Filed 12/5/14
                           CERTIFIED FOR PUBLICATION




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                            THIRD APPELLATE DISTRICT
                                       (Sacramento)
                                            ----




THE PEOPLE,                                                   C073771

                Plaintiff and Respondent,             (Super. Ct. No. 97F00832)

        v.

LEONARD ELDYN1 OEHMIGEN,

                Defendant and Appellant.



       APPEAL from an order of the Superior Court of Sacramento County denying the
petition for recall of defendant’s sentence, Gary S. Ransom, Judge. Affirmed.

      Diane L. Nichols, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen and Michael
A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.


1 The notice of appeal, defendant’s briefing on appeal, and several documents misspell
defendant’s middle name as “Eldin.” We use the spelling of “Eldyn” as reflected in the
record.


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       In January 2013, defendant Leonard Eldyn Oehmigen filed a petition for the recall
of his April 1998 indeterminate life sentence pursuant to Penal Code section 1170.126.2
The statute, enacted as part of a November 2012 initiative measure, provides
retrospective relief under narrow criteria from indeterminate life sentences imposed for
recidivism. Defendant alleged that he was eligible for resentencing because his 1998
commitment conviction—assault with force likely to inflict great bodily injury—was not
a “serious” or violent felony (§ 1170.126, subd. (e)(1)), and neither his commitment
conviction nor his other prior felony convictions came within other disqualifying criteria
(id., subd. (e)(2) & (3)). As a result, he alleged he was entitled to a determinate sentence
of double the normal term applicable to his conviction (i.e., the same sentence a
defendant would receive under the prospective amendments to the recidivist sentencing
statutes enacted as part of the same initiative). (Id., subd. (f); see § 667, subd. (e)(1).)3
(Defendant also filed a second recall petition in connection with a later case
(No. 05F02375) for bringing contraband into prison while serving his indeterminate life
sentence.)

       The present trial court (Hon. Gary S. Ransom)4 denied the recall petition in case
No. 97F00832 without a hearing. Its order relied on the prosecutor’s statement of the
factual basis for defendant’s change of plea in January 1998, which neither defense


2 Undesignated statutory references are to the Penal Code.

3 As defendant has pursued relief from a final conviction pursuant to section 1170.126,
we do not need to address the contretemps regarding whether a defendant whose sentence
is not yet final on appeal is entitled to application of the revised sentencing provisions
without filing a petition for recall pursuant to section 1170.126. (People v. Yearwood
(2013) 213 Cal.App.4th 161, 168 [no retroactive effect].) The issue is presently pending
in the Supreme Court. (See, e.g., People v. Conley (2013) 215 Cal.App.4th 1482, review
granted Aug. 14, 2013, S211275.)
4 The original sentencing judge (Hon. Janice Hayes) was not available any longer.
(§ 1170.126, subds. (b), (j).)


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counsel nor defendant had challenged. The trial court found (beyond a reasonable doubt,
in an abundance of caution)5 that defendant was both armed with deadly weapons and
intended to inflict great bodily injury during the commission of the commitment
conviction, and thus his commitment conviction was ineligible for recall for resentencing.
(§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii).) It accordingly denied the petition in
the present case; it set the other petition (case No. 05F02375) for briefing and argument
on various issues (for which reason it is not part of the present appeal).

       The parties both assert this is an appealable order. The Supreme Court has
recently resolved the debate over this issue, agreeing that an order finding a defendant
ineligible is appealable. (Teal v. Superior Court (2014) ___ Cal.4th ___ [2014 Cal. Lexis
10481 at p. *2].) On the merits, we agree with the trial court’s conclusion that
defendant’s record of conviction demonstrates he was armed with a deadly weapon in the
form of a car during the commission of his commitment offense, and therefore defendant
is ineligible for resentencing. (As a result, we do not reach the alternate bases for the
order.) This court shall therefore affirm the order.

                  FACTUAL AND PROCEDURAL BACKGROUND

       To expand upon the details noted in the introduction, defendant’s petition to recall
his sentence (which the public defender filed on his behalf) alleged in conclusory fashion
that based on the nature of his prior convictions on their face—the 1998 commitment
conviction of assault with force likely to cause great bodily injury, and two other prior
convictions for burglary of the first degree in 1983 and 1984—they were not subject to
any of the exclusions from resentencing for commitment convictions that either are
serious or violent felonies (§ 1170.126, subd. (e)(1)) or came within other excluded

5 Defendant does not contest the trial court’s conclusions that he was not entitled to a
jury determination of eligibility and that proof only by a preponderance of evidence was
necessary, so we do not address them further.


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categories of felonies (id., subd. (e)(2)), or were prior convictions involving the felonies
specified in subdivision (e)(3) of the statute (cross-referencing § 667, subd. (e)(2)(C)(iv)).
Upon receipt of the petition, the trial court reviewed its records of the 1998 conviction.

       Initially charging defendant with assault by means of a deadly weapon and by
means of force likely to result in great bodily injury (as well as four other counts), the
prosecutor later filed an amended information charging him with assault only by means
of force likely to result in great bodily injury of two police officers (as well as six other
counts). At the change-of-plea hearing, the prosecution announced its willingness to
accept a plea to the assault charge with a stipulated disposition of an indeterminate term
of 25 years to life, in exchange for dismissal of the other charges and enhancements. In
response to the request of Judge Hayes for the factual basis, the prosecutor stated (to
paraphrase) that defendant, who had stolen a car, drove it in a reckless manner for several
miles on Highway 50 and Hazel Avenue while police were in pursuit; at the end of the
pursuit, he turned the car around and drove it at one of the police cars, which had to make
an evasive maneuver to avoid a “substantial[ly] certain[]” collision. Defendant crashed
into a house. Police found a small-bore pistol “in the vicinity” of the car, and three pipe
bombs “in the car” (the prosecution not elaborating further on the exact location of
either). When asked if he or defendant wished to respond to these facts, defense counsel
declined any comment. Defendant thereafter entered his plea of guilty to assault and
admitted having two prior convictions for burglary.

       The probation report (which ordinarily is not part of the record of conviction
(People v. Trujillo (2006) 40 Cal.4th 165, 179-180)) summarized the facts contained in
the police report of the incident. These were in accord with the factual basis that the
prosecutor had recited (providing more details, including the fact that live pipe bombs
were found in a bag on the front seat, and the gun was on the ground near where
defendant had opened the car door). In his statement to the police, defendant had denied


                                               4
any knowledge of the pipe bombs or the pistol. Defendant also told the probation officer
that he did not believe he was guilty of assaulting the officers, just evading them.

       At sentencing, defense counsel acknowledged reviewing the probation report with
defendant, and did not have any further comment on it. Defense counsel agreed it would
be accurate for the court to add an interlineation to the probation report indicating that it
was the act of driving the car at the pursuing police car that was the basis for the count to
which defendant had entered his plea (rather than his struggles with the arresting officers
in the backyard of the house, which turned out to be his home). Defense counsel stated,
“That’s what we pled to and that’s what the officer said in the police report.”

       Judge Ransom’s order concluded that the failure of defendant or his attorney to
object to the prosecutor’s recitation of the factual basis for the plea was an adoptive
admission he could consider as part of the record of conviction, citing People v. Sample
(2011) 200 Cal.App.4th 1253, 1261-1265 (Sample) (factual recitation made without
objection after plea, where defendant had further opportunity to address court before
sentencing, was adoptive admission in record of conviction to prove that out-of-state
conviction was a serious felony within meaning of § 667, subd. (d)(2)). In the trial
court’s view, these facts were sufficient to prove that defendant’s commitment conviction
involved both being armed with multiple deadly weapons (the car, pistol, and bombs) and
the intent to inflict great bodily injury on his pursuers. Defendant was thus ineligible for
a recall of his sentence pursuant to section 1170.126, subdivision (e)(2).

                                       DISCUSSION

                   I. No Due Process Right to Hearing on Eligibility

       Defendant contends he was entitled to an evidentiary hearing on the issue of his
eligibility for resentencing. He cites general principles of due process, and analogizes
to the requirement of an evidentiary hearing on a petition for habeas corpus upon a prima



                                              5
facie showing of relief based on a contested issue of fact (see Cal. Rules of Court, rule
4.551(f)).

       In the first place, defendant’s argument rests on an unduly atomized reading of the
entitlement under section 1170.126 that due process protects. The statute accords him the
right to a resentencing hearing only upon a showing that he is eligible. It is not a right to
a hearing on the issue of eligibility, followed by the hearing on whether he would present
a risk of danger to the public if resentenced. As the trial court found, there is contrasting
language in subdivisions (f) (“[u]pon recei[pt] [of] a petition for recall . . . the court shall
determine [eligibility],” italics added) and (i) (“a defendant petitioning for resentencing
may waive . . . appear[ing] in court for the resentencing,” italics added). In addition,
subdivision (m) contemplates a hearing preceding the resentencing. (People v. Superior
Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1297-1298 & fn. 20 [finding People have
due process right to notice and opportunity to be heard on issue of danger to public at
such hearing].) Defendant does not address this statutory dichotomy on appeal, so we are
not under any duty to analyze this point of the trial court’s ruling any further.

       In the second place, eligibility is not a question of fact that requires the resolution
of disputed issues. The facts are limited to the record of conviction underlying a
defendant’s commitment 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. (People v. Bradford (2014) 227 Cal.App.4th 1322, 1337, 1339
(Bradford).) 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. Therefore, this is not analogous to a hearing on a petition for habeas corpus.

       Finally, due process does not command a hearing on the threshold criteria that
establish entitlement to resentencing. In a context more analogous than a petition for
habeas corpus, it does not violate the due process rights of parties in a dependency


                                               6
proceeding for a juvenile court to refuse to hold any hearing on a motion for modification
(Welf. & Inst. Code, § 388) unless there are allegations adequate to establish a prima
facie showing of the necessary criteria of changed circumstances and benefit to the
minor; nor is the court obliged to hold an evidentiary hearing even upon a prima facie
showing, as opposed to entertaining argument as to whether the allegations establish the
right to relief. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1463 [right of due process
compels hearing only after prima facie showing of changed circumstances]; In re E.S.
(2011) 196 Cal.App.4th 1329, 1339-1340 [due process does not require evidentiary
hearing on motion]; In re Heather P. (1989) 209 Cal.App.3d 886, 891 [leaving to court
the determination of prima facie showing does not violate due process].)6

       Similar to the limited reach of due process in the context of modification petitions,
we recently held that the parties to a section 1170.126 proceeding are entitled to a limited
“additional procedural protection[]” of their right under due process to be heard
(Bradford, supra, 227 Cal.App.4th at p. 1337.) The 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 (as here)”; the People also
have the right to submit a brief in response if the trial court sets a hearing on
dangerousness (indicating that it made a preliminary determination of eligibility) in order
to highlight facts in the record they assert establish ineligibility. (Bradford, supra,
227 Cal.App.4th at pp. 1340, 1341.)




6 We note also the suggestion in People v. Superior Court (Kaulick), supra,
215 Cal.App.4th at pages 1298 to 1299, footnotes 21 and 22, that if only the undisputed
record of conviction is considered on the question of eligibility, a defendant does not
have a right to a hearing on the issue.


                                               7
       Defendant complains the failure of the trial court to solicit briefing in the process
of ruling on eligibility left him “unable to challenge the legal bases [on which] the court
was relying.” However, he has failed to establish prejudice in the context of this case:
The facts in the record are undisputed, and he presently has an advocate to challenge the
legal bases of the trial court’s ruling in this court. Any legal error in the trial court is
therefore no more prejudicial on appeal than legal error on undisputed facts in a motion
for summary judgment. Accordingly, his due process interest in an accurate resolution of
eligibility for resentencing is protected.

       In his reply brief, defendant asserts that People v. White (2014) 223 Cal.App.4th
512 has “tacitly” held that a hearing on eligibility is required. Under the fundamental
principle of ratio decidendi, there cannot be any such thing as a “tacit” holding. (DeVore
v. Department of California Highway Patrol (2013) 221 Cal.App.4th 454, 461 [a holding
is limited only to propositions expressly considered or those necessary to support express
propositions on the facts before the court].) As the hearing in White was only an
underlying happenstance rather than an integral part of the express or necessarily
included propositions expressed in the opinion, it does not provide any support for
defendant’s argument, and would in any event be unpersuasive in light of our holding in
Bradford. Consequently, defendant has failed to establish that due process requires a
hearing on eligibility, or that his lack of input in the trial court prejudiced him in any
fashion.

             II. On the Merits, the Ruling Does Not Establish “Prejudice”

       As we understand defendant’s reply briefing, he does not attack the actual basis
of the trial court’s ruling except to the extent that any error establishes prejudice from the
failure either to provide an evidentiary hearing or to solicit briefing from defense counsel.
Having determined that a hearing is not required and the absence of briefing was not
prejudicial, this would seem to obviate ab initio any further need to address “prejudice.”


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We nonetheless address defendant’s challenge to the substance of the trial court’s ruling
to forestall a request to recall the remittitur on the basis of appellate counsel’s failure to
take this opportunity to challenge the ruling on the merits (see In re Richardson (2011)
196 Cal.App.4th 647, 660-662 (Richardson) [denial of request to recall remittitur on
basis of counsel’s failure to raise appellate issue]), as the People have responded to the
merits of the ruling at length in their briefing.

       Defendant does not dispute the principle stated in Sample that if the silence of
defendant and counsel in response to a prosecutor’s recitation of the factual basis for a
guilty plea constitutes an adoptive admission, then those facts are part of the record of
conviction. (Accord, People v. Roberts (2011) 195 Cal.App.4th 1106, 1120-1123 [but
finding the prosecutor’s recitation did not come within the hearsay exception for adoptive
admissions because “Alford plea” (North Carolina v. Alford (1970) 400 U.S. 25, 37-38
[27 L.Ed.2d 162, 171-172]) does not admit truth of allegations in pleading guilty (so
defendant does not have any motive to contest them) and defendant entered plea before
prosecutor recited factual basis]; People v. Sohal (1997) 53 Cal.App.4th 911, 914, 916
[defense concession before entry of plea that prosecution could produce witnesses to
support a factual recitation including personal use of a deadly weapon was adoptive
admission]; cf. Richardson, supra, 196 Cal.App.4th at p. 667 [facts in prior opinion based
on reliable hearsay exception, where prosecutor stated factual basis after plea accepted
and defense counsel declined to comment or raise objection to court’s determination of
existence of factual basis for plea].)

       Instead, defendant first adverts to People v. French (2008) 43 Cal.4th 36, in which
(to satisfy the requirement of jury findings or admissions of all facts necessary to impose
an aggravated sentence) the People argued on appeal that the defendant admitted the truth
of the prosecution’s postplea factual recitation because defense counsel had conceded
postplea that there were witnesses who would support it. (Id. at pp. 42-43, 50.) French


                                               9
initially ruled that the purported admission did not include any facts to support the
aggravating factor of an abuse of a position of trust. (French, at p. 51.) French
alternatively ruled that in any event defense counsel’s concession that witnesses would
testify consistent with the recited facts was a “careful” effort to refrain from agreeing
that these facts were true, and thus could not be considered an admission. (Ibid.) But
this latter holding does not establish any bar as a matter of law to the inclusion of
adoptive admissions in the record of conviction; French simply concluded the
circumstances did not give rise to an adoptive admission. (French, at p. 52; Sample,
supra, 200 Cal.App.4th at p. 1264, fn. 9 [French calls for issue to be determined on case-
specific basis]; People v. Jennings (2010) 50 Cal.4th 616, 661 [must assess whether
circumstances would normally call for a response if hearsay statement is untrue in order
to constitute adoptive admission].) At most, French might preclude reliance in the case
at bar on defense counsel’s similarly “careful” statement at sentencing, which simply
acknowledged that the factual recitation and the probation report’s factual summary both
accurately reflected the contents of the police report without expressly agreeing that those
contents were true, or counsel’s stipulation to interline the pertinent facts in the probation
report with a reference to the count to which they applied (again without any express
indication that this was a truthful statement of facts). As we discuss below, however, the
silence otherwise of counsel and defendant at the time of the factual recitation is
sufficient to establish an adoptive admission here.

       “Generally, both parties to a plea agreement are expected to pay careful attention
during a plea colloquy . . . . The possibility of future consequences, including the
application of habitual offender statutes, further necessitates [that] the parties ensure the
record accurately reflects the factual basis for the plea. Therefore, except [where an
Alford plea is involved], a defendant would normally and reasonably be expected to




                                              10
object to . . . the . . . factual recital if [it] did not accurately reflect the circumstances of
the offense . . . .” (Sample, supra, 200 Cal.App.4th at p. 1265.)

       Here, defendant and counsel listened as the prosecutor described the offense
as including the personal use of a car—ordinarily “capable of being used” in a deadly or
dangerous fashion (People v. Burton (2006) 143 Cal.App.4th 447, 457 (Burton)) under
almost any circumstance—to commit an assault on the two officers, without any
indication that defendant’s actions were inadvertent. (See People v. Wright (2002)
100 Cal.App.4th 703, 706 [pointing out that “a mistake of fact, which produced an error
of law” in People v. Williams (2001) 26 Cal.4th 779, now makes negligence the
minimum mental state for assault].) The probation report, though it cannot supply facts
involving circumstances of the offense itself, nonetheless shows that defendant had been
actively contesting the legal conclusion that his conduct constituted an assault; this
demonstrates that his silence at the time of the plea was not inadvertent or unconsidered.
Defendant fails to support his bald statements that he did not have any opportunity to
contest the recited circumstances, that it is “sheer speculation” that he personally used the
car in a manner rendering it a deadly weapon, or that the facts recited do not establish an
intent to inflict great bodily injury as opposed to reckless indifference to that outcome.
Even if the latter argument may be a colorable claim in light of the difficulty in giving
retroactive effect to a criterion based on a mental state (that is subject prospectively to
pleading and proof), this does not detract from the disqualifying facts of being irrefutably
armed with a car and using it purposefully in a dangerous fashion (with whatever intent
defendant may have had). (Burton, supra, 143 Cal.App.4th at pp. 451-452.) As for
defendant’s argument that the trial court could not have relied on any of the dismissed
allegations or counts, we do not find any indication it did so, or that this would be
prejudicial error in light of defendant’s adoptive admission.




                                                11
       In short, if nothing else, the factual recitation at the time defendant entered his
1998 plea established that he was armed with a deadly weapon (purposefully driving a
car at a police vehicle), and therefore did not qualify for resentencing. (§§ 1170.126,
subd. (e)(2), 667, subd. (e)(2)(C)(iii).) Given this evidence, it is unnecessary to decide
whether the record of conviction established any other disqualifying criteria. As a result,
the trial court properly denied defendant’s recall petition on the merits.

                                      DISPOSITION

       The order denying the petition for recall of defendant’s sentence is affirmed.
(CERTIFIED FOR PUBLICATION)




                                                             BUTZ               , J.



We concur:



         HULL                , Acting P. J.



         MURRAY              , J.




                                              12
BUTZ, J., Concurring and Dissenting.

       “Naturally I concur in the majority opinion I have prepared for the court” (People
v. Jones (1998) 17 Cal.4th 279, 319 (conc. opn. of Mosk, J.)); “[o]bviously, I concur fully
in the majority opinion I have authored” (Cowan v. Superior Court (1996) 14 Cal.4th
367, 378 (conc. opn. of Chin, J.)).

       I write separately to explain my disagreement with the chosen disposition that my
colleagues favor. Upon determining on the merits that a defendant is not eligible for
relief under section 1170.126, the proper disposition should be to dismiss the matter
because denial of the petition accordingly did not affect any substantial right of the
defendant. (See People v. Elder (2014) 227 Cal.App.4th 1308, 1318, 1320-1321 (conc.
& dis. opn. of Butz, J.).) (CERTIFIED FOR PUBLICATION)




                                                           BUTZ               , J.




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