Defendant’s failure to object to prosecutor’s recitation of factual basis for plea constitutes an adoptive admission upon which the trial court may rely to find defendant ineligible for resentencing under the Three Strikes Reform Act. After passage of the 2012 Three Strikes Reform Act, Oehmigen filed a petition for recall of his 1998 Three Strikes life term (Pen. Code, § 1170.126). He claimed that his commitment offense—assault by means of force likely to inflict great bodily injury (GBI)—was not a serious or violent felony and that neither his commitment offense nor his prior convictions came within other disqualifying criteria. In denying the petition, the trial court relied upon the prosecutor’s statement of the factual basis for the 1998 plea—that while evading police, Oehmigen used his car to commit an assault on two officers—to find that Oehmigen was armed with a deadly weapon (a car) and intended to inflict GBI during the commitment offense. The trial court concluded that Oehmigen’s failure to object to the recitation of the factual basis for the plea constituted an adoptive admission the court could consider in finding appellant ineligible for resentencing. Oehmigen appealed. Held: Affirmed. In certain circumstances, the silence of a defendant and his counsel in response to a prosecutor’s recitation of a factual basis for a guilty plea may constitute an adoptive admission, and those facts become a part of the record of conviction. (See People v. Sample (2011) 200 Cal.App.4th 1253, 1261-1265.) Here, the record was sufficient to establish an adoptive admission. Oehmigen and his attorney were silent as the prosecutor described the factual basis, which established that he was armed with a deadly weapon. The appellate court concluded it was unnecessary to determine whether the record established any other disqualifying criteria.

There is no due process right to a hearing on eligibility for resentencing under the Three Strikes Reform Act. On appeal, Oehmigen also argued that he was entitled to an evidentiary hearing on the issue of his eligibility for resentencing based on due process. The court disagreed. The issue of eligibility for Reform Act resentencing is not analogous to a hearing on a petition for habeas corpus, which is required upon a prima facie showing of relief based on a contested issue of fact. For resentencing under the Reform Act, “eligibility is not a question of fact that requires the resolution of disputed issues.” The facts may be derived from the record of conviction. The trial court determines as a matter of law whether the facts in the record establish eligibility for resentencing. Although there is no due process right to a hearing on the question of a defendant’s eligibility for resentencing under section 1170.126, a petitioner has a right to provide input in the form of briefing.