People v. Newman, 2 Cal. App. 5th 718

In 2001 Newman was convicted of assault by means likely to produce great bodily injury (§ 245(a)(1)) after punching and later choking a Pizza Hut delivery driver, who suffered a fractured jaw and brief unconsciousness; jury found the great-bodily-injury enhancement (§ 12022.7) not true.
Newman received a third-strike sentence (25 years to life); on appeal some prior enhancements were later stricken and sentence reduced but conviction stood.
After Proposition 36 (Three Strikes Reform Act) passed, Newman petitioned (June 26, 2013) for recall and resentencing under section 1170.126.
The Proposition 36 court reviewed the record of conviction, found Newman intended to cause great bodily injury during the assault, and denied resentencing on that ground.
Newman appealed, arguing the court exceeded permissible inquiry by making a new factual finding of intent beyond the conviction’s nature/basis and applied the wrong burden of proof (preponderance instead of beyond a reasonable doubt).
The Court of Appeal affirmed: a Proposition 36 court may examine the record of conviction and make factual findings (by a preponderance) about disqualifying factors that need not be elements or enhancements of the underlying offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Proposition 36 court may find a disqualifying fact (intent to cause great bodily injury) not pleaded or proven as an element/enhancement at trial	The court may examine the record of conviction and determine eligibility; disqualifying factors need not be elements or charged enhancements	Such a factual finding would be a "brand new" finding beyond the nature/basis of the conviction and improperly relitigates facts not found by jury (People v. Guerrero)	Held: Court may determine disqualifying factors from the record of conviction even if not elements/enhancements; these are eligibility (lenity) determinations for the Proposition 36 court, not jury determinations
Appropriate standard of proof for disqualifying factors at a Proposition 36 eligibility hearing	Preponderance of the evidence is adequate; Proposition 36 is ameliorative and does not increase punishment so due process does not require higher standard	Beyond a reasonable doubt should apply; acquittals and not-true findings should be preclusive of disqualifying findings	Held: Preponderance of the evidence is the statutory and constitutional standard for Proposition 36 disqualifying-factor findings

People v. Guerrero, 44 Cal.3d 343 (Cal. 1988) (limits trial-court relitigation of prior-conviction circumstances when resolving prior-conviction allegations)
People v. Blakely, 225 Cal.App.4th 1042 (Cal. Ct. App. 2014) (Proposition 36 court may examine record of conviction to determine disqualifying factors; no Sixth Amendment jury right to such determinations)
People v. Arevalo, 244 Cal.App.4th 836 (Cal. Ct. App. 2016) (held beyond-a-reasonable-doubt standard for certain resentencing disqualifying findings; Court of Appeal disagreed with this approach)
People v. Osuna, 225 Cal.App.4th 1020 (Cal. Ct. App. 2014) (disqualifying factors under section 1170.126 need not be proven to a jury beyond a reasonable doubt; preponderance sufficient)
Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (facts increasing penalty beyond statutory maximum must be submitted to a jury and proved beyond a reasonable doubt)
In re Winship, 397 U.S. 358 (U.S. 1970) (due process requires proof beyond a reasonable doubt of every fact necessary to constitute the crime charged)
United States v. Watts, 519 U.S. 148 (U.S. 1997) (preponderance standard at sentencing generally satisfies due process)
People v. Towne, 44 Cal.4th 63 (Cal. 2008) (facts relevant to sentencing generally need be proved only by a preponderance; Apprendi inapplicable where facts do not increase statutory maximum)
People v. Robinson, 47 Cal.4th 1104 (Cal. 2010) (substantial-evidence standard governs review of trial-court factual findings)