People v. Hurtado CA5

Filed 11/17/21 P. v. Hurtado CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081639 Plaintiff and Respondent, (Super. Ct. No. F15906007) v.

JOSHUA MARCELLO HURTADO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell III, Judge. Moran Law Firm, Amanda K. Moran and Janay D. Kinder for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Peña, J. and De Santos, J.

INTRODUCTION In defendant Joshua Marcello Hurtado’s prior appeal, we remanded for the trial court to consider whether to exercise its discretion to strike or dismiss firearm enhancements imposed on counts 1 through 3 (Pen. Code, 1 § 12022.53, subd. (b), counts 1 & 2; § 12022.5, subd. (a), count 3), and to strike a prior prison term enhancement (§ 667.5, former subd. (b)). On remand, the court did not hold a hearing, but instead issued a minute order in which it declined to strike the firearm enhancement to count 1. In this second appeal, defendant contends the trial court erred in failing to hold a resentencing hearing at which defendant had the right to be present with counsel. The People concede error. We accept the People’s concession and reverse. FACTUAL AND PROCEDURAL BACKGROUND On September 5, 2015, defendant went with two codefendants to the home of an acquaintance, held the acquaintance at gunpoint and took various items, drove the acquaintance away in the acquaintance’s car and, before the acquaintance’s eventual escape, told the acquaintance not to say anything or he would face consequences. On June 22, 2017, a jury convicted defendant of kidnapping to commit a robbery (§ 209, subd. (b)(1); count 1), kidnapping to commit a carjacking (§ 209.5, subd. (a); count 2), and criminal threats (§ 422; count 3), and found true a firearm enhancement as to each count (§ 12022.53, subd. (b), counts 1 & 2; § 12022.5, subd. (a), count 3). Defendant later admitted a prior prison term enhancement. (§ 667.5, former subd. (b).) On April 13, 2018, the court sentenced defendant on count 1 to a term of life with the possibility of parole, plus 10 years for the firearm enhancement and one year for the prior prison term enhancement. Sentence on count 2, including firearm and prior prison term enhancements, was stayed pursuant to section 654. On count 3, the court sentenced