People v. Newman
Annotate this CaseDefendant was convicted of assault by means likely to produce great bodily injury. On appeal, defendant challenged the postjudgment order denying his petition for recall of his sentence on his conviction and for resentencing under Penal Code 1170.126 (Proposition 36 or the Act). The court affirmed the Proposition 36 court's finding that defendant intended to cause great bodily injury, which is an expressly enumerated factor for disqualifying, or rendering ineligible, a defendant for resentencing under Proposition 36. Contrary to defendant’s claim, that court was not foreclosed from making this factual finding of intent, which he characterizes as “a brand new factual finding of intent” prohibited by People v. Guerrero. The court concluded that, in determining eligibility for Proposition 36 relief, a court is empowered to consider the record of conviction and to make factual findings by a preponderance of the evidence, even if those findings were not made by the jury or the trial court in convicting a defendant of the current offense. Preponderance of the evidence is the statutory standard of proof and is also the constitutional standard, because Proposition 36 is an ameliorative act, not one that operates to increase the defendant’s “penalty for a crime beyond the prescribed statutory maximum.”
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