California Court of Appeals, Third District, Sacramento
[REVIEW GRANTED BY CAL. SUPREME COURT]
APPEAL from a judgment of the Superior Court of Sacramento County No. 96F00664, Laurie M. Earl, Judge.
[Copyrighted Material Omitted]
George Bond and Deborah Prucha, under appointments by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Stephen G. Herndon, Deputy Attorney General, for Plaintiff and Respondent.
BUTZ, Acting P. J.
This appeal involves discerning the intent of the electorate. 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. (e)(2), as amended by Stats. 1994, ch. 12, § 1, p. 74.) The voters simultaneously created a retrospective process for a qualified recidivist defendant who was “presently serving” a former indeterminate life term.
(§ 1170.126, subd. (a).) A defendant can petition the original sentencing court for a recall of the sentence, and be resentenced to a determinate sentence of double the term that would otherwise apply to the commitment convictions (i.e., what a trial court would impose under the prospective amendments to the recidivist sentencing statutes) if this would otherwise not pose an unreasonable risk of danger to the public. (§ 1170.126, subds. (b), (f).)
Defendant Sidney Scott Hubbard filed a recall petition in December 2012. He alleged that in September 1996, a jury had found him guilty of attempted robbery and reckless evasion of a police pursuit, and sustained 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. Defendant requested that the trial court 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.
On appeal, defendant challenges this interpretation of section 1170.126. We agree with the trial court’s interpretation of the statute. As a result, this court will affirm the order, or in the alternative treat the ...