People v. Hughes CA5 ( 2024 )

Filed 10/21/24 P. v. Hughes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F086858
Plaintiff and Respondent,
(Super. Ct. No. CRF08-0007045)
v.
BERNARD CHARLES HUGHES, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Mariposa County. Dale J.
Blea, Judge.
Bernard Charles Hughes, in pro. per.; and Rachel Varnell, under appointment by
the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jesica Y. Gonzalez,
Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Snauffer, J.
Defendant Bernard Charles Hughes was convicted of first degree residential
burglary and sentenced to three consecutive 25-year-to-life terms, plus 10 years for
having two prior serious felony convictions and three years for serving three prior prison
terms. In 2022, defendant filed a petition for resentencing pursuant to Penal Code1
section 1172.75.2 At the resentencing hearing, the trial court struck the three one-year
prior prison term enhancements but did not conduct a full resentencing hearing.
Defendant argues that the trial court erred by not conducting a full resentencing, and the
People agree. The matter will be remanded for a full resentencing hearing in compliance
with section 1172.75.
PROCEDURAL BACKGROUND
On May 28, 2010, a jury convicted defendant of first degree residential burglary
(§ 459; count I), possession of a firearm by a felon (former § 12021, subd. (a)(1); counts
II, V), possession of ammunition by a felon (former § 12316, subd. (b)(1); count III),
receiving stolen property (§ 496, subd. (a); count IV), and falsifying a license plate
(former § 4463, subd. (a)(1); count VII). After defendant waived his right to a jury trial
as to the prior conviction allegations, the trial court held a bifurcated court trial and found
true the allegations that defendant had been convicted of two prior “strike” convictions
within the meaning of the “Three Strikes” law (currently codified at §§ 667, subds. (b)–
(i), 1170.12, subds. (a)–(d)), convicted of two prior serious felony convictions (§ 667,
subd. (a)(1)), and sentenced to three prior prison terms (former § 667.5, subd. (b)).
The trial court sentenced defendant on December 17, 2010, to an aggregate prison
term of 75 years to life (counts I, V, VII), plus five years for each prior serious felony
1 Undesignated statutory references are to the Penal Code.
2 Defendant’s declaration was labeled as a request pursuant to Senate Bill No. 483 (2021–
2022 Reg. Sess.) (Senate Bill 483), which enacted former section 1171.1 (now § 1172.75).
2.
conviction and three years for the three prior prison terms, and stayed the sentences for
the remaining counts.
Defendant filed a petition pursuant to section 1170.126 on April 4, 2022. His
petition sought resentencing of counts V and VII pursuant to section 1170.126, which
were not violent or serious offenses and no longer supported third strike sentencing after
2012.3 Defendant had filed a similar petition in 2014, which the court denied in 2016
after finding that resentencing posed a danger to public safety. Defendant also filed a
declaration on April 4, 2022, and requested resentencing pursuant Senate Bill 483, which
enacted former section 1171.1 (now § 1172.75). On July 30, 2022, the trial court
received notification from the Department of Corrections and Rehabilitation that
defendant was serving a sentence that included a prior prison term enhancement.4
Defendant’s motions were addressed by the trial court on December 5, 2022. The
court noted that defendant failed to appeal the denial of his earlier petition and that the
3 On November 6, 2012, the electorate passed Proposition 36 which prospectively reduced
the punishment previously proscribed for certain defendants convicted of a third strike offense.
(Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012); see Cal. Const., art. II, § 10,
subd. (a).) Additionally, as stated above, it created a “ ‘retroactive relief procedure’ ” for certain
inmates serving an indeterminate, third strike sentence under the former Three Strikes law.”
(People v. Valencia (2021) 64 Cal.App.5th 641, 647.) The then newly enacted resentencing
procedure allows an inmate to file “a petition for a recall of sentence” within two years of
Proposition 36’s effective date “or at a later date upon a showing of good cause.” (§ 1170.126,
subd. (b).) An inmate is eligible for resentencing if serving an indeterminate third strike
sentence for a felony that is no longer considered serious or violent and was not convicted or
previously convicted of certain enumerated and disqualifying offenses. (§ 1170.126, subd. (e).)
If eligible for resentencing, the trial court shall resentence the petitioner unless the court
determines, in its discretion, “that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (§ 1170.126, subd. (f).) The time to petition for recall of sentence
pursuant to Proposition 36 expired in November 2014. (§ 1170.126, subd. (b).) Since that time,
an inmate may bring a recall petition only upon a showing of good cause for the delay. (Ibid.)
4 Although section 1172.75 does not provide for a defendant to initiate a petition to set
aside his prison prior enhancements, we have held that a subsequent notification by the
Department of Corrections and Rehabilitation to the court that the defendant is eligible triggers
the trial court’s statutory authority to resentence the defendant pursuant to section 1172.75.
(People v. Cota (2023) 97 Cal.App.5th 318, 330.)
3.
current section 1170.126 petition was beyond the two-year limitation period for filing
such motion. The court set a further hearing as to that issue for counsel to perform
additional research. Addressing defendant’s petition pursuant to section 1172.75, the
parties agreed that the three one-year prior prison term enhancements should be stricken.
The court ordered the enhancements stricken and for probation to prepare supplemental
information for resentencing, which was set for March 6, 2023.
At defendant’s request, the trial court continued the matters three times and held a
further hearing on August 14, 2023. However, rather than resentencing defendant, the
court commented that it had granted defendant’s section 1172.75 petition, struck his prior
prison term enhancements, assumed that the amended abstract of judgment reducing
defendant’s determinate term from 13 years to 10 years had been issued, and ordered an
amended abstract of judgment to issue if it had not previously issued. The court denied
defendant’s request for relief pursuant to sections 1170.22 and 1170.126.
Defendant filed his timely notice of appeal on September 21, 2023.5
DISCUSSION
At the time defendant was sentenced, former section 667.5, subdivision (b)
required that the trial court “impose a one-year term for each prior separate prison term
served for any felony” that defendant had served if he had not remained free of custody
for at least five years. (Stats. 2006, ch. 337, § 30.) Senate Bill No. 136 (2019–2020 Reg.
Sess.) (Senate Bill 136) amended section 667.5, subdivision (b) to limit prior prison term
enhancements to prior prison terms that were served for a sexually violent offense as
defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5,
subd. (b), as amended by Stats. 2019, ch. 590, § 1, pp. 1–4, eff. Jan. 1, 2020.) As an
amendment that ameliorated criminal punishment, Senate Bill 136 applies retroactively to
5 Defendant did not raise any arguments as to the sections 1170.22 and 1170.126 petitions
in this appeal.
4.
cases that were not final when the amendment took effect. (In re Estrada (1965)
63 Cal.2d 740, 745; People v. Smith (2020) 46 Cal.App.5th 375, 396.)
The Legislature then passed Senate Bill 483 and enacted former section 1171.1 to
address those defendants whose sentences were final before section 667.5,
subdivision (b) took effect, except for any enhancement imposed for a prior conviction
for a sexually violent offense, and declared such enhancements legally invalid. (Former
§ 1171.1, subd. (a), added by Stats. 2021, ch. 728, § 3, now § 1172.75, subd. (a).)6 The
Secretary of the Department of Corrections and Rehabilitation and the county
correctional administrator of each county are directed to identify individuals in custody
and “currently serving a term for a judgment that includes an enhancement described in
[section 1172.75, ]subdivision (a)” and to provide the information to the court who
sentenced the individuals identified. (§ 1172.75, subd. (b).) The court is then directed to
review the judgment, and if it included a sentencing enhancement “described in
[section 1172.75,] subdivision (a),” to “recall the sentence and resentence the defendant.”
(§ 1172.75, subd. (c).) The Secretary and courts are directed to prioritize defendants who
have served their base term and any other enhancement and are currently serving a
sentence based on the enhancement. (§ 1172.75, subds. (b)(1), (c)(1).)
Resentencing shall not result in a longer sentence and “shall result in a lesser
sentence than the one originally imposed as a result of the elimination of the repealed
enhancement, unless the court finds by clear and convincing evidence that imposing a
lesser sentence would endanger public safety.” (§ 1172.75, subd. (d)(1).) Additionally,
the court shall apply the sentencing laws currently in effect and may consider enumerated
postconviction factors that reflect the defendant’s reduced risk of future violence and that
6 Effective June 30, 2022, the Legislature renumbered section 1171.1 to section 1172.75
without substantive change to the statute. (Stats. 2022, ch. 58, § 12.) We shall refer to
section 1172.75.
5.
circumstances have changed such that the defendant’s continued incarceration is no
longer in the interest of justice. (§ 1172.75, subd. (d)(2), (3).)
In this matter, it appears that the trial court acknowledged the invalidity of
defendant’s prior prison term enhancements and granted defendant’s section 1172.75
petition, ordered probation to provide supplemental information for resentencing, and set
a resentencing hearing. However, due to numerous continuances to address defendant’s
sections 1170.22 and 1170.126 petitions, the court and parties failed to recognize that
resentencing pursuant to section 1172.75 had not taken place. Defendant was entitled to
a full resentencing after the court granted his section 1172.75 petition, and the court erred
in failing to do so.
DISPOSITION
The matter is remanded to the trial court for a full resentencing hearing in
compliance with section 1172.75.
6.