People v. Hubbard CA3

Filed 2/15/23 P. v. Hubbard CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C094997

Plaintiff and Respondent, (Super. Ct. No. CRF21-00061)

v.

JOSEPH WILBERT HUBBARD III,

Defendant and Appellant.

Defendant Joseph Wilbert Hubbard III pleaded no contest and agreed to the middle term sentence of three years on one count of domestic violence (Pen. Code, § 273.5, subd. (a)).1 Defendant contends that this case should be remanded for resentencing, because the changes made to section 1170, subdivision (b) by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) make the lower term the

1 Undesignated statutory references are to the Penal Code.

1

presumptive term where psychological trauma contributed to defendant’s commission of the offense.2 (§ 1170, subd. (b)(6).) We will affirm the judgment. I FACTUAL AND PROCEDURAL BACKGROUND The underlying facts are not pertinent to the resolution of this case. In sum, on January 10, 2021, defendant struck his wife in the face with his fist causing her to bleed from her nose and mouth. On January 20, 2021, defense counsel expressed doubt about defendant’s mental competence under section 1368. The trial court suspended proceedings and ordered a psychological evaluation of defendant. Some seven months later, on August 27, 2021, the trial court noted that defendant had been certified competent and was receiving medication.3 On September 8, 2021, defendant pleaded no contest to a charge of domestic violence (§ 273.5) in exchange for a stipulated middle term sentence of three years. On October 4, 2021, the trial court sentenced defendant to the middle term of three years, noting that it found the stipulated sentence appropriate. Defendant filed a timely appeal. The case was fully briefed on December 5, 2022.

2 Defendant mistakenly refers to section 1170, subdivision (b)(6) as enacted by Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5). Senate Bill No. 567, which contained similar amendments to section 1170, subdivision (b)(6) as Assembly Bill No. 124 but was signed later and bears a higher chapter number, prevails over the amendments in Assembly Bill No. 124. (People v. Jones (2022) 79 Cal.App.5th 37, 44, fn. 11.) 3 Although the record on appeal does not include the superior court’s clerk transcript for hearing dates between January 20, 2021, and August 27, 2021, it appears that defendant was found incompetent during that time period, as the Certification of Mental Competency from the medical director at Atascadero State Hospital, references defendant having been committed under section 1370 on March 12, 2021.