Filed 12/18/14 P. v. Matthews CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059596

v.                                                                       (Super.Ct.No. FSB10450)

DWIGHT MATTHEWS,                                                         OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Warren Williams

and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.




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         Defendant and appellant Dwight Matthews appeals after the trial court denied his

petition for resentencing under Penal Code section 1170.126, known as the Three Strikes

Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)). On

appeal, defendant contends the court erred in finding him ineligible for resentencing since

he was not afforded due process, and there was insufficient evidence to support the

court’s finding. We affirm the judgment.

                               PROCEDURAL BACKGROUND

         Defendant was charged by amended information with two counts of attempted

second degree commercial burglary (Pen. Code, §§ 664, 459, counts 1 & 2).1 The

amended information also alleged that defendant had four prior strike convictions.

(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) The prior convictions included:

(1) crime against nature, in violation of section 39-2-612 of the Tennessee Code

Annotated (the Tennessee Code); (2) rape, in violation of Tennessee Code section 39-2-

604; (3) robbery, in violation of Tennessee Code section 39-2-501; and (4) first degree

burglary, in violation of Tennessee Code section 39-3-401. On August 29, 1996, a jury

found defendant guilty of counts 1 and 2, and the trial court made true findings on all of

the prior conviction allegations. The court sentenced defendant to an indeterminate term

of 50 years to life on counts 1 and 2 under the “Three Strikes” law.

         On January 29, 2013, defendant filed an in propria persona petition for recall of

sentence and a waiver of personal appearance. On May 3, 2013, he filed another waiver

         1   All further statutory references will be to the Penal Code, unless otherwise
noted.


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of personal presence. The matter was continued by stipulation several times. An

eligibility hearing was held on August 30, 2013, and defendant was represented by

counsel. At the outset, the court stated that defendant’s prior strikes included the crimes

of rape and sodomy in the state of Tennessee, and such convictions appeared to make

defendant ineligible for resentencing. Defense counsel objected on the grounds that there

had not been a sufficient showing that the Tennessee convictions were the same as the

disqualifying convictions in California, or that they fell under Welfare and Institutions

Code section 6600.2 The prosecutor and the court agreed that the elements of the out-of-

state prior convictions had to be substantially the same as the elements of the offenses in

California. The court noted that the trial court “reviewed the charging documents and,

based on the allegations and the finding, the Court found the prior convictions to be true.”

The court then stated it was satisfied that the elements of the prior strike offenses in

Tennessee disqualified defendant for resentencing under Penal Code section 1170.126, in

that they were violent sexual offenses as defined by Welfare and Institutions Code

section 6600. The court found defendant ineligible for resentencing and denied the

petition. (Pen. Code, § 1170.126, subd. (e).)

       On September 6, 2013, defendant filed a notice of appeal.




       2 We note that defense counsel, and consequently the court, mistakenly referred to
Penal Code section 6600, rather than Welfare and Institutions Code section 6600. (Pen.
Code, § 1170.126, subd. (e)(3).)


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                                         ANALYSIS

            The Court Properly Found Defendant Ineligible For Resentencing

       Defendant contends he was not afforded due process when the court determined

that he was statutorily ineligible for resentencing. He also argues that there was

insufficient evidence to support the finding of ineligibility. We disagree.

       A. Relevant Law

       In ruling on a section 1170.126 resentencing petition, the trial court must first

determine whether an inmate is eligible for resentencing. (§ 1170.126, subd. (f).) An

inmate is eligible for resentencing if the inmate is serving an indeterminate life term

imposed for a nonserious, nonviolent felony conviction; the inmate’s current sentence

was not imposed for any of the disqualifying offenses specified in section 1170.126,

subdivision (e)(2); and the inmate has no prior convictions for any of the disqualifying

offenses referred to in section 1170.126, subdivision (e)(3). (§ 1170.126, subd. (e).) If

the inmate is eligible, the trial court must resentence the inmate unless, in its discretion,

the trial court determines resentencing the inmate would pose an unreasonable risk of

danger to the public. (§ 1170.126, subd. (f).) Here, the trial court denied the

resentencing petition on threshold eligibility grounds.

       B. Defendant Waived His Appearance

       As to his due process claim, defendant argues: (1) he was never notified that he

was allegedly ineligible for relief and given an opportunity to refute the specific grounds

for his alleged ineligibility; (2) he was not given the opportunity to be present at the

hearing; (3) he had no opportunity to confront and cross-examine witnesses, to present


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documentary evidence, or to testify himself; and (4) the evidence was insufficient to

support the court’s findings since no evidence was introduced. We find no error.

       Section 1170.126, subdivision (f), describing the eligibility determination,

provides that “the court shall determine whether the petitioner satisfies the criteria in

subdivision (e) . . . .” “The statute does not expressly require the trial court to hold a

hearing before considering the eligibility criteria, nor is there a reference to the taking of

‘evidence’ or other proceeding that would compel involvement by the parties.” (People

v. Bradford (2014) 227 Cal.App.4th 1322, 1337 (Bradford).) The statute simply states:

“Upon receiving a petition for recall of sentence under this section, the court shall

determine whether the petitioner satisfies the criteria in subdivision (e).” (§ 1170.126,

subd. (f), italics added.) “Having reviewed the statutory language, it is apparent that an

evidentiary hearing is not contemplated by the statute at the initial eligibility stage.”

(Bradford, at p. 1337.) Furthermore, “no particular statutory procedure describes how the

trial court is to go about making the eligibility determination.” (Ibid.) Thus, it does not

appear that defendant was entitled to “notice” that he was ineligible, or to be present at

the hearing to confront witnesses, present evidence, or testify.

       Moreover, even if defendant was entitled to be present at the eligibility hearing, he

waived his appearance with two signed waiver forms. First, he attached to his petition

for resentencing a “waiver of [his] personal appearance.” This waiver explicitly stated

that defendant was waiving his right to be present “at the hearing of any motion,

sentencing, or other proceeding in this cause,” and that he was requesting the court “to

proceed during every absence of the Petitioner.” He also explicitly agreed that his


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interest would be represented at all times by the presence of his attorney, “the same as if

[he was] personally present in court.”

       Defendant subsequently filed another waiver, pursuant to section 1170.126,

subdivision (i), stating that he was waiving his right to appear in court, “provided that the

accusatory pleading is not amended and that no new trial or retrial will occur.” This

waiver stated that he would revoke it if the resentencing hearing was contested in any

manner. He now argues that this waiver was “ineffective” because he “was not made

aware that he was giving up his right to testify and assist his attorney with respect to the

allegedly disqualifying prior convictions.” However, this waiver does not appear to be

applicable here, since the hearing was not a resentencing hearing, but rather an eligibility

hearing.

       In any event, defendant’s first waiver validly waived his appearance at the

eligibility hearing. Moreover, his interests were fully represented at the eligibility

hearing, as he was represented by counsel.

       C. Defendant Was Ineligible for Resentencing

       Defendant also argues that there was insufficient evidence to support the court’s

finding of ineligibility. He contends that his sworn petition for resentencing, which

simply alleged that he had no disqualifying prior convictions, was prima facie evidence

of his eligibility, and that the prosecutor failed to introduce any rebuttal evidence.

Defendant further asserts that his prior convictions for rape and a crime against nature

were committed in Tennessee, and that those crimes can be committed without force,

violence, or other methods that would constitute a “sexually violent offense” under


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Welfare and Institutions Code section 6600. As to the offense of a crime against nature,

he specifically argues that nothing in the record shows this Tennessee offense was

equivalent to the California crime of forcible sodomy. We conclude that the court

properly found defendant ineligible for resentencing.

       At the outset, we address defendant’s assertion that his recall petition, signed

under penalty of perjury, was prima facie evidence that he was eligible for resentencing.

As a general rule, a self-serving declaration lacks trustworthiness. (People v. Duarte

(2000) 24 Cal.4th 603, 611.) Defendant’s self-serving petition, alleging that he had no

prior convictions for any of the disqualifying offenses, did not presumptively establish

his eligibility for resentencing. Moreover, as defendant concedes, he did not produce any

further documentation of the record of his prior convictions at the hearing on his petition.

       Furthermore, defendant has not cited any authority to support his contention that

the prosecution erred in not introducing any evidence to rebut the allegation that he was

eligible for resentencing. Again, there is no reference in the statute that the prosecution

was required to introduce evidence. (Bradford, supra, 227 Cal.App.4th at p. 1337.) In

People v. White (2014) 223 Cal.App.4th 512 (White), amicus and defense counsel raised

the issue of whether “‘any offense or conduct that disqualifies a petitioner from relief

under [section 1170.126] must be “pled and proven” by the prosecution.’” (Id. at

pp. 519, 526.) The appellate court rejected the argument finding the claim unavailing.

(Id. at pp. 526-527.) It reasoned that the pleading and proof requirements in the statutory

language governed only the prospective part of the Reform Act, not the retrospective part

at issue in a section 1170.126 resentencing petition. (Id. at p. 527.) The court affirmed


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the trial court’s denial of the defendant’s petition, holding that a court may determine that

a defendant is ineligible for resentencing based on a defendant’s record of conviction.

(Id. at pp. 525-527.)

       The record in this case amply established that defendant was disqualified from

resentencing because he had disqualifying prior convictions. (§ 1170.126, subd. (e).)

Section 1170.126, subdivision (e)(3) states: “(e) An 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 (e) of Section 667 or

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.”

Sections 667, subdivision (e)(2)(C)(iv), and 1170.12, subdivision (c)(2)(C)(iv), contain

the same operative language. They list the disqualifying prior convictions and state that:

“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.”

       Welfare and Institutions Code section 6600, subdivision (b), defines a “sexually

violent offense” as follows: “‘Sexually violent offense’ means the following acts when

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

injury on the victim or another person, or threatening to retaliate in the future against the

victim or any other person, and that are committed on, before, or after the effective date

of this article and result in a conviction or a finding of not guilty by reason of insanity, as

defined in subdivision (a): a felony violation of Section 261, 262, 264.1, 269, 286, 288,

288a, 288.5, or 289 of the Penal Code, or any felony violation of Section 207, 209, or 220


                                               8
of the Penal Code, committed with the intent to commit a violation of Section 261, 262,

264.1, 286, 288, 288a, or 289 of the Penal Code.”

       Here, the court stated that it was “satisfied that the elements of the prior strike

offenses in Tennessee do disqualify the defendant for resentencing under 1170.126, in

that they encompass violent sexual offenses as defined by . . . section 6600.” The record

shows that, in 1996, defendant filed a Romero3 motion, which the trial court denied.4

The record reflects that, in denying the Romero motion, the trial court reviewed the

Tennessee criminal statutes relating to the four strike offenses, the indictments of the

crimes, and a certified copy of the equivalent of a section 969(b) packet from the

Tennessee Department of Corrections.5 The court also reviewed a chart showing the


       3   People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

       4  Defendant appealed the denial of the Romero motion. The People have now
requested that we take judicial notice of excerpts from the reporter’s transcript from the
Romero hearing and the unpublished opinion from his prior appeal in this case, People v.
Matthews (Sept. 15, 1997, E019082) [nonpub. opn.] (Matthews). However, defendant
claims that the Matthews opinion and the transcript from the Romero motion cannot be
considered in this appeal because they were not introduced or considered in the trial
court. It is not clear from the record what the court considered in making its eligibility
determination. However, the trial court properly could have considered the Matthews
opinion and transcript. (People v. Trujillo (2006) 40 Cal.4th 165, 180-181 [“‘[A]ppellate
opinions, in general, are part of the record of conviction that the trier of fact may consider
in determining whether a conviction qualifies under the sentencing scheme at issue.’
[Citation.]”].) Furthermore, we may take judicial notice of the decisional law of this state
and any court records of this state. (Evid. Code, §§ 451, subd. (a), 452, subd. (d).) We
hereby grant the People’s request and take judicial notice of the opinion in our case
No. E019082, as well as the reporter’s transcript excerpts.

       5 Defendant has requested this court to take judicial notice of certain sections of
the Tennessee Code Annotated, reference notes for certain code sections, an explanation
of the numbering system used in Tennessee statutes, a table of code changes, as well as
                                                                   [footnote continued on next page]


                                              9
original code sections the crimes were charged under in 1977 before the code sections

were repealed, and the corresponding new code sections. The court stated that the

indictment titled “crime against nature” was a forcible oral copulation charge. The court

went over the elements of each of the alleged strikes and determined that each of the

strikes qualified as strikes under the California statute. The court denied the Romero

motion, and defendant appealed. On appeal, this court reviewed the trial court’s Romero

decision and also noted that one of defendant’s four prior strikes was for forcible oral

copulation (i.e., crime against nature under Tenn. Code Ann. § 39-2-612). (People v.

Matthews, supra, E019082.) The record clearly reflects that defendant had a prior

conviction for forcible oral copulation.

        As mentioned above, Welfare and Institutions Code section 6600, subdivision (b),

defines a “sexually violent offense” as “the following acts when committed by force,

violence, duress, menace, . . . : a felony violation of Section . . . 288a . . . or 289 of the

Penal Code.” Penal Code section 288a defines oral copulation. By its plain terms,

Welfare and Institutions Code section 6600, subdivision (b), defines a “sexually violent

offense” to include forcible oral copulation. In addition, Penal Code section 289 defines

rape. Therefore, the record clearly supports the court’s determination that defendant was

ineligible for resentencing because he had prior convictions for forcible oral copulation




[footnote continued from previous page]
sections of the California Penal Code. We hereby grant that request. (Evid. Code,
§§ 451, subd. (a), 452.)


                                               10
and rape. These prior convictions disqualified him from resentencing under Penal Code

section 1170.126, subdivision (e)(3).

       Defendant speculates scenarios whereby rape and crimes against nature can be

committed without force or violence. However, there is no apparent evidence that his

prior convictions were committed under circumstances without force or violence. The

record reflects that, due to the age of the original case, the paper court file was destroyed.

Thus, the only evidence of the nature of defendant’s prior convictions before the court

demonstrated that his prior conviction in Tennessee for a crime against nature was for

forcible oral copulation. We further note that the trial court hearing the Romero motion

stated that the forcible oral copulation conviction was “basically duplicative of the rape

count.”

       Defendant additionally asserts that the particular sections of the Tennessee Code

that the 1996 amended information alleged as prior strikes did not exist in 1978, when the

crimes were alleged to have occurred. However, as defendant himself explains, the

Tennessee Code Commission implemented a new numbering system. The table showing

the code changes reflects that the code sections listed in the 1996 amended information

correspond with the old code sections.

       Defendant also makes a convoluted argument concerning the principles of res

judicata and collateral estoppel, as they apply here. Although not clearly articulated, it

appears that defendant is asking this court to remand the matter for the trial court to hold

another eligibility hearing. However, in light of our conclusion, we see no reason to do

so.


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       Ultimately, the record supports the court’s finding that defendant was disqualified

from resentencing, pursuant to section 1170.126, subdivision (e)(3). Therefore, the court

properly denied the petition.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                               HOLLENHORST
                                                                         Acting P. J.


We concur:


KING
                          J.


MILLER
                          J.




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