The People v. Hume CA3

Filed 8/30/13 P. v. Hume CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, C072706

Plaintiff and Respondent, (Super. Ct. No. CRF1212)

v.

MARCUS NELSON HUME,

Defendant and Appellant.

Defendant Marcus Nelson Hume pleaded guilty to second degree murder and admitted both a prior strike and having discharged a firearm causing great bodily injury or death. In exchange, the People agreed defendant would serve a stipulated sentence of 55 years to life. Defendant’s ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offenses and the proceedings in the trial court.

1

On September 11, 2012, an amended information was filed accusing defendant of second degree murder. (Pen. Code, § 187, subd. (a).) It was further alleged that defendant used a firearm to commit his crime (id., former § 12022.5, subd. (a)), personally used and discharged a firearm causing great bodily injury or death (id., former § 12022.53), and had two prior strikes. Defendant pleaded guilty to second degree murder, admitted one strike, and admitted using a firearm to cause great bodily injury or death, in return for the dismissal of the remaining allegations and a stipulated sentence of 55 years to life (15 years to life, doubled for the strike, plus 25 years to life for the firearm discharge). The trial court awarded defendant 291 days of presentence custody credit. The court imposed a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), a suspended $10,000 restitution fine (id., § 1202.45), a $30 criminal conviction fee (Gov. Code, § 70373), and a $40 court operations fee (Pen. Code, § 1465.8, subd. (a)(1)). The court also ordered victim restitution totaling $10,018.91 ($4,838.91—pursuant to Pen. Code, § 1202.4, subd. (f)— and $5,180 to the restitution fund—pursuant to Pen. Code, § 1202.46), reserving the right to increase the amount later. According to Marysville Police Department report No. 1112-2364, to which counsel stipulated as the factual basis for the plea, on December 31, 2011, defendant, along with several of his friends, planned to enter the victim’s home and assault him. Upset about a sex tape the victim made with defendant’s girlfriend, defendant made repeated statements that he was going to kill the victim. An elaborate scheme was then put in place. Some of defendant’s friends were to stand by as “lookouts,” another (Kari M.) was to call Amber H. (the victim’s girlfriend) to see if the victim was home, and others planned to “back up” defendant if there were problems. Kari called Amber and learned the victim was not home. Kari told Amber she was coming over with some friends, despite Amber’s asking her not to come over. The individuals responsible for lookout duty assumed their position while defendant and