P. v. Bryant

Filed 4/19/17 P. v. Bryant CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
AUBREY JOHN BRYANT,
Defendant and Appellant.
B270193
(Los Angeles County
Super. Ct. No. YA042689)
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.
Tyrone A. Sandoval, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Beccera, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Stephanie M.
Miyoshi and David A. Wildman, Deputy Attorneys General, for
Plaintiff and Respondent.

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I. INTRODUCTION
Defendant, Aubrey John Bryant, was convicted in 2000 of
willfully inflicting corporal injury on a cohabitant. (Pen. Code,
former § 273.5, subd. (a); Stats. 1996, ch. 1077, § 16, pp. 7306-
7308.)1 Defendant admitted an allegation he had sustained two
prior violent felony convictions within the meaning of sections
667, subdivision (d) and 1170.12, subdivision (b) was true. He
was sentenced to 25 years to life in state prison. We affirmed the
judgment on appeal. (People v. Bryant (May 16, 2001, B141951)
[nonpub. opn.].)
On December 12, 2012, defendant filed a section 1170.126,
subdivision (b) resentencing petition. The trial court denied the
petition. The trial court found defendant was ineligible for
resentencing because, during the commission of the current
offense, he intended to cause great bodily injury to the victim. (§§
667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126,
subd. (e)(2).) We affirm the denial order.
II. DISCUSSION
Defendant contends it was error to rest the eligibility
determination on an independent factual finding based on a
preponderance of the evidence. Defendant does not challenge the
sufficiency of the record to support the trial court’s finding if the
trial court did not so err. Defendant in effect concedes that the
trial court’s independent factual findings, if proper, supported a
1 Further statutory references are to the Penal Code.

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reasonable inference defendant intended to cause great bodily
injury to the victim.
The trial court did not err. The trial court properly
considered our opinion on appeal and trial testimony. (People v.
Burnes (2015) 242 Cal.App.4th 1452, 1458 [“relevant, reliable,
admissible portions of the record of conviction”] 1459-1460 [but
not a probation report]; People v. Hicks (2014) 231 Cal.App.4th
275, 285-286 [appellate opinion]; People v. Brimmer (2014) 230
Cal.App.4th 782, 800-801 [appellate opinion, trial transcripts];
People v. Bradford (2014) 227 Cal.App.4th 1322, 1327, 1338-1339,
1343 [appellate opinion]; People v. Elder (2014) 227 Cal.App.4th
1308, 1317 [appellate opinion]; People v. Blakely (2014) 225
Cal.App.4th 1042, 1048-1049, 1063 [“relevant, reliable,
admissible portions of the record of conviction”]; People v. Osuna
(2014) 225 Cal.App.4th 1020, 1030 [appellate opinion].)
Further, the trial court properly made an independent
factual finding. (People v. Perez (2016) 3 Cal.App.5th 812, 821;
People v. Hicks, supra, 231 Cal.App.4th at p. 285; People v.
Bradford, supra, 227 Cal.App.4th at pp. 1331-1336; People v.
Blakely, supra, 225 Cal.App.4th at p. 1063; see People v. Newman
(2016) 2 Cal.App.5th 718, 720, 723-727; People v. Frierson (2016)
1 Cal.App.5th 788, 791-793.) The trial court properly based its
factual finding on a preponderance of the evidence. (Evid. Code,
§ 115; People v. Osuna, supra, 225 Cal.App.4th at p. 1040; see
People v. Newman, supra, 2 Cal.App.5th at pp. 720, 727-732;
People v. Frierson, supra, 1 Cal.App.5th at pp. 793-794; see also
People v. Blakely, supra, 225 Cal.App.4th at p. 1059 [“We reject
defendant’s claim that an inmate seeking resentencing pursuant
to section 1170.126 has a Sixth Amendment right to a jury
determination, beyond a reasonable doubt, on the question of

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conduct constituting a disqualifying factor”]; but see People v.
Arevalo (2016) 244 Cal.App.4th 836, 842, 484-852.)
III. DISPOSITION
The order denying defendant’s resentencing petition is
affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
TURNER, P.J.
We concur:
BAKER, J.
KIN, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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