1

Filed 7/8/16 P. v. Winn CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

RONNIE WINN,

Defendant and Appellant.

 A144071

 (Solano County

 Super. Ct. No. VC142750)

Ronnie Winn appeals from an order denying his petition for resentencing under 

Proposition 36, also known as the Three Strikes Reform Act of 2012 (Reform Act; Pen. 

Code, § 1170.126 et seq.).

1

 He contends the trial court violated his constitutional right to 

a jury trial because (1) the court relied on its own findings of the nature of the 

commitment offense to declare him ineligible for resentencing; (2) the prosecutor did not 

plead and prove the facts that allegedly rendered him ineligible; and (3) the court’s 

finding that he intended to cause great bodily injury in perpetrating the commitment 

offense was inconsistent with the jury’s verdict. In his reply brief, Winn contends the 

order must be reversed because the court found an intent to cause great bodily injury by a 

preponderance of the evidence rather than beyond a reasonable doubt. 

We will vacate the order and remand for the trial court to determine Winn’s 

eligibility for resentencing under the standard of beyond a reasonable doubt and, if 

necessary, whether his resentencing would pose an unreasonable risk of danger by a 

preponderance of the evidence.

 

1 All statutory references are to the Penal Code.
2

I. FACTS AND PROCEDURAL HISTORY

Winn was charged with murder and battery after the death of his victim, James 

Rendleman, whom he had kicked and “stomped.” For purposes of sentencing, it was 

alleged that Winn had suffered two prior felony strikes and served two prior prison terms. 

A jury thereafter convicted Winn of involuntary manslaughter (§ 192, subd. (b)) and 

misdemeanor battery (§ 242), and the allegations of his prior strike convictions and the 

prior prison terms were found to be true. The court sentenced Winn under the Three 

Strikes Law to 25 years to life, plus sentence enhancements of one year for each of two 

prior prison terms. (§§ 667, subd. (a)(1), 667.5, subd. (b), 1170.12.) 

In May 2002, this court affirmed the judgment of conviction but vacated one of 

the two sentence enhancements, reducing Winn’s total sentence to 26 years to life. 

In our opinion affirming the conviction, we described the facts of the case as 

follows, based on the record. Winn walked into the apartment of his victim, James 

Rendleman, uninvited. He argued with Rendleman over an $8 debt, and after he was paid 

only $5, became embroiled in a fight in which he “proceeded to beat, kick, and ‘stomp’ 

the head of Rendleman, a man of about 60, causing head and brain injuries that resulted 

in his death a month later.” Winn also struck another individual in the face, grabbed him 

by the throat, raised him off the floor by his neck, and choked him until he began to lose 

consciousness. Winn admitted kicking Rendleman, although not in the head, and claimed 

he acted in self-defense. Rendleman’s face was bloody and bore the impression of the 

sole of a shoe; a forensic pathologist opined that this shoeprint was consistent with 

Rendleman being “stomped.” A witness confirmed that Winn kept stomping Rendleman 

in the head, kicking him in the side, and “grinding” his shoe into the face of Rendleman, 

who was hurt badly, “gurgling,” and having trouble breathing. 

In January 2013, after the enactment of the Reform Act, Winn filed a petition for 

resentencing as a second strike offender. The trial court initially ruled Winn eligible for 

resentencing and ordered a hearing to decide whether Winn should be resentenced; the 

prosecution filed a motion for reconsideration. 
3

After further briefing and argument, the trial court issued its written order in 

October 2014, finding Winn ineligible for resentencing under Proposition 36 and denying 

his petition, on the ground that during the commission of his offense Winn intended to 

cause great bodily injury to his victim. 

This appeal followed. 

II. DISCUSSION

As mentioned, Winn contends the trial court violated his constitutional right to a 

jury trial in ruling him ineligible for resentencing under the Reform Act on the ground he 

intended to cause great bodily injury during the commission of his offense, arguing that 

the court may not make such a finding, the prosecutor did not plead or prove those facts, 

and the finding was contrary to findings of the jury. He also challenges the standard of 

proof the court applied. We briefly summarize the Reform Act and the court’s findings,

and then turn to Winn’s arguments.

A. The Reform Act 

In November 2012, voters approved the Reform Act, which amended sections 667 

and 1170.12 and added section 1170.126. 

Previously, the Three Strikes Law had provided that an offender with two or more 

prior qualifying felony “strike” convictions was subject to an indeterminate life sentence 

if convicted of any new felony offense. (See People v. Flores (2014) 227 Cal.App.4th 

1070, 1073.) Under the Reform Act, however, life sentences are now reserved for cases 

where “the third felony is itself a serious or violent felony.” (Id. at pp. 1073–1074; see § 

667, subd. (e)(2)(C); § 1170.12, subd. (c)(2)(C).)

In addition to this prospective provision, the Reform Act contains a retrospective 

provision, relevant here, which establishes a procedure for “persons presently serving an 

indeterminate term of imprisonment” under the former Three Strikes Law, and “whose 

sentence under this act would not have been an indeterminate life sentence,” to seek 

resentencing by filing a “petition for a recall of sentence.” (§ 1170.126, subds. (a), (b); 

see People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292 (Kaulick).)
4

The petitioner is eligible for resentencing if: (1) he or she is serving an 

indeterminate term of life imprisonment imposed under the Three Strikes Law for a 

conviction of a felony that is not defined as serious and or violent (see §§ 667.5, subd. (c) 

& 1192.7, subd. (c)); (2) the current sentence was not imposed for a disqualifying offense 

specified in section 667, subdivision (e)(2)(C), or section 1170.12, subdivision (c)(2)(C); 

and (3) the petitioner has no prior convictions for offenses listed in section 667, 

subdivision (e)(2)(C)(iv), and section 1170.12, subdivision (c)(2)(C)(iv). (§ 1170.126, 

subd. (e).) If the trial court determines that the petitioner satisfies this criteria, then it 

shall resentence the petitioner as a second strike offender “unless the court, in its 

discretion, determines that resentencing the petitioner would pose an unreasonable risk of 

danger to public safety.” (§ 1170.126, subd. (f).)

At issue here is whether Winn’s third strike sentence was imposed for a 

disqualifying offense as stated in section 1170.126, subdivision (e)(2). That provision 

states that an inmate is eligible for resentencing only if “[t]he 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.” 

(§ 1170.126, subd. (e)(2).) Section 667, subdivision (e)(2)(C)(iii) and section 1170.12, 

subdivision (c)(2)(C)(iii) pertain to an offense in which, during its commission, “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). Italics added.)

In short, the question was whether Winn’s third strike sentence was imposed for 

an offense in which he intended to cause great bodily injury to another person.

B. The Trial Court’s Ruling

In denying Winn’s petition for resentencing, the court rejected his argument that 

the prosecution needs to have pleaded and proved any factor that disqualifies a petitioner 

from resentencing, including the fact that he intended to cause great bodily injury. The 

court further ruled that Winn had no Sixth Amendment right to a jury determination of 
5

his resentencing eligibility, and a trial court may rely on the petitioner’s record of 

conviction in determining eligibility for resentencing, including the appellate court’s 

summary of the facts and evidence. On this record, the court concluded that the appellate 

decision in this case supported a finding that Winn intended to cause great bodily injury 

during the commission of his involuntary manslaughter offense. In addition, the court 

ruled, this finding was not inconsistent with the jury’s verdict: the jury did not 

necessarily find that Winn lacked an intent to cause great bodily injury in finding him not 

guilty of murder; moreover, the instructions for involuntary manslaughter informed the 

jury that the killing would be unlawful if done during the commission of an unlawful act 

(in this case, a violation of section 242) that is dangerous to human life under the 

circumstances of its commission. 

C. The Trial Court Could Properly Determine the Nature of Winn’s Offense

Winn contends the court erred because (1) a trial court cannot examine the record 

of conviction to determine if the petitioner is eligible for resentencing and (2) a fact 

cannot render a petitioner ineligible for resentencing unless it was pleaded and proved by 

the prosecutor. We join the many courts that have rejected these arguments.

1. Trial Court’s Determination of Eligibility

It is firmly established that the trial court, in deciding whether a petitioner is 

eligible for resentencing under the Reform Act, is authorized to examine the petitioner’s 

record of conviction to determine whether he or she intended to cause great bodily injury 

during the commission of the current offense. (E.g., People v. Bradford (2014) 227 

Cal.App.4th 1322, 1338–1339 (Bradford).)

Winn nonetheless argues that cases imposing constitutional limitations on judicial 

factfinding as to the nature of prior convictions for purposes of increasing a sentence 

(Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); Descamps v. United States 

(2013) 133 S.Ct. 2276 (Descamps)) also call into question the constitutionality of judicial 

factfinding as to the nature of a prior conviction for purposes of resentencing under the 

Reform Act, since the factfinding may render a defendant “ineligible for a dramatic 

sentence reduction to which he would otherwise be entitled, i.e., the finding of those facts 
6

increases defendant’s sentence beyond that to which he is otherwise presumptively

entitled.” Winn is incorrect.

Apprendi provides that “[other] than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed statutory maximum must be 

submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. 

at p. 490.) And Descamps precludes a trial court from examining court documents, or 

otherwise looking beyond the elements of an offense, in deciding whether a prior 

conviction meets the requirements of a sentence enhancement statute. (Descamps, supra, 

133 S.Ct. at pp. 2283–2285; see People v. Wilson (2013) 219 Cal.App.4th 500, 516 [“A 

court may not impose a sentence above the statutory maximum based on disputed facts 

about prior conduct not admitted by the defendant or implied by the elements of the 

offense.”]; People v. Saez (2015) 237 Cal.App.4th 1177, 1207.)

As the appellate courts of this state have repeatedly ruled, however, Apprendi and 

Descamps do not apply to factual determinations affecting a petitioner’s eligibility for 

resentencing under the Reform Act, because section 1170.126 is not a sentence 

enhancing provision, but a sentence ameliorating provision that can only decrease a

defendant’s sentence. (People v. Brimmer (2014) 230 Cal.App.4th 782, 805 (Brimmer) 

[“Apprendi and the limitations of the Sixth Amendment do not apply to resentencing 

determinations”]; Bradford, supra, 227 Cal.App.4th at p. 1336 [“the trial court’s 

determination of facts that affect whether the defendant will be resentenced does not 

implicate the right to a jury trial as described in the Apprendi cases”]; People v. Blakely

(2014) 225 Cal.App.4th 1042, 1060 (Blakely) [“Apprendi and its progeny do not apply to 

a determination of eligibility for resentencing under the [Reform] Act”]; Kaulick, supra, 

215 Cal.App.4th at pp.1304–1305 [“[T]he United States Supreme Court has already 

concluded that its opinions regarding a defendant’s Sixth Amendment right to have 

essential facts found by a jury beyond a reasonable doubt do not apply to limits on 

downward sentence modifications due to intervening laws.].)

In reaching this conclusion, Kaulick looked to the United States Supreme Court’s 

decision in Dillon v. United States (2010) 560 U.S. 817 (Dillon). In Dillon, a prisoner 
7

had sought a reduction in his sentence after the sentencing guideline range for his offense 

was lowered. (Id. at p. 823.) The applicable statute authorized a court to adjust a 

sentence downward if consistent with applicable policy statements, including that the 

sentence could not be reduced below the amended range except to the extent the original 

term was below the original range. (Id. at p. 819.) The United States Supreme Court 

concluded that the limitation imposed by this policy statement was not merely advisory, 

because the statute did not authorize a plenary resentencing but only a limited adjustment 

to an otherwise final sentence, and Sixth Amendment rights were not violated by the 

court’s adherence to the limitation. (Id. at pp. 826–828.) As relevant here, the court 

stated: “[The statute] represents a congressional act of lenity intended to give prisoners 

the benefit of later enacted adjustments to the judgments reflected in the Guidelines. [¶] 

Viewed that way, proceedings under [this statute] do not implicate the Sixth Amendment

right to have essential facts found by a jury beyond a reasonable doubt. Taking the 

original sentence as given, any facts found by a judge at a [modification downward] 

proceeding do not serve to increase the prescribed range of punishment; instead, they 

affect only the judge’s exercise of discretion within that range.” (Id. at p. 828. Italics 

added.) The court in Kaulick found this language applicable to the resentencing 

provision of the Reform Act: “[The resentencing provision] is not constitutionally 

required, but an act of lenity on the part of the electorate. It does not provide for 

wholesale resentencing of eligible petitioners. Instead, it provides for a proceeding where 

the original sentence may be modified downward. Any facts found at such a proceeding, 

such as dangerousness, do not implicate Sixth Amendment issues.” (Kaulick, supra, 215 

Cal.App.4th at pp. 1304–1305.)

Winn insists that Kaulick’s reliance on Dillon was wrong, because the statutory 

scheme in Dillon only gave a court discretion to lower sentences, while section 1170.126 

of the Reform Act redefines the “normative punishment” for a defendant. He adds that, 

unlike the statute in Dillon, “section 1170.126 creates a new statutory presumption for a 

second-strike sentence, which the court must impose unless a defendant is found 

ineligible, or there is a factual finding of dangerousness. Given this presumption, and 
8

unlike the statute at issue in Dillon, it necessarily requires “ ‘plenary resentencing 

proceedings” ’ ” at which the court determines whether a defendant is ineligible for the 

new maximum (second strike) punishment. 

Winn is incorrect. The Reform Act did not automatically change the sentence of 

individuals who received an indeterminate life sentence for a third strike felony that was 

not serious or violent. Those sentences, lawful at the time of imposition, remain lawful 

today. The statute merely provides that specified inmates may petition for a reduction in 

their sentence. If a petitioner is eligible under the statute, the court “shall” resentence the 

inmate unless the court in its discretion determines it would be too dangerous. But there 

is no way that any judicial factfinding at any stage of the resentencing inquiry—whether 

it be a fact with respect to eligibility or a fact regarding dangerousness—can possibly 

increase the petitioner’s current lawful sentence. (See Kaulick, supra, 215 Cal.App.4th at 

p. 1303.) Winn fails to establish error.

2. No Requirement to Plead and Prove for Resentencing Purposes

Winn acknowledges that he is ineligible for resentencing if his third strike 

sentence was imposed for an offense listed in section 667, subdivision (e)(2)(C)(iii) or

section 1170.12, subdivision (c)(2)(C)(iii), such as a felony during which the defendant 

intended to cause great bodily injury to another person. He argues, however, that those 

statutes require the prosecution to “plead and prove” that the defendant intended to cause 

great bodily injury in order to obtain a third strike sentence, so, as a corollary, an inmate 

cannot be ineligible for resentencing unless the prosecution had met that requirement. 

Winn is incorrect. The plain language of the statute indicates that the pleading and 

proof requirement is prospective only. The Reform Act states that the prosecution must 

plead and prove the disqualifying factors with respect to the sentencing of a potential 

third strike defendant; it does not contain such language in the part of the Reform Act 

pertaining to resentencing. (People v. Guilford (2014) 228 Cal.App.4th 651, 657 

[“Nowhere in the resentencing provisions of the [Reform] Act—section 1170.126, 

subdivision (e), . . . is there any reference to pleading and proof of disqualifying factors. 

Generally speaking, a pleading and proof requirement will not be implied.”]; People v. 
9

Chubbuck (2014) 231 Cal.App.4th 737, 747 (Chubbuck) [while § 1170.126, subd. (e)(2) 

expressly cross-references § 667, subd. (e)(2)(C)(i)–(iii) and § 1170.12, subd. 

(c)(2)(C)(i)–(iii), nothing in the language of § 1170.126, subd. (e)(2) or of any of the 

other subdivisions of § 1170.126 governing resentencing references the plead-and-prove 

language].) 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),” so “[t]here is no provision for the People to plead 

or prove anything, [and] the burden falls on the trial court to make the determination 

whether a defendant meets the prima facie criteria for recall of sentence.” (Guilford, 

supra, 228 Cal.App.4th at p. 657 [when a statute omits a particular provision that was 

included in a related statute, the intent was that the provision is inapplicable to the 

provision from which it was omitted].)

Other courts of appeal have agreed that disqualifying circumstances under section 

1170.126, subdivision (e) need not be pleaded and proved. (E.g., Brimmer, supra, 230 

Cal.App.4th at pp. 801–803; Bradford, supra, 227 Cal.App.4th at pp. 1333–1334; People 

v. Elder (2014) 227 Cal.App.4th 1308, 1314–1315; Blakely, supra, 225 Cal.App.4th at 

pp. 1057–1059; People v. Osuna (2014) 225 Cal.App.4th 1020, 1033.)

Winn’s arguments to the contrary are unpersuasive. First, he contends it is at least 

ambiguous whether section 1170.12, subdivision (e)(2) incorporates the pleading and 

proof requirement, and courts are obligated to construe ambiguity in a penal statute in a 

manner that avoids constitutional problems. (Citing People v. Leiva (2013) 56 Cal.4th 

498, 506–507.) However, the court in Chubbuck found “no ambiguity as to whether 

section 1170.126, subdivision (e)(2) incorporates the pleading and proof requirements of 

section 1170.12, subdivision (c)(2)(C).” (Chubbuck, supra, 231 Cal.App.4th at p. 747. 

Italics added.) And we reach the same conclusion. Indeed, it makes good sense that the 

pleading and proof requirement would apply only prospectively, and not to cases where, 

as here, the prosecutor had no notice of the pleading and proof requirement at the time 

the prosecutor was selecting which facts to plead and to prove in the earlier proceeding. 

(See Bradford, supra, 227 Cal.App.4th at pp. 1333–1334.)
10

Next, Winn urges that the pleading and proof requirement must apply to 

resentencing based on the Apprendi and Descamps concerns over judicial factfinding. As 

he acknowledges, however, courts have repeatedly rejected this argument too. (Bradford, 

supra, 227 Cal.App.4th at pp. 1334–1335; Blakely, supra, 225 Cal.App.4th at pp. 1059–

1063; Osuna, supra, 225 Cal.App.4th at p. 1039.) 

Lastly, Winn argues in his reply brief that our supreme court has stated that “the 

parallel structure of the Act’s sentencing and resentencing provisions appears to 

contemplate identical sentences in connection with identical criminal histories, unless the 

trial court concludes that resentencing would pose an unreasonable risk to public safety.” 

(People v. Johnson (2015) 61 Cal.4th 674, 687 (Johnson).) Therefore, he urges, the 

pleading and proof requirement should apply to resentencing as well as to original 

sentencing. 

We disagree. In the first place, the court in Johnson made this statement in a 

different context. The court was deciding whether, for purposes of resentencing, the 

characterization of an inmate’s committing offense as serious or violent depends on the 

law as of the effective date of Proposition 36 rather than the law when the offense was 

committed. (Johnson, supra, 61 Cal.4th at p. 687.) It also briefly echoed the idea in 

discussing whether an inmate may be eligible for resentencing on a commitment offense 

that is neither serious nor violent, despite the presence of another commitment offense 

that is. (Id. at p. 691.) But Johnson did not address the issue here: whether, in the 

context of eligibility for resentencing, the defendant’s intent to cause great bodily injury 

during the court of the offense must have been pleaded and proved. 

Furthermore, the equivalence mentioned in Johnson arises only to the extent the 

language of the Reform Act calls for it. Our Supreme Court did not suggest that courts 

should ignore the statutory language in order to make sure inmates who seek resentencing 

receive the same sentence as defendants who are sentenced after the Reform Act’s 

enactment, but that those two groups will end up with identical sentences to the extent 

indicated by the language. Here, the pleading and proof requirement is stated with 

respect to original sentencing, but not to resentencing. Winn fails to demonstrate error.
11

D. Consistency with Jury Verdict

Winn next contends the court’s finding that he intended to cause great bodily 

injury was inconsistent with the jury’s verdicts. On this basis, he argues, the court 

violated his Sixth Amendment right to a jury trial. 

The argument has no merit. Neither the jury’s acquittal of Winn on the murder 

charge, nor its conviction of Winn for involuntary manslaughter, shows that the jury 

necessarily found Winn lacked an intent to cause great bodily injury to Rendleman when 

he stomped him to death.

1. Not Guilty of Murder

Murder is the unlawful killing of a human being with malice, express or implied. 

(§ 187; People v. Beltran (2013) 56 Cal.4th 935, 941–942.) In acquitting Winn of 

murder, therefore, the jury found that he killed Rendleman without malice. 

Winn believes it is significant that the jury did not find implied malice, since the 

jury was instructed that implied malice exists if the killing resulted from an intentional 

act, the natural and probable consequences of which are dangerous to human life, and the 

act was “deliberately performed with knowledge of the danger to, and with conscious 

disregard for, human life.” (Italics added. See CALJIC No. 8.11.) He interprets the 

acquittal to mean that the jury did not believe Winn realized the risk of his actions. 

(Citing People v. Cleaves (1991) 229 Cal.App.3d 367, 378 [“the essential distinction 

between second degree murder based on implied malice and involuntary manslaughter is 

the subjective versus objective criteria to evaluate the defendant’s state of mind—i.e. if 

the defendant commits an act which endangers human life without realizing the risk 

involved, he is guilty of manslaughter, whereas if he realized the risk and acted in total 

disregard of the danger, he is guilty of murder based on implied malice”].) 

Winn then jumps to the conclusion that, by finding Winn guilty of involuntary 

manslaughter rather than murder, the jury found that “while he engaged in an act that was 

objectively dangerous, he did not realize or appreciate that risk;” and if Winn did not 

realize the risk inherent in his acts, he could not have intended to cause great bodily 

injury. 
12

Winn is mistaken. The issue with respect to implied murder is not whether the 

defendant realized the risk of great bodily injury, but whether he realized the risk to 

human life. Plainly, one can realize the risk of, and intend to cause, great bodily injury—

a “significant or substantial physical injury” (§ 12022.7, subd. (f))—without appreciating 

the risk the act poses to human life, because not every act that leads to significant or 

substantial physical injury is dangerous to human life as a natural consequence. To put it 

more colloquially, Winn could well have thought stomping on Rendleman would hurt 

him badly, but did not realize it could actually kill him. Winn cites no authority holding 

that a person cannot, as a matter of law, intend to cause great bodily injury merely 

because he was unaware his act was so serious as to endanger his victim’s life.

Winn points us to authorities indicating that a killing which resulted from an act 

intended to cause great bodily injury constituted murder. (Citing People v. Weisberg 

(1968) 265 Cal.App.2d 476, 480 [malice for murder exists “where the intent is only to 

cause serious injury”]; People v. Teixeira (1955) 136 Cal.App.2d 136, 151 [malice 

established where “the force used by appellant was so unreasonable and so wanton as to 

evidence an intent to inflict death or grievous bodily harm”]; 1 Witkin, California 

Criminal Law (4th ed. 2012) Crimes Against the Person, §189, at p. 1003 [“An intent to 

inflict serious injury is sufficient to establish malice aforethought”]; id., §105 at p. 897

[malice includes “an intent to inflict great bodily injury”]; 2 Wharton’s Criminal Law 

(15th Ed. 1994), §139, at p. 246 [malice denotes “various mental states, such as . . . intent 

to cause great bodily harm”].) But the cited cases merely stand for the proposition that 

facts indicating the defendant’s intent to inflict great bodily injury may be sufficient to 

give rise to an inference that the defendant also realized a risk to human life—that is, 

there was substantial evidence to support the murder verdict. (Weisberg supra, 265 

Cal.App.2d at pp. 480–481; Teixeira, supra, 136 Cal.App.2d at p. 151.) The cases do not 

hold that, as a matter of California law, an intent to commit great bodily injury must

result in a murder conviction even if the jury believes the defendant only intended to 

cause great bodily harm and did not realize the risk to human life. Accordingly, the 
13

jury’s acquittal on the murder count is not necessarily inconsistent with a finding that 

Winn intended to cause great bodily injury.

2. Guilty of Involuntary Manslaughter

Nor is the jury’s finding of guilt as to involuntary manslaughter inconsistent with a 

finding that Winn intended to cause great bodily injury. The involuntary manslaughter 

instructions did not require the jury to decide whether Winn had the intent to cause great 

bodily injury. If anything, the jury’s conviction for involuntary manslaughter suggests it 

found facts that would indeed support a conclusion, beyond a reasonable doubt, that 

Winn had such an intent.

The jury was instructed on involuntary manslaughter as follows: “Every person 

who unlawfully kills a human being, without malice aforethought and without an intent to 

kill, is guilty of the crime of involuntary manslaughter in violation of Penal Code section 

192, subdivision (b). [¶] A killing is unlawful within the meaning of this instruction if it 

occurred: [¶] During the commission of an unlawful act [not amounting to a felony] 

which is dangerous to human life under the circumstances of its commission. [¶] An 

‘unlawful act’ not amounting to a felony consists of a violation of Penal Code section 

242. [¶] The commission of an unlawful act, without due caution and circumspection, 

would necessarily be an act that was dangerous to human life in its commission. [¶] In 

order to prove this crime, each of the following elements must be proved: [¶] 1. A human 

being was killed; and [¶] 2. The killing was unlawful.” 

The involuntary manslaughter conviction shows that the jury concluded Winn 

killed Rendleman during the commission of a misdemeanor battery (§ 242)—a battery 

that was dangerous to human life under the circumstances of its commission. (That is, 

the battery was dangerous to human life, even though Winn did not appreciate it was 

dangerous to human life as required for murder.) Killing during the commission of a 

battery that was “dangerous to human life” is not inconsistent with a finding that Winn 

intended to cause great bodily injury. 

Winn fails to establish error on this ground.
14

E. Arevalo: Standard of Proof of Ineligibility

In his appellate reply brief, Winn directs us to People v. Arevalo (2016) 244 

Cal.App.4th 836 (Arevalo), which was decided after Winn filed his opening brief. In 

Arevalo, the defendant had been found guilty of certain offenses, but the court had 

acquitted him of possession of a firearm by a felon and found not true the allegation that 

he was armed with a firearm. On a later resentencing petition under the Reform Act, the 

court determined he was ineligible, finding by a preponderance of the evidence that he 

was armed with a weapon when he committed the offenses. (Id. at pp. 841–842.) On 

appeal, the appellate court ruled that a court’s eligibility determinations (as opposed to 

findings that resentencing would be too dangerous) required a “heightened standard of 

proof” due to “the substantial amount of prison time potentially at stake for the defendant 

seeking resentencing, the risk of potential error stemming from the summary and 

retrospective nature of the adjudication that will be made at the resentencing eligibility 

proceeding, and the slight countervailing governmental interest given the People’s 

opportunity to provide new evidence at any subsequent dangerousness hearing.” (Id. at p. 

852.)2 This heightened standard must be the standard of beyond a reasonable doubt, 

Arevalo concluded, in light of the observation in Johnson that identical sentences should 

be imposed under the resentencing and sentencing provisions of the Reform Act for 

identical criminal histories. (Id. at p. 853.) Because the trial court had originally 

 

2

Arevalo distinguished Kaulick, which had held that the prosecutor had to prove 

dangerousness only by a preponderance of the evidence, on the ground that the 

dangerousness determination is “akin to the usual procedure in which a trial court 

exercises its discretion to decide whether various sentencing factors warrant a greater or 

lesser punishment,” but the eligibility determination “requires the trial court to make a 

summary legal finding as to whether the defendant is even eligible for resentencing 

consideration” in light of the findings at the original trial. (Arevalo, supra, 244 

Cal.App.4th at pp. 842, 849.) Arevalo also noted Osuna, which held that the 

preponderance standard applies to eligibility issues as well as to dangerousness issues 

because of the inapplicability of the Sixth Amendment. (Osuna, supra, 225 Cal.App.4th 

at p. 1040.) We construe Arevalo to impose the beyond a reasonable doubt standard not 

because of the Sixth Amendment, but because of its statutory construction of the Reform 

Act, a matter Osuna did not address. 
15

acquitted the defendant on the weapon possession charge and found the allegation of 

being armed with a firearm not true, it could not find at resentencing that he was armed 

with a firearm beyond a reasonable doubt, and the order denying resentencing was 

accordingly reversed. (Id. at pp. 853–854.)

Winn contends that, under Arevalo, the order denying resentencing in this case 

should also be reversed, because there is no indication in the record that the court made 

the determination that Winn intended to cause great bodily injury beyond a reasonable 

doubt. To the contrary, the trial court stated, “[a] trial court need only find the existence 

of a disqualifying factor by a preponderance of the evidence.” (Citing Osuna, supra, 225 

Cal.App.4th at p. 1040.) Furthermore, in concluding that our decision affirming Winn’s 

conviction supported the finding that Winn intended to cause great bodily injury, the 

court did not indicate it was making that finding beyond a reasonable doubt. 

Because this issue was first raised in Winn’s appellate reply brief, we gave 

respondent the opportunity to address the issue in supplemental briefing. Having 

considered respondent’s submission, we will vacate the order denying Winn’s petition for 

resentencing and remand the matter to the trial court to decide whether, beyond a 

reasonable doubt, Winn intended to cause great bodily injury during the commission of 

his involuntary manslaughter offense. If the court concludes beyond a reasonable doubt 

that he did, the order denying Winn’s petition will be reinstated. If the court does not 

conclude beyond a reasonable doubt that Winn harbored such an intent, the court shall 

proceed to decide whether, by a preponderance of the evidence, resentencing Winn would 

pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f); Arevalo, 

supra, 244 Cal.App.4th at p. 854.)

By this ruling, we do not suggest that we would follow Arevalo under any facts or 

circumstances other than those in this particular case.

III. DISPOSITION

The order denying Winn’s petition for resentencing is vacated. The matter is 

remanded for further proceedings consistent with this opinion, including a determination 
16

of whether, beyond a reasonable doubt, Winn intended to cause great bodily injury during 

the commission of his involuntary manslaughter offense.

NEEDHAM, J.

We concur.

JONES, P.J.

BRUINIERS, J.