P. v. Berry

Filed 2/24/17 P. v. Berry CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH BERRY,
Defendant and Appellant.
B264757
(Los Angeles County
Super. Ct. No. PA027446)
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Reversed and
remanded.
Joshua Schraer, 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, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________

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Appellant Kenneth Berry was sentenced to an
indeterminate life term under the “Three Strikes” law in 1998
after a jury convicted him of, inter alia, assault by means of force
likely to produce great bodily injury and unlawfully taking or
driving a vehicle in violation of Vehicle Code section 10851. After
enactment of Proposition 36, the Three Strikes Reform Act
of 2012 (hereinafter the Act or Proposition 36), Berry petitioned
for recall of his sentence and resentencing. The trial court denied
the petition, finding that Berry was ineligible because he
intended to, and did, cause great bodily injury during commission
of the assault.
Berry argues that the trial court erred by (1) failing to
consider his eligibility for resentencing on the Vehicle Code
section 10851 conviction; (2) basing its finding that he intended
to inflict great bodily injury during the assault on disputed facts
not resolved by the jury; (3) finding he actually inflicted great
bodily injury during the assault, despite the jury’s contrary
finding; and (4) applying a preponderance of the evidence
standard when making the eligibility determination. Because
Berry’s first and fourth arguments have merit, we reverse the
resentencing court’s order and remand for a new resentencing
hearing.
FACTUAL AND PROCEDURAL BACKGROUND
1. The commitment offenses
a. People’s evidence
As summarized in our opinion on Berry’s direct appeal, the
evidence offered at trial was sufficient to prove the following. In
the early morning hours of June 17, 1997, Rene Dent was at her
North Hills home with her 11-year-old daughter, Whitney. Dent
and Berry had known each other for approximately 25 years, and

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had been or were in a dating relationship. Just after midnight,
Berry knocked on Dent’s bedroom window and she let him in the
house. He asked her for a check to repay money he had given or
loaned her. Dent stated that she had no money. Berry kept
asking for a check, and Dent asked him to leave.
Berry began searching the house for the presence of
another man. When Dent attempted to call the police, Berry
snatched the phone from her. He choked her with both hands
and pushed her on the bed. Dent called out to Whitney, who told
Dent to leave. Berry punched Dent in the face, knocking her to
the floor. Then he repeatedly stomped on her head and torso
with his boot. When Berry stopped kicking Dent, he stated, “I
will kill you, bitch.”
Berry then took Dent’s car keys without her permission and
drove away in her Honda Accord. When police apprehended him
hours later, he said, “Man, I know I fucked up. I lost it. I went to
her house, saw her with another guy. I got pissed and pushed
her. I know I shouldn’t have taken the car.”
b. Defense evidence
Berry testified in his own behalf. He admitted going to
Dent’s house and choking her, but stopped when she said he was
hurting her. Dent grabbed him and attempted to kick him. In
response, Berry hit Dent, causing her to fall. He decided to take
her car, but intended to return it. He ran out to the car, but then
realized he did not have the keys. He returned to the house and
stumbled over Dent, who was lying on the floor. He accidentally
stepped on her face. He did not kick or stomp her.
2. Verdict and sentence
On March 31, 1998, the jury convicted Berry of assault by
means of force likely to produce great bodily injury (Pen. Code,

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former § 245, subd. (a)(1)),1 unlawfully driving or taking a vehicle
(Veh. Code, § 10851, subd. (a)), and simple battery, a
misdemeanor (§ 242). It acquitted Berry of robbery (§ 211), grand
theft person (§ 487, subd. (c)), grand theft auto (§ 487, subd. (d)),
and battery with serious bodily injury (§ 243, subd. (d)). The jury
additionally found Berry had suffered two prior “strike”
convictions and had served five prior prison terms within the
meaning of section 667.5, subdivision (b).
The trial court sentenced Berry to a term of 50 years to life,
plus five years, configured as follows: on count 1, assault by
means of force likely to produce great bodily injury, 25 years to
life pursuant to the Three Strikes law; on count 4, unlawfully
driving or taking a vehicle, a consecutive term of 25 years to life;
and for each of the five section 667.5 prior prison term
enhancements, one additional year. Sentence on count 6, simple
battery, was stayed pursuant to section 654. We affirmed the
judgment. (People v. Berry (Aug. 5, 1999, B122476) [nonpub.
opn.].)2
3. Petition for resentencing and appeal
On November 6, 2012, the electorate passed Proposition 36.
(People v. Brimmer (2014) 230 Cal.App.4th 782, 788.) As
discussed more fully post, Proposition 36 enacted section
1170.126, which provides that eligible persons currently serving
indeterminate life terms under the Three Strikes law may file a
1 All further undesignated statutory references are to the
Penal Code.
2 We take judicial notice of the record in case No. B122476,
including our unpublished opinion. (Evid. Code, §§ 459, subd. (a),
452, subd. (d).)

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petition in the sentencing court seeking to be resentenced to a
determinate term as a second striker. (§ 1170.126, subds. (b), (f);
People v. Brimmer, supra, at p. 788.)
On March 20, 2014, Berry, who was represented by
counsel, petitioned for resentencing on counts 1 and 4, the
assault and Vehicle Code section 10851 offenses, respectively. He
argued that he was eligible and resentencing would not pose an
unreasonable risk of danger to public safety.3 The People
opposed the motion, arguing that Berry was ineligible because he
intended to cause great bodily injury to Dent during the assault,
and in any event resentencing would pose an unreasonable risk
of danger to public safety. (§ 1170.126, subd. (f).) The trial court
issued an order to show cause.
On April 28, 2015, the trial court conducted an eligibility
hearing at which it reviewed portions of the trial record. Berry
argued that his own testimony at trial indicated he did not intend
to inflict injury, and other evidence on the question was
conflicting. Further, Berry urged that the jury must have
discredited portions of Whitney’s and Dent’s testimony because it
acquitted him of battery with serious injury. The People argued
the evidence of Dent’s injuries and Berry’s threat showed he did
intend to inflict great bodily injury.
The trial court stated it did not give Berry’s trial testimony
“very much weight because he has a huge motive to lie.” It found
Dent also lied when she said she did not recall the attack. The
court denied the petition on the ground that during the
commission of the assault, Berry “intended to inflict, and did
3 Berry requested that he be resentenced to a total term of
14 years four months, with credit for time served of over 16 years.

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inflict great bodily injury, making him ineligible” pursuant to
section 1170.126(e)(2).4
The trial court did not separately rule on whether Berry
was eligible for resentencing on the Vehicle Code section 10851
offense.
Berry filed a timely notice of appeal challenging the trial
court’s denial of his petition. (Teal v. Superior Court (2014)
60 Cal.4th 595.)
DISCUSSION
1. The Act and the standard of review
“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.
[Citations.] The Act 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.
[Citations.]” (People v. Johnson (2015) 61 Cal.4th 674, 680-681,
fn. omitted; People v. Conley (2016) 63 Cal.4th 646, 651.)
The Act also enacted section 1170.126, which created a
procedure by which eligible prisoners already serving third strike
4 The trial court stated it found Berry ineligible under
section 1170.126, subdivision (e)(3). The court misspoke; it
presumably intended to refer to subdivision (e)(2).

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sentences may seek resentencing in accordance with the new
sentencing rules.5 (People v. Johnson, supra, 61 Cal.4th at
p. 682; People v. Conley, supra, 63 Cal.4th at p. 653; People v.
5 Section 1170.126, subdivision (b) provides: “(b) Any person
serving an indeterminate term of life imprisonment imposed
pursuant to paragraph (2) of subdivision (e) of Section 667 or
paragraph (2) of subdivision (c) of Section 1170.12 upon
conviction, whether by trial or plea, of a felony or felonies that
are not defined as serious and/or violent felonies by subdivision
(c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a
petition for a recall of sentence, within two years after the
effective date of the act that added this section or at a later date
upon a showing of good cause, before the trial court that entered
the judgment of conviction in his or her case, to request
resentencing in accordance with the provisions of subdivision (e)
of Section 667, and subdivision (c) of Section 1170.12, as those
statutes have been amended by the act that added this section.”
Subdivision (e) provides in pertinent part: “An inmate is
eligible for resentencing if: [¶] (1) The inmate is serving an
indeterminate term of life imprisonment imposed pursuant to
paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of
Section 1170.12 for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of
Section 667.5 or subdivision (c) of Section 1192.7. [¶] (2) The
inmate’s current sentence was not imposed for any of the offenses
appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667 or clauses (i) to
(iii), inclusive, of subparagraph (C) of paragraph (2) of
subdivision (c) of Section 1170.12. [¶] (3) The inmate has no
prior convictions for any of the offenses appearing in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section
667 or clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (c) of Section 1170.12.”

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Blakely (2014) 225 Cal.App.4th 1042, 1048.) An inmate is eligible
for resentencing if he or she 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); People v. Johnson,
supra, at p. 682.) 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.” (People v.
Johnson, supra, at p. 682.) The trial court may decline to
resentence an eligible defendant if, in its discretion, it determines
resentencing would pose an unreasonable danger to public safety.
(§ 1170.126, subd. (f).)
We review “the factual basis of the trial court’s finding
under the familiar sufficiency of the evidence standard. ‘We
review the whole record in a light most favorable to the [order] to
determine whether it contains substantial evidence, i.e., evidence
that is credible and of solid value, from which a rational trier of
fact could find beyond a reasonable doubt that the accused
committed the offense.’ [Citations.]” (People v. Guilford (2014)
228 Cal.App.4th 651, 661.)
2. The Vehicle Code section 10851 offense
Unlawfully driving or taking a vehicle in violation of
Vehicle Code section 10851 is not a serious or violent felony,
absent circumstances not present here, such as the use of a
firearm or infliction of great bodily injury in commission of the
crime. (See §§ 667.5, subd. (c)(8); 1192.7, subd. (c)(8); see
generally People v. Johnson (2016) 244 Cal.App.4th 384, 389.)
The parties agree that the trial court erred by failing to consider
Berry’s section 1170.126 petition insofar as he sought
resentencing on the Vehicle Code offense.

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We agree. In People v. Johnson, supra, 61 Cal.4th 674, our
Supreme Court held that an inmate is eligible for resentencing
under section 1170.126 on a current conviction that is neither
serious nor violent, even though he or she has another current
conviction that is serious or violent. (People v. Johnson, at
p. 679.) Johnson concluded that the Act “requires an inmate’s
eligibility for resentencing to be evaluated on a count-by-count
basis. So interpreted, an inmate may obtain resentencing with
respect to a Three Strikes sentence imposed for a felony that is
neither serious nor violent, despite the fact that the inmate
remains subject to a third strike sentence of 25 years to life.” (Id.
at p. 688; see also People v. Lynn (2015) 242 Cal.App.4th 594,
598.)
Consistent with Johnson, Berry’s eligibility for
resentencing on the Vehicle Code offense must be considered
regardless of whether he is eligible for resentencing on the
assault conviction. Accordingly, we reverse the trial court’s order
and remand for a new resentencing hearing on the Vehicle Code
section 10851 offense.
3. The assault by means of force likely to produce great
bodily injury offense
A conviction for assault by means of force likely to produce
great bodily injury may disqualify a defendant for resentencing if
the defendant inflicted, or intended to inflict, great bodily injury
during commission of the offense. First, an inmate is eligible for
resentencing only if he is serving an indeterminate life term for a
conviction of a felony that is not defined as serious and/or violent
by section 667.5, subdivision (c) or section 1192.7, subdivision (c).
(§ 1170.126, subd. (e)(1); People v. Johnson, supra,
244 Cal.App.4th at p. 387; People v. White (2016) 243 Cal.App.4th

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1354, 1360.) An offense is a violent felony under section 667.5,
subdivision (c)(8) if a great bodily injury enhancement is found
true; it is a serious felony under section 1192.7 if the People plead
and prove the defendant personally inflicted great bodily injury.
(People v. Johnson, supra, at pp. 389-390.)
Second, even if the commitment offense does not qualify as
a “strike,” an inmate is disqualified from resentencing if,
“[d]uring the commission of the current offense,” he “intended to
cause great bodily injury to another person.” (§§ 667, subd.
(e)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii);6 People v. Guilford,
supra, 228 Cal.App.4th at p. 654.)
Berry argues the trial court’s ineligibility finding on the
assault conviction must be reversed for three reasons: (1) the
jury’s acquittal on the battery with serious injury charge
precluded the court from finding he did, in fact, inflict great
bodily injury; (2) the trial court erred by basing its finding that
he intended to inflict great bodily injury on a disputed issue of
fact not adjudicated by the jury below; and (3) in making the
ineligibility finding, the court applied the wrong standard of
proof.
a. The offenses
In order to consider Berry’s contentions, we begin by
examining the elements of the crimes with which he was charged.
“A battery is any willful and unlawful use of force or violence
upon the person of another.” (§ 242.) To prove simple battery,
6 The relevant language in section 667, subdivision
(e)(2)(C)(iii) and section 1170.12, subdivision (c)(2)(C)(iii) is
identical. For ease of reference we hereinafter refer only to
section 667.

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the People must establish the defendant willfully and unlawfully
touched another in a harmful or offensive manner. (CALCRIM
No. 960; People v. Chenelle (2016) 4 Cal.App.5th 1255, 1263;
People v. Dealba (2015) 242 Cal.App.4th 1142, 1149.) Force
against the person is enough; it need not be violent or severe or
cause bodily harm. (People v. Dealba, supra, at p. 1149.) Battery
is a general intent offense. (In re B.L. (2015) 239 Cal.App.4th
1491, 1495; People v. Thomas (1988) 206 Cal.App.3d 689, 694 [“a
person need not have an intent to injure to commit a battery, but
only the general intent to commit the act”].)
To prove battery with serious bodily injury (§ 243
subd. (d)), the People must additionally establish that the victim
suffered serious bodily injury as a result of the force used.
(CALCRIM No. 925; People v. Wade (2012) 204 Cal.App.4th 1142,
1147; People v. Thomas, supra, 206 Cal.App.3d at p. 694 [“felony
battery is but a simple battery which results in serious bodily
injury”].) For purposes of section 243, “serious bodily injury” has
a specifically defined meaning: it includes, but is not limited to, a
“loss of consciousness; concussion; bone fracture; protracted loss
or impairment of function of any bodily member or organ; a
wound requiring extensive suturing; and serious disfigurement.”
(Id., subd. (f)(4); People v. Johnson, supra, 244 Cal.App.4th at
p. 390; People v. Wade, supra, at pp. 1147-1148.) Like simple
battery, battery with serious bodily injury is a general intent
offense. (People v. Lara (1996) 44 Cal.App.4th 102, 108; People v.
Thurston (1999) 71 Cal.App.4th 1050, 1054 [“courts have
concluded consistently that such felony battery is a general
intent crime, requiring only an intent to do the assaultive act”].)
Thus, intent to cause serious bodily injury is not an element of
the offense. (See CALCRIM No. 925.)

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Assault by means of force likely to produce great bodily
injury requires proof the defendant willfully committed an act
which by its nature would probably and directly result in injury
to another, with knowledge of facts that would lead a reasonable
person to realize a battery would directly, naturally, and
probably result. (People v. Williams (2001) 26 Cal.4th 779, 788,
790; People v. White (2015) 241 Cal.App.4th 881, 884.) Actual
injury is not an element. (People v. Aguilar (1997) 16 Cal.4th
1023, 1028; In re Jonathan R. (2016) 3 Cal.App.5th 963, 974;
People v. Brown (2012) 210 Cal.App.4th 1, 7.) Great bodily
injury, as used in section 245, “means significant or substantial
injury” (People v. Brown, supra, at p. 7), rather than injury that
is insignificant, trivial, or moderate. (People v. Armstrong (1992)
8 Cal.App.4th 1060, 1066.)
b. The resentencing court’s finding that Berry actually
inflicted great bodily injury
Berry contends that the trial court’s finding he actually
inflicted great bodily injury on Dent is precluded by the fact the
jury acquitted him on count 5, battery with serious bodily injury.
We held in People v. Arevalo (2016) 244 Cal.App.4th 836, 842,
that a defendant’s acquittal on an offense precludes a trial court
from determining the defendant is ineligible for section 1170.126
resentencing based on that offense. There, a police officer found
defendant Arevalo driving a stolen car with an unloaded revolver
on the seat beside him. (People v. Arevalo, supra, at p. 842.)
Arevalo was convicted in a bench trial of grand theft auto and
driving a vehicle without the owner’s consent. The trial court
acquitted him of possession of a firearm by a felon and found an
“ ‘armed with a firearm’ ” allegation not true. (Id. at p. 843.)
Arevalo subsequently petitioned for resentencing pursuant to

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section 1170.126, and the trial court found he was ineligible
because he had been armed with a firearm during the auto theft
offenses. (People v. Arevalo, supra, at pp. 841-842, 844.) We held
that in light of the substantial amount of potential prison time at
stake, the risk of potential error stemming from the summary
and retrospective nature of the adjudication, the slight
countervailing governmental interest (given the People’s
opportunity to provide new evidence at any subsequent
dangerousness hearing), and in order to safeguard the intended
parallel structure of the Act’s prospective and retrospective
portions, ineligibility must be proven beyond a reasonable doubt.
(Id. at pp. 852-853, citing People v. Johnson, supra, 61 Cal.4th at
pp. 686-687.) Consequently, we reasoned that 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.” (People v. Arevalo, supra, at p. 842.)
Here, the jury found Berry guilty of simple battery and
acquitted him of battery with serious bodily injury. The only
difference between the two crimes is that the latter requires the
infliction of injury. The jury’s verdicts indicate it found Berry did
not succeed in inflicting serious bodily injury, as defined in
section 243, subdivision (f), on Dent. People v. Johnson, supra,
244 Cal.App.4th 384, holds that for purposes of determining
eligibility under section 1170.126, subdivision (e)(1), serious
bodily injury as defined in section 243, subdivision (f), is the
equivalent of “great bodily injury” as used in section 1192.7,
subdivision (c)(8). (People v. Johnson, supra, at p. 387.) Section
12022.7 defines “great bodily injury’ as “ ‘a significant or
substantial physical injury.’ ” (People v. Johnson, supra, at

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p. 390.) Thus, if “great bodily injury” for purposes of section 245,
former subdivision (a)(1) and “serious bodily injury” as defined in
section 243, subdivision (f)(4) are equivalents, the jury’s acquittal
of Berry would preclude the sentencing court from finding him
ineligible on the ground he actually inflicted great bodily injury
in commission of the assault. (People v. Arevalo, supra, 244
Cal.App.4th at p. 842.)
However, we need not reach this question. Even assuming
arguendo the resentencing court erred, its finding that Berry
actually inflicted great bodily injury is largely irrelevant. As we
discuss in the next section, the court’s conclusion that Berry
intended to inflict such injury is also a disqualifying circumstance
and was not precluded by the jury’s verdicts.
c. The trial court did not err by making a factual finding
based on the record of conviction
The jury’s verdict on the simple battery charge indicates it
found Berry willfully touched Dent in a harmful or offensive
manner. Its verdict on the assault charge indicates it found the
force used was likely to result in great bodily injury, that is,
significant or substantial injury. The verdict on the battery with
great bodily injury charge indicates the jury concluded the victim
did not actually suffer serious bodily injury as specifically defined
by section 243, subdivision (f)(4), but this does not preclude a
finding beyond a reasonable doubt that Berry intended to cause
Dent great bodily injury. As Berry acknowledges, the jury was
not asked to, and did not, render a verdict on the question of
whether he had the intent to inflict great bodily injury. Violation
of section 243, subdivision (d), is a general intent crime and does
not require as an element that the defendant intended to cause
injury.

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To determine whether a defendant meets the statutory
eligibility requirements of the Act, a trial court examines
relevant, reliable, admissible portions of the record of conviction
to determine the existence or nonexistence of disqualifying
factors. The appellate opinion constitutes a portion of the record
of conviction that may be considered. (People v. Johnson, supra
244 Cal.App.4th at p. 390, fn. 6; People v. Brimmer, supra,
230 Cal.App.4th at pp. 800-801; People v. Hicks (2014)
231 Cal.App.4th 275, 286; People v. Guilford, supra,
228 Cal.App.4th at pp. 659-660; People v. Guerrero (1988)
44 Cal.3d 343, 355.) Berry does not dispute that the trial court’s
inquiry was properly limited to the record of conviction.
Berry argues, however, that because the jury was not asked
to make a finding on intent, and the trial evidence regarding his
intent was in dispute, the resentencing court was precluded from
weighing the trial evidence and evaluating witness credibility.
He insists that the resentencing court erred by “making factual
findings beyond those that establish the nature or basis of
appellant’s current conviction.” In essence, Berry’s argument is
that the “intent to cause great bodily injury” ineligibility
circumstance can be found to exist only when such intent was an
element of the crime, was an allegation found true by the jury, or
was undisputed at trial.
We disagree. Berry’s argument would essentially impose a
pleading and proof requirement on section 1170.126, subdivision
(e)(2) eligibility determinations, an interpretation that has
repeatedly been rejected by the appellate courts. (See, e.g.,
People v. Arevalo, supra, 244 Cal.App.4th at p. 847 [“courts
addressing this issue have all held that the resentencing
eligibility factors need not have been pled and proven to a trier of

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fact”]; People v. Guilford, supra, 228 Cal.App.4th at p. 656
[pleading and proof requirement applicable to prospective portion
of the Act does not apply to the retrospective part]; People v.
Brimmer, supra, 230 Cal.App4th at p. 802.) “Instead, section
1170.126, subdivision (f) provides that, ‘Upon receiving a petition
for recall of sentence under this section, the court shall determine
whether the petitioner satisfies the criteria in subdivision (e).’ ”
(People v. Guilford, supra, at p. 657.)
By its terms, section 1170.126 necessitates a factual
determination by the resentencing court as to whether Berry had
the intent to inflict great bodily injury. (People v. Bradford
(2014) 227 Cal.App.4th 1322, 1331 [“The statute calls for a
factual determination by the trial court as to whether petitioner
was armed with a deadly weapon ‘during the commission’ of the
offense” (italics omitted].) As Bradford 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.” (Id. at p. 1332; People v.
Arevalo, supra, 244 Cal.App.4th at p. 848; People v. Frierson

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(2016) 1 Cal.App.5th 788, 792, review granted Oct. 19, 2016,
S236728.)
People v. Guerrero, supra, 44 Cal.3d 343, and People v.
Wilson (2013) 219 Cal.App.4th 500, cited by Berry, do not assist
him. In Guerrero, our Supreme Court considered whether, when
determining if a prior conviction qualified as a serious felony for
purposes of a section 667 enhancement, a court was limited to
matters necessarily established by the prior judgment of
conviction. (Guerrero, supra, at p. 345.) Guerrero concluded that
“in determining the truth of a prior-conviction allegation, the
trier of fact may look to the entire record of the conviction,” but
“no further.” (Id. at pp. 345, 355.) Such a rule was fair and
reasonable, Guerrero reasoned, because it “effectively bars the
prosecution from relitigating the circumstances of a crime
committed years ago and thereby threatening the defendant with
harm akin to double jeopardy and denial of speedy trial.” (Id. at
p. 355.) But a trial court does not “relitigate” the case by simply
making a factual finding based upon the trial record. Consistent
with Guerrero, the resentencing court here looked to the record of
conviction, but no further, when making the eligibility
determination. Because a court’s determination of eligibility
facts does not enhance the defendant’s existing sentence, it does
not implicate the constitutional concerns mentioned by Guerrero.
(Cf. People v. Bradford, supra, 227 Cal.App.4th at p. 1334;
People v. Frierson, supra, 1 Cal.App.5th at p. 793.)
People v. Wilson concerned “the scope of a court’s power to
increase a defendant’s sentence based on the record of a prior
conviction.” (People v. Wilson, supra, 219 Cal.App.4th at p. 503,
italics added.) There, the defendant had previously pleaded no
contest to offenses related to drunk driving. Based on its

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examination of the preliminary hearing transcript in the prior
case, the trial court found the defendant had personally inflicted
great bodily injury on the victims, making the offenses strikes.
(Id. at pp. 503-504.) Wilson held the trial court erred. The
defendant disputed the relevant facts of his conduct, and the
court “could not have found the offense to be a strike without
resolving this factual dispute.” (Id. at p. 504.) By doing so, the
trial court violated Apprendi v. New Jersey (2000) 530 U.S. 466
and People v. McGee (2006) 38 Cal.4th 682. (Wilson, supra, at
p. 504.) But here, the resentencing court’s finding is not being
used to increase Berry’s sentence. “[T]here is no constitutional
violation in considering facts not decided by a jury at a
postconviction proceeding pursuant to section 1170.126.” (People
v. Bradford, supra, 227 Cal.App.4th at p. 1334; see People v.
Johnson, supra, 244 Cal.App.4th at p. 390, fn. 6.)
d. The standard of proof
In supplemental briefing, Berry contends that the
resentencing court erred by incorrectly applying a preponderance
of the evidence standard to the ineligibility determination, rather
than the beyond a reasonable doubt standard we held applicable
in People v. Arevalo, supra, 244 Cal.App.4th at pp. 852-853.)
The court below did not specify whether it applied a
preponderance of the evidence or a reasonable doubt standard to
the eligibility determination. The People argue that because
error is never presumed, we must assume the court used the
reasonable doubt standard. (See People v. Fedalizo (2016)
246 Cal.App.4th 98, 105, fn. 4.) Further, they urge that Berry
failed to request that the court apply a reasonable doubt
standard, and therefore has forfeited his contention on appeal.
But as Berry observes, at the time of the 2015 resentencing

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hearing our Arevalo decision had not yet issued, and at least one
court had held the preponderance of the evidence standard
applied. (See People v. Osuna (2014) 225 Cal.App.4th 1020, 1040
[holding the correct standard of proof for resentencing eligibility
determinations is preponderance of the evidence].) Under these
circumstances, neither the forfeiture rule nor the usual
presumption of correctness applies. (See People v. Black (2007)
41 Cal.4th 799, 810 [challenges to procedures are not forfeited
when the law later changed unforeseeably].)
The People also contend that even if the court applied the
less stringent preponderance standard, any error was harmless.7
In support, they cite People v. Barasa (2002) 103 Cal.App.4th
287, 296-297.) But Barasa is inapposite. The court there held
that, assuming a defendant “had been convicted with an
incorrectly allocated burden of proof, in cases where there is
uncontradicted evidence as to a point, there can be no
prejudice . . . .” (Ibid.) Here, the evidence regarding intent was
not undisputed.
Based on the record before us, we cannot determine
whether the trial court applied the reasonable doubt or
preponderance standard. Certainly, there was ample evidence
7 The People also argue that our Arevalo opinion was
wrongly decided, and invite us to revisit it. We observe that our
colleagues in Division Four and Two have concluded, contrary to
Arevalo, that the preponderance of the evidence standard applies,
and our Supreme Court is currently considering the question.
(People v. Frierson, supra, 1 Cal.App.5th at pp. 793-794; People v.
Newman (2016) 2 Cal.App.5th 718, 728, review granted Nov. 22,
2016, S237491.) Pending further guidance from our Supreme
Court, we decline the People’s invitation to reconsider Arevalo.

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from which it could have concluded, beyond a reasonable doubt,
that Berry intended to inflict great bodily injury on Dent.
Whitney testified that she observed Berry choke her mother; he
also hit Dent with his hand, causing Dent to fall to the floor.
Berry then repeatedly stomped on Dent’s face, jaw, and rib cage
with the heel of his thick-soled, army-style boot, as Dent lay
prone on the floor. He then said, “ ‘I will kill you, bitch.’ ” Dent
testified that after Barry choked and grabbed her, she did not
remember what happened. When she awoke in the emergency
room she had a “bad headache” and her face, side, and shoulders
hurt. When she returned home she felt “terrible pain,” causing
her to return to the doctor within a week after the assault. The
People introduced photographs of Dent’s injuries, which showed
she had a black eye and bruises, including on her back and neck.
Los Angeles Police Department Officer Debellis testified that
when he arrived at Dent’s home shortly after the attack, Dent
was shaking and crying and “appeared as if she wasn’t altogether
there.” She had bruises on both sides of her face and her chest,
and her mouth was bruised and bloody. The bruises on Dent’s
face bore a particular criss-cross pattern suggestive of boot
prints.
From the foregoing evidence, the resentencing court could
have concluded beyond a reasonable doubt that Berry intended to
inflict great bodily injury on Dent, notwithstanding Berry’s own
testimony that he accidentally stepped on Dent’s face. The intent
to inflict great bodily injury “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.) “[W]here
one applies force to another in a manner reasonably certain to
produce, and actually producing, great bodily injury, the requisite

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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.” (Ibid.) Here, the jury found Berry’s conduct was likely to
produce great bodily injury. Stomping on a prone victim’s face
and torso with an army boot is, quite obviously, an act reasonably
certain to produce injury; it is an eminently reasonable inference
that one who engages in such actions intends to inflict great
injury. Thus, it may well be, as the People suggest, that the
resentencing court would have found Berry intended to inflict
great bodily injury under a reasonable doubt standard.8
Nonetheless, Berry is entitled to a hearing at which the
correct standard is applied. Given that this matter must be
remanded in any event for consideration of resentencing on the
Vehicle Code section 10851 conviction, the trial court can clarify
which standard of proof it applied and, if necessary, can readily
reconsider Berry’s eligibility using the reasonable doubt
standard. Accordingly, we reverse the trial court’s order and
remand for a further eligibility hearing on the assault conviction,
as well as on the Vehicle Code section 10851 conviction.
8 As this is a factual issue for the trial court, we express no
opinion on the question.

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DISPOSITION
The order is reversed and the matter is remanded for
further proceedings consistent with the opinions expressed
herein.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
GOSWAMI, 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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