Filed 3/9/16 Unmodified version attached
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SECOND APPELLATE DISTRICT

                                           DIVISION THREE



THE PEOPLE,                                               B259998

        Plaintiff and Respondent,                         (Los Angeles County
                                                          Super. Ct. No. LA019001)
        v.
                                                          ORDER MODIFYING OPINION [NO
EDGAR OMAR AREVALO,                                       CHANGE IN JUDGMENT]

        Defendant and Appellant.



THE COURT:

        It is ordered that the opinion filed herein on February 8, 2016, be modified as
follows:
        1. On page 5, at the end of the first full paragraph and before CONTENTION,
insert the following new footnote:
                 6
                     An order denying a petitioner’s claim of eligibility for resentencing under
section 1170.126 is appealable. (Teal v. Superior Court (2014) 60 Cal.4th 595, 601.)
        This will require renumbering of all subsequent footnotes.
        2. On page 6, footnote 7, insert the following citation following the quote:
(People v. Johnson, supra, 61 Cal.4th at p. 681, fn. 1.)
        3. On page 12, in the final paragraph, at line one, insert the word Bradford before
the word concurrence.
      4. On page 12, in the final paragraph, at line four, replace the word Bradford with
the words The Bradford concurrence. Also, on the same line, replace the word principle
with the word principles.
      [There is no change in the judgment.]




________________________________________________________________________

EDMON, P. J.                      ALDRICH, J.                               JONES, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            2
Filed 2/8/16 Unmodified version
                                  CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                        DIVISION THREE



THE PEOPLE,                                           B259998

        Plaintiff and Respondent,                     (Los Angeles County
                                                      Super. Ct. No. LA019001)
        v.

EDGAR OMAR AREVALO,

        Defendant and Appellant.




        APPEAL from a postjudgment order of the Superior Court of Los Angeles
County, William C. Ryan, Judge. Reversed and remanded with directions.
        California Appellate Project, Jonathan B. Steiner, Lisa Ferreira and Susan Hier,
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, Scott A. Taryle, Noah P. Hill and
Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

                                    _________________________
       Edgar Omar Arevalo appeals from the trial court’s order denying his petition for
resentencing under the Three Strikes Reform Act of 2012 (hereafter, Proposition 36 or
the Act). The Act amended Penal Code1 sections 667 and 1170.12 (the Three Strikes
law) to reduce the punishment for some third strike offenses that are neither serious nor
violent. The Act also added section 1170.126 to create a procedure by which some
inmates already serving third strike sentences may seek resentencing in accordance with
the new sentencing rules.
       Arevalo is serving an indeterminate sentence under the Three Strikes law, having
been found guilty in a bench trial of grand theft auto and driving a vehicle without the
owner’s consent. The trial judge, however, acquitted Arevalo of the charge of possession
of a firearm by a felon and found the “armed with a firearm” allegation to be not true.
       Arevalo subsequently petitioned for a reduction of his sentence pursuant to
Proposition 36, arguing that in light of his acquittal and the not-true enhancement finding,
he was eligible for resentencing because he had not committed the disqualifying conduct
of being armed with a weapon during the commission of his “current offense.”2 (§§ 667,
subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
       The resentencing court, which by stipulation was not the trial court that had
rendered the verdicts and findings, rejected Arevalo’s contention. Reaching its findings
under a preponderance of the evidence standard, the resentencing court concluded that
Arevalo had been armed with a weapon during the commission of his offenses.
Accordingly, it held that Arevalo was ineligible for resentencing under section 1170.126.
       Arevalo appeals, contending that the resentencing court erred in finding him
ineligible based on facts not established beyond a reasonable doubt. We agree, and we

1
       All further statutory references are to the Penal Code unless otherwise stated.
2
       “Although the statute refers to it as the ‘current’ conviction because it is the
conviction for which the petitioner is seeking to be resentenced, the underlying case has
been fully litigated. The trial has been held or a plea has been taken, and the defendant is
serving his or her sentence.” (People v. Bradford (2014) 227 Cal.App.4th 1322, 1337
(Bradford).)

                                               2
reverse and remand for further proceedings. 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. As a matter of law,
therefore, Arevalo is eligible for resentencing. What remains to be adjudicated, however,
is whether, under a preponderance of the evidence standard,3 he should be resentenced or
whether he would pose an unreasonable risk of danger to public safety such that he
should not be resentenced.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On November 9, 1994, the victim left the keys in the ignition of his car when he
stopped momentarily to drop off his dog at the home of relatives. When he returned, the
car was gone. The victim reported the theft of the car to the police. Approximately 30
minutes later, a police officer observed the victim’s car pull in at a gas station. Arevalo
exited the car and was arrested. The officer found an unloaded revolver on the passenger



3
        In People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, we explained
that “[t]here are not two, but three, determinations at issue under Penal Code section
1170.126, subdivision (f): First, the court must determine whether the prisoner is eligible
for resentencing; second, the court must determine whether resentencing would pose an
unreasonable risk of danger to public safety; and third, if the prisoner is eligible and
resentencing would not pose an unreasonable risk of danger, the court must actually
resentence the prisoner.” (Id. at p. 1299.) We then held that, at the second stage, the
People bear the burden of establishing dangerousness by a preponderance of the
evidence. (Id. at pp. 1301-1305.) We reached this conclusion, and rejected Kaulick’s
argument the proper standard was beyond a reasonable doubt, for the following reasons:
no Sixth Amendment issues were implicated; preponderance of the evidence is the
general statutory standard (Evid. Code, § 115); no greater burden of proof was necessary
because the dangerousness hearing is not a summary proceeding and “it is the general
rule in California that once a defendant is eligible for an increased penalty, the trial court,
in exercising its discretion to impose that penalty, may rely on factors established by a
preponderance of the evidence.” (Kaulick, at p. 1305.) In contrast to the discretionary
determination that a defendant is or is not a risk to public safety, the issue in the present
appeal concerns the legal determination of Arevalo’s eligibility to be considered for
resentencing, in light of the trial court’s findings at the bench trial.

                                               3
seat of the car. Arevalo said the gun did not belong to him. The firearm was not
registered to either the victim or Arevalo.4
       A bench trial was held in April 1995. Arevalo was charged with grand theft of a
vehicle (§ 487h, subd. (a)), driving a vehicle without the owner’s consent (Veh. Code,
§ 10851), and being a felon in possession of a firearm (former § 12021, subd. (a)(1)).5
As to the first two counts, the information also alleged Arevalo was armed with a firearm
in the commission of these offenses (§ 12022, subd. (a)(1)). Arevalo was also charged
with residential burglary arising from a different incident.
       The trial court found Arevalo guilty of grand theft auto and driving a vehicle
without the owner’s consent. Arevalo was acquitted of the burglary and possession of a
firearm charges, and the court found the “armed with a firearm” allegation not true. The
court further found that Arevalo had suffered multiple prior “strikes” under the Three
Strikes law and sentenced him to 25 years to life for grand theft auto. The court stayed a
similar term for driving without the owner’s consent pursuant to section 654’s prohibition
on multiple punishment.
       In the first appeal of this matter, we affirmed Arevalo’s conviction but remanded
for resentencing in accordance with People v. Superior Court (Romero) (1996) 13 Cal.4th
497. (People v. Arevalo (Sept. 4, 1996, B093496) [nonpub. opn.].) On remand, the trial
court again sentenced Arevalo to 25 years to life. We then affirmed that sentence.
(People v. Arevalo (May 15, 1998, B110091) [nonpub. opn.].)
       On November 6, 2012, California voters approved Proposition 36, which amended
the Three Strikes law to reduce punishment for certain offenses. Later that month,

4
       There was no evidence introduced at trial as to whether the firearm was stolen,
whether either the victim’s or Arevalo’s fingerprints were on it, or whether the victim
disclaimed ownership of the firearm.
5
       The Deadly Weapons Recodification Act of 2010 repealed and recodified former
sections 12000 to 12809 without substantive change. (§§ 16000, 16005, 16010.) Former
section 12021, subdivision (a), was recodified without substantive change at section
29800, subdivision (a), operative January 1, 2012. (Cal. Law Revision Com. com.,
14 Deering’s Ann. Pen. Code, (2012 ed.) foll. § 29800, p. 921.)

                                               4
Arevalo petitioned the court for recall of his sentence and resentencing pursuant to
section 1170.126. In January 2013, the resentencing court found the petition had stated a
prima facie basis for resentencing and issued an order to show cause.
       In October 2013, the District Attorney filed opposition and argued Arevalo was
ineligible for resentencing because he was armed with a firearm during the commission
of his “current offense.”6 In October 2014, the resentencing court held a hearing on the
matter and, based on its review of the testimony at trial, the court concluded Arevalo
“was armed within the meaning of Penal Code sections 667[, subd. (e)](2)(C)(iii) and
1170.12[, subd. (c)](2)(C)(iii), and therefore [is] ineligible for resentencing.” The court
noted that the original trial court had found the “armed with a firearm” allegation not
true, but stated that “[a] finding of an allegation of ‘not true’ does not mean the non-
existence of guilt, factual innocence, or incredulity of testimony given at trial.” Arevalo
timely appealed.
                                      CONTENTION
       Arevalo contends the resentencing court erred in concluding he was ineligible for
resentencing based on facts not established by his underlying conviction.
                                      DISCUSSION
       1. The Act.
       In the California Supreme Court’s recent opinion in People v. Johnson (2015)
61 Cal.4th 674 (Johnson)) addressing the Act, the court summarized the Act’s purpose
and provisions as follows:
       “Prior to its amendment by the Act, the Three Strikes law required that a
defendant who had two or more prior convictions of violent or serious felonies receive a
third strike sentence of a minimum of 25 years to life for any current felony conviction,
even if the current offense was neither serious nor violent. (Former §§ 667, subds. (d),


6
       The District Attorney also argued that Arevalo would pose an unreasonable risk of
danger to public safety; however, that issue was not reached by the trial court and is not
before us on appeal.

                                              5
(e)(2)(A), 1170.12, subds. (b), (c)(2)(A).)[7] The [prospective provisions of the] Act[8]
amended the Three Strikes law with respect to defendants whose current conviction is for
a felony that is neither serious nor violent. In that circumstance, unless an exception
applies, the defendant is to receive a second strike sentence of twice the term otherwise
provided for the current felony, pursuant to the provisions that apply when a defendant
has one prior conviction for a serious or violent felony. (§§ 667, subd. (e)(2)(C),
1170.12, subd. (c)(2)(C); see §§ 667.5, subd. (c) [list of violent felonies], 1192.7 [list of
serious felonies], 1192.8 [additional serious felonies for purposes of § 1192.7].)
       “The Act’s exceptions to the new sentencing provisions relate to a defendant’s
current offense and prior offenses. If the current offense involves controlled substances
and specified findings are made concerning the quantity of controlled substances
involved, or if the current offense is among specified sex offenses, a defendant with two
or more strikes must be sentenced to a term of at least 25 years to life. [Fn. omitted.]
(§§ 667, subd. (e)(2)(C)(i)-(ii), 1170.12, subd. (c)(2)(C)(i)-(ii).) A third strike sentence is
also required if, ‘[d]uring 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.’ (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
Finally, a defendant will be excluded from the new sentencing provisions if he or
she suffered a prior conviction for . . . [certain offenses listed in section 667, subdivision
(e)(2)(C)(iv) and section 1170.12, subdivision (c)(2)(C)(iv) which are sometimes referred
to as] ‘super strikes.’ [Citation, fn. omitted.]
       “In addition to reducing the sentence to be imposed for some third strike felonies
that are neither violent nor serious, the Act provides a procedure by which some prisoners

7
       “The Three Strikes law was enacted twice in 1994, first by the Legislature (§ 667,
subds. (b)-(i); Stats. 1994, ch. 12, § 1, p. 71), and thereafter by the voters by way of
Proposition 184 (§ 1170.12; [citation]).”
8
       The prospective provisions of the Act (§§ 667, subd. (e)(2)(C), 1170.12,
subd. (c)(2)(C)) apply to individuals whose “current” offense is committed after the
effective date of the Act.

                                               6
already serving third strike sentences may seek resentencing in accordance with the new
sentencing rules. (§ 1170.126.) ‘An inmate is eligible for resentencing if . . . [¶] . . . [t]he
inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the
Three Strikes law] for a conviction of a felony or felonies that are not defined as serious
and/or violent . . . .’ (§ 1170.126, subd. (e)(1).) Like a defendant who is being sentenced
under the new provisions, an inmate is disqualified from resentencing if any of the
exceptions set forth in section 667, subdivision (e)(2)(C) and section 1170.12,
subdivision (c)(2)(C) are present. (§ 1170.126, subd. (e).) In contrast to the rules that
apply to sentencing, however, the rules governing resentencing provide that an inmate
will be denied recall of his or her sentence if ‘the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.’
(§ 1170.126, subd. (f).)” (Johnson, supra, 61 Cal.4th at pp. 680-682.)
       As explained by People v. Blakely (2014) 225 Cal.App.4th 1042 (Blakely): “In
enacting section 1170.126 as part of Proposition 36, the issue before the voters was not
whether a defendant could or should be punished more harshly for a particular aspect of
his or her offense, but whether, having already been found to warrant an indeterminate
life sentence as a third strike offender, he or she should now be eligible for a lesser term.
By including as a disqualifying factor an inmate’s mere intent, during commission of the
current offense, to cause great bodily injury to another person, the electorate signaled its
own intent that disqualifying conduct not be limited to what is specifically proven or
punishable in the form of an offense or enhancement. . . . [Citations.] [V]oters rendered
ineligible for resentencing not only narrowly drawn categories of third strike offenders
who committed particular, specified offenses or types of offenses, but also 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.”
(Id. at pp. 1054-1055.)
       Blakely went on to explain that “[i]t is clear the electorate’s intent was not to
throw open the prison doors for all third strike offenders whose current convictions were

                                               7
not for serious or violent felonies, but only for those who were perceived as
nondangerous or posing little or no risk to the public. A felon who has been convicted of
two or more serious and/or violent felonies in the past, and most recently had a firearm
readily available for use, simply does not pose little or no risk to the public.” (Blakely,
supra, 225 Cal.App.4th at p. 1057.) “[I]n order to effectuate the electorate’s intent to
leave subject to indeterminate life sentences those inmates perceived as posing a risk to
public safety, section 1170.126, subdivision (e)(2) must be read as disqualifying from
resentencing an inmate whose current sentence was imposed for an offense during the
commission of which – whether through a formal element of the offense or enhancement,
or mere conduct or other means – he or she used a firearm, was armed with a firearm or
deadly weapon, or intended to cause great bodily injury to another person, regardless of
whether such a factor was pled and proved.” (Id. at p. 1059.)
       2. The resentencing court’s ruling that Arevalo was ineligible for resentencing.
       The resentencing court concluded Arevalo was ineligible for resentencing because
the evidence at his trial demonstrated that he had been armed with a firearm when he
committed the crimes for which he was convicted: grand theft auto and “joy-riding.” It
rejected Arevalo’s argument that it was barred from finding him ineligible for
resentencing because at his trial he was acquitted of the felon in possession of a firearm
charge, and the arming enhancement allegation was found not true.
       The Attorney General explains that “[c]iting In re Coley (2012) 55 Cal.4th 524,
554, the trial court recognized that an acquittal ‘is not a finding of fact, but merely that
the fact was not proven beyond a reasonable doubt.’ The court further recognized that
the People’s burden of proof in opposing appellant’s recall petition was preponderance of
the evidence, not beyond a reasonable doubt. The court also noted that nothing in the
record supported appellant’s claim that the original trial court had found Officer Park’s
testimony not credible.”
       According to the Attorney General, the resentencing court relied on trial evidence
showing that, after Officer Park activated the lights on his patrol car, he saw Arevalo
“make a ‘furtive movement with [his] right hand toward the passenger seat of the

                                               8
vehicle,’ ” and that when Park arrested him, Arevalo was alone in the stolen vehicle and
there was an unloaded gun on the front passenger seat.
       Arevalo contends the resentencing court wrongly found him ineligible for
resentencing consideration under the Act based on facts that were not established by his
current conviction. As we shall explain, Arevalo is correct.
       3. The resentencing court erred in finding Arevalo ineligible for resentencing;
Arevalo’s acquittal on weapon possession charge and not-true finding on allegation of
being armed with a firearm preclude a finding that he is ineligible for resentencing
consideration.
       Section 1170.126, subdivision (f), provides: “Upon receiving a petition for recall
of sentence under this section, the court shall determine whether the petitioner satisfies
the criteria in subdivision (e) [i.e., the resentencing eligibility factors deriving from the
nature of the defendant’s current and prior convictions]. If the petitioner satisfies the
criteria in subdivision (e), the petitioner shall be resentenced . . . [in the same manner 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.” The statute does
not say anything more about what procedures the trial court should follow in making this
determination.
       Arevalo and the Attorney General agree that section 1170.126, relating to
resentencing, does not contain the same pleading and proof requirement as the
prospective provisions of the Act. The courts addressing this issue have all held that the
resentencing eligibility factors need not have been pled and proven to a trier of fact. (See
People v. Chubbuck (2014) 231 Cal.App.4th 737, 747; People v. Brimmer (2014)
230 Cal.App.4th 782, 801-803; People v. Guilford (2014) 228 Cal.App.4th 651, 656-658;
Bradford, supra, 227 Cal.App.4th at pp. 1332-1333; People v. Elder (2014) 227
Cal.App.4th 1308, 1315-1316; Blakely, supra, 225 Cal.App.4th at pp. 1057-1063; People
v. White (2014) 223 Cal.App.4th 512, 526-527.)
       The parties also agree that, in order to determine whether the “armed with a
firearm” ineligibility factor (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii))

                                               9
barred Arevalo from resentencing consideration, the appropriate procedure was to
examine – under People v. Guerrero (1988) 44 Cal.3d 343 (Guerrero), and its progeny –
Arevalo’s record of conviction to ascertain the conduct underlying his grand theft auto
and joy-riding convictions.9 As Bradford, supra, 227 Cal.App.4th at page 1332,
explained: “The eligibility criteria here refer to something that occurs ‘[d]uring the
commission of the current offense,’ that being ‘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).) By referring to those
facts attendant to commission of the actual offense, the express statutory language
requires the trial court to make a factual determination that is not limited by a review of
the particular statutory offenses and enhancements of which petitioner was convicted.
Not only do the criteria at issue here not describe any particular offenses or
enhancements, but the reference to an intent to cause great bodily injury does not clearly
equate to the most common related enhancement, that being the infliction of great bodily
injury.” Arevalo acknowledges that, “[g]iven the overwhelming judicial acceptance of
the Guerrero analysis in the interpretation of prior convictions, it can be assumed that the
drafters of Proposition 36 were aware of the Guerrero framework and expected it would
apply in this nearly identical context.”
       The parties do not agree, however, with respect to the appropriate standard of
proof for determining whether Arevalo was disqualified from resentencing eligibility
consideration on the basis of the “arming” ineligibility factor. Arevalo argues the correct
standard of proof is beyond a reasonable doubt, while the Attorney General argues it is
preponderance of the evidence. We conclude that Arevalo is correct.
       Reviewing courts have grappled with the standard of proof applicable to
resentencing eligibility determinations under Proposition 36. In People v. Osuna (2014)

9
       Guerrero established the rule that, in determining the facts underlying prior
convictions for purposes of determining the applicability of enhancements, “the trier of
fact may look to the entire record of the conviction.” (Guerrero, supra, 44 Cal.3d at
p. 355.)

                                             10
225 Cal.App.4th 1020 (Osuna), the Court of Appeal noted Evidence Code section 115
(“Except as otherwise provided by law, the burden of proof requires proof by a
preponderance of the evidence”), and concluded that the correct standard of proof for
these resentencing eligibility determinations was preponderance of the evidence, stating:
“Because a determination of eligibility under section 1170.126 does not implicate the
Sixth Amendment,[10] a trial court need only find the existence of a disqualifying factor
by a preponderance of the evidence. [Citation.]” (Osuna, at p. 1040.)
       In support of this conclusion, Osuna cited our opinion in Kaulick, supra,
215 Cal.App.4th 1279, which held that the appropriate standard of proof for determining
dangerousness under section 1170.126, subdivision (f), is preponderance of the evidence.
We reasoned in Kaulick that “it is the general rule in California that once a defendant is
eligible for an increased penalty, the trial court, in exercising its discretion to impose that
penalty, may rely on factors established by a preponderance of the evidence. [Citation.]
As dangerousness is such a factor, preponderance of the evidence is the appropriate
standard.” (Kaulick, at p. 1305, fn. omitted.) But while the subdivision (f)
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,11 the subdivision (f) eligibility determination requires the trial court to
make a summary legal finding as to whether the defendant is even eligible for

10
        This is a recognition of the principle that the Sixth Amendment right to a jury trial
resulting in a “beyond a reasonable doubt” verdict in criminal cases is inapplicable here.
“As we said in People v. Superior Court (Kaulick), supra, 215 Cal.App.4th at pp. 1304-
1305]: ‘The retrospective part of the Act 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.” (People v. Manning (2014) 226 Cal.App.4th
1133, 1141, fn. 3.)
11
      See section 1170.126, subdivision (g)(3)): “In exercising its discretion in
subdivision (f), the court may consider” any evidence “the court, within its discretion,
determines to be relevant in deciding whether a new sentence would result in an
unreasonable risk of danger to public safety.”
                                              11
resentencing consideration. Moreover, Osuna itself acknowledged that using a
preponderance of the evidence standard to determine not only dangerousness but also
eligibility might “allow a trial court to find arming, so as to disqualify an inmate from
resentencing under the Act, even if an arming enhancement was pled but found not true
by a jury.” (Osuna, supra, 225 Cal.App.4th at p. 1038, fn. 6.) That hypothetical situation
is almost exactly what happened in the case at bar. As explained below, we conclude this
situation requires a heightened standard of proof for making section 1170.126,
subdivision (f), resentencing eligibility determinations.
       In Bradford, supra, 227 Cal.App.4th 1322, the same standard of proof question
was raised, but ultimately was not reached: “The People argue the standard should be
preponderance of the evidence, while petitioner argues due process compels application
of a heightened burden of proof. We conclude the standard of proof is not dispositive in
this case [and] . . . . [t]herefore . . . we express no opinion regarding the appropriate
standard of proof.” (Id. at p. 1343.) However, in a concurring opinion in Bradford,
Presiding Justice Raye presented an in-depth analysis of the conflicting interests that
should be considered when deciding upon the proper standard of proof: “I write
separately to explore the significant due process concerns involved and to suggest the
appropriateness of a heightened burden of proof by clear and convincing evidence.”
(Id. at p. 1344, fn. omitted (conc. opn. of Raye, P.J.).) We will summarize the Bradford
concurrence in some detail because we have found it extremely helpful.
       The concurrence noted that “the degree of proof required in a particular
proceeding is traditionally left to the courts and . . . the issue implicates due process
concerns. [Citation.]” (Bradford, supra, 227 Cal.App.4th at p. 1346 (conc. opn. of Raye,
P.J.).) Bradford was guided by the principle that “[a]n individual has a constitutional
right to procedural due process when the government deprives an individual of a liberty
or property interest. [Citation.] One component of procedural due process is the standard
of proof used to support the deprivation. [Citation.] The standard of proof must satisfy
‘ “the constitutional minimum of ‘fundamental fairness.’ ” ’ [Citation.] To determine
whether a proof standard meets this constitutional minimum, the courts evaluate three

                                              12
factors: (1) the private interest affected by the proceeding; (2) the risk of an erroneous
deprivation of the interest created by the state’s chosen procedure; and (3) the
countervailing governmental interest supporting use of the challenged procedure.
[Citations.]” (People v. Jason K. (2010) 188 Cal.App.4th 1545, 1556.)
       Further, as the Supreme Court explained in Santosky v. Kramer (1982) 455 U.S.
745 [102 S.Ct. 1388]: “ ‘[T]he standard of proof is a crucial component of legal process,
the primary function of which is “to minimize the risk of erroneous decisions.” ’
[Citation.] Notice, summons, right to counsel, rules of evidence, and evidentiary
hearings are all procedures to place information before the factfinder. But only the
standard of proof ‘instruct[s] the factfinder concerning the degree of confidence our
society thinks he should have in the correctness of factual conclusions’ he draws from
that information. [Citation.]” (Id. at p. 757, fn. 9.) “When the State brings a criminal
action to deny a defendant liberty or life . . . ‘the interests of the defendant are of such
magnitude that historically and without any explicit constitutional requirement they have
been protected by standards of proof designed to exclude as nearly as possible the
likelihood of an erroneous judgment.’ [Citation.]” (Id. at p. 755.)
       Applying these due process concerns to the question of eligibility for resentencing
under the Act, the Bradford concurrence initially pointed out that the defendant’s liberty
interest is somewhat diminished because at issue is an ameliorative proceeding initiated
by a defendant who is seeking a shorter sentence. “The current case has been fully
adjudicated, and petitioner will not suffer any further deprivation of his liberty interest
other than that which was a consequence of his initial lawful conviction, at which time
the burden of proof was on the prosecution to prove beyond a reasonable doubt that he
was guilty. . . . And case law indicates relatively low due process standards may apply to
various postconviction proceedings that potentially affect how much time a defendant
serves in prison, such as parole proceedings or disciplinary proceedings that result in
credit forfeitures. [Citations.]” (Bradford, supra, 227 Cal.App.4th at p. 1347 (conc. opn.
of Raye, P.J.).)


                                              13
       However, counter-balancing this diminished interest is the substantial amount of
future prison time that might be affected by the proceeding: “The difference between an
existing sentence and a revised sentence under Proposition 36 is significant. A lengthy,
indeterminate sentence that could amount to most of a petitioner’s life may be reduced on
resentencing to a relatively short term of years. . . . The liberty interest may be
characterized in this context as substantial, although it is not significantly different than
that underlying other sentencing decisions.” (Bradford, supra, 227 Cal.App.4th at
p. 1347 (conc. opn. of Raye, P.J.).)
       The Bradford concurrence then explained that, given the summary and
retrospective nature of this proceeding, “the risk of erroneous deprivation of the interest
created by the state’s chosen procedure” factor “is the most compelling. . . . [T]he statute
does not call on the parties to present evidence concerning relevant facts of a prior
conviction that determine whether the petitioner is ineligible for resentencing. It is in this
respect that the current matter is not like either an ordinary sentencing proceeding or the
discretionary resentencing proceeding under Proposition 36, at which time the trial court
considers evidence bearing on the petitioner’s dangerousness. The retrospective nature of
the determination presents unique pitfalls. A review of the record of the prior conviction
is potentially problematic since the parties had no incentive to fully litigate unpleaded
factual allegations at the time of the original trial court proceedings that relate to the
petitioner’s conduct and intent at the time of the crimes. Obviously, the issue of whether
a particular petitioner intended to cause great bodily injury under the eligibility criteria
could be the subject of substantial dispute between the parties as it necessarily requires a
determination based on circumstantial evidence in virtually all cases. The determination
of whether an item is a deadly weapon can likewise be problematic . . . .” (Bradford,
supra, 227 Cal.App.4th at pp. 1347-1348 (conc. opn. of Raye, P.J.).)
       Finally, the Bradford concurrence explained that “the countervailing government
interest implicated by the procedure” is slight. (Bradford, supra, 227 Cal.App.4th at
p. 1349 (conc. opn. of Raye, P. J.).) Whereas a finding of ineligibility is the end of the
road for the defendant, the People can still present new evidence at the discretionary

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resentencing stage in order to show that an otherwise eligible defendant is too dangerous
to be released. “The statute expressly contemplates that the trial court will consider
additional evidence in determining whether to exercise its discretion to resentence the
petitioner. (See § 1170.126, subd. (g).) The opportunity to do so likewise bears on the
second factor, that being the risk of an erroneous deprivation of an individual’s rights.
The risk of an erroneous deprivation of an individual’s rights may be minimized in a
closer case by imposition of a heightened burden of proof without putting the People in a
substantially diminished position, whereas imposition of a preponderance of the evidence
standard incorrectly assumes the parties are in a similar position going forward in the
proceeding. In this circumstance, the countervailing interests of the People are
substantially diminished. [¶] It must also be remembered that the People now bear the
burden of proof beyond a reasonable doubt with respect to establishing the ineligibility of
defendants awaiting sentencing under the three strikes law, as revised by Proposition 36.
Consequently, current defendants are afforded substantial due process rights to both
challenge evidence implicating the criteria and to convince a jury that the prosecution has
failed to meet its evidentiary burden.” (Bradford, supra, 227 Cal.App.4th at pp. 1349-
1350 (conc. opn. of Raye, P.J.).)
       The Bradford concurrence concluded that “[a]n analysis of the factors described
above suggests that due process may compel a heightened burden of proof in making the
[resentencing eligibility] determination . . . based upon the cold record of petitioner’s
prior conviction. I would respectfully suggest careful consideration as to whether
imposition of proof by clear and convincing evidence is required.” (Bradford, supra,
227 Cal.App.4th at p. 1350 (conc. opn. of Raye, P. J.).)
       We agree with the Bradford concurrence’s suggestion that a heightened standard
of proof should be required in this situation. We base this conclusion on 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


                                             15
countervailing governmental interest given the People’s opportunity to provide new
evidence at any subsequent dangerousness hearing.
       Contrary to the Bradford concurrence, however, we conclude that the appropriate
standard of proof is beyond a reasonable doubt, not clear and convincing evidence. We
base our conclusion on Johnson, which the Supreme Court issued after Bradford was
filed. Johnson said very clearly: “[T]he parallel structure of the Act’s amendments to the
sentencing provisions and the Act’s resentencing provisions reflects an intent that
sentences imposed on individuals with the same criminal history be the same, regardless
of whether they are being sentenced or resentenced. Both the sentencing scheme and the
resentencing scheme provide for a second strike sentence if the current offense is not a
serious or violent felony, and they set forth identical exceptions to the new sentencing
rules. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C), 1170.126, subd. (e)(2), (3).)”
(Johnson, supra, 61 Cal.4th at p. 686.) “[T]he 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.” (Id. at p. 687, italics added.)
       The court’s analysis in Johnson leads us to conclude that, not only must there be a
heightened standard of proof for section 1170.126 resentencing eligibility determinations,
but that – in order to safeguard the intended parallel structure of the Act – the heightened
standard of proof should be beyond a reasonable doubt. Under a lesser standard of proof,
nothing would prevent the trial court from disqualifying a defendant from resentencing
eligibility consideration by completely revisiting an earlier trial, and turning acquittals
and not-true enhancement findings into their opposites. That is what happened here when
the resentencing court relied on the disparity between “beyond a reasonable doubt” and
“preponderance of the evidence” standards to find Arevalo ineligible for resentencing on
the basis of an arming allegation that had been pled and disproved at his earlier trial. To
allow this result would violate Johnson’s “equal outcomes” directive, leaving Arevalo
ineligible for resentencing while a newly convicted defendant with an identical criminal
history would be found eligible for a second strike prison sentence.

                                              16
       The Attorney General argues that Johnson’s discussion of the parallel structure of
the Act “reflects nothing more than the recognition that defendants with ‘identical
criminal histories,’ whether determined by a trier of fact beyond a reasonable doubt in the
prospective portion of the Reform Act, or by a trial court employing a preponderance
standard in the retrospective portion of the Reform Act, should ‘receive identical
sentences.’ ” We disagree. As demonstrated here, the only avenue by which to
accomplish Johnson’s requirement of identical sentences for defendants with identical
criminal histories is to apply an identical standard of proof for the determination of
resentencing ineligibility, i.e., beyond a reasonable doubt.
       Under the applicable 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, preclude a finding that he is ineligible for resentencing consideration.
                                      DISPOSITION
       The postjudgment order denying Arevalo’s resentencing petition is reversed. The
matter is remanded for a hearing to determine whether, under a preponderance of the
evidence standard, Arevalo would pose an unreasonable risk of danger to public safety
such that he should not be resentenced.
       CERTIFIED FOR PUBLICATION




                                                  EDMON, P. J.


We concur:




                     ALDRICH, J.                                       JONES, J.*
*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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