P. v. Hammonds

Filed 1/27/17 P. v. Hammonds CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RICKY DARWELL
HAMMONDS,
Defendant and Appellant.
B268411
Los Angeles County
Super. Ct. No. BA115920-
01
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Affirmed.
Cheryl Lutz, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Noah P. Hill and Abtin Amir,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________________

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INTRODUCTION
Defendant appeals from the trial court’s order denying his
petition for resentencing of his three-strikes sentence under
Penal Code1 section 1170.126, enacted as part of the Three
Strikes Reform Act (Proposition 36). Defendant raises two
contentions on appeal: (1) the court erred in making factual
findings beyond the facts and circumstances that establish the
nature and basis of defendant’s conviction; and (2) the court
applied the incorrect standard of proof in making its eligibility
determination. We reject defendant’s first contention but agree
with his second. Nevertheless, we conclude the court’s
application of the incorrect standard of proof was harmless and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The underlying offense
In May 1995, defendant assaulted his wife. After
defendant told his wife to leave his apartment, he struck her
right ear with his hand. Defendant struck his wife’s ear with so
much force that that he removed portions of the skin from the
outside of the ear, exposing the ear’s cartilage and causing the
ear to bleed.
Defendant’s wife called the police and reported that
defendant had “struck her several times on the right side of her
face with a closed fist.” When police responded to the scene, they
found fresh drops of blood in defendant’s apartment. Two officers
observed that the wife’s ear was badly swollen, bruised, and
bleeding. According to the officer who booked defendant into
1 All undesignated statutory references are to the Penal Code.

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custody, defendant asked the officer to tell his wife that “he was
sorry that he hurt her.” Defendant blamed his conduct on the
fact that he had used cocaine before he attacked his wife.
Four days after the incident, defendant’s wife was
examined by a doctor. Defendant’s wife was still in significant
pain, and her ear was swollen and lacerated. According to the
doctor, the ear was “very tender” and the skin on the ear “was all
gone and . . . kind of curled up on the edges.” The doctor referred
defendant’s wife to a plastic surgeon.
The People charged Defendant with one count of inflicting
corporal injury on his spouse (§ 273.5, subd. (a)) and one count of
assault with a deadly weapon or by means of force likely to
produce great bodily injury (§ 245, subd. (a)(1)). The People also
alleged defendant had suffered four prior serious or violent felony
convictions under the Three-Strikes law (strike allegations)
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and served four
prior prison terms (§ 667.5, subd. (b)).
A jury convicted defendant of assault by means of force
likely to produce great bodily injury and of inflicting corporal
injury on his spouse. The jury also found true three of the strike
allegations. The court sentenced defendant to a term of 25 years
to life in prison for his conviction for infliction of corporal injury
on his spouse, and it stayed defendant’s sentence as to his
conviction for assault by means likely to produce great bodily
injury. Defendant’s convictions and sentence were later affirmed
on appeal.

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2. Proposition 36 proceedings
On April 29, 2013, defendant filed a petition for
resentencing under Proposition 36.2 The People filed an
opposition to the petition on August 29, 2013, and defendant filed
his reply on November 12, 2014. On March 9, 2015, the People
filed a supplemental brief addressing the impact of
Proposition 47 on Proposition 36 and a supplemental opposition
to defendant’s petition. In their supplemental opposition, the
People argued defendant was ineligible for resentencing because
the facts of his underlying offense established that he intended to
cause great bodily injury to his wife when he attacked her. On
July 23, 2015, defendant filed a reply to the People’s
supplemental opposition. Among other things, defendant argued
the court was required to make its eligibility finding applying the
“beyond a reasonable doubt” standard of proof.
In September 2015, the court conducted a two-day
eligibility hearing on defendant’s petition for resentencing. On
September 25, 2015, the court issued a written ruling denying
defendant’s petition. The court concluded that by “hitting [the
victim] several times in the ear, [defendant] intended to inflict
great bodily injury upon [the victim] and in fact accomplished
this intent.” Accordingly, based on a preponderance of the
evidence, defendant was ineligible for relief under Proposition 36.
Defendant timely appealed.
2 Defendant had first filed a petition for resentencing in
January 2013, which the court denied without prejudice because
defendant failed to serve the People.

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DISCUSSION
1. To determine eligibility for resentencing under
Proposition 36, a trial court may make factual
findings beyond the facts and circumstances
necessarily decided in the underlying conviction.
Defendant contends the trial court exceeded the
permissible scope of review of the record of conviction when it
made its eligibility finding. According to defendant, because the
jury did not, and was not required to, make a finding of intent to
inflict great bodily injury to convict him of the assault and
corporal injury charges, the court exceeded its authority by
making a finding of fact that was not necessary to determine
whether defendant committed those offenses. We disagree.
Under Proposition 36, an inmate is ineligible to have his or
her third-strike sentence reduced if the sentence was imposed for
an offense listed in, among other statutory provisions,
section 667, subdivision (e)(2)(C)(iii). (§ 1170.26, subd. (e)(2).)
Thus, if a defendant “used a firearm, was armed with a firearm
or deadly weapon, or intended to cause great bodily injury to
another person” during the underlying offense, he or she is
ineligible for resentencing under Proposition 36. (§§ 1170.26,
subd. (e)(2), 667, subd. (e)(2)(C)(iii).)
A trial court’s factual determination of whether the
circumstances of the underlying offense disqualify a defendant
from resentencing under Proposition 36 is similar to the
determination of whether a prior conviction constitutes a serious
or violent felony. (People v. Hicks (2014) 231 Cal.App.4th 275,
286.) Both determinations must be based on the record of
conviction. (See ibid.; People v. Guerrero (1988) 44 Cal.3d 343,
355 (Guerrero).) The record of conviction includes the appellate
opinion (People v. Woodell (1998) 17 Cal.4th 448, 456); transcripts
of testimony from the underlying trial (People v. Bartow (1996)

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46 Cal.App.4th 1573, 1580–1582); admissions (People v. Goodner
(1990) 226 Cal.App.3d 609, 616); and preliminary hearing
transcripts (People v. Blackburn (1999) 72 Cal.App.4th 1520,
1531). It also includes facts established within the record, such
as a defendant's personal admissions on Tahl3 waiver forms, even
if those facts are not essential to the judgment. (People v. Smith
(1988) 206 Cal.App.3d 340, 344–345 (Smith).)
Defendant relies on Guerrero and People v. Trujillo (2006)
40 Cal.4th 165 (Trujillo) to contend the court erred in finding he
was ineligible for resentencing because whether he intended to
cause great bodily injury to his wife was not an element of
assault or infliction of corporal injury, and such a finding could
not be inferred from the jury’s verdict. Defendant argues the
court “relitigated” the facts of his underlying offenses to make its
finding, which violates the holdings of Guerrero and Trujillo.
Defendant reads Guerrero and Trujillo too narrowly,
especially as they apply to an eligibility finding under
Proposition 36. Under Guerrero and Trujillo, a sentencing court
may not make factual findings based on facts that were never
established in the prior proceeding’s record of conviction. (See
Trujillo, supra, 40 Cal.4th at pp. 179–181.) Those cases do not,
however, preclude a trial court from making factual findings that
can be established by competent evidence that is included in the
record of conviction. (See Smith, supra, 206 Cal.App.3d at
pp. 343–345.) Indeed, the overwhelming majority of courts that
have addressed the same issue raised by defendant have agreed
that at the eligibility stage of a Proposition 36 proceeding, a trial
court may make a factual determination based on its review of
the record of conviction, even if that finding is not confined to the
3 In re Tahl (1969) 1 Cal.3d 122.

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facts and circumstances that establish the nature and basis of the
underlying conviction. (See, e.g., People v. Osuna (2014)
225 Cal.App.4th 1020, 1033–1038; People v. Bradford (2014)
227 Cal.App.4th 1322, 1332–1334; People v. White (2014)
223 Cal.App.4th 512, 525–528; People v. Arevalo (2016)
244 Cal.App.4th 836, 847 (Arevalo); People v. Frierson (2016)
1 Cal.App.5th 788, 791–793, review granted October 19, 2016;
People v. Newman (2016) 2 Cal.App.5th 718, 723–727, review
granted November 22, 2016; but see People v. Berry (2015)
235 Cal.App.4th 1417, 1425–1428 [in determining whether
a defendant who pled guilty to the underlying offense is eligible
for resentencing under Proposition 36, the trial court cannot look
to evidence relating to any dismissed charges if that evidence
does not also pertain to the charges to which the defendant pled
guilty].) We too agree that the trial court’s eligibility
determination is not limited to the facts or circumstances
necessarily decided in the underlying proceeding.
Defendant’s reliance on People v. Wilson (2013)
219 Cal.App.4th 500 is misplaced. In Wilson, the Sixth District
held a sentencing court’s factual finding that rendered the
defendant’s prior conviction a strike under the Three-Strikes law
violated the defendant’s Sixth Amendment rights because that
finding was not encompassed within the elements of the prior
offense. (Id. at p. 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”].) Unlike this case, Wilson involved the
imposition of a second-strike sentence in the first instance; it did
not involve a request to retroactively reduce a lawfully imposed
third-strike sentence. (See id. at pp. 503–504.) The
determination of whether a defendant is eligible to have his or
her lawful sentence reduced does not implicate the defendant’s

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Sixth Amendment rights. (Dillon v. United States (2010)
560 U.S. 817, 828–829, [130 S.Ct. 2683, 177 L.Ed.2d 271]; see
People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279,
1304.)
Here, the court properly limited its eligibility
determination to only evidence that was included in the record of
conviction for defendant’s prior conviction. Because the court was
permitted to find from its review of that evidence that defendant
intended to inflict great bodily when he committed his underlying
assault and infliction of corporal injury offenses, we turn to
defendant’s claim that the court applied the wrong standard of
proof when it made that finding.
2. The trial court’s application of the wrong standard
of proof to its eligibility determination was harmless.
Defendant contends the trial court applied the incorrect
standard of proof when it found he intended to cause great bodily
injury during his infliction of corporal injury and assault
offenses.4 Specifically, he argues the court should have applied
the “beyond a reasonable doubt” standard as opposed to the
“preponderance of the evidence” standard. In light of our opinion
in Arevalo, supra, 244 Cal.App.4th at pp. 847–853, we agree with
defendant’s contention that the court applied the incorrect
standard of proof to its eligibility determination. In light of the
People’s evidence and the trial court’s findings, however, the
error was plainly harmless, whether viewed through the prism of
federal constitutional law (Chapman v. California (1967)
4 We reject the People’s contention that defendant forfeited this
argument by not raising it below. Defendant explicitly argued he was
entitled to have the eligibility finding made using a beyond
a reasonable doubt standard of proof.

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386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]) or state law
(People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, overwhelming evidence in the record supports
a finding of intent to cause great bodily injury based on
defendant’s conduct and his wife’s injuries. For example,
defendant’s wife reported that defendant struck her multiple
times in the ear. Defendant also used so much force that he not
only cut the skin of his wife’s ear, he also caused the cartilage of
the ear to be exposed.
The severe nature of defendant’s wife’s injury was
consistently described by several witnesses at defendant’s trial.
One of the officers who observed defendant’s wife shortly after
the attack testified that the skin around her ear was “badly
swollen and bruised” and blood was coming from the inside of the
ear. Another officer who examined defendant’s wife shortly after
the incident testified that blood was “coming from the right side
of [the wife’s] ear.” The doctor who examined the wife a few days
after the attack testified that the wife was in “significant” pain,
and that her ear was swollen and lacerated. According to the
doctor, defendant had hit his wife so hard that the skin on the
edges of the wife’s ear had curled up, causing the ear’s cartilage
to be exposed. Due to the severity of the injury, the doctor had
recommended the wife consult a plastic surgeon.
To be sure, there is also evidence in the record that
defendant had used cocaine before the attack and asked one of
the officers who responded to the scene of the attack to tell his
wife he was sorry that he had hurt her. We disagree, however,
that this evidence would cause the court to reach a different
finding under a beyond a reasonable doubt standard of proof. In
short, based on the severity of the injury defendant inflicted on
his wife, the amount of force that defendant would have had to
use to inflict such an injury, and the court’s finding that the

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severity of that injury showed that defendant intended to inflict
great bodily injury, the error was harmless.
DISPOSITION
The trial court’s order denying defendant’s resentencing
petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
GOSWAMI, 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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