People v. Hubbard

Filed 8/24/18; Certified for Publication 9/11/18 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C082799

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

v.

SIDNEY SCOTT HUBBARD,

Defendant and Appellant.

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

1 Undesignated statutory references are to the Penal Code.

1

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) [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. (People 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 (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.)