People v. Oehmigen

• Decision Date: 05 December 2014
• Docket Number: C073771
• Citation: 181 Cal.Rptr.3d 569,232 Cal.App.4th 1
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leonard Eldyn OEHMIGEN, Defendant and Appellant.

232 Cal.App.4th 1

181 Cal.Rptr.3d 569

The PEOPLE, Plaintiff and Respondent,

v.Leonard Eldyn ¹ OEHMIGEN, Defendant and Appellant.

C073771

Court of Appeal, Third District, California.

Filed December 5, 2014

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 421B.

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. (Super. Ct. No. 97F00832)

Diane L. Nichols, under appointment by the Court of Appeal, Grass Valley, 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.

BUTZ, J.

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 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) 60 Cal.4th 595 , ––––, 179 Cal.Rptr.3d 365, 336 P.3d 686.) 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 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, 51 Cal.Rptr.3d 718, 146 P.3d 1259)) 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 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, 133 Cal.Rptr.3d 421 (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 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, 155 Cal.Rptr.3d 856 [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...