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People v. Tubbs

California Court of Appeals, Fifth District

October 10, 2014

THE PEOPLE, Plaintiff and Appellant,
v.
ABRAHAM ISAAC TUBBS, Defendant and Respondent.

[As modified Oct. 30, 2014.]

[CERTIFIED FOR PARTIAL PUBLICATION [*]]

APPEAL from a judgment of the Superior Court of Fresno County. No. CF97581807 Ralph Nunez, Judge. (Retired judge of the Fresno Sup.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Page 579

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Page 580

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Page 581

COUNSEL

Elizabeth A. Egan, District Attorney, Rudy Carrillo, Chief Deputy District Attorney, and Douglas O. Treisman, Deputy District Attorney, for Plaintiff and Appellant.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Respondent.

OPINION

Page 582

CORNELL, ACTING P.J.

Respondent Abraham Isaac Tubbs petitioned for resentencing pursuant to Penal Code section 1170.126, [1] commonly referred to as the Three Strikes Reform Act of 2012.[2] (People v. Superior Court (Kaulick)(2013) 215 Cal.App.4th 1279, 1285, 1289 [155 Cal.Rptr.3d 856] (Kaulick).) The trial court resentenced Tubbs on March 8, 2013, and ordered that Tubbs be subject to postrelease community supervision (PRCS) pursuant to section 3451 of the Postrelease Community Supervision Act of 2011 (the Act) for the period prescribed by law. Eleven days later, on March 19, the trial court, on its own and without notice to the parties, ordered its judgment be modified to omit any requirement that Tubbs be subject to PRCS. The trial court concluded it had no authority to order PRCS; thus, an unauthorized sentence had been imposed.

The People appeal from the March 19, 2013, modification, contending (1) modification of the March 8, 2013, sentence required notice and a hearing, and (2) any resentencing of Tubbs pursuant to the Act must include PRCS. We agree with the People and will reverse the March 19 order.

FACTUAL AND PROCEDURAL SUMMARY

Tubbs pled guilty to possession of cocaine and possession of cocaine for sale on April 1, 1997. At the time, Tubbs had two strike convictions and had served three prison terms. Tubbs was sentenced pursuant to the Three Strikes law as a third strike defendant.[3]

Tubbs petitioned for resentencing pursuant to section 1170.126 and a hearing on his petition was held on March 8, 2013. The People argued that Tubbs was an unreasonable risk to the community if released unless there was a plan in place to address Tubbs’s alcohol and substance abuse, such as a requirement he attend Alcoholics Anonymous and Narcotics Anonymous. The People also had a concern that Tubbs minimized his prior offenses and denied having sold or supplied narcotics to others, despite his prior plea to that offense.

The People conceded Tubbs was eligible for resentencing, however, and stated they were not opposing resentencing so ...


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