People v. Hubbard

237 Cal. Rptr. 3d 755, 27 Cal. App. 5th 9
CourtCalifornia Court of Appeal, 5th District
DecidedAugust 24, 2018
DocketC082799
StatusPublished
Cited by28 cases

This text of 237 Cal. Rptr. 3d 755 (People v. Hubbard) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Hubbard, 237 Cal. Rptr. 3d 755, 27 Cal. App. 5th 9 (Cal. Ct. App. 2018).

Opinion

BUTZ, Acting P. J.

Defendant Sidney Scott Hubbard, a three strikes prisoner who was serving an indeterminate life sentence, successfully filed a petition for resentencing under Proposition 36. ( Pen. Code, § 1170.126.)1 On appeal, he contends the trial court erred in resentencing him because it improperly refused to consider all aspects of his sentence, including exercising its discretion under section 1385. Defendant further argues we should remand the matter for consideration of concurrent sentences and the application of section 654. We will vacate the sentence and remand the matter to the trial court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant received a third strike sentence in 1996, based on the commission of attempted robbery ( Pen. Code, §§ 664, 211 ) and reckless evasion of a police pursuit ( Veh. Code, § 2800.2 ), with enhancements for five prior strikes ( Pen. Code, § 667, subds. (b) - (i) ) and two prior prison terms ( Pen. Code, § 667.5, subd. (b) ). ( People v. Hubbard (Nov. 19, 2015, C073340) 2015 WL 7302197 [nonpub. opn.]; People v. Hubbard (Jan. 12, 1999, C025306) [nonpub. opn.].) We affirmed his conviction in 1999. (People v. Hubbard , supra , C025306.)

In 2012, the trial court denied defendant's petition for relief under section 1170.126 because one of his two commitments was a disqualifying serious and violent felony, and he appealed. ( *757People v. Hubbard , supra , C073340.) In 2014, we affirmed, but our Supreme Court granted review. ( Ibid. ) Upon deciding People v. Johnson (2015) 61 Cal.4th 674, 189 Cal.Rptr.3d 794, 352 P.3d 366 ( Johnson ), our Supreme Court remanded the matter to this court. ( People v. Hubbard , supra , C073340.) In November 2015, we reversed the order denying the petition for recall of sentence for the reckless evasion conviction and remanded the matter to the trial court to "determine if defendant presents an unreasonable risk of danger to the public if resentenced." ( Ibid . )

On remand, defendant filed a request for discretionary relief under section 1385 and People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628, arguing that he had achieved many good deeds in prison over the past 20 years. The prosecution conceded defendant was not an unreasonable risk to public safety and not ineligible for resentencing on the reckless evasion count. However, the prosecution opposed the Romero motion, arguing it was previously heard and denied by the trial court, and defendant had failed to point to any error. In addition, there could be no resentencing on the attempted robbery count or consideration of the strikes because, "[t]hat was not sent back on remittitur from the [Court of Appeal]." Defendant argued the trial court had jurisdiction to reconsider all of the sentencing choices.

In July 2016, the trial court agreed defendant was eligible for resentencing on the reckless evasion charge but concluded it lacked jurisdiction to consider or otherwise resentence defendant with respect to the strike convictions for the attempted robbery charge, based on the limited direction from this court on remand. The trial court sentenced defendant to a consecutive indeterminate term of 25 years to life for the attempted robbery, and for the reckless evasion, a separate upper term of three years, doubled to six years due to the strike, plus five years for the prior serious conviction, plus one year for the prior prison term (totaling 12 years).

In August 2016, defendant requested resentencing, arguing the full upper consecutive term for the reckless evasion conviction was unlawful under section 1170.1. Defendant also argued he was entitled to additional custody credits. The trial court granted defendant additional custody credits but otherwise denied defendant's motion.

Defendant filed a timely appeal.

DISCUSSION

Relying on People v. Garner (2016) 244 Cal.App.4th 1113, 198 Cal.Rptr.3d 784 ( Garner ), defendant contends the trial court should have considered "all aspects" of his sentence during the resentencing hearing. According to defendant, the trial court should have considered exercising its discretion under section 1385, whether concurrent sentences were appropriate, and the application of section 654. The People disagree, relying on Johnson , supra , 61 Cal.4th at page 688, 189 Cal.Rptr.3d 794, 352 P.3d 366 for the proposition that section 1170.126 's resentencing provisions apply on a count-by-count basis. We agree with defendant and will remand the matter for resentencing.

In Garner , the defendant was convicted of receiving stolen property and admitted three prior prison terms and four strikes. ( Garner, supra , 244 Cal.App.4th at p. 1115, 198 Cal.Rptr.3d 784.) The trial court originally imposed a sentence of 25 years to life for the receipt of stolen property conviction and struck one strike and the punishment for the prior prison *758terms.2 ( Id. at pp. 1115-1116, 198 Cal.Rptr.3d 784.) The defendant successfully petitioned for recall of sentence under Proposition 36. ( Garner , at p. 1116, 198 Cal.Rptr.3d 784.) After finding that it retained discretion over all aspects of defendant's sentence, the trial court imposed a six-year term for the receipt of stolen property conviction and three consecutive one-year terms for the prior prison terms. ( Ibid . ) On appeal, we affirmed the trial court's decision, reasoning that a "recall" of sentence under Proposition 36 must be treated the same as a recall of sentence under section 1170, subdivision (d). ( Garner , at p.

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Cite This Page — Counsel Stack

Bluebook (online)
237 Cal. Rptr. 3d 755, 27 Cal. App. 5th 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hubbard-calctapp5d-2018.