P. v. Watson

Filed 11/23/16 P. v. Watson CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
GARRY PHILLIP WATSON,
Defendant and Appellant.
B269654
(Los Angeles County
Super. Ct. No. PA025999)
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.
Richard B. Lennon, 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 Analee J.
Brodie, Deputy Attorneys General, for Plaintiff and
Respondent.

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In 1997, appellant Garry Phillip Watson was convicted
of assault by means of force likely to produce great bodily
injury, and was sentenced to a term of 26 years to life as a
“three strike” offender. In the underlying action, the trial
court denied appellant’s request under Penal Code section
1170.126 to be resentenced pursuant to the Three Strikes
Reform Act of 2012 (Reform Act).1 We reject his challenges
to that ruling and affirm.
RELEVANT FACTUAL AND PROCEDURAL
BACKGROUND
A. 1997 Conviction
In April 1997, an information was filed charging
appellant in count 1 with corporal injury to a spouse,
namely, Renee Watson (§ 273.5, subd. (a)), and in count 2
with assault upon Marilyn Wright by means of force likely to
produce great bodily injury (§ 245, subd. (a)(1)).
Accompanying the charge in count 1 were allegations that
appellant had suffered three prior convictions constituting
strikes under the “Three Strikes” law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), and three prior convictions for which
he served prison terms (§ 667.5).
At trial, the prosecution presented evidence that in
February 1997, appellant resided in an apartment with his
1 All further statutory citations are to the Penal Code.

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wife, Renee Watson. In another apartment in the same
complex lived appellant’s aunt, Marilyn Wright.
Delbert Teis testified that on February 1, 1997, while
in the apartment complex’s parking lot, he heard Watson
say, “I need to go to the hospital.” Teis then heard Watson
say, “Don’t hit me,” and saw appellant next to her. Several
people gathered, including the apartment complex’s
manager, her husband, and Wright. Appellant grabbed
Watson, swung her into a nearby wall, and struck her face
with a closed fist. When Wright and others tried to
intervene, appellant punched Wright in the chest. Appellant
then struggled with the landlady’s husband until Teis and
others restrained appellant.
Wright testified that while in her apartment, she heard
yelling and screaming. Through her apartment window, she
saw appellant grab Watson and throw her against a wall.
Wright hurried to the scene of the incident, where she
observed a man trying to separate appellant from Watson.
Wright attempted to calm appellant, who grabbed her by the
throat and choked her. When she resisted him, he punched
her chest twice with his fist. Watson fled, followed by
Wright. As Wright left, appellant spit at her and called her
a “fucking bitch.” After the incident, Wright’s chest and
neck were red, and her arm was bruised. Because her arm
swelled and she appeared to have a wrist injury, at a doctor’s
request, she wore a wrist brace for three weeks. According

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to Wright, Watson displayed a bump on the back of her head
and a bruise on her knee.2
Watson testified that on February 1, 1997, she and
appellant fell into an argument when she told him that she
intended to visit a hospitalized friend. She denied that he
physically attacked her or Wright.
A jury found appellant guilty of assault by means of
force likely to produce great bodily injury, as charged in
count 2, but was unable to reach a verdict regarding the
offense charged in count 1, namely, corporal injury to a
spouse. After appellant admitted that he had suffered three
prior convictions constituting strikes and one prior
conviction for which he served a prison term, the trial court
dismissed count 1. In July 2007, appellant was sentenced to
a term of 25 years to life under the Three Strikes law, plus a
one-year enhancement (§ 667.5). In an unpublished opinion,
this court affirmed the judgment. (People v. Watson (Sept.
30, 1998, B115472).)
B. Motion and Petition for Recall of Sentence
In 2012, the electorate enacted the Reform Act by
approving Proposition 36. (People v. Yearwood (2013) 213
Cal.App.4th 161, 169-170.) The Reform Act amended the
2 Los Angeles Police Department Officer Leonard
Drayton, who responded to the incident, also testified that
there was a bump on the back of Watson’s head and a bruise
on her knee.

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Three Strikes law to provide that absent specified
exceptions, an offender with two or more prior strikes is to
be sentenced as a two-strike offender unless the new offense
also is a strike, that is, a serious or violent felony.3 (See
ibid.) The Reform Act also added section 1170.126, which
creates a post-conviction resentencing proceeding for
specified inmates sentenced under the prior version of the
Three Strikes law. (Ibid.) Under that statute, a defendant
sentenced as a three-strike offender may petition for recall of
the sentence and for resentencing, but is subject to certain
eligibility criteria. (§ 1170.126, subd. (e).)
In May and June 2013, appellant filed a motion and a
petition for resentencing pursuant section 1170.126. On
January 11, 2016, the trial court denied the motion and
petition, concluding that appellant was ineligible for
resentencing because he intended to inflict great bodily
injury on Wright and Watson (§§ 667, subd. (e)(2)(C)(iii),
1170.126, subd. (e)(2)). In so ruling, the court stated that to
the extent People v. Berry (2015) 235 Cal.App.4th 1417
(Berry) barred consideration of the evidence relating to the
dismissed charge involving Watson, there was “enough
[evidence] to show [appellant] intended to inflict great bodily
injury as to [Wright].” This appeal followed.
3 Generally, an offense is a “‘strike’” if it is either a
“‘violent felony’” under section 667.5, subdivision (d), or a
“serious felony” under section 1192.7, subdivision (c).
(People v. Blackburn (1999) 72 Cal.App.4th 1520, 1525.)

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DISCUSSION
Appellant challenges the trial court’s ruling that he is
ineligible for resentencing under an exclusion that applies if
“[d]uring the commission of the current offense, [that is, the
offense which the resentencing petition targets] the
defendant used a firearm, was armed with a firearm or
deadly weapon, or intended to cause great bodily injury to
another person.” (§§ 1170.12, subd. (c)(2)(C)(iii), 1170.126,
subd. (e)(2).) Appellant’s principal contention is that the
court improperly made an independent finding regarding his
intent to inflict great bodily injury on Wright. In addition,
appellant contends the standard of proof for the eligibility
fact is proof beyond a reasonable doubt.
A. Independent Determination of Eligibility Fact
We begin with appellant’s contention regarding the
court’s independent determination of the crucial eligibility
fact, namely, that appellant intended to inflict great bodily
injury on Wright.4 As the resentencing statute does not
require that eligibility facts have been resolved by the
verdicts or special findings rendered at trial, many decisions
4 Although appellant notes that the trial court found he
intended to inflict great bodily injury on Wright and Watson,
the focus of his challenge is on the finding relating to
Wright. Because we find no error regarding that finding, it
is unnecessary for us to examine the finding relating to
Watson.

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have concluded that the trial court may independently
examine the record of conviction in order to make
determinations regarding those facts.5 (See, e.g., People v.
White (2014) 223 Cal.App.4th 512, 526-527; People v. Osuna
(2014) 225 Cal.App.4th 1020, 1028-1040 (Osuna); People v.
Blakely (2014) 225 Cal.App.4th 1042, 1048; People v.
Manning (2014) 226 Cal.App.4th 1133, 1139-1144; People v.
Elder (2014) 227 Cal.App.4th 1308, 1314-1336; People v.
Bradford (2014) 227 Cal.App.4th 1322, 1338-1340
(Bradford); People v. Brimmer (2014) 230 Cal.App.4th 782,
799-801; People v. Hicks (2014) 231 Cal.App.4th 275, 283-
286 (Hicks).) This court reached the same conclusion in a
recent decision (People v. Frierson (2016) 1 Cal.App.5th 788,
791-793, rev. granted Oct. 19, 2016, S236728 (Frierson)).
Instructive discussions are found in Bradford and
Hicks. In Bradford, evidence was presented at the
defendant’s trial that he robbed several stores, and had a
pair of wire cutters in his pocket when arrested. (Bradford,
supra, 227 Cal.App.4th at pp. 1329-1330.) He was convicted
5 The term “record of conviction” has been used
“technically, as equivalent to the record on appeal [citation],
or more narrowly, as referring only to those record
documents reliably reflecting the facts of the offense for
which the defendant was convicted.” (People v. Reed (1996)
13 Cal.4th 217, 223.) The record of conviction includes the
transcript of the jury trial. (People v. Bartow (1996) 46
Cal.App.4th 1573, 1579-1580.)

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of three counts of robbery, and was sentenced as a “three
strikes” offender. (Id. at p. 1327.) In denying the
defendant’s petition for recall and for resentencing, the trial
court ruled that he was ineligible for relief, concluding that
because he had a pair of wire cutters when arrested, he had
been armed with a deadly weapon during the commission of
the robberies. (Id. at p. 1330.)
The appellate court concluded that in the absence of
verdicts or special findings resolving the defendant’s
eligibility for resentencing, trial courts are authorized to
make independent factual determinations regarding the
eligibility criteria stated above. (Bradford, supra, 227
Cal.App.4th at pp. 1331-1334, 1336-1337.) As the court
noted, the eligibility criteria did not describe or “clearly
equate to” any offenses or enhancements. (Id. at p. 1332.)
In discussing the independent factual determinations, the
court concluded that the trial court’s inquiry is “necessarily
retrospective,” and akin to the task facing a sentencing court
assessing whether a prior conviction may be proved as an
enhancement. (Id. at p. 1337.) The court thus looked for
guidance to a line of cases addressing that task stemming
from People v. Guerrero (1988) 44 Cal.3d 343, 355 (Guerrero),
in which our Supreme Court held that sentencing courts
may examine the record of conviction to determine the
“‘substance’” of a prior conviction for purposes of establishing
an enhancement. (Bradford, supra, at pp. 1338-1340.) In
view of the Guerrero line of cases, the court concluded that
the trial court may examine the record of conviction in order

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to determine eligibility facts. (Ibid.) The court otherwise
found it unnecessary to decide whether Guerrero and its
progeny governed other issues applicable to the eligibility
determination.6 (Id. at pp. 1339-1340, 1336-1337.)
In Hicks, police officers frisked the defendant after he
appeared to throw away a bag containing drugs, and found
he had several .380 caliber bullets. (Hicks, supra, 231
Cal.App.4th at pp. 280-281.) When the officers searched a
nearby apartment occupied by someone the appellant had
intended to visit, they found a backpack containing a loaded
.380 caliber gun. (Ibid.) The defendant and his half-brother
testified that the bullets and the gun belonged to the half-
brother. (Ibid.) After the defendant was convicted of
possession of a firearm as a felon and possession of
ammunition as a felon, he was sentenced as a three-strike
offender on the basis of the former offense. (Ibid.) In
thereafter rejecting the defendant’s petition for resentencing,
the trial court determined that he was ineligible, concluding
that he was armed with a firearm when he committed the
6 Because the evidence at trial disclosed only that the
defendant had a pair of wire cutters in his pocket when
arrested, but not that the wire cutters were intended for use
as a weapon, the court determined, as a matter of law, that
the evidence was insufficient to establish that the defendant
was armed with a deadly weapon during the commission of
the robberies. (Bradford, supra, 227 Cal.App.4th at
pp. 1341-1343.)

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offense of possessing a firearm as a felon. (Id. at pp. 279-
280, 284.) The appellate court affirmed, reasoning that the
defendant’s eligibility hinged on whether he was “armed
with a firearm” while he possessed it as a felon, and that the
trial court was authorized to make an independent
determination regarding that factual issue on the basis of
the record of conviction. (Id. at pp. 283, 284, 285-286.) The
court further rejected a contention predicated on the
existence of conflicting evidence relating to the
determination, stating “[c]onflicting evidence . . . does not
cast doubt on the trial court’s factual findings because we
review factual findings for substantial evidence.” (Id. at
p. 286.)
Appellant maintains that trial courts may not make
independent determinations of eligibility facts under the
resentencing statute, relying on restrictions applicable to
sentencing courts in assessing whether a prior conviction
may be proved as an enhancement, as set forth in Guerrero
and subsequent decisions. Appellant argues that under
those restrictions, the trial court’s inquiry regarding
eligibility facts is limited to identifying the “facts . . . already
found[,] as reflected by the conviction.”7
7 Appellant places special emphasis on People v. Wilson
(2013) 219 Cal.App.4th 500, 510, which held that under
Guerrero, the trial court may not impose an enhancement on
the basis of an independent determination of a disputed
factual issue. Although Wilson also concluded that Apprendi
(Fn. continued on next page.)

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In Frierson, we rejected an essentially identical
contention. (Frierson, supra, 1 Cal.App.5th at pp. 791-793,
rev. granted.) There, the defendant was convicted of
stalking and sentenced as a “three strike” offender. (Id. at
p. 791.) In ruling that the defendant was ineligible for
resentencing, the trial court found that he engaged in the
offense with the intent to inflict great bodily injury, relying
on trial evidence that he sent the victim letters stating he
would injure and kill her. (Ibid.) We determined that the
court’s fact finding was proper notwithstanding the
restrictions traceable to Guerrero, concluding that they
reflect concerns applicable to the enhancement of
punishment, whereas the resentencing statute provides only
for a reduction in punishment. (Id. at pp. 791-793.) We
abide by Frierson. (See also People v. Newman (2016) 2
Cal.App.5th 718, 726 (Newman) [rejecting similar contention
predicated on Guerrero and its progeny].)
Appellant’s reliance on Berry is misplaced, as that
decision held only that the trial court, in making an
eligibility finding under the resentencing statute, may not
v. New Jersey (2000) 530 U.S. 466, 490 establishes a similar
restriction regarding the imposition of enhancements,
appellant has expressly declined to assert a contention
predicated on Apprendi, which several courts have
determined to be inapplicable to the resentencing statute
(Blakely, supra, 225 Cal.App.4th at pp. 1058-1062; Osuna,
supra, 225 Cal.App.4th at pp. 1038-1040; Bradford, supra,
227 Cal.App.4th at pp. 1334-1335).

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examine facts underlying certain dismissed charges. After
the defendant pleaded guilty to fraud and forgery charges
pursuant to a plea agreement, other charges alleging his
possession of a firearm were dismissed, and he was
sentenced as a “‘three strike[]’” offender. (Berry, supra, 235
Cal.App.4th at pp. 1421-1423.) Upon a review of the facts
that the defendant admitted in entering his pleas, the trial
court denied the defendant’s petition for resentencing,
concluding that he was armed while committing the offenses
to which he pleaded guilty. (Id. at pp. 1421-1423.)
Reversing, the appellate court held that the trial court erred
in relying on the admitted facts underlying the dismissed
counts, concluding that they fell outside the record of
conviction relating to the offenses to which he pleaded guilty.
(Id. at p. 1428.) In contrast, here the trial court based its
finding regarding appellant’s intent to inflict great bodily
injury on Wright on the evidence underlying his conviction
for assaulting her.8
8 Appellant also directs our attention to People v.
Oehmigen (2014) 232 Cal.App.4th 1, 3-4 (Oehmigen), which
examined whether defendants seeking relief under the three
strikes resentencing statute are entitled to an evidentiary
hearing on their eligibility. There, the defendant was
sentenced as a three-strike offender after pleading guilty to
assault with force likely to cause great bodily injury. In
entering the plea, the defendant stated that he had directed
his speeding car at a pursuing police vehicle, thus requiring
its occupants to make an evasive maneuver, and that after
(Fn. continued on next page.)

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he crashed his car, officers found in it a gun and pipe bombs.
(Id. at pp. 5-6.) When the defendant sought resentencing,
the trial court concluded that the limited record of judgment
established his ineligibility, as it showed that his conviction
involved both being armed with deadly weapons and an
intent to inflict great bodily injury. (Id. at p. 6.) On appeal,
the defendant contended that he was entitled to an
evidentiary hearing on his eligibility, pointing to the
requirement for an evidentiary hearing on a petition for
habeas corpus upon a prima facie showing of relief based on
a contested issue of fact. (Ibid.) The appellate court
concluded that the three strikes resentencing statute
imposes no requirement for an evidentiary hearing on
eligibility. (Id. at pp. 6-7.) In rejecting the defendant’s
analogy to habeas corpus proceedings, the court stated that
eligibility is a question of law, “not a question of fact that
requires resolution of disputed issues” and that the facts “are
limited to the record of conviction . . . .” (Id. at p. 7, italics
omitted.)
Oehmigen is not persuasive on whether the trial court
may make independent eligibility findings. Oehmigen did
not confront that issue, as the facts in the limited record of
conviction -- that is, the defendant’s admissions in entering
the plea -- were undisputed. (Oehmigen, supra, 232
Cal.App.4th at p. 8.) Furthermore, Oehmigen buttresses its
assertion that eligibility is a question of law solely by a
citation to Bradford, which characterizes the eligibility
determination as factual (Bradford, supra, 227 Cal.App.4th
at pp. 1334, 1343).

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Appellant suggests that the record of conviction
contains insufficient evidence to support the trial court’s
finding. We disagree. A defendant’s intent is properly
inferred from the circumstances surrounding the crime.
(People v. Pitts (1990) 223 Cal.App.3d 606, 888 [“Intent is
rarely susceptible of direct proof and must usually be
inferred from a consideration of all the facts and
circumstances shown by the evidence”].) The trial evidence
established that when Wright tried to calm appellant, he
grabbed her by the throat, choked her, and punched her
twice in the chest with his fist before she fled from him. As
the result of this assault, she suffered what appeared to be a
wrist injury that caused her arm to swell, and wore a wrist
brace for three weeks at a doctor’s request. In addition,
Wright’s chest and neck were red, and her arm was bruised.
The trial court thus reasonably concluded that appellant
assaulted Wright with the intent to inflict great bodily injury
on her. In sum, the trial court did not err in making an
independent determination regarding that eligibility fact.
B. Standard of Proof
Relying on People v. Arevalo (2016) 244 Cal.App.4th
836, appellant contends that eligibility facts must be
determined on the basis of the beyond-a-reasonable-doubt
standard, rather than on the preponderance-of-the-evidence

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standard, in view of the rights and interests at stake.9 There
is a division of opinion among the appellate courts regarding
that issue.10 In Osuna, the court concluded that the trial
court is authorized to make eligibility findings on the
preponderance of the evidence, relying on Evidence Code
section 115, which provides that “[e]xcept as otherwise
provided by law, the burden of proof requires proof by a
preponderance of the evidence.” (Osuna, supra, 225
Cal.App.4th at pp. 1038-1040.) In contrast, in Arevalo, the
court concluded that the appropriate standard is proof
beyond a reasonable doubt. (Arevalo, supra, 244 Cal.App.4th
at p. 852.) In Frierson, we rejected Arevalo in favor of the
“generally accepted rule” set forth in Osuna, stating:
“Preponderance is the general standard under California
9 Generally, “[t]he burden of proof thus serves to allocate
the risk of error between the parties, and varies in
proportion to the gravity of the consequences of an erroneous
resolution. [Citation.] Preponderance of the evidence
results in the roughly equal sharing of the risk of error.
[Citation.] To impose any higher burden of proof
demonstrates a preference for one side’s interests.
[Citation.] Generally, facts are subject to a higher burden of
proof only where particularly important individual interests
or rights are at stake[.]” (In re Marriage of Peters (1997) 52
Cal.App.4th 1487, 1490.)
10 The issue regarding the correct standard of proof is
before our Supreme Court in the review of Frierson.

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law, and there is no showing that trial courts will be unable
to apply it fairly and with due consideration. Nor is there a
showing that they have failed to do so.” (Frierson, supra, 1
Cal.App.5th at pp. 793, 794, rev. granted.) We see no error
in that rationale. (See also Newman, supra, 2 Cal.App.5th
at p. 728 [reaching similar conclusion regarding applicable
standard of proof].)

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DISPOSITION
The order of the trial court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
COLLINS, J.

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