P. v. Rodriguez

Filed 11/22/16 P. v. Rodriguez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
OSCAR RODRIGUEZ,
Defendant and Appellant.
B269444
(Los Angeles County
Super. Ct. No. GA025346)
APPEAL from an order of the Superior Court of Los Angeles County.
William C. Ryan, Judge. Affirmed.
California Appellate Project, Jonathan B. Steiner, Executive Director,
and Cheryl Lutz, Staff Attorney, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Noah Hill
and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________

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Defendant Oscar Rodriguez appeals from the postjudgment order
denying his petition to recall his sentence and for resentencing pursuant to
Penal Code section 1170.126,1 added by Proposition 36.2 He contends the
Proposition 36 court erred in finding he was ineligible for resentencing based
on its finding he intended to inflict great bodily injury, because: (1) the court
improperly made factual findings beyond those that establish the nature or
basis of his current conviction in violation of People v. Guerrero (1988) 44
Cal.3d 343 (Guerrero); and (2) the court applied the incorrect preponderance
of the evidence rather than the correct beyond a reasonable doubt standard of
proof.
We affirm the order. The Proposition 36 court found that during the
commission of the current offense, the defendant intended to cause great
bodily injury, which is an expressly enumerated factor for disqualifying, or
rendering ineligible, a defendant for Proposition 36 relief (§§ 667, subd.
(e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)). This finding is legally sound.
Defendant’s reliance is misplaced on Guerrero, which is factually
inapplicable. The court correctly applied the lesser preponderance of the
evidence rather than the greatest beyond a reasonable doubt standard of
proof.
1 All further section references are to the Penal Code unless otherwise
indicated.
2 “On November 6, 2012, the electorate passed Proposition 36, the Three
Strikes Reform Act of 2012 . . . . Proposition 36 reduced the punishment to be
imposed with respect to some third strike offenses that are neither serious
nor violent, and provided for discretionary resentencing in some cases in
which third strike sentences were imposed with respect to felonies that are
neither serious nor violent.” (People v. Johnson (2015) 61 Cal.4th 674, 679.)
Proposition 36 was effective on November 7, 2012. (Johnson, at p. 680.)

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BACKGROUND
On June 12, 1995, at a park in Rosemead, defendant punched Estella
Arias, his live-in girlfriend, several times in the face and forehead after they
had been drinking. Arias, who was treated at the scene by paramedics, told
Los Angeles County Sheriff’s Detective Baltzar that defendant attacked her
because he was angry that she was talking to her friends and that he hit her
whenever he drank alcohol.
On August 26, 1995, at about 2:30 a.m., Arias refused defendant’s offer
to smoke marijuana. He then hit her head repeatedly against a store
window, causing it to shatter and causing injuries to Arias’s head and left
ear. When she tried to run away, defendant grabbed her and bit her on her
back.
At trial, after admitting causing injuries to Arias, he explained Arias
was leaving her children to be with friends. He described the accusations
against him as lies. He denied punching Arias during the June 12 incident.
Rather, he grabbed her, because she was drunk and wanted to stay at the
park with friends and drug addicts. As he was helping Arias, she fell and
was injured. Similarly, during the August 26 incident, he was trying to help
Arias because she was very drunk and in grabbing Arias, he hurt her. He
denied pushing Arias against the window or biting her on her shoulder.
A jury convicted defendant of two counts of willful infliction of corporal
injury on a cohabitant (§ 273.5, subd. (a)) and found he had suffered two
strikes under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-
(d)). The trial court reduced one count to a misdemeanor. Defendant was
sentenced to prison to 25 years to life on his felony conviction and sentenced
to a consecutive one-year jail term for his misdemeanor conviction.

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In his earlier appeal, we modified the judgment to reflect his sentence
of 25 years to life is on count 1 and that count 2 is the count that was reduced
to a misdemeanor and on which the one-year sentence was imposed. As
modified, we affirmed the judgment.3
On January 13, 2013, defendant filed a Proposition 36 petition to recall
his sentence and for resentencing.
On February 27, 2013, the Proposition 36 court issued an order to show
cause. The People filed opposition to the petition.
On November 25, 2014, defendant filed a reply.
On June 9, 2015, the People filed supplemental opposition.
On December 1, 2015, the Proposition 36 court issued a memorandum
of decision. The court found defendant was not eligible for relief, because he
had intended to inflict great bodily injury during commission of the current
crime and denied the petition.4
DISCUSSION
1. Jury’s Verdict Does Not Preclude Intent Finding by Proposition 36
Court
Defendant contends the Proposition 36 court’s own factual finding that
defendant intended to inflict great bodily injury is unsupported by the record
3 The above background is taken from the earlier unpublished opinion
(B102447), of which we take judicial notice. (Evid. Code, §§ 452, subd. (d)(1),
459.)
4 On October 26, 2015, at the conclusion of the eligibility hearing, the
Proposition 36 court ruled: “The motion [sic] is denied.” The court did not
consider its oral ruling to be the final order, because in its memorandum of
decision, the court did not mention this oral ruling and the memorandum of
decision reflects the court expressly ruled the Proposition 36 petition was
denied with prejudice.

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of conviction, i.e., the jury’s verdict, and that the court’s “‘relitigation’ of the
circumstances of the crime” is prohibited under Guerrero, supra, 44 Cal.3d
343, 355. We find his contention to be without merit.
The fatal fallacy lies in his misguided focus on “the ‘nature or basis of
the verdict.” That the jury did not find defendant intended to inflict great
bodily injury is inconsequential. In People v. Newman (2016) 2 Cal.App.5th
718 (Newman),5 this court explained a disqualifying factor, such as the one
here, is “not a subject for a jury to determine, because [such factors] do not
cause an increase in punishment beyond the statutory punishment for the
current offense.” Rather, “the existence of a disqualifying factor that would
render a defendant ineligible for resentencing under Proposition 36, which
would lessen his punishment if he were eligible, is a determination solely
within the province of the Proposition 36 court to make.” (Newman, at. p.
724.) Further, we explained that Guerrero is factually inapplicable.
“Guerrero, which was decided long before enactment of Proposition 36,
concerns what evidence a trial court may consider in determining the truth of
a prior conviction allegation.” (Newman, at. p. 726.)
2. Preponderance of the Evidence Is the Applicable Standard of Review
Defendant contends the Proposition 36 court applied the incorrect
standard of proof in making its factual findings, because the appropriate
standard is beyond a reasonable doubt, as enunciated by the court in People
v. Arevalo (2016) 244 Cal.App.4th 836, not preponderance of the evidence.6
We are not persuaded.
5 On September 28, 2016, a petition for review was filed in Newman
(S237491).
6 Defendant does not challenge the sufficiency of the evidence to support
the Proposition 36 court’s finding he intended to inflict great bodily injury

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In People v. Frierson (2016) 1 Cal.App.5th 788,7 the court disagreed
with Arevalo and concluded the correct standard of proof is preponderance of
the evidence. (Frierson, at pp. 793, 794.) In Newman, this court concurred
with that conclusion. We noted “beyond a reasonable doubt, the highest
standard of proof, implicates issues regarding guilt or innocence of a charged
crime but not sentencing,” as a general matter, unless the issue involves a
factual finding that might subject a defendant to a potential sentence greater
than that authorized by the verdict of the trier of fact itself. (Newman, supra,
2 Cal.App.5th at p. 731.) We held the preponderance of the evidence
standard applies, because “Proposition 36 operates to decrease a defendant’s
punishment, not to increase the ‘penalty for a crime beyond the prescribed
statutory maximum’” (id. at p. 732), the scenario in Apprendi v. New Jersey
(2000) 530 U.S. 466, 490.) Defendant offers nothing new or different that
would warrant revisiting our conclusions in Newman.
during the commission of the current crime under the preponderance of the
evidence standard. Rather, he simply contends “[i]f tested by the beyond a
reasonable doubt standard, these facts leave plenty of room for a finding that
while [he] assaulted Arias, he may not have intended to injure her greatly.”
We need not, and therefore do not, address this contention in view of our
conclusion that the lesser preponderance of the evidence rather than the
greatest beyond a reasonable doubt standard of proof applies.
7 A petition for review was granted in Frierson on August 22, 2016
(S236728).

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DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.

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