People v. Hubbard CA3

Filed 11/19/15 P. v. Hubbard CA3 On remand NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C073340

Plaintiff and Respondent, (Super. Ct. No. 96F00664)

v.

SIDNEY SCOTT HUBBARD, OPINION ON REMAND

Defendant and Appellant.

In the November 2012 general election, voters prospectively amended recidivist sentencing provisions for a defendant with two or more previous felony convictions. If a commitment conviction is not for a serious or violent felony (subject to a number of qualifications), the prescribed sentence now is double the term otherwise provided, instead of the formerly prescribed indeterminate term of life with varying minimums (generally 25 years). (Pen. Code, § 667, subd. (e)(1), (2)(A) & (C); cf. id., former subd.

1

(e)(2), as amended by Stats. 1994, ch. 12, § 1, p. 71.)1 The voters simultaneously created a retrospective process for a qualified recidivist defendant who was “presently serving” a former indeterminate life term, under which a defendant can petition the original sentencing court for a recall of the sentence, and be considered for resentencing to a determinate sentence of double the term otherwise provided for the commitment convictions (i.e., what a trial court would impose under the prospective amendments to the recidivist sentencing statutes) if resentencing the defendant would not otherwise pose an unreasonable risk of danger to the public. (§ 1170.126.)

Defendant Sidney Scott Hubbard filed a recall petition in December 2012.2 He alleged that in September 1996, a jury had found him guilty of attempted robbery and reckless evasion of a police pursuit, sustaining multiple allegations of prior convictions for serious felonies. The trial court (Hull, J.) sentenced defendant to consecutive indeterminate terms of 25 years to life for the convictions, along with six years for the enhancements.3 Defendant requested the trial court to resentence him on his conviction for reckless evasion because it was not a serious or violent felony and did not otherwise come within an exception to section 1170.126. The sentencing judge being unavailable (§ 1170.126, subd. (j)), the present trial court (Earl, J.) denied the recall petition without a hearing, finding defendant did not qualify for relief because one of his two commitment convictions was a serious and violent felony.