People v. Huffman CA1/4

Filed 10/19/15 P. v. Huffman CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A142785 v. JOHN EDWARD HUFFMAN, (Del Norte County Super. Ct. No. 96056C) Defendant and Appellant.

I. Appellant John Edward Huffman appeals from the denial of his motion for resentencing under Penal Code section 1170.126,1 the Three Strikes Reform Act of 2012 (Proposition 36). He contends on appeal that the court erred in denying his motion because: (1) he was not present at the resentencing hearing despite his not having waived his right to be present; (2) his counsel provided ineffective assistance of counsel in connection with the resentencing motion and hearing; and (3) the trial court erred in applying retroactively the definition of “unreasonable risk of danger to public safety” set out in Proposition 47 to his section 1170.126 petition. Respondent concedes it was reversible error for the trial court to proceed with the disposition of the resentencing petition without appellant’s presence and in the absence of a valid waiver. Accordingly, we reverse the order denying the petition and remand the case to the superior court for a new hearing on the petition. Because we reverse on this

1 All further undesignated statutory references are to the Penal Code.

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procedural ground, we need not, and do not, address the alternative grounds asserted for reversal. II. In 1996 appellant was first charged in an information filed by the Del Norte County District Attorney with taking or driving a motor vehicle without the consent of the owner (Veh. Code, § 10851). He was also charged under the Three Strikes law with having two prior 1991 Oregon convictions: attempted rape and attempted sodomy. In May 1996, following his conviction for this offense by a jury, the court sentenced him to 25 years to life under the Three Strikes law. The judgment and sentence were appealed to this court, which were subsequently affirmed in a nonpublished opinion (People v. Huffman (Mar. 12, 1997, A074731)). In June 2013, appellant initiated resentencing proceedings under Proposition 36 by filing a request for appointment of counsel, stating that he “need[ed] attorney [sic] for Prop. 36 writ of Habe[as] Corpus . . . .” On April 7, 2014, appellant, who was then represented by counsel, filed a petition for recall of sentence pursuant to section 1170.126, alleging that he is eligible for resentencing because (1) he is serving a third- strike sentence for a conviction of a felony that is not defined as “serious” or “violent,” (2) his current sentence was not imposed for an offense appearing in section 667, subdivision (e)(2)(C)(i)-(iii) or section 1170.12, subdivision (c)(2)(C)(i)-(iii); and (3) he has no prior convictions for any such offenses. Four days later, on April 11, 2014,2 a hearing was held before the Honorable Chris Doehle. Appellant was then represented by attorney Dale Trigg. Appellant was not personally present at the hearing, but defense counsel indicated that counsel would waive appellant’s presence at the hearing on the petition if the prosecution stipulated to a finding that appellant did not pose an unreasonable risk of danger, and “the court [would] be in a position to just resentence him without him being here at that time[.]” Because appellant had already served his time if resentenced as a two-strike defendant, the court