intent to cause great bodily injury in finding him not
guilty of murder; moreover, the instructions for involuntary manslaughter informed the
jury that the killing would be unlawful if done during the commission of an unlawful act
(in this case, a violation of section 242) that is dangerous to human life under the
circumstances of its commission.
       C. The Trial Court Could Properly Determine the Nature of Winn’s Offense
       Winn contends the court erred because (1) a trial court cannot examine the record
of conviction to determine if the petitioner is eligible for resentencing and (2) a fact
cannot render a petitioner ineligible for resentencing unless it was pleaded and proved by
the prosecutor. We join the many courts that have rejected these arguments.
              1. Trial Court’s Determination of Eligibility
       It is firmly established that the trial court, in deciding whether a petitioner is
eligible for resentencing under the Reform Act, is authorized to examine the petitioner’s
record of conviction to determine whether he or she intended to cause great bodily injury
during the commission of the current offense. (E.g., People v. Bradford (2014) 227
Cal.App.4th 1322, 1338–1339 (Bradford).)
       Winn nonetheless argues that cases imposing constitutional limitations on judicial
factfinding as to the nature of prior convictions for purposes of increasing a sentence
(Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); Descamps v. United States
(2013) 133 S.Ct. 2276 (Descamps)) also call into question the constitutionality of judicial
factfinding as to the nature of a prior conviction for purposes of resentencing under the
Reform Act, since the factfinding may render a defendant “ineligible for a dramatic
sentence reduction to which he would otherwise be entitled, i.e., the finding of those facts


                                               5
increases defendant’s sentence beyond that to which he is otherwise presumptively
entitled.” Winn is incorrect.
       Apprendi provides that “[other] than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S.
at p. 490.) And Descamps precludes a trial court from examining court documents, or
otherwise looking beyond the elements of an offense, in deciding whether a prior
conviction meets the requirements of a sentence enhancement statute. (Descamps, supra,
133 S.Ct. at pp. 2283–2285; see People v. Wilson (2013) 219 Cal.App.4th 500, 516 [“A
court may not impose a sentence above the statutory maximum based on disputed facts
about prior conduct not admitted by the defendant or implied by the elements of the
offense.”]; People v. Saez (2015) 237 Cal.App.4th 1177, 1207.)
       As the appellate courts of this state have repeatedly ruled, however, Apprendi and
Descamps do not apply to factual determinations affecting a petitioner’s eligibility for
resentencing under the Reform Act, because section 1170.126 is not a sentence
enhancing provision, but a sentence ameliorating provision that can only decrease a
defendant’s sentence. (People v. Brimmer (2014) 230 Cal.App.4th 782, 805 (Brimmer)
[“Apprendi and the limitations of the Sixth Amendment do not apply to resentencing
determinations”]; Bradford, supra, 227 Cal.App.4th at p. 1336 [“the trial court’s
determination of facts that affect whether the defendant will be resentenced does not
implicate the right to a jury trial as described in the Apprendi cases”]; People v. Blakely
(2014) 225 Cal.App.4th 1042, 1060 (Blakely) [“Apprendi and its progeny do not apply to
a determination of eligibility for resentencing under the [Reform] Act”]; Kaulick, supra,
215 Cal.App.4th at pp.1304–1305 [“[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.].)
       In reaching this conclusion, Kaulick looked to the United States Supreme Court’s
decision in Dillon v. United States (2010) 560 U.S. 817 (Dillon). In Dillon, a prisoner


                                              6
had sought a reduction in his sentence after the sentencing guideline range for his offense
was lowered. (Id. at p. 823.) The applicable statute authorized a court to adjust a
sentence downward if consistent with applicable policy statements, including that the
sentence could not be reduced below the amended range except to the extent the original
term was below the original range. (Id. at p. 819.) The United States Supreme Court
concluded that the limitation imposed by this policy statement was not merely advisory,
because the statute did not authorize a plenary resentencing but only a limited adjustment
to an otherwise final sentence, and Sixth Amendment rights were not violated by the
court’s adherence to the limitation. (Id. at pp. 826–828.) As relevant here, the court
stated: “[The statute] represents a congressional act of lenity intended to give prisoners
the benefit of later enacted adjustments to the judgments reflected in the Guidelines. [¶]
Viewed that way, proceedings under [this statute] do not implicate the Sixth Amendment
right to have essential facts found by a jury beyond a reasonable doubt. Taking the
original sentence as given, any facts found by a judge at a [modification downward]
proceeding do not serve to increase the prescribed range of punishment; instead, they
affect only the judge’s exercise of discretion within that range.” (Id. at p. 828. Italics
added.) The court in Kaulick found this language applicable to the resentencing
provision of the Reform Act: “[The resentencing provision] is not constitutionally
required, but an act of lenity on the part of the electorate. It does not provide for
wholesale resentencing of eligible petitioners. Instead, it provides for a proceeding where
the original sentence may be modified downward. Any facts found at such a proceeding,
such as dangerousness, do not implicate Sixth Amendment issues.” (Kaulick, supra, 215
Cal.App.4th at pp. 1304–1305.)
       Winn insists that Kaulick’s reliance on Dillon was wrong, because the statutory
scheme in Dillon only gave a court discretion to lower sentences, while section 1170.126
of the Reform Act redefines the “normative punishment” for a defendant. He adds that,
unlike the statute in Dillon, “section 1170.126 creates a new statutory presumption for a
second-strike sentence, which the court must impose unless a defendant is found
ineligible, or there is a factual finding of dangerousness. Given this presumption, and


                                               7
unlike the statute at issue in Dillon, it necessarily requires “ ‘plenary resentencing
proceedings” ’ ” at which the court determines whether a defendant is ineligible for the
new maximum (second strike) punishment.
       Winn is incorrect. The Reform Act did not automatically change the sentence of
individuals who received an indeterminate life sentence for a third strike felony that was
not serious or violent. Those sentences, lawful at the time of imposition, remain lawful
today. The statute merely provides that specified inmates may petition for a reduction in
their sentence. If a petitioner is eligible under the statute, the court “shall” resentence the
inmate unless the court in its discretion determines it would be too dangerous. But there
is no way that any judicial factfinding at any stage of the resentencing inquiry—whether
it be a fact with respect to eligibility or a fact regarding dangerousness—can possibly
increase the petitioner’s current lawful sentence. (See Kaulick, supra, 215 Cal.App.4th at
p. 1303.) Winn fails to establish error.
              2. No Requirement to Plead and Prove for Resentencing Purposes
       Winn acknowledges that he is ineligible for resentencing if his third strike
sentence was imposed for an offense listed in section 667, subdivision (e)(2)(C)(iii) or
section 1170.12, subdivision (c)(2)(C)(iii), such as a felony during which the defendant
intended to cause great bodily injury to another person. He argues, however, that those
statutes require the prosecution to “plead and prove” that the defendant intended to cause
great bodily injury in order to obtain a third strike sentence, so, as a corollary, an inmate
cannot be ineligible for resentencing unless the prosecution had met that requirement.
       Winn is incorrect. The plain language of the statute indicates that the pleading and
proof requirement is prospective only. The Reform Act states that the prosecution must
plead and prove the disqualifying factors with respect to the sentencing of a potential
third strike defendant; it does not contain such language in the part of the Reform Act
pertaining to resentencing. (People v. Guilford (2014) 228 Cal.App.4th 651, 657
[“Nowhere in the resentencing provisions of the [Reform] Act—section 1170.126,
subdivision (e), . . . is there any reference to pleading and proof of disqualifying factors.
Generally speaking, a pleading and proof requirement will not be implied.”]; People v.


                                               8
Chubbuck (2014) 231 Cal.App.4th 737, 747 (Chubbuck) [while § 1170.126, subd. (e)(2)
expressly cross-references § 667, subd. (e)(2)(C)(i)–(iii) and § 1170.12, subd.
(c)(2)(C)(i)–(iii), nothing in the language of § 1170.126, subd. (e)(2) or of any of the
other subdivisions of § 1170.126 governing resentencing references the plead-and-prove
language].) 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),” so “[t]here is no provision for the People to plead
or prove anything, [and] the burden falls on the trial court to make the determination
whether a defendant meets the prima facie criteria for recall of sentence.” (Guilford,
supra, 228 Cal.App.4th at p. 657 [when a statute omits a particular provision that was
included in a related statute, the intent was that the provision is inapplicable to the
provision from which it was omitted].)
       Other courts of appeal have agreed that disqualifying circumstances under section
1170.126, subdivision (e) need not be pleaded and proved. (E.g., Brimmer, supra, 230
Cal.App.4th at pp. 801–803; Bradford, supra, 227 Cal.App.4th at pp. 1333–1334; People
v. Elder (2014) 227 Cal.App.4th 1308, 1314–1315; Blakely, supra, 225 Cal.App.4th at
pp. 1057–1059; People v. Osuna (2014) 225 Cal.App.4th 1020, 1033.)
       Winn’s arguments to the contrary are unpersuasive. First, he contends it is at least
ambiguous whether section 1170.12, subdivision (e)(2) incorporates the pleading and
proof requirement, and courts are obligated to construe ambiguity in a penal statute in a
manner that avoids constitutional problems. (Citing People v. Leiva (2013) 56 Cal.4th
498, 506–507.) However, the court in Chubbuck found “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. 747.
Italics added.) And we reach the same conclusion. Indeed, it makes good sense that the
pleading and proof requirement would apply only prospectively, and not to cases where,
as here, the prosecutor had no notice of the pleading and proof requirement at the time
the prosecutor was selecting which facts to plead and to prove in the earlier proceeding.
(See Bradford, supra, 227 Cal.App.4th at pp. 1333–1334.)


                                               9
       Next, Winn urges that the pleading and proof requirement must apply to
resentencing based on the Apprendi and Descamps concerns over judicial factfinding. As
he acknowledges, however, courts have repeatedly rejected this argument too. (Bradford,
supra, 227 Cal.App.4th at pp. 1334–1335; Blakely, supra, 225 Cal.App.4th at pp. 1059–
1063; Osuna, supra, 225 Cal.App.4th at p. 1039.)
       Lastly, Winn argues in his reply brief that our supreme court has stated that “the
parallel structure of the Act’s sentencing and resentencing provisions appears to
contemplate identical sentences in connection with identical criminal histories, unless the
trial court concludes that resentencing would pose an unreasonable risk to public safety.”
(People v. Johnson (2015) 61 Cal.4th 674, 687 (Johnson).) Therefore, he urges, the
pleading and proof requirement should apply to resentencing as well as to original
sentencing.
       We disagree. In the first place, the court in Johnson made this statement in a
different context. The court was deciding whether, for purposes of resentencing, the
characterization of an inmate’s committing offense as serious or violent depends on the
law as of the effective date of Proposition 36 rather than the law when the offense was
committed. (Johnson, supra, 61 Cal.4th at p. 687.) It also briefly echoed the idea in
discussing whether an inmate may be eligible for resentencing on a commitment offense
that is neither serious nor violent, despite the presence of another commitment offense
that is. (Id. at p. 691.) But Johnson did not address the issue here: whether, in the
context of eligibility for resentencing, the defendant’s intent to cause great bodily injury
during the court of the offense must have been pleaded and proved.
       Furthermore, the equivalence mentioned in Johnson arises only to the extent the
language of the Reform Act calls for it. Our Supreme Court did not suggest that courts
should ignore the statutory language in order to make sure inmates who seek resentencing
receive the same sentence as defendants who are sentenced after the Reform Act’s
enactment, but that those two groups will end up with identical sentences to the extent
indicated by the language. Here, the pleading and proof requirement is stated with
respect to original sentencing, but not to resentencing. Winn fails to demonstrate error.


                                             10
          D. Consistency with Jury Verdict
          Winn next contends the court’s finding that he intended to cause great bodily
injury was inconsistent with the jury’s verdicts. On this basis, he argues, the court
violated his Sixth Amendment right to a jury trial.
          The argument has no merit. Neither the jury’s acquittal of Winn on the murder
charge, nor its conviction of Winn for involuntary manslaughter, shows that the jury
necessarily found Winn lacked an intent to cause great bodily injury to Rendleman when
he stomped him to death.
                 1. Not Guilty of Murder
          Murder is the unlawful killing of a human being with malice, express or implied.
(§ 187; People v. Beltran (2013) 56 Cal.4th 935, 941–942.) In acquitting Winn of
murder, therefore, the jury found that he killed Rendleman without malice.
          Winn believes it is significant that the jury did not find implied malice, since the
jury was instructed that implied malice exists if the killing resulted from an intentional
act, the natural and probable consequences of which are dangerous to human life, and the
act was “deliberately performed with knowledge of the danger to, and with conscious
disregard for, human life.” (Italics added. See CALJIC No. 8.11.) He interprets the
acquittal to mean that the jury did not believe Winn realized the risk of his actions.
(Citing People v. Cleaves (1991) 229 Cal.App.3d 367, 378 [“the essential distinction
between second degree murder based on implied malice and involuntary manslaughter is
the subjective versus objective criteria to evaluate the defendant’s state of mind—i.e. if
the defendant commits an act which endangers human life without realizing the risk
involved, he is guilty of manslaughter, whereas if he realized the risk and acted in total
disregard of the danger, he is guilty of murder based on implied malice”].)
          Winn then jumps to the conclusion that, by finding Winn guilty of involuntary
manslaughter rather than murder, the jury found that “while he engaged in an act that was
objectively dangerous, he did not realize or appreciate that risk;” and if Winn did not
realize the risk inherent in his acts, he could not have intended to cause great bodily
injury.


                                                11
       Winn is mistaken. The issue with respect to implied murder is not whether the
defendant realized the risk of great bodily injury, but whether he realized the risk to
human life. Plainly, one can realize the risk of, and intend to cause, great bodily injury—
a “significant or substantial physical injury” (§ 12022.7, subd. (f))—without appreciating
the risk the act poses to human life, because not every act that leads to significant or
substantial physical injury is dangerous to human life as a natural consequence. To put it
more colloquially, Winn could well have thought stomping on Rendleman would hurt
him badly, but did not realize it could actually kill him. Winn cites no authority holding
that a person cannot, as a matter of law, intend to cause great bodily injury merely
because he was unaware his act was so serious as to endanger his victim’s life.
       Winn points us to authorities indicating that a killing which resulted from an act
intended to cause great bodily injury constituted murder. (Citing People v. Weisberg
(1968) 265 Cal.App.2d 476, 480 [malice for murder exists “where the intent is only to
cause serious injury”]; People v. Teixeira (1955) 136 Cal.App.2d 136, 151 [malice
established where “the force used by appellant was so unreasonable and so wanton as to
evidence an intent to inflict death or grievous bodily harm”]; 1 Witkin, California
Criminal Law (4th ed. 2012) Crimes Against the Person, §189, at p. 1003 [“An intent to
inflict serious injury is sufficient to establish malice aforethought”]; id., §105 at p. 897
[malice includes “an intent to inflict great bodily injury”]; 2 Wharton’s Criminal Law
(15th Ed. 1994), §139, at p. 246 [malice denotes “various mental states, such as . . . intent
to cause great bodily harm”].) But the cited cases merely stand for the proposition that
facts indicating the defendant’s intent to inflict great bodily injury may be sufficient to
give rise to an inference that the defendant also realized a risk to human life—that is,
there was substantial evidence to support the murder verdict. (Weisberg supra, 265
Cal.App.2d at pp. 480–481; Teixeira, supra, 136 Cal.App.2d at p. 151.) The cases do not
hold that, as a matter of California law, an intent to commit great bodily injury must
result in a murder conviction even if the jury believes the defendant only intended to
cause great bodily harm and did not realize the risk to human life. Accordingly, the



                                              12
jury’s acquittal on the murder count is not necessarily inconsistent with a finding that
Winn intended to cause great bodily injury.
              2. Guilty of Involuntary Manslaughter
       Nor is the jury’s finding of guilt as to involuntary manslaughter inconsistent with a
finding that Winn intended to cause great bodily injury. The involuntary manslaughter
instructions did not require the jury to decide whether Winn had the intent to cause great
bodily injury. If anything, the jury’s conviction for involuntary manslaughter suggests it
found facts that would indeed support a conclusion, beyond a reasonable doubt, that
Winn had such an intent.
       The jury was instructed on involuntary manslaughter as follows: “Every person
who unlawfully kills a human being, without malice aforethought and without an intent to
kill, is guilty of the crime of involuntary manslaughter in violation of Penal Code section
192, subdivision (b). [¶] A killing is unlawful within the meaning of this instruction if it
occurred: [¶] During the commission of an unlawful act [not amounting to a felony]
which is dangerous to human life under the circumstances of its commission. [¶] An
‘unlawful act’ not amounting to a felony consists of a violation of Penal Code section
242. [¶] The commission of an unlawful act, without due caution and circumspection,
would necessarily be an act that was dangerous to human life in its commission. [¶] In
order to prove this crime, each of the following elements must be proved: [¶] 1. A human
being was killed; and [¶] 2. The killing was unlawful.”
       The involuntary manslaughter conviction shows that the jury concluded Winn
killed Rendleman during the commission of a misdemeanor battery (§ 242)—a battery
that was dangerous to human life under the circumstances of its commission. (That is,
the battery was dangerous to human life, even though Winn did not appreciate it was
dangerous to human life as required for murder.) Killing during the commission of a
battery that was “dangerous to human life” is not inconsistent with a finding that Winn
intended to cause great bodily injury.
       Winn fails to establish error on this ground.



                                              13
       E. Arevalo: Standard of Proof of Ineligibility
       In his appellate reply brief, Winn directs us to People v. Arevalo (2016) 244
Cal.App.4th 836 (Arevalo), which was decided after Winn filed his opening brief. In
Arevalo, the defendant had been found guilty of certain offenses, but the court had
acquitted him of possession of a firearm by a felon and found not true the allegation that
he was armed with a firearm. On a later resentencing petition under the Reform Act, the
court determined he was ineligible, finding by a preponderance of the evidence that he
was armed with a weapon when he committed the offenses. (Id. at pp. 841–842.) On
appeal, the appellate court ruled that a court’s eligibility determinations (as opposed to
findings that resentencing would be too dangerous) required a “heightened standard of
proof” due to “the substantial amount of prison time potentially at stake for the defendant
seeking resentencing, the risk of potential error stemming from the summary and
retrospective nature of the adjudication that will be made at the resentencing eligibility
proceeding, and the slight countervailing governmental interest given the People’s
opportunity to provide new evidence at any subsequent dangerousness hearing.” (Id. at p.
852.)2 This heightened standard must be the standard of beyond a reasonable doubt,
Arevalo concluded, in light of the observation in Johnson that identical sentences should
be imposed under the resentencing and sentencing provisions of the Reform Act for
identical criminal histories. (Id. at p. 853.) Because the trial court had originally

2
        Arevalo distinguished Kaulick, which had held that the prosecutor had to prove
dangerousness only by a preponderance of the evidence, on the ground that the
dangerousness determination is “akin to the usual procedure in which a trial court
exercises its discretion to decide whether various sentencing factors warrant a greater or
lesser punishment,” but the eligibility determination “requires the trial court to make a
summary legal finding as to whether the defendant is even eligible for resentencing
consideration” in light of the findings at the original trial. (Arevalo, supra, 244
Cal.App.4th at pp. 842, 849.) Arevalo also noted Osuna, which held that the
preponderance standard applies to eligibility issues as well as to dangerousness issues
because of the inapplicability of the Sixth Amendment. (Osuna, supra, 225 Cal.App.4th
at p. 1040.) We construe Arevalo to impose the beyond a reasonable doubt standard not
because of the Sixth Amendment, but because of its statutory construction of the Reform
Act, a matter Osuna did not address.


                                             14
acquitted the defendant on the weapon possession charge and found the allegation of
being armed with a firearm not true, it could not find at resentencing that he was armed
with a firearm beyond a reasonable doubt, and the order denying resentencing was
accordingly reversed. (Id. at pp. 853–854.)
       Winn contends that, under Arevalo, the order denying resentencing in this case
should also be reversed, because there is no indication in the record that the court made
the determination that Winn intended to cause great bodily injury beyond a reasonable
doubt. To the contrary, the trial court stated, “[a] trial court need only find the existence
of a disqualifying factor by a preponderance of the evidence.” (Citing Osuna, supra, 225
Cal.App.4th at p. 1040.) Furthermore, in concluding that our decision affirming Winn’s
conviction supported the finding that Winn intended to cause great bodily injury, the
court did not indicate it was making that finding beyond a reasonable doubt.
       Because this issue was first raised in Winn’s appellate reply brief, we gave
respondent the opportunity to address the issue in supplemental briefing. Having
considered respondent’s submission, we will vacate the order denying Winn’s petition for
resentencing and remand the matter to the trial court to decide whether, beyond a
reasonable doubt, Winn intended to cause great bodily injury during the commission of
his involuntary manslaughter offense. If the court concludes beyond a reasonable doubt
that he did, the order denying Winn’s petition will be reinstated. If the court does not
conclude beyond a reasonable doubt that Winn harbored such an intent, the court shall
proceed to decide whether, by a preponderance of the evidence, resentencing Winn would
pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f); Arevalo,
supra, 244 Cal.App.4th at p. 854.)
       By this ruling, we do not suggest that we would follow Arevalo under any facts or
circumstances other than those in this particular case.
                                     III. DISPOSITION
       The order denying Winn’s petition for resentencing is vacated. The matter is
remanded for further proceedings consistent with this opinion, including a determination



                                              15
of whether, beyond a reasonable doubt, Winn intended to cause great bodily injury during
the commission of his involuntary manslaughter offense.




                                               NEEDHAM, J.




We concur.




JONES, P.J.




BRUINIERS, J.




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