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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                     A139396
v.
KENNETH WAYNE NELSON,                                                (San Mateo County
                                                                     Super. Ct. No. SC050147)
         Defendant and Appellant.


         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.

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       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].)
3
  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

4
  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



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 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.)

                                              6
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,


                                             7
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.




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