Opinion
F075617
12-17-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANK SOLANO MENDOZA, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SC078061A)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, Judge. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
Appellant Frank Solano Mendoza appeals from the order denying his petition for recall of sentence pursuant to Penal Code section 1170.126. Appellant contends the trial court wrongly concluded a prior conviction rendered him ineligible for resentencing. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This is the second time appellant's request for resentencing has reached this court on appeal. As the procedural and factual history from the first appeal are relevant to this matter, we repeat a portion of our prior opinion before proceeding to facts newly developed for this appeal. As we explained in the prior appeal (People v. Mendoza (Oct. 25, 2016, F070621) [nonpub. opn.]):
On or around February 25, 2013, appellant filed a petition for recall of sentence pursuant to Penal Code section 1170.126. Appellant alleged he had been sentenced in 1999 to an indeterminate term of life imprisonment pursuant to section 667 for a violation of Health and Safety Code section 11377, subdivision (a). Appellant further alleged he had "no prior convictions for any of the offenses appearing in Section 667(e)(2)(C)(iv) and/or Section 1170.12(c)(2)(C)(iv), as amended by the Three Strikes Reform Act of 2012."
All statutory references are to the Penal Code unless otherwise noted.
Appellant attached the abstract of judgment from his 1999 conviction of judgment along with the minute order from his sentencing. He also attached the abstract and minute order following a 2002 amended sentencing procedure and a set of documents detailing the awards and commendations he had received for good behavior while incarcerated. Although these records showed six potential prior convictions, appellant's petition alleged his prior convictions were limited to a prior youth commitment and an attempted robbery.
On March 14, 2013, the superior court sent a letter to appellant informing him that his petition had been received and "forwarded to the Kern County Public Defender's Office for review and further processing." On November 4, 2014, the public defender's office sent a memorandum to the superior court, stating: "The Public Defender informed Mr. Mendoza that the Public Defender believes he is ineligible. Mr. Mendoza's [sic] has a prior conviction for California Penal Code section 261.3 [sic]. California Penal Code section 667(e)(2)(C)(iv) prohibits re-sentencing for inmates who have a prior conviction sexually [sic] violent offenses pursuant to Welfare and Institutions code section 6600(b). The elements of section 261.3 [sic] brings [sic] the charge squarely within the meaning of Welfare and Institutions code section 6600(b)."
On November 10, 2014, the trial court denied appellant's petition. Acting "'without the physical case file,'" the court concluded appellant was "'not eligible for resentencing under Prop 36 based on the nature of one of [appellant's] strike priors.'" In the ruling sent to appellant, the court explained: "'Pursuant to the Kern County Superior Court procedure for these requests, the court referred [appellant's] request to the Kern County Public Defender. The Public Defender determined [appellant] was not eligible for resentencing based on one of [appellant's] prior convictions and so informed [appellant]. The Public Defender has returned the request to the court for further review to determine if [appellant] is eligible. [¶] This court finds [appellant] is not eligible for resentencing under Proposition 36 based on the nature of one of his strike priors.'"
Appellant appealed to this court and we ultimately reversed the trial court and remanded for further proceedings. Relevant to the pending appeal, we recognized appellant's petition suggested eligibility for resentencing on its face. Despite this fact, the trial court denied appellant's petition based on a letter from the district attorney's office referencing a presently non-existent statutory subdivision under which appellant was allegedly previously convicted. Yet no documents were submitted in the record on appeal to prove any of these assertions. We held that, under these conditions, even speculative conclusions about appellant's prior conviction could not sustain the trial court's order. We therefore remanded the matter for further proceedings.
When the case returned to the trial court, the People again opposed appellant's resentencing. This time, they submitted to the trial court an abstract of judgment from 1976, showing appellant had been convicted following a jury trial of "Rape, in violation of section 261.3 of the Penal Code." In briefing, they informed the court that in Penal Codes effective in 1973 and 1978, subdivision 3 of section 261, criminalized rape of a female "[w]here she is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution, or by any intoxicating narcotic, or anaesthetic substance, administered by or with the privity of the accused." The People further submitted not only the appellate opinion upholding appellant's conviction from this offense but also copies of the briefing and the preliminary hearing transcript in order to demonstrate the fact that appellant had committed the rape by using a knife to force the victim to comply with his demands.
The trial court held a hearing on appellant's petition on May 9, 2017. After taking argument, the court stated, "I think based on the updated information . . . including - the entire record, including the prelim [sic] transcript, and the opinion from the initial conviction way back when, the defendant is not eligible for resentencing." It then denied appellant's petition.
This appeal timely followed.
DISCUSSION
Standard of Review and Applicable Law
"The Three Strikes Reform Act of 2012 (the 'Reform Act' or the 'Act'), amended the 'Three Strikes' sentencing scheme. The Act reduced the class of defendants who are eligible for indeterminate prison terms following a third felony conviction. It also permitted some inmates serving a Three Strikes term to petition for modification of their current sentences." (People v. Frierson (2017) 4 Cal.5th 225, 229-230 (Frierson).) These dual procedures of the Act are sometimes referred to as prospective and retroactive applications. For retractive applications of the Act, offenders may be excluded from resentencing under certain circumstances.
To qualify for resentencing, a petitioner must satisfy three criteria. (§ 1170.126, subd. (e)(1)-(3).) Pertinent to this appeal, to be eligible the petitioner must have "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." (§ 1170.126, subd. (e)(3).) Clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of section 667 identifies as a disqualifying offense any prior conviction for "[a] 'sexually violent offense' as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code," among others. (§ 667, subd. (e)(2)(C)(iv)(I).) Welfare and Institutions Code section 6600, in turn, identifies a sexually violent offense as any one of the following categories of enumerated offenses "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:" (1) "a felony violation of Section 261, 262, 264.1, 269, 286, 288, 288a, 288.5, or 289 of the Penal Code" or (2) "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).)
The trial court is tasked with determining whether a petitioner is eligible for resentencing. (§ 1170.126, subd. (f).) The prosecution bears the burden of proving ineligibility by proof beyond a reasonable doubt. (Frierson, supra, 4 Cal.5th at p. 236.) If it cannot prove ineligibility, the trial court may still utilize its discretion to deny resentencing where the defendant poses an unreasonable risk of danger to public safety. (Id. at p. 239.) This later factor is subject to proof by a preponderance of the evidence. (Ibid.)
As the trial court's eligibility determination is factual in nature, we review that determination for substantial evidence. (People v. Hicks (2014) 231 Cal.App.4th 275, 286 (Hicks); People v. Bradford (2014) 227 Cal.App.4th 1322, 1331; see People v. Woodell (1998) 17 Cal.4th 448, 461 [in determining whether prior offense was qualifying for three-strikes review, "a reasonable trier of fact could find beyond a reasonable doubt that the North Carolina trial court impliedly found that defendant was convicted of the assault because of his personal use of a deadly weapon, and not because of vicarious liability for weapon use by some third party"].)
Substantial Evidence Supports the Trial Court's Ruling
The core question in this appeal is whether appellant is ineligible for resentencing because, under section 1170.126, subdivision (e)(3), he has a prior conviction for a sexually violent offense under Welfare and Institutions Code section 6600, subdivision (b). The People contend appellant is ineligible because he was previously convicted of rape by threats of great and immediate bodily harm and have introduced evidence in the form of an abstract of conviction, appellate opinion, and various other documents, showing this fact. Relying heavily on the fact the abstract of judgment notes a general conviction for rape and upon our recognition that the historical statute could be violated without committing a forcible rape, appellant contends it was improper for the trial court to look to our former opinion and other extrinsic evidence to determine appellant was ineligible for resentencing. Rather, appellant contends, although recognizing the state of the law is against him, that his conviction should be disqualifying only if the prosecutor pleaded and proved the relevant disqualifying offense at the time of the original offense. We do not agree.
Unlike the prior appeal in this matter, the appellate record contains a substantial number of documents related to appellant's prior conviction. The People have proven that appellant was convicted of rape under subdivision 3 of section 261 in 1976. Under the applicable Penal Code for appellant's prior conviction, his rape conviction arose because he engaged in "sexual intercourse with one not the wife of the perpetrator under the following circumstance: 'Where she is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution, or by any intoxicating narcotic, or anaesthetic, substance, administered by or with the privity of the accused.'" (See People v. Wheeler (1977) 71 Cal.App.3d 902, 905, fn. 1.) Further, our prior opinion upholding appellant's conviction related several relevant facts from appellant's trial. Specifically, in a discussion concerning the admission of evidence demonstrating appellant used a knife to effectuate the rape, our prior opinion notes the victim "testified that she was forced to submit to intercourse by appellant's use of a knife" and that appellant's defense, introduced through his own testimony, was that the "victim consented to the intercourse." The opinion clarifies further that the core issue of the trial was whether appellant utilized threats or force to accomplish the rape, noting that when "appellant testified that no threat or force was used, he would have the jury infer that he had no knife or similar weapons."
It is well settled that the appellate opinion is part of the record of conviction in sentencing matters. (Hicks, supra, 231 Cal.App.4th at p. 286.) As part of its obligation to prove beyond a reasonable doubt that appellant had suffered a previous disqualifying conviction, the People produced both the abstract of his conviction and the appellate opinion upholding that conviction. We are aware of no cases holding such documents cannot be considered as evidence concerning appellant's eligibility for resentencing under Proposition 36. (See People v. Estrada (2017) 3 Cal.5th 661, 672 [precluding review of fact not encompassed within the judgment of conviction would be inconsistent with Proposition 36 and impose an unnecessary limitation].) Moreover, in our review, we conclude the records are more than adequate to affirm the trial court's conclusion appellant was previously convicted of a sexually violent offense under Welfare and Institutions Code section 6600 as the conviction was for rape committed by threat of great and immediate bodily harm, accompanied by apparent power of execution, as opposed to committed by way of any intoxicating narcotic. Given the abstract and opinion provide sufficient support for the trial court's ruling, we need not consider whether the preliminary hearing transcript or appellate briefs are part of the record of conviction.
We readily reject appellant's argument that the facts contained in the appellate opinion are dicta. The facts detailed regarding the nature of the charges against appellant and his defense were included because they were directly relevant to the discussion held by the court and, thus, were not dicta regardless of the fact there was no separate section of the opinion claiming to contain the "facts" of the offense.
Appellant further contends that recent developments in the law have demonstrated he is entitled to a jury trial on the nature of his prior offense. (See People v. Gallardo (2017) 4 Cal.5th 120 [in prospective application, right to jury found with respect to disputed facts of prior convictions supporting sentencing enhancement].) Appellant recognizes, however, that the current case law distinguishes between rights relevant to offenses used to support a sentencing enhancement in prospective applications and offenses related to eligibility in retroactive applications. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304 [Sixth Amendment rights not applicable to downward sentence modifications].) We do not see any change in the law that would undermine reliance on Kaulick in this case. However, we need not resolve appellant's contentions.
Under Frierson, the People are obligated to prove ineligibility beyond a reasonable doubt. Under Hicks, the full record of conviction is relevant to this analysis. Where that record of conviction leaves no factual possibility but that a conviction renders appellant ineligible for resentencing under Proposition 36, none of the alleged changes to the law appellant seeks to bring into the retroactive case analysis are applicable in the first instance. With no factual dispute to resolve, there is no basis to consider possible Sixth Amendment issues. Here, the lone potential factual dispute, that the rape was committed by use of an intoxicant and thus was not a sexually violent offense, is wholly precluded by the properly considered record of conviction. As such, appellant's Sixth Amendment concerns are not triggered, regardless of his claims they are now applicable to factual determinations in retroactive proceedings.
DISPOSITION
The order is affirmed.