Filed 5/20/16 P. v. Jones CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F070261
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1099818)
                   v.

ARTHUR RAY JONES,                                                                        OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Nan
Cohan Jacobs, Judge.

         Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M.
Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



         *Before Kane,      Acting P.J., Detjen, J. and Peña, J.
                                       INTRODUCTION
       In a nonpublished opinion, People v. Jones (July 7, 2007, F050810) (Jones), this
court affirmed the conviction of defendant Arthur Ray Jones for felony possession of
heroin (Health & Saf. Code, § 11350). We further affirmed the finding that defendant
had three prior serious felony convictions within the meaning of the three strikes law
(Pen. Code,1 §§ 667, subds. (b)-(i), 1170.12) and his sentence of 25 years to life.2
       On July 17, 2014, pursuant to the resentencing provisions of Proposition 36, the
trial court heard and denied defendant’s petition for resentencing, finding defendant
ineligible. Defendant contends he was denied his right to participate in the hearing and
the case should be remanded for resentencing. We reject this contention and affirm the
trial court’s ruling.
                                FACTS AND PROCEEDINGS
       In Jones, we affirmed the trial court’s denial of defendant’s request to strike one or
more of his prior felony convictions. Defendant’s prior felony convictions occurred in
1968, consisting of instances of oral copulation by force (former § 288, subd. (b)) and
sodomy by force (former § 286.1) perpetrated while defendant was housed in the Fresno
County jail. As we stated in Jones, “the sordid details … are recounted in People v.
Jones (1970) 10 Cal.App.3d 237, 241-242.”
       Defendant filed his own petition to recall his sentence pursuant to Proposition 36
on March 22, 2013. On page 3 of defendant’s petition, he executed a waiver of his right
to personally appear at the hearing, “being aware of his right to be present at all stages of
the proceedings.” The waiver further stated the undersigned petitioner “hereby requests
the court to proceed during every absence of the Petitioner that the court may permit


       1Unless   otherwise designated, all statutory references are to the Penal Code.
       2On  February 6, 2015, this court granted defendant’s request to take judicial notice of our
opinion in Jones, supra, F050810.


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pursuant to this waiver, and hereby agrees that his interest is represented at all times by
the presence of his attorney or the Public Defender the same as if the Petitioner were
personally present in court, and further agrees that notice to Petitioner’s attorney or the
Public Defender that Petitioner’s presence in court on a particular day at a particular time
is required is notice to the Petitioner of the requirement of Petitioner’s appearance at that
time and place.”
        The People filed an opposition to defendant’s petition. The People noted that
under sections 667, subdivision (e)(2)(C)(iv)(I), and 1170.12, subdivision
(c)(2)(C)(iv)(I), persons are ineligible for resentencing under Proposition 36 if they
commit sexually violent offenses as set forth in Welfare and Institutions Code section
6600.
        As the People noted, defendant had been convicted in the late 1960’s of former
sections 286.1 (acting in concert to commit sodomy by force) and 288, subdivision (b)
(acting in concert to commit oral copulation by force). Both sections were repealed in
1975 and replaced, respectively, with section 286, subdivision (d)(1), and section 288a,
subdivision (d)(1).3 Both the old statutes and revised statutes proscribed forcible sexual
conduct. Violations of sections 286, subdivision (d)(1), and 288a, subdivision (d)(1), fall
within the definition of sexually violent offenses as described in subdivision (b) of
Welfare and Institutions Code section 6600.
        Between March 26, 2014, and July 14, 2014, the hearing on defendant’s petition
was continued several times. On March 26, 2014, there is an entry in the clerk’s minutes
that defendant was ordered to appear. At two subsequent hearings, defendant’s
appearance was excused. On April 3, 2014, the hearing on the petition was continued


        3The People’s  opposition to defendant’s petition referred, apparently in error, to the
second revised statute as being section 288, subdivision (d)(1). Section 288 proscribes lewd and
lascivious conduct on minors, and although section 288 has a subdivision (d), it does not have
subdivision (d)(1). We attribute the mistake in the People’s brief to scrivener’s error.


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and the public defender noted defendant’s personal appearance was waived. Thereafter,
the clerk’s minutes noted defendant’s presence at the hearing was excused.
       On July 17, 2014, the court heard defendant’s petition to recall his sentence. The
parties submitted the matter based on their pleadings. The court found pursuant to
Welfare and Institutions Code section 6600 that defendant’s prior convictions for forcible
sexual acts made him statutorily ineligible for resentencing pursuant to Proposition 36.
       On September 3, 2014, defendant filed a second petition to recall his sentence. On
this occasion, defendant expressly wrote that he did not waive his right to be present at
the hearing. The trial court filed a minute order on September 12, 2014, noting
defendant’s petition had been previously denied on July 17, 2014, and denying
defendant’s second petition for resentencing.
                                      DISCUSSION
Introduction
       Defendant contends his right to be present at the hearing on his petition for
resentencing was violated and the case must be remanded so he can be personally present
during the resentencing hearing. Defendant further argues his right to confrontation
under the Sixth Amendment of the United States Constitution was also violated. The
People reply defendant waived his right to be present at the hearing, defense counsel did
not seek defendant’s presence at the hearing, and defendant has forfeited this issue on
appeal. The People further contend on the merits that because the initial Proposition 36
hearing was an eligibility hearing, defendant does not have a right to be present at this
phase of the resentencing hearing. We agree with the People’s arguments and reject
defendant’s contentions.
Proposition 36
       On November 6, 2012, the voters approved Proposition 36, the Three Strikes
Reform Act of 2012, which amended sections 667 and 1170.12 and added section
1170.126. Proposition changed the requirements for sentencing a third strike offender to

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an indeterminate term of 25 years to life imprisonment. Under the original version of the
three strikes law, a recidivist with two or more prior strikes who was convicted of any
new felony was subject to an indeterminate life sentence. Proposition 36 restricted the
three strikes law by reserving the life sentence for cases where the current offense is a
serious or violent felony, or the prosecution has pled and proved an enumerated
disqualifying factor. In all other cases, the recidivist is sentenced as a second strike
offender. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)
       In addition to reforming three strikes sentencing for defendants convicted after the
effective date of Proposition 36, the initiative also added section 1170.126 to provide for
retroactive reform of existing three strikes sentences imposed before the effective date of
the initiative. Section 1170.126 “provides a means whereby, under three specified
eligibility criteria and subject to certain disqualifying exceptions or exclusions, a prisoner
currently serving a sentence of 25 years to life under the pre-Proposition 36 version of the
Three Strikes law for a third felony conviction that was not a serious or violent felony
may be eligible for resentencing as if he or she only had one prior serious or violent
felony conviction.” (People v. White (2014) 223 Cal.App.4th 512, 517, review den.
Apr. 30, 2014, S217030.)
       In People v. White, supra, 223 Cal.App.4th 512, the court rejected an argument
similar to defendant’s. It held the defendant there was ineligible for resentencing under
section 1170.126 because “the record of conviction,” which consisted of the trial
evidence and appellate record, established he had a firearm in his possession and was
personally armed in the commission of the underlying offenses, even though he was not
charged with an arming enhancement. (White, supra, at pp. 525–526.) White further
held the prosecution was not required to plead and prove charges and/or enhancements
supporting facts to disqualify him from resentencing under Proposition 36. (White, at
pp. 526–527.)



                                              5.
       A series of cases have reached the same conclusion as White and hold the superior
court may review the documents contained in the entire record of the qualifying
conviction to determine if the defendant is ineligible for resentencing, including prior
appellate opinions, and the prosecution is not required to plead and prove any of the
disqualifying factors set forth in section 1170.126. (People v. Chubbuck (2014) 231
Cal.App.4th 737, 740, 747; People v. Brimmer (2014) 230 Cal.App.4th 782, 798–800;
People v. Guilford (2014) 228 Cal.App.4th 651, 660; People v. Elder (2014) 227
Cal.App.4th 1308, 1314–1317; People v. Blakely (2014) 225 Cal.App.4th 1042, 1063;
People v. Osuna (2014) 225 Cal.App.4th 1020, 1030–1032, 1038-1039.)
Waiver and Forfeiture
       Section 1170.126, subdivision (i) provides that notwithstanding section 977,
subdivision (b), which generally requires the defendant’s presence during all felony
proceedings, “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. The waiver
shall be in writing and signed by the defendant.” When defendant filed his own petition
pursuant to Proposition 36, he expressly waived his personal presence at the resentencing
hearing. The procedure for a defendant waiving his or her presence at the resentencing
hearing was followed here, and defendant’s presence at the hearing was not statutorily
required.
       Also, defense counsel ultimately proceeded with the hearing without objecting to
his client’s presence at the hearing. Generally, matters not raised and developed to the
trial court are forfeited for later appellate review. (People v. Alexander (2010) 49 Cal.4th
846, 880, fn. 14; People v. Hartshorn (2012) 202 Cal.App.4th 1145, 1151.) Defendant
has forfeited this contention for appellate review.




                                             6.
Merits of Defendant’s Contention
         In People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, the court
recognized that a petition to recall a sentence entailed a three-part procedure pursuant to
section 1170.126, subdivision (f): “First, the court must determine whether the prisoner
is eligible for resentencing; second, the court must determine whether the resentencing
would pose an unreasonable risk of danger to public safety; and third, if the prisoner is
eligible and resentencing would not pose an unreasonable risk of danger, the court must
actually resentence the prisoner.” (Kaulick, supra, at p. 1299.) The defendant has a right
to appear for the second and third determinations, though this right can also be waived
pursuant to subdivision (i) of section 1170.126. (Kaulick, at pp. 1299-1300.)
         The initial eligibility determination is not a discretionary determination by the trial
court. Only after making this determination does the statute describe any exercise of
discretion by the trial court. (People v. Bradford (2014) 227 Cal.App.4th 1322, 1336.)
The statute does not require the trial court to hold a hearing concerning eligibility criteria,
and there is no reference to an evidentiary hearing at this stage of the hearing. (Id. at p.
1337.)
         Indeed, there is no due process right to a hearing on the issue of eligibility. The
statute affords the defendant a right to a hearing only after the court has decided the
question of the defendant’s eligibility. (People v. Oehmigen (2014) 232 Cal.App.4th 1,
6-7.) Eligibility does not involve questions of fact requiring resolution of disputed issues.
The facts are limited to the record of conviction. The trial court’s determination is a
question of law: “whether the facts in the record of conviction are the proper subject of
consideration, and whether they establish eligibility.” (Id. at p. 7; see People v. Superior
Court (Kaulick), supra, 215 Cal.App.4th at p. 1298, fn. 21.)
         Based on these authorities, we conclude defendant had no due process or Sixth
Amendment right to be present at the hearing on his eligibility for resentencing under
Proposition 36. As for defendant’s second petition for resentencing, determination of

                                                7.
eligibility does not require a hearing on the issue. (People v. Oehmigen, supra, 232
Cal.App.4th at pp. 6-7; People v. Bradford, supra, 227 Cal.App.4th at p. 1341.) Further,
defendant was not entitled to a second determination of his eligibility, and the doctrines
of collateral estoppel (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341) and res
judicata (In re Reno (2012) 55 Cal.4th 428, 506) barred defendant from filing a second
petition on the same grounds and no new facts as the first petition heard on July 17, 2014.
       In addition to the procedural infirmities to defendant’s contention on appeal, it
fails on the merits.
                                     DISPOSITION
       The trial court’s denial of defendant’s petition for resentencing pursuant to
Proposition 36 is affirmed.




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