People v. Hibbard CA3

Filed 12/23/20 P. v. Hibbard CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE, C090609

Plaintiff and Respondent, (Super. Ct. No. PR940086)

v.

RICHARD HIBBARD,

Defendant and Appellant.

Defendant Richard Hibbard appeals the denial of his Penal Code section 1170.911 petition for resentencing arguing the trial court prejudicially erred in failing to find him eligible for resentencing despite his showing that he may have suffered from substance abuse because of his military service. Defendant argues nothing in section 1170.91 required him to affirmatively demonstrate that his “substance abuse problems resulted

1 Further undesignated statutory references are to the Penal Code.

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from military service, but merely to show that a reasonable person could infer that the military service caused or exacerbated the problem.” Thus, he reasons that his teenage drug use did not alter that he had established his eligibility for relief by presenting evidence that he had a substance abuse problem in the military, which ultimately resulted in his discharge. We find defendant is ineligible for resentencing for another, more fundamental reason. As we shall explain, defendant is ineligible for resentencing under section 1170.91 because defendant’s indeterminate sentence and sentencing enhancement were not imposed pursuant to section 1170, subdivision (b), thus rendering section 1170.91 inapplicable. BACKGROUND On March 17, 1995, a jury convicted defendant of second degree murder (§ 187) and found true the special enhancement that he had used a firearm in the commission of the offense (§ 12022.5, subd. (a)). On May 12, 1995, defendant received a sentence of 15 years to life for the murder and a consecutive term of five years for the firearm enhancement. We affirmed this judgment in an unpublished opinion, People v. Hibbard (Mar. 18, 1996, C021065) [nonpub. opn.]. Because this case turns on the ineligibility stemming from defendant’s sentence and not the particulars of the crime itself, we will not recount the details of the murder here. Thereafter, on June 5, 2019, defendant petitioned for modification of his sentence under section 1170.91, arguing his substance abuse and mental health disorder resulting from military service were not considered in mitigation at sentencing. In support of this motion, defendant submitted both pre and postconviction materials, including the presentencing report prepared by probation, as well as certain military records. Defendant argued these materials showed he had no history of alcohol abuse when entering the military, that he began using drugs and alcohol to cope with the stresses associated with being in the military, and that he was ultimately discharged from the