THE PEOPLE,
A160827
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Filed 12/8/21
CERTIFIED FOR PUBLICATION; (Alameda County Super. Ct. No. 172865D)
In 2014, Joseph Silva was convicted in a jury trial with two codefendants of two counts of first degree murder arising out of a home
On appeal, Silva argues that it was constitutional error under the Fifth, Sixth, and Fourteenth Amendments to impose sentence upon him for offenses of which he was never found guilty by a jury, and that as a result, we must reverse and remand with directions that he be resentenced to a shorter term for only two second degree robberies. For his part, the Attorney General also requests a remand, but he contends Silva should have bеen sentenced to a longer term than the one the court imposed. We agree with Silva that due process requires notice and an opportunity to be heard on any request by the prosecution to designate an unadjudicated offense for resentencing under
I. BACKGROUND
A. The Underlying Crimes
This court is well acquainted with the crimes underlying this appeal, having filed four previous opinions in the direct appeal in its various incarnations in docket number A144079.2 At Silva‘s request, we have taken judicial notice of the entire appellate record in A144079. Three of our four prior opinions are contained in the clerk‘s transcript of Silva‘s current appeal. (See fn. 2, ante.)
The two murders occurred during a 3:00 a.m. home-invasion robbery at the Gonzalez house in Oakland in March 2013, undertaken to settle a drug debt
Guns drawn, Tabron and Taco corralled everyone in the house into a back bedroom, took their cell phones and money, and looted the place of computers, televisions, collectibles, and other valuables. Tabron then ordered the victims to lie face-down on the floor just before the robbers left, telling them not to call the police or he would come back and kill them all.
The two murder victims, Trisha Forde and Noe Garcia, did not live in the Gonzalez house. Forde entered the back bedroom while the robbery was in progress, apparently to buy drugs, and was planning to meet up with Garcia afterwards. After taking her money, Tabron and Taco forced Forde at gunpoint to go outside with them, where gunshots soon erupted. Garcia, who wаs apparently coming to meet Forde, may have been involved in the gunplay, but Forde and Garcia were shot and killed with two different guns within a minute or two after she was forced from the house. Both were shot mostly from behind, including in the back of the head at close range. After the gunfire, witnesses heard the screeching of tires.
B. Silva‘s Role
Silva‘s involvement came after the robbery was underway. He testified at trial that he had bought an “eight ball,” or an eighth ounce of methamphetamine, from Tabron earlier in the evening and sold half to a friend. Silva went to Tabron‘s house to pay him for the drugs after 3:00 a.m. but found no one at home. Tabron‘s brother, Jeffrey Tabron (Jeffrey),4 just then drove up in his car and asked Silva to help load a flat-screen TV, some laptops, and other items from Jeffrey‘s car into Silva‘s truck. Silva obliged, and Jeffrey then asked Silva to come around the corner to load another TV into his truck.
Once at the Gonzalez house, as Silva helped load a second TV into his truck, “red flags went up” and he knew “somethin’ was goin’ down,” but he
Silva testified he left the Gonzalez house with the two TV‘s shortly after loading the second one into his truck, around 4:05 a.m., but the Shotspotter gunshot detection system registered the shots at 3:54 a.m. Silva testified he never saw Garcia‘s or Forde‘s bodies, but he told the police he saw a body on the ground.
C. The Charges and the Trial
In the original information, the codefendants were charged in count 1 with Garcia‘s murder (
After a bifurcated trial on the prior conviction allegations, Judge Allan Hymer sentenced Tabron to two consecutive terms of life in prison without possibility of parole, plus four years. He sentenced both Castro and Silva to 50 years to life in prison after dismissing their prior convictions in the interests of justice. (
D. The Proceedings Under Section 1170.95
After his convictions were affirmed but his plea for relief оn direct appeal under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was rejected (People v. Tabron, supra, A144079 [Aug. 26, 2019]; see People v. Gentile (2020) 10 Cal.5th 830, 839 (Gentile)), Silva filed a petition for resentencing in Alameda County Superior Court under
In its response, the prosecution conceded that Silva had made a prima facie showing of eligibility for relief in that he could not be convicted of the two murders under current law due to statutory revisions enacted by Senate Bill 1437. (
On July 30, 2020, the People filed a resentencing memorandum that summarized aggravating and mitigating factors for sentencing under California Rules of Cоurt, rules 4.421 and 4.423 based on Silva‘s history and his role in the crimes underlying his murder convictions. The memorandum did not make a specific resentencing recommendation.
At the judge‘s request, on August 4, 2020, the prosecution filed an updated resentencing memorandum that attached the presentence probation report
Thus, the district attorney proposed that the court revive the arming enhancements rejected by the jury, arguing that the jury misunderstood the instruction аnd incorrectly found the enhancements not true for Silva and Castro. (See
The next day, Silva‘s attorney filed “defendant‘s 1170.95 subdivision (e) memorandum,” in which he proposed the “legally correct sentence is redesignation of Mr. Silva‘s two murder convictions as two residential robberies sentenced consecutively.” Although defense counsel referred to the redesignated offenses as “residential robberies,” he appears to have actually had in mind home-invasion robberies in concert based on the sentencing triad he quoted (3-6-9 years) and the statute he cited (
E. Redesignation and Resentencing Under Subdivision (e)
On August 13, 2020, the court held a redesignation and resentencing hearing, entertained argument from both sides, and granted Silva‘s petition
Judge Jacobson declared the underlying felonies for the two murders to be five home-invasion robberies in concert (counts 3 through 6 and 8) and one attempted home-invasion robbery in concert (count 7). The original information charged each robbery as a “home-invasion robbery in concert“; none was charged as generic second degree robbery or even as simple residential robbery. He took this course because
Judge Jacobson imposed a total prison term of 16 years, computed as follows: a nine-year principal upper term on count 3 for in-concert home-invasion robbery of Forde; consecutive two-year subordinate terms (
The judge called Silva a “full and voluntary participant in the home invasion robbery.” He found three aggravating circumstances with respect to the crime and no mitigating circumstances. He found the only mitigating circumstance relating to Silva personally that “arguably applies” was his early admission of wrongdoing, while all the aggravating factors applied.
Silva timely appealed, contending his new sentence was unauthorized under
II. DISCUSSION
A. Senate Bill 1437 and Section 1170.95
Under the felony-murder rule in effect at the time of Silva‘s crimes, any killing “committed in the perpetration of, or attempt tо perpetrate” certain specified crimes, including robbery, even for a non-killer participant in the felony, was “murder of the first degree. All other kinds of murders [were] of the second degree.” (Former
By adding
Typically, once a petitioner mаkes a prima facie showing of eligibility for relief, the judge issues an order to show cause, and an evidentiary hearing is held in which the prosecution has the burden of proof beyond a reasonable doubt that the petitioner is ineligible for relief under the statute. (
The parties may waive the eligibility hearing and proceed directly to resentencing if the prosecution concedes the petitioner‘s eligibility for relief (
B. The Parties’ Positions
Silva contends under the foregoing provisions he could only be sentenced for two redesignated second degree robberies in lieu of his two first degree murder convictions. He contends his rights to notice and an opportunity to defend under the Fifth and Fourteenth Amendments, and jury trial, confrontation, and counsel under the Sixth Amendment, were violated by the redеsignation procedure. Redesignating two murders as six robbery offenses of which he was never convicted, he argues, is inconsistent with the legislative intent and violates his fundamental constitutional rights.
The Attorney General takes the position that (1) the murder of Forde was properly redesignated a first degree home-invasion robbery in concert; (2) the murder of Garcia should have been redesignated a first degree home-invasion robbery in concert; (3) the court acted within its discretion under
As a result, both parties agree the matter should be remanded for resentencing. Notwithstanding their agreement, we conclude a remand would be an idle act; we shall strike count 8 and affirm the remaining counts.
C. Sentencing Silva Based on In-concert Home-invasion Robberies
Before we decide whether Silva could be resentenced for six robbery and attempt offenses or only two, we must consider whether the judge erred in redesignating Forde‘s murder as a first degree home-invasion robbery in concert. The parties agree the underlying felony was robbery, but disagree whether it could be redesignated as an aggravated form of robbery. It makes a difference in sentencing because the robbery statutes, then and now, define as first degree robbery, among other things, “every robbery which is perpetrated in an inhabited dwelling house.” (
In the redesignation and resentencing hearing, defense counsel initially argued Silva should be sentenced to two consecutive home-invasion robberies in concert, for a total of 11 years in prison (3-6-9 triad), but he later withdrew his concession on this point and argued only generic, second degree robberies should be redesignated. Under his theory that an in-concert home-invasion robbery redesignation was not allowed under the statute—which remains Silva‘s theory on appeal—Silva would be subject to a maximum sentence of six years in prison (2-3-5 triad) for two second degree robberies sentenced consecutively. (
Silva‘s contention has no merit. More than a year ago, in Howard, supra, 50 Cal.App.5th 727, Division Five of this court rejected the same argument by a petitioner under
Howard made no attempt to argue he could not be resentenced for committing a burglary, the sole offense for which he was ultimately resentenced. The only dispute was over the degree of burglary that could be used as the “underlying felony” under
Howard, like Silva, claimed a generic murder conviction based on felony murder, with no underlying felony charged, could only be redesignated as a second degree felony, not an aggravated form of the felony.8 (Howard, supra, 50 Cal.App.5th at p. 738.) The Court of Appeal rejected that argument on both statutory construction and constitutional grounds, holding a resentencing court could redesignate a vacated murder conviction as a lesser offense commensurate with his participation in the underlying felony, not just generically, but with the petitioner‘s individual culpability in mind based on the evidence at trial. (Howard, supra, 50 Cal.App.5th at pp. 738-740, 742; see People v. Gonzales (2021) 65 Cal.App.5th 1167, 1174-1175 (Gonzales).) What
D. Sixth Amendment Right to Jury Trial and Other Trial Rights
The question whether such factfinding by the judge оffends the federal Constitution was also answered by Howard, supra, 50 Cal.App.5th at page 740. Silva contends his Sixth Amendment right to jury trial was violated by the proceedings below because he was sentenced on charges never proved to a jury. The Sixth Amendment applies “[i]n all criminal prosecutions.” (
“The retroactive relief provided by
section 1170.95 reflects an act of lenity by the Legislature ‘that does not implicate defendants’ Sixth Amendment rights.’ [Citations.] [¶] Here, the process by which a trial court redesignates the underlying felony pursuant tosection 1170.95, subdivision (e) does not implicate Howard‘s constitutional jury trial right under Apprendi v. New Jersey (2000) 530 U.S. 466 or Alleyne v. United States (2013) 570 U.S. 99. The redesignation does not increase Howard‘s sentence. We reject Howard‘s argument that the residential burglary designation violated his constitutional due process rights.” (Howard, supra, 50 Cal.App.5th at p. 740.)
Though Silva tries to convince us that Howard was wrongly decided, this Division recently joined several other intermediate appellate courts that have agreed with Howard‘s Sixth Amendment analysis. (People v. James (2021) 63 Cal.App.5th 604, 610-611.) Hence, we reject Silva‘s argument that his new sentence violates the Sixth Amendment. (See People v. Perez (2018) 4 Cal.5th 1055, 1063-1064 [retroactive application of Proposition 36, the Three Strikes Reform Act of 2012, is a legislative act of lenity that does not implicate Sixth Amendment rights].)
E. Due Process
1. A petitioner undеr section 1170.95, subdivision (e) is entitled to notice and an opportunity to be heard
While the Sixth Amendment has no application to a
Though these cited cases establish broad notice and sentencing rights in criminal prosecutions, we dо not find them controlling in proceedings under
We have found no California case describing any due process protections to which a petitioner may be entitled in the redesignation and resentencing process under
Even in the context of a court‘s determination of restitution, a convicted defendant retains certain fundamental due process rights. “The scope of a criminal defendant‘s due process rights at a hearing to determine the amount of restitution is very limited: ’ “A defendant‘s due process rights are protected when the probation report gives notice of the amount of restitution claimed . . . , and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing.” ’ ” (People v. Cain (2000) 82 Cal.App.4th 81, 86, italics added.) Thus, where a defendant was assessed some $8,000 in travel expenses for his victims as restitution, without notice that those expenses would be determined at the hearing, the proceeding was fundamentally unfair in that respect and violated due process. (People v. Marrero (2021) 60 Cal.App.5th 896, 913-914.)
By the
to be heard would be fundamentally unfair and would violate due process, and we refuse to so construe
Moreover, the
Notice and an opportunity to be heard are the fundamental hallmarks of due process whenever “life, liberty, or property” is put in jeopardy. (
Gonzales, supra, 65 Cal.App.5th 1167, from the Second District, Division Four, does not hold to the contrary. That case dealt with an uncharged prior offense in a context raising an ex post facto issue. (Gonzales, at p. 1170.) At age 16 in 1998, petitioner Gonzales had engaged in a fistfight with a rival gang member, which led to a shooting death and a first degree murder conviction on a natural and probable consequences theory. (Id. at p. 1171.) He was sentenced to a term of 25 years to life in prison, plus 25 years to life for an arming enhancement. His conviction was later reduced to second degree murder (15 years to life) under People v. Chiu (2014) 59 Cal.4th 155. (Gonzales, at p. 1171.) His conviction was vacated under
In affirming the judgment, Gonzales noted that Senate Bill 1437 “specifically provides that if relief is granted and the petitioner‘s murder conviction is vacated, he or she will be resentenced on the remaining charges and/or, in some circumstances, on the previously uncharged target offense or underlying felony, so long as the nеw sentence is based upon the record of conviction and is not greater than the initial sentence. (
We require specificity with respect to notice of the intended redesignated felonies, but we still find no due process violation in Silva‘s case. Through the updated resentencing memorandum, Silva received notice on August 4, 2020, of the People‘s resentencing proposal, including the recommendations for redesignation and the calculation of the requested 24-year sentence. The court‘s redesignation decision was made on August 13, 2020. Thus, Silva was notified nine days in advance that the prosecution would seek redesignation of all originally charged robbery and attempted robbery offenses. That was constitutionally sufficient notice in the circumstances.
While in some cases nine days’ notice might be considered inadequate to prepare for a hearing, there is no basis to believe it was inadequate in Silva‘s case. All parties understood the judge would vacate the murder convictions and redesignate them as the underlying felonies. Silva‘s counsel was able to file a written response to the proposed redesignation and resentencing on the very next day. Silva never requested an evidentiary hearing on the robberies and never requested more time to prepare for the redesignation and resentencing hearing, even after learning of the prosecution‘s 24-year resentencing recommendation. He never indicated he intended to mount a defense to any of the robbery charges, either by putting on new evidence or by reference to evidence already in the record of conviction.
Silva‘s attorney, who had also been his trial attorney, objected to the resentencing based on the number of counts to which he was sentenced and preserved vаrious legal objections, but we see no indication in the record that Silva had a defense to any of the robbery charges but was thwarted in presenting it by a lack of notice. We conclude Silva received sufficient notice, and even assuming there was a notice violation that was preserved for appeal, it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Except on count 8, the evidence against Silva as a participant in the underlying robberies was overwhelming, including by his own admissions. There is no reason to believe greater notice of the redesignated robberies would have led to a different outcome.
3. Silva made no request for an evidentiary hearing on redesignation and resentencing and therefore was not deprived of an opportunity to be heard
” ‘The fundamental requisite of due process of law is the opportunity to be heard.’ [Citation.] This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself
Silva did not receive an evidentiary hearing on the redesignation of his murder convictions, nor does the statutory language suggest such a hearing is always anticipated, since the statute expressly contemplates that it may be waived (
We believe the type of hearing afforded to Silva gave him a meaningful opportunity to be heard appropriate to the circumstances. Before the hearing, Silva‘s attorney filed “defendant‘s 1170.95 subdivision (e) memorandum.” At the hearing, his attorney argued his legal interpretation of the requirements of
4. The record of conviction supports the court‘s determination that Silva was guilty of five of the six originally charged robbery and attempt offenses
a. Burden of proof and standard of proof
Silva challenges the sufficiency of the evidence on some of the robbery and attempt charges, specifically counts 4, 7, and 8. As a threshold matter, his sufficiency of the evidence attack raises burden of proof and related standard of proof issues.
The burden of proof was on the prosecution to prove any redesignated crimes because designation of a new crime in lieu of a murder conviction is analogous to a criminal conviction. (See People v. Aranda (2012) 55 Cal.4th 342, 356 [“Under the due process clauses of the Fifth and Fourteenth Amendments, the prosecution must prove a defendant‘s guilt of a criminal offense beyond a reasonable doubt“]; cf.
b. The record of conviction
The courts construing
In Silva‘s case, the trial transcripts unquestionably contain evidence supporting “beyond any dispute” (Howard, supra, 50 Cal.App.5th at p. 738)
The same basic facts were proved at the preliminary examination, over which Judge Jacobson presided for nine days. Accordingly, Judge Jacobson, while not the trial judge, was familiar with the evidence underlying the convictions and was in a good position to make the necessary factual findings. Based upon the evidence available to him, the judge was required to determine, and we think had ample support in the record to determine, that Silva was “concerned in the commission of” the underlying robbery and attempt offenses. (
c. There was substantial evidence from which the court could have found Silva guilty of counts 4 and 7, but not count 8
Preliminarily, for purposes of resentencing, defense counsel consented on Silva‘s behalf to the court‘s reliance on the description of the underlying crimes in the probation report, which was attached to the district attorney‘s updated resentencing memorandum. Silva‘s challenges to the sufficiency of the evidence implicitly assume the judge was limited to reviewing the facts as stated in the probation report. The judge was not so restricted merely because defense counsel stipulated to the court‘s use of that document. Contrary to Silva‘s argument, the resentencing court could also rely on the entire record of conviction, which provided substantial evidence under Jackson v. Virginia (1979) 443 U.S. 307, 318–319 to support its redesignation on those counts, except count 8. The judge did not specify, nor was he required to specify, precisely which items of evidence he relied on in making his redesignation findings. He said he arrived at his resentencing decision “based on all the evidence in this case.”
The parties agree that no sentence should have been imposed on count 8. Jose Hernandez, the named victim in count 8, was a neighbor who called 911 when he heard the gunshots. There was no evidence he was a robbery victim. We shall strike the redesignated offense and the sentence on count 8.
Junior, too, was moved upstairs at gunpoint. Tabron specifically demanded Junior‘s money and cell phone. And while there was no testimony about what Junior might have turned over, the charge and verdict were for attempted robbery. The evidence easily supported that charge as one of the underlying felonies. (People v. Zamudio, supra, 43 Cal.4th at pp. 356–357.)
d. The court did not fail to redesignate underlying felonies for Garcia‘s murder
The court did not err in redesignating the murders of Forde and Garcia as a series of home-invasion robberies in concert. The Attorney General suggests the judge considered all six robbery offenses as substitutes for the Forde murder conviction (count 2) and did not redesignate the murder of Garcia (count 1) at all because he was “not a robbery victim.” He argues the felony underlying the killing of Garcia was also a home-invasion robbery in concert and should have been so redesignated and resentenced. The sentencing colloquy is not without ambiguity, but as we understand the record, the judge redesignated the two murders as five home-invasion robbery offenses and one attempt without specifying which offenses substituted for which murder. We will therefore not address the Attorney General‘s argument that Garcia‘s murder should have been redesignated and resentenced as a home-invasion robbery in concert; we believe it was.
F. Sentencing Silva for More Than Two Underlying Robberies
We turn now to the heart of Silva‘s appeal, namely that the court illegally resentenced him to prison on more counts of robbery than the number of murder convictions he had sustained, given that he had never been convicted by the jury of any robbery counts. We have already addressed his claim to a constitutional right to a jury determination. (See pt. II.D., ante.) As
The Legislature‘s provision that the statute of limitations “shall not be a bar” to the redesignation decision (
1. People v. Watson (2021) 64 Cal.App.5th 474
The decision in People v. Watson (2021) 64 Cal.App.5th 474 (Watson) significantly undercuts Silva‘s argument by allowing the court to redesignate more than one underlying felony in lieu of a murder conviction. There, the defendant was sentenced to 15 years to life in prison after pleading guilty to one count of second degree murder in 1988. The victim had admitted the defendant into his hotel room, unaware that he and two accomplices had a preexisting “specific intent to grab him and steal his money from him.” (Watson, at p. 486.) Watson grabbed the victim from behind so his two accomplices could enter the room. In the ensuing struggle, the victim fought back, and one of Watson‘s accomplices suddenly started wildly stabbing the victim, who died. (Id. at p. 479.)
Watson, still in prison in 2019, petitioned for resentencing, and his murder conviction was vacated. (Watson, supra, 64 Cal.App.5th at p. 477.) The resentencing court concluded Watson had committed both first degree burglary and first degree residential robbery as felonies underlying his second degree murder conviction. (Id. at p. 480.) It sentenced Watson on both underlying felonies, staying execution of the robbery sentence under
In affirming that resentencing decision, Division Three of this court held the Legislature‘s use of the definite article in “the . . . underlying felony” in
2. Silva could legally be resentenced for five home-invasion robberies in concert and one attempted robbery in lieu of two murder convictions
Applying Watson‘s reasoning to the issue before us, there appears to be no statutory impediment to the imposition of sentence on more counts on resentencing under
In Watson, the resentencing court found the defendant guilty of two redesignated felonies, but the sentence on one count was stayed, and in any event, both felonies were committed against the same victim who was murdered. (Watson, supra, 64 Cal.App.5th at pp. 478, 481 Silva contends this was a violation of due process, the right to jury trial, confrontation, and the right to counsel.10 (U.S. Const., 5th, 6th & 14th Amends.) The Attorney General contends the resentencing judge had discretion under subdivision (e) to redesignate more offenses than one in lieu of each of Silva‘s murder convictions in order to more closely approximate the gravity of his conduct. In our view, the Attorney General‘s position more faithfully reflects the legislative intent. We conclude the federal and state Constitutions pose no bar to the redesignation of additional counts, so long as the petitioner receives notice, an opportunity to be heard, and the prosecution bears its burden of proving guilt on the redesignated counts. Subdivision (e) of section 1170.95 appеars to invest the superior court with considerable discretion in redesignating the petitioner‘s murder convictions as underlying felonies and resentencing a petitioner to an appropriate term of years based on his or her individual culpability. We believe the court may consider the full extent of the petitioner‘s criminal conduct, and the redesignation may reflect, among other things, the number of crime victims, not just the number of murder charges on which the petitioner was convicted. (See Howard, supra, 50 Cal.App.5th at p. 742 [“the purpose of section 1170.95 is to punish a defendant commensurate with his individual culpability“].) The focus is on achieving a just sentence—not making sure the redesignated offenses line up numerically with the vacated murder convictions. (See § 1170.95, subd. (e) [court redesignates murder conviction “for resentencing purposes“].) “When a court resentences a defendant pursuant to section 1170.95, the only limitation is the new sentence cannot be greater than the original sentence. (§ 1170.95, subd. (d)(1).)” (Howard, at p. 742.) Except for the redesignation of count 8, the judge did not violate section 1170.95 or the federal or state Constitutions in resentencing Silva, nor did he abuse his discretion in selecting a term of 16 years. We shall strike count 8 for lack of supporting evidence, but becаuse count 8 was sentenced concurrently, striking it does not alter the length of Silva‘s aggregate sentence. 3. There is no need to remand for resentencing Both parties request a remand for resentencing. Although a remand could possibly lead to clarification of the court‘s reasoning in some respects, it is highly unlikely to result in a shorter sentence, as we did not find any error by the court that contributed to the length of the sentence. Moreover, the record demonstrates that Judge Jacobson would not impose a longer sentence, even if it were available. He believed he had the option of imposing a longer sentence by sentencing count 8 consecutively, but he deliberately rejected that alternative and sentenced count 8 concurrently. “I‘m finding that 16 years appears to me, based on all the evidence in this case, to be appropriate based on Mr. Silva‘s history, his behavior in this case, and the damage and harm that was done in this case.” For this reason, even if a longer sentence could be calculated on remand, we think it clear the court would not impose a longer sentence. Remanding the case for resentencing would be an idle act and a waste of judicial resources. III. DISPOSITION The redesignated offense and sentence on count 8 are ordered stricken for lack of evidence. The judgment is otherwise affirmed. The superior court shall prepare an amended abstract of judgment omitting count 8 and shall forward it to the Department of Corrections and Rehabilitation. STREETER, J. WE CONCUR: POLLAK, P. J.ROSS, J.* STREETER, J., Concurring. Although we conclude that the burden of proof question is unnecessary to our disposition, the question of what burden must be met when a resentencing court selects one or more uncharged “target offense[s]” or “underlying felon[ies]” under Penal Code section 1170.95, subdivision (e)—preponderance of the evidence, clear and convincing proof, or proof beyond a reasonable doubt—is not only closely related to the issues of notice and opportunity to be heard that we decide here, but is a pressing matter in its own right. I would have preferred to see us go further and decide it along with these other issues of fundamental fairness. To me, we must bear in mind the applicable burden of proof when we evaluate the sufficiency of the evidence. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1000–1007.) ” ‘[T]he degree of proof required in a particular type of proceeding “is the kind of question which has traditionally been left to the judiciary to resolve.” [Citation.] [Fn. omitted.] “In сases involving individual rights, whether criminal or civil, ‘[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.’ ” [Citations.]’ ‘The standard of proof must satisfy ” ‘the constitutional minimum of “fundamental fairness.” ’ ” ’ [Citations.] ‘The function of a standard of proof is to instruct the fact finder concerning the degree of confidence our society deems necessary in the correctness of factual conclusions for a particular type of adjudication, to allocate the risk of error between the litigants, and to indicate the relative importance attached to the ultimate decision.’ [Citation.])” (People v. Bradford (2014) 227 Cal.App.4th 1322, 1344–1345 (conc. opn. of Raye, P. J.).) Had we reached the issue, I would have concluded that the prosecution bears the burden of proving any redesignated offense under Penal Code section 1170.95, subdivision (e), beyond a reasonable doubt. (Cf. People v. Frierson (2017) 4 Cal.5th 225 [prosecution bears burden of proving Prop. 36 petitioner‘s ineligibility for resentencing under Three Strikes Reform Act of 2012 beyond a reasonable doubt].) I think that is not only constitutionally compelled as a matter of due process (In re Winship (1970) 397 U.S. 358, 362), but also as a matter of statutory interpretation. When the entirety of the statutory scheme is read as a whole, I see no reason why the Legislature would have intended to place a beyond a reasonable doubt burden on the prosecution at a section 1170.95, subdivision (d)(3) hearing, but some lesser burden at a section 1170.95, subdivision (e) hearing where the parties choose to proceed solely on the record of conviction. Accordingly, whether viewed as a matter of statutory interpretation as in Frierson, or as a matter of due process as in Winship, I think the burden of proof here is beyond a reasonable doubt. STREETER, J.