1 Filed 9/2/14 (unmodified opn. attached) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (Sacramento)

----

THE PEOPLE, Plaintiff and Respondent,

v. MICHAEL GUILFORD, Defendant and Appellant. C073329
(Super. Ct. No. 94F04208)

MODIFICATION OF OPINION UPON DENIAL OF PETITION FOR REHEARING
[NO CHANGE IN JUDGMENT]

THE COURT: It is ordered that the opinion filed herein on July 31, 2014, be modified as follows: 1. On page 6 in footnote 4, in the parenthetical following the second complete sentence after the words “greatbodily injury” add “; but see § 12022.55 [enhancement requiring intent to cause great bodily injury or death]” so that the parenthetical reads:2 ( People v. Poroj (2010) 190 Cal.App.4th 165, 1 72-176; see Couzens & Bigelow,
The Amendment of the Three Strikes Se ntencing Law (Nov. 4, 2013) Petition for Resentencing, p. 29 [“indeed, there is no cr ime or special penalty for committing a crime with the intent to cause gr eat bodily injury”]; but see § 12022.55 [enhancement requiring intent to cause great bodily injury or death].) 2. On page 11, the first sentence of th e first paragraph the words “the factual
basis of” are to be added before the words “t he trial court’s finding” so that the sentence
now reads: Defendant acknowledges we review the fa ctual basis of the trial court’s finding under the familiar sufficiency of the evidence standard. 3. On page 13, footnote 6, delete the text of the entire footnote and replace it
so that the footnote reads as follows: The responsive and reply briefs cite to Pepper v. United States (2011) 562 U.S. __ [179 L.Ed.2d 196] ( Pepper ). Pepper involved the admissib ility of postsentencing rehabilitation after a federal criminal sentence had been set aside on appeal. ( Pepper , supra , 562 U.S. at pp. ___, ___ [179 L.Ed.2d at pp. 208, 21 3-215].) That case has no application to a petition to recall a Ca lifornia sentence under the Act. As modified, the petition for rehearing is denied. This modification does not change the judgment.
FOR THE COURT:

BUTZ , Acting P. J.

DUARTE , J.

HOCH , J.1 Filed 7/31/14 (unmodified version) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (Sacramento)

----

THE PEOPLE, Plaintiff and Respondent,

v. MICHAEL GUILFORD, Defendant and Appellant. C073329
(Super. Ct. No. 94F04208)

APPEAL from a judgment of the Su perior Court of Sacramento County, Lawrence G. Brown, Judge. Affirmed. Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Mich ael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen, Supervisi ng Deputy Attorney Gene ral, Ivan P. Marrs, Deputy Attorney General, for Plaintiff and Appellant.2 Defendant	Michael	Guilford appeals from an order deny ing his petition to recall
his sentence under the Three Strikes Reform Ac t of 2012 (Pen. Code , §§ 667, 1170.12, 1170.126, 1 Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012) (the Act)). Although the Act contains some provision s affecting sentenci ng taking place after its operative date, as relevant to this appeal, the Act also sets forth a mechanism for relief for some existing three strikes inmates. That part of the Act creates a two-step process. First, the trial court determines whether a defendant is qualifie d or disqualified from seeking a recall of sentence. Second, if and only if a defendant is found to be qualified, the trial court conducts a hearing, and then a pplies certain standards to determine whether the defendant’s sentence should be lessened. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4t h 1279, 1292-1294 ( Kaulick ); People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168 ( Yearwood ).) This appeal involves only the first step. Defendant contends (1) the trial court im properly considered our prior opinion on direct appeal from defendant’s convictions in finding him ineligible for resentencing under the Act, (2) our prior opinion does not show he was ineligible under the Act, and (3) he was entitled to have a jury determine hi s eligibility under the Act. He folds into his first claim the underdeveloped argument th at pleading and proof were required to support the trial court’s disqua lifying determination. As we will explain, we disagree and affirm the trial court’s order finding defend ant ineligible for rese ntencing under the Act.
BACKGROUND Defendant’s petition alleged he was convicted of spousal abuse (§ 273.5) in 1994, and it had been proven that he had three pr ior strikes; a 1977 arson conviction (former § 449a; see Stats. 1976, ch. 1139, § 200, p. 51 19); a 1983 arson conviction (§ 451, subd. (b); and a 1985 assault with a deadly weapon conviction (§ 245, subd. (a)(2)).

_______________________________________________________________ 1 Further undesignated statutory re ferences are to the Penal Code.3 The Act makes ineligible fo r resentencing those persons who, inter alia, “[d]uring
the commission of the current offense . . . inte nded to cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(B)(iii); see § 1170.126, subd. (e).) After reviewing our opi nion on appeal from the judgme nt, the trial court found
defendant intended to cause great bodily injury, and ther efore found defendant ineligible for relief and denied his petition. Defendant timely appealed. 2
DISCUSSION
I Use of Prior Opinion to Determine Eligibility Defendant contends it was improper for the trial court to consider the facts stated in our prior opinion on direct appeal to dete rmine whether or not he had the intent to commit great bodily injury in committing the curre nt offense. He claims that the trial court’s consideration of our opinion denied him due process because it denied him his right to notice and the opportunity to be heard as to the facts set forth in the opinion, as “there was no finding that was pled and prove n that supported” the court’s finding of the requisite intent.
A. The Act Generally
The Act amended sections 667 and 1170.12 and added section 1170.126, changing the requirements for sentencing a third stri ke offender to an i ndeterminate life term. “Under the original versi on of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three st rikes law by reserving the life sentence for cases where the current cr ime is a serious or violent felony or the prosecution has pled and proved an enumer ated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. [Citations.]

_______________________________________________________________ 2 The People agree with defendan t that the trial court’s denial of defendant’s petition for recall of sentence is an appealable order. The issue is currently pending before our Supreme Court. (See Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211 708.) We assume without d eciding that the appeal lies.4 The Act also created a postconviction re lease proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or viol ent felony and who is not disqualified, may have his or her sentence r ecalled and be sentenced as a second strike offender unless the court determines that resenten cing would pose an unreasonable risk of danger to public safety.” ( Yearwood , supra , 213 Cal.App.4th at pp. 167-168.) “Thus, there are two parts to the Act: the first part is prospective only, reducing the sentence to be imposed in future three strike cases wher e the third strike is not a serious or violent felony [citations]; the second part is retrospective , providing similar,
but not identical , relief for prisoners already serving th ird strike sentences in cases where the third strike was not a serious or violent felony [citation].” ( Kaulick , supra , 215 Cal.App.4th at p. 1292.) “The main difference between the prospective and the retrospective parts of the Act is that the retr ospective part of the Act contains an ‘escape valve’ from resentencing prisoners whose release poses a risk of danger.” ( Id. at p. 1293.) In approving the Act, the electorate decl ared that its purpose was both to prevent the early release of dangerous criminals and to relieve prison overcrowding by allowing low-risk, nonviolent inmates serving life sentences for petty crimes, to receive shorter sentences, thereby saving money while protec ting public safety. (Ballot Pamp., Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1, subds. (3), (4) & (5), p. 105.) The electorate also mandated that the Act be liberally cons trued to effectuate the protection of the health, safety, and welfare of the People. (Ballot Pamp

. , supra , text of Prop. 36, § 7, p. 110.) Such findings in voter ballot pamphlet s may be used to illuminate ambiguous or uncertain provisions of an enactment. (See Yearwood , supra , 213 Cal.App.4th at p. 171.)
B. Pleading and Proof The Act requires pleading and proof when ineligibility for le nient treatment under the Act applies prospectively , that is, to persons currently charged with a three strikes
offense that is not itself defined as serious or violent. (§§ 667, subd. (e)(2)(C) [“unless the prosecution pleads and pr oves any of the following”] ; 1170.12, subd. (c)(2)(C)5 [“unless the prosecution pleads and proves a ny of the following”].) No pleading and proof language appears in the part of the Act addressing relief to persons previously
sentenced under the three stri kes law, which reads in rele vant part as follows: “An inmate is eligible for resentencing if: “(1) The inmate is serving an i ndeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdiv ision (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 wa s 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 6 67 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivis ion (c) of Section 1170.12. “(3) The inmate has no prior convicti ons for any of the offenses appearing in clause (iv) of subparagraph (C) of pa ragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” (§ 1170.126, subd. (e).) Nowhere in the resentencing provisions of the Act--section 1170.126, subdivision (e), quoted above--is there any reference to pl eading and proof of disqualifying factors. Generally speaking, a pleadi ng and proof requirement w ill not be implied. (See People v. Griffis (2013) 212 Cal.App. 4th 956, 962-965.) 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).” (E mphasis added.) There is no provision for the People to plead or prove anything, the burden falls on the trial court to make the
determination whether a defendant meets the prima facie criteria for recall of sentence. 3

_______________________________________________________________ 3 If the trial court finds those criteria satisfied there is then a hearing at which the parties may address whether defendant would pose an un reasonable risk to public safety, and if not, what the new sentence should be. (See Kaulick , supra , 215 Cal.App.4th at pp. 1296- 1300.)6 In this case, the trial c ourt determined the current o ffense fell within the bar of section 667, subdivision (e)(2)(C)(iii), and section 1170.12, subd. (c)(2)(C)(iii), each of
which describes the circumstan ce where “During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person .” (Emphasis added.) Because the electorate required pleading an d proof of these disqualifying facts in the prospective part of the Act, but not the retrospective part, we presume the intention was to dispense with a pleading and proof re quirement in the latter case. “We presume the [electorate] intended everything in a statut ory scheme, and we do not read statutes to omit expressed language or to include omitted language. [Cita tion.] When ‘ “ ‘ “a statute on a particular subject omits a particular provision, the incl usion of such a provision in another statute concerning a related matter indi cates an intent that the provision is not applicable to the statute from which it was omitted.” ’ ” ’ ” ( Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 850.)
Defendant nonetheless contends that beca use the resentencing portion of the Act cross-references the prospective portions of the Ac t, it necessarily incorporated the pleading and proof requirement in the pros pective portions. This claim has some superficial appeal. (Accord, Palermo v. Stockton Theaters, Inc. (1948) 32 Cal.2d 53, 58- 59 [where a statute references another statute, it presumably referenc es it as it existed at the time of the reference, and not as it ma y be amended later].) However, on closer inspection, this contention is not persuasive. 4

_______________________________________________________________ 4 In response to defendant’s contention, the People in part claim that there is no enhancement for intending to inflict great bodily in jury, only for personally inflicting great bodily injury on a non-accomplice dur ing the commission of a felony or attempted felony. (§ 12022.7.) That do es not require an actual intent to inflict great bodily injury. ( People v. Poroj (2010) 190 Cal.App.4t h 165, 172-176; see Couzens & Bigelow, The Amendment of the Three Strikes Senten cing Law (Nov. 4, 2013) Petition for Resentencing, p. 29 [“indeed, there is no cr ime or special penalty for committing a crime with the intent to cause great bodily injury”].) In their briefing, the People reasoned that7 If the electorate meant to impose a plead ing and proof requirement, they would have done so in clear terms, but instead di rected trial courts to find ineligible those persons who “[d]uring the commiss ion of the current offense, . . . used a firearm, [were]
armed with a firearm or dead ly weapon, or intended to ca use great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii) , 1170.12, subd. (c)(2 )(C)(iii).) Although

some persons may have had such disqualifying factors plead and proved in the current case, in most cases such factors would not ha ve been adjudicated. To adopt defendant’s reasoning would be to underm ine one purpose of the People, acting via their reserved initiative powers, viz., to preclude dang erous persons from the recall provision. Again, in the portion of the Act dealing with pros pective application of the
reformed three strikes law to new cases, the statute require s the prosecution to plead and prove any factor which would qualify the de fendant for a life term sentence, including, where appropriate, that the defendant intended to inflict great bod ily injury. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) In the portio n of the Act seeking to
shorten the sentences of nonviolent and no ndangerous prisoners, no such pleading and
nobody sentenced in California before the Act c ould have been subj ect to pleading and proof of this factor. Thus, the People conten ded, a pleading and proof requirement would be “absurd” because each part of a statute must be deemed to have effect (see People v. Clark (1992) 10 Cal.App.4th 1259, 1266) and in their view, defendant’s interpretation would nullify part of the Act because nobo dy would be subject to that provision. But, as the People conced ed in argument, section 12022 .7 originally applied where and only where a “person, who, with the intent to inflict such injury , personally inflicts great bodily injury” on a non-accomplice duri ng a felony or attempted felony. (Stats. 1993, ch. 608, § 1, p. 3262, em phasis added; see Stats. 1979, ch. 146, § 17, p. 341 [prior similar language]; Stats. 1976, ch. 1139, § 306, p. 5162 [sim ilar original language].) The intent to inflict injury elemen t was eliminated in 1995. (Sta ts. 1995, ch. 341, §1, p. 1851;
see People v. Carter (1998) 60 Cal.App.4th 752, 755-756.) Therefore, there presumably exists a class of persons who were adjudica ted--after appropriate pleading and proof--to have intended to inflict grea t bodily injury, that is, all persons charged and found liable for the section 12022.7 enha ncement between the effectiv e date of the determinate sentencing law and the 1995 amendment rewr iting section 12022.7. Indeed, defendant could have been one of those persons had the enhancement be en pled and proven, as he was convicted in 1994. Thus, the People’s argument is unsound.8 proof requirement is stated. Th e differences in approach make sense. Prospectively, the prosecution is seeking, in the case of nonserious or nonviolent third strikes, to impose a life term, which would not be possible without the added factors. But in a retrospective analysis of sentences, the increased punishmen t has already been lawfully imposed. For this reason, we agree with the court in Kaulick, supra, 215 Cal.App.4th 1279. “Had the drafters of the Act intended [defenda nt’s] interpretation, the retrospective part of the Act would have provided that if the petitioner were e ligible for resentencing, the sentence would be recalled and the petitioner sentenced to a second strike sentence ‘unless the prosecution pleads and proves’ th at such a sentence would constitute an unreasonable risk of danger to the co mmunity. They did not do so.” ( Id. at p. 1303, fn. 26.) This quotation from Kaulick directly addresses the second step in a recall of sentencing case, that is, whether a person stat utorily eligible to petition for retrospective relief is found to be too dangerous to release. (See Kaulick , supra , 215 Cal.App.4th at pp. 1302-1303.) Ho wever, in our view Kaulick ’s reasoning applies equally to all of the retrospective part of the Act. Our conclusion is bolstered by People v. White (2014) 223 Cal.App.4th 512. White had been convic ted of possession of a firearm by a felon, which is not a disqualifying fact, that is, it had never been pled or proven that he was
armed with a firearm, only that he was in possession of a firearm. ( Id. at pp. 518-519.) However, White held that it was appropr iate in considering White’s recall petition for the
trial court to consider the facts of the crime, as shown by the record, to disqualify him, following the logic of Kaulick : The requirement of pleading and proof for prospective application of the Act, and the absence of su ch requirement for retrospective application, indicates that pleading and proof is not a requirement for the latter. ( Id . at pp. 524-527.) We agree with this interpretation.9 C. Use of Prior Opinion to Establish Ineligibility Beyond his pleading and proof ar gument, which we have addressed ante , defendant argues the trial court’s reliance on fa cts “beyond the record of conviction” was error, contending that the court should not have looked at our prior opinion to determine
whether the facts showed he wa s ineligible because he inte nded to inflict great bodily injury. He contends that if the face of the judgment does not reflect a disqualifying factor, the time to consider the underlying fa cts would be at the next step contemplated by the Act, the hearing to determine whethe r defendant is dangerous. We disagree. Under the three strikes law generally, a tr ial court may look to the whole record of a prior conviction to determine whether th e facts meet the definition of a strike, including looking to a prior appellate decision . (See People v. Woodell (1998) 17 Cal.4th 448, 454-457 ( Woodell ) [foreign state appellate opinion used to show defendant’s prior conviction qualified as a strike under Califor nia law because it showed he personally used a deadly weapon]; see 1 Witkin, Cal. Ev idence (5th ed. 2012) Hearsay, § 246, p. 1112.) We see no reason why Proposition 36 would change this rule. (See Couzens & Bigelow, supra , p. 38 [“It is likely the court c ould consider any documentary evidence that is part of the ‘record of conviction:’ ‘those record documents reliably reflecting the
facts of the offense for which the defendant has been convicted’ ”].) 5 If the prior opinion does not sufficiently establish the facts, “the defendant, who
suffered the conviction and took the appeal, would know of an d be able to challenge any material flaws or omissions in the opinion.” ( Woodell , supra , 17 Cal.4th at p. 457.) Although defendant has indicated he wants to air those facts at a hearing on future dangerousness, and claims he was denied a hearing to contest the trial court’s interpretation of the facts, he ma kes no claim that our prior opinion misstated them. In

_______________________________________________________________ 5 Indeed, trial counsel, in a document annexed to the notice of appeal, conceded the trial court was “correct that it can rely upon facts from an appellate decision” under Woodell , although she argued defendant should be allowed to contest those facts.10 such circumstances, we see no reason why the trial court’s us e of our prior opinion to determine the facts was improper. To the extent our prior appellate opinion may be viewed as “hearsay,” it is still admissible in the context of a Proposition 36 eligibility review. Reliable hearsay is deemed sufficient for purposes of revoking probation or parole, somewhat analogous proceedings where a defendant’s due process rights are less than those at the initial criminal proceeding. (See In re Miller (2006) 145 Cal.App.4th 1228, 1234-1235 [parole revocation hearing]; People v. Brown (1989) 215 Cal.App.3d 452, 454 [probation revocation hearing]; see also People v. O’Connell (2003) 107 Cal.App.4th 1062, 1065- 1067 [deferred entry of judgment revocation].) If defendant had thought the facts stated in our prior opinion were materially inaccur ate, he had the remedy of petitioning for a rehearing. “[I]f a party disagrees with the Court of Appeal’s selection of the material facts or identification of the applicable la w, the party can petitio n for a rehearing and point out the deficiencies in the court’s opinion.” ( People v. Garcia (2002) 97 Cal.App.4th 847, 854-855; see Torres v. Parkhouse Tire Service Inc. (2001) 26 Cal.4th 995, 1000, fn. 2 [S upreme Court’s policy is to decline to review facts of appellate court decision if no petition for rehearing challenging the facts was filed]; Cal. Rules of Court, rule 8.500(c )(2).) Defendant did not file a petition for rehearing in this court. Therefore, we presume the facts previ ously stated by this court were faithful to the appellate record before us and reliably summa rized the evidence against defendant.
II Sufficiency of the Eviden ce from Prior Opinion Defendant contends our prior opinion do es not adequately establish that he intended to inflict great bod ily injury on his victim. He acknowledges the opinion describes facts supporting spousal abuse, but contends they lack “specificity” to show an intent to inflict great bodily injury. We disagree.11 Defendant acknowledges we review the trial court’s finding under the familiar sufficiency of the ev idence standard. “We review the whole record in a light most favorable to the [ord er] to determine whether it contai ns 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.” ( In re Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.) The trial court summarized our prior op inion and found the facts reflected an intent to commit great bodily injury. Substantial evidence supports that finding. The jury heard evid ence that on May 12, 1994, defendant took his wife to the hospital for a bloody nose. Although the victim told an experienced emergency room nurse that defendant accidentally hit her with his elbow while they were in bed, the nurse did not believe the fracture was accidental, but was caused by a closed fist or other object. The nurse also observed the victim had a bruised chin, swollen lip, and had red fingerprints on her neck. Other bruises on the vi ctim appeared to be of different ages. After the nurse had defendant leave the room, she asked if defendant had beaten her and the victim eventually admitted he had, but then said she would deny it. Officers who arrested defendant that night al so saw the victim’s injuries.
The trial court also stated that evid ence of prior violence by defendant was
introduced under Evidence Co de section 1101, subdivisi on (b), but did not summarize
that evidence. “Where a defendant is char ged with a violent crime and has or had a previous relationship with a victim, prior assa ults upon the same victim, when offered on disputed issues, e.g., identity, intent, motive, etcetera, are admissible based solely upon the consideration of identical perpetrator and victim without resort to a ‘distinctive modus operandi’ analysis of other factors.” ( People v. Zack (1986) 184 Cal.App.3d 409, 415;

see People v. Hoover (2000) 77 Cal.App.4th 1020, 1026 [“Even befo re the enactment of [Evidence Code] section 1109, the case law held that an uncharged act of domestic violence committed by the same perpetrator ag ainst the same victim is admissible”].)12 The prior act evidence shows, in summary, that defendant ph ysically abused his spouse
almost daily . During one particularly violent incident: “Cathy McCain and Deputy Sheriff R obert Davenport testified about the incident in Nevada City. McCain was in her front yard when she saw a man in a car strike a woman with his full weight. After he hit her about six times, McCain yelled for him to stop. She had her boy friend block the dead-e nd street and called the police. The man she saw hitting the woman was defendant. “Deputy Davenport was dispatched to th e scene. Both of Mrs. Guilford’s eyes were bruised, her cheeks were red, and there was a bruise on her chin. She told the officer she had falle n in Sacramento and denied defendant hit her. When Davenport said defendant ad mitted slapping her, she adm itted it, but said he did not mean to. She maintained her injuries were the result of a fall. Photographs of her injuries were admitted at trial. Defe ndant told the officer he hit his wife just three times. When asked why, defe ndant responded, ‘no reason.’ ” ( People v. Guilford (Oct. 30, 1996, C019691) [nonpub. opn.] slip opn. at pp. 6-7.)

Based on this evidence, the trial court could rationally have found that defendant intended to inflict great bo dily injury when he punc hed his wife in the nose.
III Right to a Jury Trial Defendant contends he is entitled to a ju ry trial under the Sixth Amendment as to whether he is eligible for resentencing under the Act. This contention already has been resolved against defendant. “[T]he United States Supreme Court has already concluded that its opinions regarding a defendant’s Sixth Amendment right to have essential facts f ound by a jury beyond a reasonable doubt do not apply to limits on downward sentence m odifications due to intervening laws.” ( Kaulick , supra , 215 Cal.App.4th at p. 1304; see Dillon v. United States (2010) 560 U.S. 817, 828-829 [177 L. Ed.2d 271, 285].) Contrary to defendant’s view, nothing in Alleyne v. United States (2013) 570 U.S. __ [186 L.Ed.2d 314] assists him. As described by our Supreme Court, in Alleyne , “the United States Supreme Court held that the federal Constituti on’s Sixth Amendment13 entitles a defendant to a jury tr ial, with a beyond-a-reasonable -doubt standard of proof, as to ‘any fact that increases the mandator y minimum’ sentence for a crime.” ( People v. Nunez & Satele (2013) 57 Cal.4th 1, 39, fn. 6.) Th e denial of a recall petition does not increase the mandatory minimum se ntence for a defendant’s crime. 6
DISPOSITION The order denying the recall petition under the Act is affirmed.

DUARTE , J.

We concur:

BUTZ , Acting P. J.

HOCH , J.

_______________________________________________________________ 6 In the reply brief, defendant purports to compare his case and Dillon to Pepper v. United States (2011) 562 U.S. __ [179 L.Ed.2d 196], a case decided well before the opening brief was filed. By withholding th is case until the repl y brief, defendant has deprived the People of the opportunity to address Pepper , and defendant offers no justification therefore. We theref ore deem the belated argument about Pepper to be forfeited. (See Kahn v. Wilson (1898) 120 Cal. 643, 644; People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)