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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 for 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 resentencing under the statute because 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 resentencing. We disagree and affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

 This appeal concerns only Nelson’s petition for recall of sentence. The facts of 

the underlying offenses are therefore irrelevant to the issues before us, and so we limit 

our factual discussion to matters 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 with felony evading a peace officer (Veh. Code, § 2800.2; 

count 1) and three misdemeanors—inflicting 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. Code, § 20002, subd. (a); count 4.) The 

information alleged in connection with count 1 that Nelson had four prior strike 

convictions (§ 1170.12, subd. (c)(2)) for second degree burglary (§ 459), forcible rape 

(§ 261, former subd. (2)), robbery (§ 211), and 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 conviction and prior prison term allegations. The court denied 

Nelson’s motion to dismiss the prior three strike conviction allegations and sentenced 

him to prison for a term of 27 years to life. On March 19, 2003, we affirmed the 

judgment, holding that the trial court had not abused its discretion 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 petition in propria persona to recall his 

sentence pursuant to section 1170.126. The trial court then appointed counsel to 

represent him. The prosecutor filed a response on February 14, 2013, arguing Nelson 

was ineligible for resentencing under section 1170.126 because he had a disqualifying 

prior conviction for forcible rape under 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].) 

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 According to the records submitted below, Nelson was convicted 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 the 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, 
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prosecutor attached a certified copy of the abstract 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 filed 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 strike offender owing to his prior conviction 

for a violation of Penal Code section 261(2), on May 14, 1981, in Contra Costa County 

. . . .” Counsel argued, however, that the court 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. 

DISCUSSION

 Nelson argues the trial court had discretion to strike his prior conviction for 

forcible rape in determining whether he was eligible for resentencing under 

section 1170.126. He also contends the People were obligated to plead and prove the 

existence of the prior conviction. As we explain, 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 requirement (§ 1170.126, subd. (b)) 

 

subdivision (a)(2). Although the 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). 
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is an appealable order under section 1237, 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, subdivision (b) provides that “[a]ny person serving an 

indeterminate term of life imprisonment imposed pursuant to paragraph (2) of 

subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12 

upon conviction, whether by trial or plea, of a felony or felonies that 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 recall of sentence, within two years after the 

effective date of the act that added this section or at a later date upon a showing of good 

cause, before the trial court that entered the judgment of conviction in his or her case, to 

request resentencing in accordance with the provisions of subdivision (e) of Section 667, 

and subdivision (c) of Section 1170.12, as those 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 clause (iv) of subparagraph (C) of paragraph (2) of subdivision 

 

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 Although the question of the appealability of the order at issue here was pending before 

the California Supreme Court throughout the briefing of this case, Nelson did not 

mention the issue in his briefs. Under California 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 requires an appellant to “explain why the order 

appealed from is appealable[.]” The statement of appealability mandated by the rule 

“requires an appellant to make the preliminary and fundamental determination that the 

order appealed from is, in fact, an appealable order or judgment . . . [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 violation of the rule].) 

Since we may exercise subject matter jurisdiction 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 bring the appealability issue to our attention. We note the 

Attorney General helpfully raised the issue in her brief. 
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(e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) 

of Section 1170.12.” (Italics added.) “Sections 667, subdivision (e)(2)(C)(iv) and 

1170.12, subdivision (c)(2)(C)(iv) contain 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 following 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 felony violation of Section 261” when such act 

is “committed by force, violence, duress, menace, fear of immediate and unlawful bodily 

injury on the victim or another person[.]” It is undisputed that 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 resentencing pursuant to 

section 1170.126. (§ 1170.126, subd. (e)(3).) 

 Indeed, as noted above, his counsel conceded as much in the court below, 

admitting that the provisions of section 1170.126 “facially exclude” Nelson from 

consideration for resentencing because of his prior conviction for forcible rape.5

 Nelson 

 

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 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 him from eligibility under section 1170.126, he 

may not repudiate that position on appeal and argue to the contrary. (People v. Voit

(2011) 200 Cal.App.4th 1353, 1371, fn. 14 [defendant bound by counsel’s concession in 

trial court and may not repudiate that position on appeal].) 

 Nelson also claims he was eligible because he alleged his current conviction of 

attempting to elude a peace officer was a nonserious/nonviolent felony. He argues the 

district attorney could then rebut his “prima facie eligibility” by showing a disqualifying 

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 described in subdivision (b) . . . shall also specify all of 
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again concedes the issue on appeal, and in his reply brief he agrees with the Attorney 

General that the trial court had no need to determine whether the prior conviction existed, 

because “there was no issue in the trial court 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 Attorney General that his trial counsel’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 one 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 eligibility determination 

should not be applied “mechanically.” Contrary to Nelson’s contention, “[t]he eligibility 

determination at issue is not a discretionary determination by the trial court, in contrast to 

the ultimate determination of whether an otherwise eligible petitioner should be 

resentenced.” (People v. Bradford (2014) 227 Cal.App.4th 1322, 1336 (Bradford).) In 

making the eligibility determination, 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 whether 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 properly denied the petition. (Ibid.) 

III. Nelson Is Not Entitled to an Additional Hearing on Whether His Prior Conviction 

Should Be Stricken. 

 Citing section 1385, Nelson claims the trial court should have held a hearing to 

decide whether his disqualifying prior conviction should be stricken. His reliance on this 

section is unavailing. Section 1385 permits a judge or magistrate “either of his or her 

own motion or upon the application of the prosecuting attorney, and in furtherance of 

 

the prior convictions alleged and proved under subdivision (d) of Section 667 and 

subdivision (b) of Section 1170.12.” (§ 1170.126, subd. (d), italics added.) 
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justice, [to] order an action to be dismissed.” (§ 1385, subd. (a), italics added.) A 

defendant has no statutory right to move to dismiss an action or part of an action under 

that section, although he may informally suggest 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 explained 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 permit Nelson to relitigate the result of that 

proceeding in the context of an eligibility determination under section 1170.126. 

 This also disposes of Nelson’s argument that he was entitled to an additional 

hearing at which the trial court could consider whether to strike 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 statute contains no procedure permitting 

the trial court to consider new evidence outside 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 required to consider new evidence at two stages 

of the proceedings.” (Bradford, supra, 227 Cal.App.4th at p. 1339.) 

IV. The Prosecution Was Not Required 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 listed 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 cannot dispute that the People produced a certified record 

from the Department of Corrections and Rehabilitation showing Nelson’s prior 

conviction. Nothing more was required. (Bradford, supra, 227 Cal.App.4th at pp. 1338, 
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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 Nelson 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 and prove his prior conviction. 

DISPOSITION

 The order from which the appeal is taken is affirmed. 
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 _________________________ 

 Jones, P.J. 

We concur: 

_________________________ 

Simons, J. 

_________________________ 

Bruiniers, J.