Filed 8/30/16 P. v. Pena CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C075597

                   Plaintiff and Respondent,                                    (Super. Ct. No. SC062722A)

         v.

MELVIN RICHARD PENA,

                   Defendant and Appellant.




         In 1998, defendant Melvin Richard Pena was sentenced to an indeterminate term
of 25 years to life under California’s Three Strikes Law for failing to notify authorities of
a change of address by a registered sex offender pursuant to Penal Code section 290.
(Pen. Code, §§ 290, 1170.12; unless otherwise set forth, statutory references that follow
are to the Penal Code.) Following the electorate’s passage of the Three Strikes Reform
Act of 2012 (the Act), defendant filed a petition to recall his sentence and for
resentencing under section 1170.126. The trial court denied the recall petition, finding


                                                             1
defendant statutorily ineligible for resentencing based on his prior convictions for
sexually violent offenses.
       Defendant contends his due process rights were violated when the trial court failed
to ensure his presence at the hearing to determine his threshold eligibility for
resentencing under section 1170.126. Finding no merit in his contentions, we affirm the
trial court’s order.

                                FACTS AND PROCEEDINGS
       In 1981, defendant pleaded guilty to forcible rape (§ 261), kidnapping (§ 207), and
oral copulation by force (§ 288a, subd. (c)), with enhancements charged on each count
for personal use of a firearm during the commission of the crimes. (§ 12022.5.) The
court later denied defendant’s motion to withdraw his pleas and sentenced him to 18
years in state prison.
       In 1998, a jury convicted defendant of violating section 290’s sex offender
registration requirements for failing to notify authorities of a change in his address. In a
subsequent bifurcated proceeding, the court found true the special allegations that
defendant had three strike priors based on the 1981 convictions. The court denied
defendant’s request to strike the allegations of the prior convictions under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court sentenced
defendant to state prison for an indeterminate term of 25 years to life. The judgment was
affirmed on appeal. (See People v. Pena, Feb, 25, 2000, C031169 [nonpub. opn.].)
       In October 2013, defendant filed a petition for recall of sentence pursuant to
section 1170.126 and a motion to strike strikes. According to defendant, if the court
struck his prior strikes under Romero he would then qualify for resentencing under the
Act. The People opposed the motion, arguing defendant was statutorily ineligible for
resentencing because he suffered two prior convictions for sexually violent offenses.




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       At a hearing on the recall petition, the public defender informed the court that
defendant wished to be present. Although defense counsel conceded he had not
uncovered any facts suggesting defendant was eligible for resentencing under section
1170.126, he nevertheless argued defendant had a due process right to be present because
defendant might conceivably provide him with information about the priors that would
shed light on the eligibility issue.
       The court found that the threshold eligibility issue under section 1170.126 was a
question of law and that defendant’s presence was not required at the hearing. The court
also noted that defendant’s request to strike his prior strikes was outside the purview of
the recall petition. Finding him statutorily ineligible, the court denied the recall petition.

                                         DISCUSSION

                                               I

                      Resentencing under the Three Strikes Reform Act

       “The Act amended the Three Strikes law so that an indeterminate life sentence
may only be imposed where the offender’s third strike is a serious and/or violent felony
or where the offender is not eligible for a determinate sentence based on other
disqualifying factors.” (Teal v. Superior Court (2014) 60 Cal.4th 595, 596-597 (Teal).)
Section 1170.126 of the Act establishes a procedure for an offender currently serving an
indeterminate life sentence for a third strike conviction that is not a serious and/or violent
felony to file a petition for recall of sentence. (§ 1170.126, subd. (b).)
       “Subdivision (f) [of section 1170.126] states that ‘[u]pon receiving a petition for
recall of sentence under this section, the court shall determine whether the petitioner
satisfies the criteria in subdivision (e).’ ” (Teal, supra, 60 Cal.4th at p. 600; see also
§ 1170.126, subd. (f).) An inmate is ineligible for resentencing if (1) the inmate is
serving an indeterminate life term imposed under the Three Strikes law for a felony
defined as serious and/or violent; (2) the inmate’s current sentence was imposed for


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certain controlled substance or felony sex offenses or the inmate used a firearm, was
armed with a firearm or deadly weapon, or intended to cause great bodily injury to
another person during the current offense; or (3) the inmate’s prior convictions included
certain designated offenses, including a sexually violent offense as defined in Welfare
and Institutions Code section 6600, subdivision (b). (§ 1170.12, subd. (e)(1)-(3).)
        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
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.” (Welf. & Inst. Code, § 6600, subd.
(b).)
        If a petitioner is not ineligible given the criteria set forth above, the trial court must
resentence the petitioner unless, in its discretion, it determines that resentencing would
pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) An order
denying a section 1170.126 petition after finding a petitioner statutorily ineligible is
appealable. (Teal, supra, 60 Cal.4th at p. 601.)

                                                II

                   Defendant’s Presence at the Eligibility Determination

        Defendant contends the trial court erred in determining he was ineligible for
resentencing under section 1170.126 at a hearing at which he was not personally present.
He argues that he had a constitutional right to be present at the hearing.


                                                4
       “ ‘Broadly stated, a criminal defendant has a right to be personally present at
certain pretrial proceedings and at trial under various provisions of law, including the
confrontation clause of the Sixth Amendment to the United States Constitution, the due
process clause of the Fourteenth Amendment to the United States Constitution, section 15
of article I of the California Constitution, and sections 977 and 1043. [Citation.]’ ”
(People v. Jennings (2010) 50 Cal.4th 616, 681 (Jennings); People v. Rodriguez (1998)
17 Cal.4th 253, 260 (Rodriguez) [“A defendant, of course, has a constitutional right to be
present at all critical stages of the criminal prosecution, i.e., ‘all stages of the trial where
his absence might frustrate the fairness of the proceedings’ [citation], or ‘whenever his
presence has a relation, reasonably substantial to the fullness of his opportunity to defend
against the charge’ ”].) “ ‘ “A defendant, however, ‘does not have a right to be present at
every hearing held in the course of a trial.’ [Citation.]” ’ ” (Jennings, supra, 50 Cal.4th at
p. 681.)
       “Under the Sixth Amendment’s confrontation clause, a criminal defendant does
not have a right to be personally present at a particular proceeding unless his appearance
is necessary to prevent ‘interference with [his] opportunity for effective cross-
examination.’ ” (People v. Waidla (2000) 22 Cal.4th 690, 741 (Waidla); Jennings, supra,
50 Cal.4th at p. 681.) Under the Fourteenth Amendment’s due process clause, “a
criminal defendant does not have a right to be personally present at a particular
proceeding unless he finds himself at a ‘stage . . . that is critical to [the] outcome’ and
‘his presence would contribute to the fairness of the procedure.’ ” (Waidla at p. 742;
Jennings at pp. 681-682.)
       Under the California Constitution, “a defendant has no right to be present at
discussions that occur outside the jury’s presence, whether in chambers or at the bench,
concerning questions of law or other matters that do not bear ‘ “ ‘a “ ‘ “reasonably
substantial relation to the fullness of his opportunity to defend against the
charge.” ’ ” ’ ” ’ ” (Jennings, supra, 50 Cal.4th at p. 682; Cal. Const. art. I, § 15.)

                                                5
“ ‘Thus a defendant may ordinarily be excluded from conferences on questions of law,
even if those questions are critical to the outcome of the case, because the defendant’s
presence would not contribute to the fairness of the proceeding.’ ” (Jennings at p. 682.)
Lastly, under sections 977 and 1043, “a criminal defendant does not have a right to be
personally present where he does not have such a right under section 15 of article I of the
California Constitution.” (Waidla, supra, 22 Cal.4th at p. 742.)
       We note that section 977 partly provides: “Except as provided in subdivision (c),
in all cases in which a felony is charged, the accused shall be personally present at the
arraignment, at the time of plea, during the preliminary hearing, during those portions of
the trial when evidence is taken before the trier of fact, and at the time of the imposition
of sentence. The accused shall be personally present at all other proceedings unless he or
she shall, with leave of court, execute in open court, a written waiver of his or her right to
be personally present, as provided in paragraph (2). . . .” (§ 977, subd. (b)(1).) Section
1043 provides in part, “Except as otherwise provided in this section, the defendant in a
felony case shall be personally present at the trial.” (§ 1043, subd. (a).)
       Defendant bears the burden of demonstrating that his absence prejudiced the
defense or denied him a fair trial. (Jennings, supra, 50 Cal.4th at p. 682.) And “an
appellate court applies the independent or de novo standard of review to a trial court’s
exclusion of a criminal defendant from trial, either in whole or in part, insofar as the trial
court’s decision entails a measurement of the facts against the law. (See People v.
Bradford (1997) 15 Cal.4th 1229, 1355-1358 [semble].)” (Waidla, supra, 22 Cal.4th at
p. 741.)
       After independent review, we find no error by the trial court when the court
decided that defendant was not statutorily eligible for resentencing under section
1170.126 in his absence because we find no right on his part to be personally present.
The trial court’s threshold eligibility determination was a legal issue (People v. Oehmigen
(2014) 232 Cal.App.4th 1, 7 (Oehmigen)), and, as noted, a defendant does not have the

                                              6
right to be personally present during proceedings concerning questions of law. (Waidla,
supra, 22 Cal.4th at p. 742.)
          In People v. Bradford (2014) 227 Cal.App.4th 1322, 1331 (Bradford), this court
concluded that there is no right to a jury trial or formal hearing on the eligibility issue.
Although we recognized that a petitioner must be provided an opportunity to be heard
before the court determines eligibility based on unadjudicated facts, the trial court
nevertheless determines eligibility solely on evidence found in the record of conviction.
(Ibid.)
          Similarly, in Oehmigen we found that a petitioner has no due process right to a
hearing on eligibility. (Oehmigen, supra, 232 Cal.App.4th at pp. 6-7 [“due process does
not command a hearing on the threshold criteria that establish entitlement to
resentencing”].) There, we noted that the issue of statutory “eligibility is not a question
of fact that requires the resolution of disputed issues” since “[t]he facts are limited to the
record of conviction” underlying a defendant’s commitment or prior offenses. (Id. at
p. 7.) “What the trial court decides is a question of law: whether the facts in the record
of conviction are the proper subject of consideration, and whether they establish
eligibility.” (Ibid.)
          Thus, while a petitioner “has a right to provide ‘input’ in the form of briefing ‘if
the petitioner has not addressed the issue [of eligibility in the petition] and the matter of
eligibility concerns facts that were not actually adjudicated at the time of the petitioner’s
original conviction[,]’ ” no right to a hearing on eligibility at which a petitioner is present
exists. (Oehmigen, supra, 232 Cal.App.4th at pp. 7-8.) That a defendant has no
constitutional right to be present when the court determines eligibility necessarily flows
from the conclusion that a petitioner has no right to a hearing on the issue at all.
          Kaulick, which defendant argues “strongly intimated that the defendant’s personal
presence is fundamental even for a step one [eligibility] hearing[,]” does not dictate a
different result. In dictum Kaulick stated, “[t]o the extent the court’s [eligibility]

                                                 7
determination may be based on anything other than the undisputed record of the
prisoner’s conviction, the prosecution could certainly argue that it has a right to present
evidence and to be heard on the issue. As this issue is not presented by the instant writ
petition, however, we express no opinion on it.” (People v. Superior Court (Kaulick)
(2013) 215 Cal.App.4th 1279, 1298, fn. 21 (Kaulick); see also id. at p. 1299, fn. 22.)
       As noted above, the trial court is limited to the record of conviction when
determining eligibility. (See Bradford, supra, 227 Cal.App.4th at p. 1331; see also
Oehmigen, supra, 232 Cal.App.4th at p. 7.) “The facts are limited to the record of
conviction underlying a defendant’s commitment [or prior] offense; the statute neither
contemplates an evidentiary hearing to establish these facts, nor any other procedure for
receiving new evidence beyond the record of conviction.” (Oehmigen at p. 7.)
       We are not persuaded, moreover, that subdivision (i) of section 1170.126
contemplates a petitioner’s presence at the eligibility determination absent a waiver.
Subdivision (i) partly provides, “a defendant petitioning for resentencing may waive his
or her appearance in court for the resentencing, provided that the accusatory pleading is
not amended at the resentencing, and that no new trial or retrial of the individual will
occur.” (§ 1170.126, subd. (i), italics added.)
       Defendant essentially asks us to infer a personal presence requirement for the
initial eligibility determination based on a waiver of appearance provision that refers only
to resentencing. Courts, however, may not, “ ‘under the guise of construction, rewrite the
law or give the words an effect different from the plain and direct import of the terms
used.’ ” (People v. Leal (2004) 33 Cal.4th 999, 1008 (Leal).) We must simply ascertain
and declare what is in terms or in substance contained in a statute; we may not “insert
what has been omitted or omit what has been inserted.” (Ibid.)
       The plain language of subdivision (i) accords a petitioner, after having been found
eligible for resentencing, the right to waive his appearance at the actual resentencing
hearing. The waiver provision, by its own terms, does not apply to the court’s initial

                                              8
eligibility determination. (Oehmigen, supra, 232 Cal.App.4th at p. 6 [recognizing the
contrasting language in subdivision (f) “((‘[u]pon recei[pt] [of] a petition for recall . . .
the court shall determine [eligibility],’ italics added)) and [subdivision] (i) (‘a defendant
petitioning for resentencing may waive . . . appear[ing] in court for the resentencing,’
italics added)”].)
       Similarly, defendant’s contention that we should recognize a right to attend the
eligibility determination because a petitioner has a right to be personally present at the
subsequent dangerousness hearing is unavailing. (See e.g., Kaulick, supra,
215 Cal.App.4th at pp. 1299-1300.) Unlike the hearing on dangerousness, or even the
resentencing hearing itself, the trial court does not exercise discretion when determining
eligibility, as it is a legal question, and the court cannot consider evidence beyond the
record of conviction. (§ 1170.126, subd. (f); Oehmigen, supra, 232 Cal.App.4th at p. 7.)
Thus, even though the court’s threshold eligibility determination may be critical to the
ultimate outcome of the recall petition, the defendant’s presence would not contribute to
the fairness of the proceeding on the legal issue. (See Jennings, supra, 50 Cal.4th at
p. 682; cf. Rodriguez, supra,17 Cal.4th at pp. 259-260 [recognizing that permitting the
trial court to decide how to exercise its discretion to strike a strike under section 1385
without affording a defendant and his counsel an opportunity to be present and address
the subject would be manifestly unfair].)
       Defendant’s claim that the nature of the prior conviction may not have been fully
litigated in the original proceeding is likewise without merit. Because the trial court is
limited to considering the record of conviction, the parties cannot relitigate facts
underlying the prior conviction. (See People v. Johnson (1992) 3 Cal.4th 1183, 1242 [a
trier of fact may look to the entire record of conviction to determine the nature of a prior
offense, but may not relitigate the facts behind the record].)
       Even assuming, for sake of argument, that defendant had a right to be present
when the court made the threshold eligibility determination, we conclude that defendant

                                               9
cannot establish prejudice from the purported error. (People v. Davis (2005) 36 Cal.4th
510, 532-533 [federal constitutional error is evaluated under the Chapman harmless
beyond a reasonable doubt standard; state statutory error is evaluated under the Watson
reasonably probable standard].) The record on appeal establishes that the error, if there
was one, was harmless. (Id. at pp. 533-534 [defendant’s absence from a hearing
regarding the admissibility of a jailhouse tape recording was harmless error].)
       Section 288a prohibits and punishes an act of oral copulation accomplished
against the victim’s will be means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person. (§ 288a, subd.
(c)(2)(A).) Section 261 defines rape as an act of sexual intercourse with a person
accomplished against the person’s will by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the person or another. (§ 261, subd.
(a)(2).)
       “By its plain terms, Welfare and Institutions Code section 6600, subdivision (b)
defines ‘sexually violent offense’ to include forcible oral copulation.” (People v.
Jernigan (2014) 227 Cal.App.4th 1198, 1207-1208.) Rape by force is also included in
the definition of a sexually violent offense under that provision. (Welf. & Inst. Code,
§ 6600, subd. (b).) Any prior convictions for these two offenses thus render a petitioner
ineligible for resentencing under the Act. (§§ 1170.126, subd. (e)(3); 667, subd.
(e)(2)(C)(iv).)
       In this case, the 1980 Information relating to defendant’s prior convictions shows
defendant was charged in count 1 with rape by force and in count 3 with oral copulation
by force. The abstract of judgment shows defendant pleaded guilty to those charges.
Both the charging document and the abstract of judgment constitute parts of the record of
conviction for purposes of establishing a defendant’s prior convictions. (People v.
Harrell (1989) 207 Cal.App.3d 1439, 1444 [the charging document is admissible if the
defendant pleaded guilty or no contest]; People v. Delgado (2008) 43 Cal.4th 1059, 1070

                                            10
[if an abstract of judgment clearly describes the nature of the prior conviction, in the
absence of any conflict with the oral pronouncement of judgment or rebuttal evidence, it
is presumed reliable and accurate, and may be used to establish the prior conviction].)
Under the plain language of section 1170.126, then, defendant was not eligible for
resentencing. (§§ 1170.126, subd. (e)(3); 667, subd. (e)(2)(C)(iv).)
       Defendant does not contend that he could have contradicted the record of
conviction, and, indeed, his petition for recall implicitly concedes the disqualifying prior
convictions given that he asked the court to strike the convictions to bring him within the
purview of the Act. Defense counsel further acknowledged that he had “not uncovered
any facts” that would allow him to counter the People’s contention that defendant was
ineligible for resentencing given his two prior convictions for sexually violent offenses.
       Also, before sentencing defendant for the current commitment offense in 1998, the
trial court considered defendant’s request to exercise its discretion under section 1385
and Romero to strike the prior sexually violent convictions. The court ultimately
concluded defendant was not outside the ambit of the Three Strikes Law, and declined to
exercise its discretion to strike the prior strikes. Given that the Romero issue had already
been decided against defendant, it is unlikely the prior convictions would have been
stricken in a potential habeas proceeding intimated to by defense counsel during the
hearing. We are thus convinced beyond a reasonable doubt that defendant’s presence at
the hearing would not have resulted in a more favorable outcome on the recall petition.




                                             11
                                      DISPOSITION
       The order finding defendant ineligible for resentencing under section 1170.126
and denying defendant’s recall petition is affirmed.



                                                       HULL                , Acting P. J.



We concur:



      BUTZ                  , J.



      HOCH                  , J.




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