Newman

Newman appeals from the postjudgment order denying his petition for recall of his sentence on his conviction for assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and for resentencing pursuant to section 1170.126, which was added by Proposition 36 (or Act). He contends the court (Proposition 36 court) erred in determining he was ineligible for resentencing based on its finding he intended to inflict great bodily injury, because although the “court was permitted to examine the entire record of conviction, it could not rely on that record to make new findings that went beyond the ‘nature or basis’ of the conviction.” He further contends that the court erred by applying an incorrect standard of proof, namely, preponderance of the evidence, rather than beyond a reasonable doubt.

We affirm the order. The Proposition 36 court found that defendant intended to cause great bodily injury, which is an expressly enumerated factor for disqualifying, or rendering ineligible, a defendant for resentencing under Proposition 36 (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)). Contrary to defendant’s claim, the court was not foreclosed…