1 Filed 11/26/14 P. v. Nelson CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KENNETH WAYNE NELSON, Defendant and Appellant. A139396
(San Mateo County Super. Ct. No. SC050147)

Kenneth Wayne Nelson filed a petition fo r recall of sentence under Penal Code section 1170.126, 1 a provision of the Three Strikes Reform Act of 2012. The trial court found Nelson ineligible for re sentencing under the statute be cause he had a disqualifying prior conviction for forcible rape. It therefore denied the petition. Nelson appeals from the order of denial , arguing that in making its eligibility determination, the trial court had authority to dismiss the prior disqualifying conviction
and consider him for resentenci ng. We disagree and affirm.
F ACTUAL AND P ROCEDURAL B ACKGROUND This appeal concerns only Nelson’s petiti on for recall of sentence. The facts of the underlying offenses are ther efore irrelevant to the issues before us, and so we limit
our factual discussion to matte rs bearing on the petition.

1 All undesignated statutory references are to the Penal Code.2 On January 29, 2002, the San Mateo County District Attorney filed an amended information charging Nelson w ith felony evading a peace o fficer (Veh. Code, § 2800.2; count 1) and three misdemeanors—inflictin g damage to police property (§ 594, subd. (b)(2)(A); count 2 ), attempting to escape from a peace officer (§ 836.6, subd. (b); count 3), and hit and run driving (Veh. Co de, § 20002, subd. (a); count 4.) The information alleged in conn ection with count 1 that Ne lson had four prior strike convictions (§ 1170.12, subd. (c)(2)) for sec ond degree burglary (§ 459), forcible rape (§ 261, former subd. (2)), robbery (§ 211), a nd kidnapping (§ 207.) The information also alleged Nelson had served two prior prison terms. (§ 667.5, subd. (b).) A jury convicted Nelson on all four counts, and in a bifurcated trial, the trial court found true the prior felony c onviction and prior prison term allegations. The court denied Nelson’s motion to dismiss the prior three st rike conviction allega tions and sentenced him to prison for a term of 27 years to lif e. On March 19, 2 003, we affirmed the judgment, holding that the trial court had no t abused its discreti on by denying the motion to strike the priors. (See People v. Nelson (Mar. 19, 2003, A098919) [nonpub. opn.] ( Nelson ).) 2 On January 10, 2013, Nelson filed a pe tition in propria persona to recall his sentence pursuant to section 1170.126. Th e trial court then appointed counsel to represent him. The prosecutor filed a re sponse on February 14, 2013, arguing Nelson was ineligible for resentenci ng under section 1170.126 because he had a disqualifying prior conviction for forcible rape unde r section 261, former subdivision (2). 3 The

2 We may take judicial notice of our prior opinion. (Evid. Code, § 452, subd. (d)(1); People v. Alanis (2008) 158 Cal.App.4th 1467, 1470, fn. 1; see People v. Woodell (1998) 17 Cal.4th 448, 456-457 [appellate court’s opinion is part of record of conviction and is subject to judicial notice].) 3 According to the r ecords submitted below, Nelson was co nvicted of forcible rape on May 14, 1981. At that time, section 261 provided: “Rape is an act of sexual intercourse accomplished with a person not the spouse of th e perpetrator, under any of the following circumstances: [¶] . . . [¶] 2. Where it is accomplished against a person’s will by means of force or fear of immediate and unlawful bodily injury on the person or another.” (Stats. 1980, ch. 587, § 1, p. 1595.) This language is now contained in section 261,3 prosecutor attached a certified copy of the ab stract of judgment in Contra Costa County Superior Court case No. 25215 reflecting this conviction and requested judicial notice of this file in the present case. On May 10, 2013, defense counsel f iled an opposition to the prosecutor’s response. Counsel acknowledged, “The prosecution correctly identifies that the provisions of Penal Code section 1170 .126 facially exclude Mr. Nelson from consideration for re-sentencing as a second st rike offender owing to his prior conviction
for a violation of Penal Code section 261(2), on May 14, 1 981, in Contra Costa County . . . .” Counsel argued, however, that the c ourt had discretion to strike the prior under
section 1385. On May 31, 2013, the court found appellant was ineligible for resentencing under section 1170.126 and denied the petition. Nelson filed a notice of appeal on July 30,
2013.
D ISCUSSION Nelson argues the trial court had discre tion to strike his prior conviction for forcible rape in determining whether he was eligible for resentencing under
section 1170.126. He also contends the Pe ople were obligated to plead and prove the existence of the prior conviction. As we e xplain, neither of these arguments has merit.
I. Appealability of the Order Before addressing the merits, we pause to note that the California Supreme Court has recently determined that the order Nelson challenges is appealable. ( Teal v. Superior
Court (Nov. 6, 2014, S211708) ___ Cal.4th ___ [2014 WL 5739048].) In that case, the
court held that the trial court’s denial of a defendant’s petition for recall of sentence on the ground he failed to meet the threshold eligibility require ment (§ 1170.126, subd. (b))

subdivision (a)(2). Although th e current section has slightly different wording, those differences are not material to the issues before us. When we refer to Nelson’s conviction for forcible rape in this opinion, we therefore refer to a conviction under section 261, former subdivision (2).4 is an appealable order under section 12 37, subdivision (b). We therefore have jurisdiction over this appeal. 4

II. Nelson’s Prior Conviction for Forcible Rape Renders Him Ineligible for Resentencing. Section 1170.126, subdiv ision (b) provides that “[a]ny person serving an
indeterminate term of life imprisonment imposed pursua nt to paragraph (2) of subdivision (e) of Section 6 67 or paragraph (2) of subdiv ision (c) of Section 1170.12 upon conviction, whether by trial or plea, of a felony or felonies th at are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a reca ll of sentence, within two years after the
effective date of the act that added this secti on or at a later date upon a showing of good cause, before the trial court that entered the ju dgment of conviction in his or her case, to request resentencing in accordan ce with the provisions of su bdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as t hose statutes have been amended by the act
that added this section.” Under subdivision (e) of section 1170 .126, “[a]n inmate is eligible for resentencing if: [¶] . . . [¶] . . . [¶] (3) The inmate has no prior convictions for any of the offenses appearing in clau se (iv) of subparagraph (C) of paragraph (2) of subdivision

4 Although the question of the ap pealability of the order at i ssue here was pending before the California Supreme Court throughout th e briefing of this case, Nelson did not mention the issue in his briefs. Under Californi a Rules of Court, rule 8.360(a), briefs in criminal appeals must comply as nearly as possible with California Rules of Court, rule 8.204(a)(2)(B). The latter rule require s an appellant to “e xplain why the order appealed from is appealable [.]” The statement of appe alability mandated by the rule “requires an appellant to make the prelimin ary and fundamental determination that the order appealed from is, in fact, an appealable order or judgme nt . . . [and] it demonstrates both to other parties and to the Court of Appeal, before work on the merits of a case is begun, why the order is appealable.” ( Lester v. Lennane (2000) 84 Cal.App.4th 536, 556;

see Sunnyvale Unified School Dist. v. Jacobs (2009) 171 Cal.App.4th 168, 174, fn. 1 [appellant’s failure to address appealability in opening brief is violat ion of the rule].) Since we may exercise subject matter jurisdic tion only when there is an appealable order ( Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696), it is incumbent upon appellant’s counsel to br ing the appealability issue to ou r attention. We note the Attorney General helpfully rais ed the issue in her brief.5 (e) of Section 667 or clause (iv) of subparagraph (C) of pa ragraph (2) of subdivision (c) of Section 1170.12.” (Italics added.) “Sections 667, subdivi sion (e)(2)(C)(iv) and 1170.12, subdivision (c)(2)(C)(iv) cont ain the same operative language.” ( People v. Jernigan (2014) 227 Cal.App.4th 1198, 1204.) A defendant has a disqualifying prior
conviction under those sections if: “The defendant suffered a prior serious and/or violent felony conviction . . . for any of the follo wing felonies: [¶] (I) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.” (§§ 667, subd. (e)(2)(C )(iv); 1170.12, subd. (c)(2)(C)(iv).) The definition of “ ‘[s]exually violent offense’ ” in Welfare and Institutions Code section 6600, subdivision (b) includes “a fe lony violation of Section 261” when such act is “committed by force, violen ce, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person[.]” It is undisputed th at Nelson sustained a conviction for forcible rape under former section 261, subdivision (2). He has therefore committed a “sexually violent offense” as defined in Welfare and Institutions Code section 6600, subdivision (b), and is thus ineligible for rese ntencing pursuant to section 1170.126. (§ 1170.126, subd. (e)(3).) Indeed, as noted above, his counsel c onceded as much in the court below, admitting that the provisions of secti on 1170.126 “facially exclude” Nelson from consideration for resentencing because of his prior conviction for forcible rape. 5 Nelson

5 Despite this concession in the trial court, Nelson seeks to argue on appeal that he was facially eligible for resentencing. Having conceded in the trial court that his prior conviction for forcible rape disqualified hi m from eligibility under section 1170.126, he may not repudiate that position on appe al and argue to the contrary. ( People v. Voit (2011) 200 Cal.App.4th 1353, 13 71, fn. 14 [defendant bound by counsel’s concession in trial court and may not repudi ate that position on appeal].) Nelson also claims he was eligible becau se he alleged his current conviction of attempting to elude a peace officer was a nons erious/nonviolent felony. He argues the district attorney could then rebut his “ prima facie eligibility” by show ing a dis qualifying conviction. Although as we have noted, Nelson has already conceded the issue of eligibility, his argument ignores the plain language of the statute. It provides that “[t]he petition for a recall of sentence de scribed in subdivision (b) . . . shall also specify all of6 again concedes the issue on ap peal, and in his reply brief he agrees with the Attorney
General that the trial court ha d no need to determine whethe r the prior conviction existed,
because “there was no issue in the trial cour t and none on appeal as to whether the conviction existed, and the [trial] court did not have to decide any contested such issue.” He also agrees with the Atto rney General that his trial co unsel’s concession that he was facially excluded from resentencing “was the end of the matter so far as whether appellant had the conviction and whether it was a disqualifying one[.]” The parties therefore agree that Nelson suffered the prior conviction for forcible rape and that this prior conviction was a disqualifying on e for purposes of section 1170.126. Although recognizing that the plain language of the statute rendered Nelson ineligible, both Nelson’s trial and appellate counsel argue the e ligibility determination should not be applied “mechani cally.” Contrary to Nelson’s contention, “[t]he eligibility determination at issue is not a discretionary dete rmination by the trial c ourt, in contrast to
the ultimate determination of whether an otherwise e ligible petitioner should be resentenced.” ( People v. Bradford (2014) 227 Cal.Ap p.4th 1322, 1336 ( Bradford ).) In making the eligibility determina tion, the evidence the trial court may consider “is limited to the record of conviction.” ( Id. at p. 1341.) Based on the record of conviction alone, the court is required to determine whet her a petitioner satisfies the criteria in section 1170.126, subdivision (e). ( Bradford, at p. 1336, citing § 1170.126, subd. (f).) Here, the record of conviction demonstrates Nelson is ineligible for resentencing, and the trial court therefore properl y denied the petition. ( Ibid .)
III. Nelson Is Not Entitled to an Additional He aring on Whether His Prior Conviction Should Be Stricken. Citing section 1385, Nelson claims the tria l court should have held a hearing to decide whether his disqualifying prior convicti on should be stricken. His reliance on this section is unavailing. S ection 1385 permits a judge or magistrate “either of his or her own motion or upon the applica tion of the prosecuting attorney, and in furtherance of

the prior convictions alleged and proved under subdivi sion (d) of Section 667 and subdivision (b) of Section 1170.12.” (§ 1170.126, su bd. (d), italics added.)7 justice, [to] order an action to be dismisse d.” (§ 1385, subd. (a), italics added.) A defendant has no statutory right to move to di smiss an action or part of an action under that section, although he may informally s uggest that the court consider dismissal. ( People v. Konow (2004) 32 Cal.4th 995, 1022.) Neither the court nor the prosecuting attorney made any such motion in this case . Moreover, as we e xplained in our prior opinion, Nelson has already once requested that the court strike his prior convictions. ( Nelson, supra, (A098919) [nonpub. opn.] at p. 2.) The trial court denied his motion, and we affirmed that denial, concluding it was supported by ample evidence. ( Id. at pp. 3-5.) We are aware of no authority that would pe rmit Nelson to relitigate the result of that proceeding in the context of an eligibility determinati on under section 1170.126. This also disposes of Nelson’s argumen t that he was entitled to an additional hearing at which the trial cour t could consider whether to st rike the prior conviction. Nelson points to nothing in the language of the statute that would authorize such a hearing, and as Bradford explained, “the current statut e contains no procedure permitting
the trial court to consider new evidence outs ide of the record of conviction, and we decline to imply such a procedure. To do so would impose a cumbersome two-step process in which the trial court would be requir ed to consider new ev idence at two stages of the proceedings.” ( Bradford, supra, 227 Cal.App.4th at p. 1339.)
IV. The Prosecution Was Not Re quired to Plead and Prove Nelson’s Disqualifying Conviction Finally, we reject Nelson’s argument that the People must “plead and prove” the existence of a disqualifying conviction. A recent case holds that section 1170.126 does not require the People to plead and prove a disqualifying factor lis ted in section 667, subdivision (e)(2)(C). ( People v. Blakely (2014) 225 Cal.App.4th 1042, 1058.) We agree with the holding in that case. Moreover, even if there were such a requirement—and we agree there is not—it
would be met here. Nelson can not dispute that the People produced a certified record from the Department of Corrections an d Rehabilitation showing Nelson’s prior conviction. Nothing more was required. ( Bradford, supra, 227 Cal.App.4th at pp. 1338,8 1341; see People v. Ruiz (1999) 69 Cal.App.4th 1085, 1090, fn. 2 [for purposes of sentencing enhancement, People may satisfy burden of proving prior conviction by introducing certified copy of prison record].) In fact, although Ne lson devotes almost 10 full pages of his brief to this argument , at no time does he explicitly claim that in this

case the prosecution failed to plead an d prove his prior conviction.
D ISPOSITION The order from which the a ppeal is taken is affirmed.9 _ ____________ ____________ Jones, P.J.

We concur:

_____________ ____________ Simons, J.

_____________ ____________ Bruiniers, J.