Filed 5/12/15 P. v. Valdez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060673
v. (Super.Ct.No. FWV028757)
DANNY MARTINEZ VALDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and Heather F.
Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
1
On July 29, 2013, defendant and appellant Danny Martinez Valdez filed a petition
for resentencing pursuant to Penal Code section 1170.126.1 On February 17, 2014, the
court denied defendant’s petition. On appeal, defendant contends the court erred in
determining he was ineligible for resentencing. We affirm.
PROCEDURAL HISTORY
On December 5, 2003, a jury convicted defendant of inflicting corporal injury on a
cohabitant (count 1; § 273.5, subd. (a)).2 On January 30, 2004, the trial court found true
allegations defendant had four prior strike convictions. Defendant’s four prior strike
convictions were for assault with intent to commit rape in 1976 (§ 220); assault with
intent to commit rape in 1979 (§ 220); assault upon a person with a firearm (§ 245, subd.
(a)(2)) with an attached allegation of great bodily injury (§ 12022.7) in 1989; and
criminal threats (§ 422) in 2001. On April 30, 2004, the court sentenced defendant to an
indeterminate term of imprisonment of 29 years to life.
On July 29, 2013, defendant filed a petition for resentencing with no documents
attached and no description of his prior strike convictions for assault with intent to
commit rape. On August 21, 2013, the court ordered the People to obtain copies of
defendant’s prior criminal records and issued a subpoena for defendant’s prison records.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 By separate order, we took judicial notice of the opinion and the section 969b
packet exhibit Nos. 44 and 45, admitted at the trial on the section 220 prior strike
allegations in the record from defendant’s appeal from his latest conviction, case no.
E035785.
2
At a hearing on February 7, 2014, the court noted, “this case has been on calendar
a couple of times. [Defendant], in his current case, two of the strikes that were alleged
were for [section] 220. One from 1976 and one from 1979. And we continued it a few
times to get the court records, the exhibits that were used in this trial, to prove those
priors to confirm that the [section] 220s were, in fact, assault with intent to commit rape
as opposed to mayhem. [¶] It appears that those exhibits have been destroyed, so they
are not available. We could go through the process of reordering the priors, although
since they’re from 1976 and 1979, they may not be available. But the District Attorney
has pointed out that the rap sheet for those underlying offenses, certified rap sheet in the
possession of the District Attorney’s Office, shows the original charges in that case were
rape and assault with intent to commit rape, and the conviction for the [section] 220
assault with intent to commit rape. So it certainly appears that the prior strikes were for
the assault with intent to commit rape, which makes the defendant statutorily ineligible.”
Defense counsel observed, “I do understand what the rap sheet reflects, however,
rap sheets are inherently unreliable documents . . . . [¶] It’s our position that due to that
ambiguity and due to the fact that the priors were destroyed, the benefit of the doubt
should go to the defense here.”
The court ruled, “Given the rap sheet showing the nature of the original charges in
both cases, I’m satisfied that the [section] 220s in [the] 1979 and 1976 cases were, in fact,
assault with intent to commit rape, and that—therefore, those are sexually violent
offenses as defined by Welfare and Institutions Code Section 6600. And therefore, the
3
defendant is statutorily ineligible for resentencing, and his petition for resentencing is
therefore denied on that ground.”
DISCUSSION
Defendant contends the People bore the burden of producing sufficient evidence to
prove defendant’s prior strike convictions disqualified him from eligibility for
resentencing. Defendant maintains the rap sheet was not in evidence and, even if it were,
it could not be used to prove the nature of defendant’s prior convictions. Defendant
argues that even if defendant’s prior convictions were for assault with attempt to commit
rape (Pen. Code, § 220), there was insufficient evidence to support a determination that
defendant committed the offenses with the requisite “force, violence, duress, menace,
fear of immediate and unlawful bodily injury on the victim or another person, or threat[]
to retaliate in the future against the victim or any other person . . . .” (Welf. & Inst. Code,
§ 6600.) Defendant claims that because the record does not disclose how defendant
committed the assaults, the court was required to presume the convictions were for the
least serious form of the offense. We disagree.
Section 1170.126 “provides a means whereby prisoners currently serving
sentences of 25 years to life for a third felony conviction which was not a serious or
violent felony may seek court review of their indeterminate sentences and, under certain
circumstances, obtain resentencing as if they had only one prior serious or violent felony
conviction.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286.)
“First, the court must determine whether the prisoner is eligible for resentencing; second,
the court must determine whether resentencing would pose an unreasonable risk of
4
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.”
(Id. at p. 1299, fn. omitted.)
“Any person serving an indeterminate term of life imprisonment . . . upon
conviction . . . of a felony or felonies that are not defined as serious and/or violent . . .
may file a petition for a recall of sentence . . . before the trial court that entered the
judgment of conviction in his or her case, to request resentencing . . . .” (§ 1170.126,
subd. (b).) Under section 1170.126, subdivision (e), an inmate is eligible for resentencing
if (1) he is serving an indeterminate term of life imprisonment imposed pursuant to
section 667, subdivision (e)(2); (2) his current sentence was not imposed for offenses
appearing in section 667, subdivision (e)(2)(C)(i) through (iii); and (3) he has not had
prior convictions for any of the offenses appearing in section 667, subdivision
(e)(2)(C)(iv). Here, only the third element is at issue. Likewise, there is no dispute that
were it not for defendant’s section 220 prior convictions, he would be eligible for
resentencing.
Penal Code section 667, subdivision (e)(2)(C)(iv) makes ineligible for
resentencing any defendant who has “suffered a prior serious and/or violent felony
conviction . . . for . . . [¶] (I) A ‘sexually violent offense’ as defined in subdivision (b)
of Section 6600 of the Welfare and Institutions Code.” Welfare and Institutions
Code section 6600, subdivision (b) defines assault with intent to commit mayhem, rape,
sodomy, oral copulation, or other specified offenses (Pen. Code, § 220) as a “‘[s]exually
violent offense’ . . . when committed by force, violence, duress, menace, fear of
5
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 . . . .”
A. Defendant’s Failure to Bear the Burden of Production
“The petition for a recall of sentence described in subdivision (b) shall specify all
of the currently charged felonies, which resulted in the sentence . . . and shall also specify
all of the prior convictions alleged and proved . . . .” (§ 1170.126, subd. (d).) A
petitioner generally bears the burden of producing sufficient evidence to establish a prima
facie case for the relief requested. (See In re Champion (2014) 58 Cal.4th 965, 1006-
1007 [defendant in petition for writ of habeas corpus “‘“bears a heavy burden initially to
plead sufficient grounds for relief, and then later to prove them.”’”]); In re D.P. (2014)
225 Cal.App.4th 898, 903; Regents of University of California v. Superior Court (2013)
222 Cal.App.4th 383, 389; People v. Hyung Joon Kim (2009) 45 Cal.4th 1078, 1101
[defendant bears burden of producing evidence on petition for writ of coram nobis]; In re
Paul W. (2007) 151 Cal.App.4th 37, 71 [“The petitioner has the burden of proving the
factual contentions contained in the petition by a preponderance of the evidence.”]; In re
Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604, 612 [petitioner for
conservatorship has the burden of producing evidence]; In re Lucas (2004) 33 Cal.4th
682, 735 [defendant bears burden of producing evidence on petition for writ of habeas
corpus].)
Here, defendant failed to even mention in his petition that he had two prior strike
convictions for assault with intent to commit rape, which were alleged and proved at the
same time as the two other prior strike convictions he did list. Likewise, defendant
6
neither attached to his petition any documentation regarding the record of the offense for
which he had been sentenced to an indeterminate term, nor of the prior strike convictions
that had been alleged and proved. Similarly, defendant failed to produce any further such
documentation at the hearing on his petition. Rather, it appears the People produced
defendant’s rap sheets. Thus, the trial court would have acted well within its discretion in
denying defendant’s petition solely on the basis that defendant failed to specify all his
prior strike convictions and failed to carry his burden of producing evidence to support
the petition.
Defendant cites People v. Delgado (2008) 43 Cal.4th 1059, 1066, and People v.
Rodriguez (1998) 17 Cal.4th 253, 262, for the proposition that it is the People’s burden to
produce evidence sufficient to prove that a prior offense, which, depending on the
manner of its commission, may or may not qualify as an enhancement, actually does so
qualify: “In such a case, if the statute under which the prior conviction occurred could be
violated in a way that does not qualify for the alleged enhancement, the evidence is thus
insufficient, and the People have failed in their burden. [Citation.]” (Delgado, at p.
1066.) However, both Delgado and Rodriguez involved cases in which the People were
attempting to prove allegations during the respective defendants’ trials that the
defendants had suffered prior conviction offenses, which would enhance their sentences.
(Delgado, at pp. 1065-1066; Rodriguez, at pp. 261-262.)
Here, the People are not seeking to prove the truth of an allegation that will
enhance defendant’s sentence. Indeed, the truth of the allegations or facts of the
convictions for which defendant was sentenced have long since been determined. It is
7
defendant who is petitioning the court for relief. Thus, it is defendant who has the burden
of both production and proof in convincing the court he is entitled to relief. Defendant’s
failure to produce evidence that his record of conviction entitles him to relief compelled
the court’s determination that he was ineligible.
Defendant’s contention that because the records were not produced by the People,
any ambiguity should inure to defendant’s benefit is unavailing. The resentencing
permitted by section 1170.126 is not constitutionally required, but is an act of lenity on
the part of the electorate. A trial court’s determination regarding the eligibility of a
defendant for resentencing comes only after a defendant has already been convicted and
sentenced for the commitment offense. Thus, the court’s determination does not increase
or aggravate the penalty to which the defendant is already subject. (People v. Osuna
(2014) 225 Cal.App.4th 1020, 1040.) It is defendant’s burden to prove to the court he is
entitled to such leniency.
Moreover, where, as here, the records are unavailable because they have been
destroyed or lost due to the passage of time, no principle of law requires a presumption in
favor of the defendant. Indeed, defendant cites no authority for such a proposition. It is
unclear from the record whether defendant appealed either of his convictions for assault
with intent to commit rape. If he did, those records in possession of the state have likely
been destroyed. (Cal. Rules of Court, rule 10.1028(d) [“In a criminal case in which the
court affirms a judgment of conviction, the clerk must keep the original reporter’s
transcript for 20 years after the decision becomes final”].) However, defendant would
have received a copy himself, which he could have produced to support his petition. If he
8
did not appeal, then defendant chose to forgo his opportunity for a direct appeal from the
convictions “with its attendant unconditional free transcript.” (U.S. v. MacCollom (1976)
426 U.S. 317, 325.) Defendant failed to carry his burden of proof and production on the
petition.
B. Sufficient Evidence Exists That Defendant Was Ineligible for Resentencing
Regardless of whether the rap sheets the court used in determining defendant was
ineligible for resentencing were admissible or should have been officially entered into
evidence, we have found sufficient evidence that defendant was ineligible for
resentencing.
“‘On appeal we consider the correctness of the trial court’s ruling itself, not the
correctness of the trial court’s reasons for reaching its decision. [Citations.]’ [Citation.]”
(People v. Bryant (2014) 60 Cal.4th 335, 364-365.) The court “may examine relevant,
reliable, admissible portions of the record of conviction to determine the existence or
nonexistence of disqualifying factors. [Citation.]” (People v. Blakely (2014) 225
Cal.App.4th 1042, 1063; People v. Hicks (2014) 231 Cal.App.4th 275, 286 [court may
rely on appellate opinion from appeal of current conviction].) “‘[A]ppellate opinions, in
general, are part of the record of conviction that the trier of fact may consider in
determining whether a conviction qualifies under the sentencing scheme at issue.’
[Citation.]” (People v. Trujillo (2006) 40 Cal.4th 165, 180-181, quoting People v.
Woodell (1998) 17 Cal.4th 448, 457.)
A court may look not only to the record of conviction for a particular crime, but to
other records that contain sufficient procedural protections to ensure their reliability when
9
a court is determining the facts underlying the offense for purposes of sentencing on a
subsequent conviction. (See People v. Blackburn (1999) 72 Cal.App.4th 1520, 1526-
1527, 1531-1532 [Fourth Dist., Div. Two] [preliminary hearing transcript on prior
offenses supported determination prior conviction was a serious felony]; People v.
Trujillo, supra, 40 Cal.4th at pp. 177-180 [same]; People v. White (2014) 223
Cal.App.4th 512, 525 [reliance on record of conviction including information, pretrial
motion, and closing argument].)
Here, if either one of defendant’s convictions for assault with intent to commit
rape alone met the definition in Welfare and Institutions Code section 6600, defendant
would be ineligible for resentencing. As reflected in the Penal Code section 969b packet
admitted into evidence during the bench trial on defendant’s alleged prior strike
convictions, defendant was charged by complaint with rape “by means of force” upon a
victim in 1975. The information charged defendant with rape “by means of force” and
further alleged that in the course of the rape, defendant had “intentionally inflicted great
bodily injury” upon the victim. On January 6, 1976, defendant pled guilty to the lesser
offense of assault with intent to commit rape in return for dismissal of the more serious
charge. The description of the offense in the complaint and information as occurring “by
means of force” and the additional allegation in the information that defendant had
“intentionally inflicted great bodily injury” upon the victim are sufficient evidence that
defendant’s 1976 conviction met the “force, violence, duress, menace, [or] fear of
immediate and unlawful bodily injury” conditions making him ineligible for resentencing
pursuant to section 1170.126.
10
Even if defendant’s 1976 offense did not meet the disqualifying criteria in Welfare
and Institutions Code section 6600, his conviction in 1979 did. With respect to
defendant’s conviction for assault with intent to commit rape in 1979, the complaint
charged defendant both with assault by means of force likely to produce great bodily
injury (Count 1; Pen. Code, § 245, subd. (a)) and assault with intent to commit rape
(Count 2; Pen. Code, § 220) against the same victim at the same time. A jury convicted
defendant of both offenses on March 28, 1979. Both the abstract of judgment and the
probation officer’s report from the record of defendant’s conviction reflect a true finding
on an attached allegation that defendant had inflicted “great bodily injury” in his
commission of the assault with intent to commit rape. Thus, defendant’s 1979 conviction
alone made him ineligible for resentencing.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
11
People v. Valdez CA4/2
Combined Opinion