Opinion
E082918
05-03-2024
THE PEOPLE, Plaintiff and Respondent, v. CHAD ISAAC HUBER, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. SWF026085 John Molloy, Judge. Affirmed.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
Defendant and appellant Chad Isaac Huber appeals from postconviction orders denying his motion for resentencing under Penal Code section 1172.75 (former section 1171.1) and his motion to recall his case under section 1172.1. Defense counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), requesting this court to conduct an independent review of the record. In addition, defendant has had an opportunity to file a supplemental brief with this court and has not done so. For the reasons explained below, we exercise our discretion to conduct an independent review of the record and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II. FACTUAL AND PROCEDURAL BACKGROUND
A summary of the factual background is taken from this court's nonpublished opinion in defendant's direct appeal, case No. E052734. (People v. Huber (Feb. 21, 2012, E052734) [nonpub. opn.] (Huber I).) Unless otherwise indicated, part of the procedural background is taken from this court's nonpublished opinion in defendant's subsequent appeal, case No. E076622. (People v. Huber (Oct. 14, 2021, E076622) [nonpub. opn.] (Huber II).)
On June 29, 2008, after consuming alcohol at a local bar and while driving his "lifted" pickup truck at a high rate of speed in the opposing lane of traffic on a rural two-lane road near Lake Skinner, defendant struck an oncoming car head-on, causing the deaths of its three occupants, Andres and Maribeth Sanagustin, and their four-year-old son Angelo Sanagustin. Defendant then fled from the scene. (Huber I, supra, E052734.)
A jury found defendant guilty as charged of three counts of second degree murder (§ 187, subd. (a); counts 1-3) and one count of hit and run causing death (Veh. Code, § 20001, subds. (a), (b)(2); count 4). The jury also found true that defendant had suffered two prior serious felony convictions (§ 667, subd. (a)), two prior strike convictions (§ 667, subds. (c), (e)(2)(a)), and one prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to a determinate term of 40 years, to be followed by an indeterminate term of 160 years to life in prison. (Huber II, supra, E076622.)
Defendant subsequently appealed, contending, among others, that his second degree murder convictions must be reversed because insufficient evidence shows he acted with implied malice at the time of the fatal collision. On February 21, 2012, we concluded there was sufficient evidence of implied malice to sustain the convictions for second degree murder instead of vehicular manslaughter, affirmed the judgment, corrected some sentencing errors (including striking the two five-year prior serious felony enhancements under section 667, subdivision (a) and the prior prison term for insufficient evidence), and remanded to the trial court with directions to amend the determinate and indeterminate abstracts of judgment. (Huber I, supra, E052734; Huber II, supra, E076622.)
A June 8, 2012, minute order indicates that an unspecified prior was stricken, and that the punishment for the two prior serious felony enhancements under section 667, subdivision (a), were stricken as to count four. On July 23, 2012, an amended abstract of judgment was filed, noting that the prior prison term was stayed.
Following enactment of Proposition 36, which eliminated nonserious felonies from sentencing under the Three Strikes law, the trial court on August 8, 2016, granted defendant's petition under section1170.126 to have his conviction on count 4 for hit and run modified from an indeterminate sentence to a determinate sentence of eight years to run consecutively to the three 45-year-to-life indeterminate terms imposed on the murder convictions. (Huber II, supra, E076622.)
An amended abstract of judgment was filed on August 15, 2016, for the determinate sentence on count 4 for hit and run. This amended abstract of judgment reflects the new sentence on count 4 (a determinate term of eight years, plus 10 years for the two prior serious felony enhancements, for a total determinate term of 18 years) and does not include any mention of the one-year prior prison term. However, an amended abstract of judgment filed on the same date as to the indeterminate term continues to list the prior prison term as "stayed."
Following enactment of Senate Bill No. 1437, on January 4, 2021, defendant filed a petition for resentencing pursuant to section 1170.95, subdivision (a) (now § 1172.6). (Huber II, supra, E076622.) The trial court summarily denied defendant's petition on the ground that "he was the actual killer, one-defendant case." (Huber II, supra, E076622.) Defendant appealed, and his appointed counsel filed a brief pursuant to Wende/Anders. (Huber II, supra, E076622.) On October 14, 2021, we found no error and affirmed the order denying defendant's petition for resentencing. (Ibid.)
Meanwhile, on September 24, 2021, the trial court struck the five-year prior serious felony enhancement under section 667, subdivision (a), as to count 4, to align the abstract of judgment with this court's conclusion from the 2012 opinion in case No. E052734. At that hearing, the parties discussed confusion over whether an "S" on the abstract of judgment meant that an enhancement was stayed or stricken. The parties ultimately agreed that if an enhancement was "'fully stricken'" by the court, that it should not be listed at all on the abstract of judgment.
Following the hearing, fourth amended abstracts of judgment were filed on September 24, 2021. The fourth amended indeterminate abstract of judgment does not list either the prior serious felony enhancement (§ 667, subd. (a)) or the prior prison term enhancement (§ 667.5, subd.), and indicates an indeterminate term of 45 years to life as to the three counts of second degree murder (counts 1, 2 &3). The fourth amended determinate abstract of judgment indicates a determinate term of eight years on count 4, plus three section 667, subdivision (a) enhancements and does not list any enhancement under section 667.5, subdivision (b), for a total determinate term of 38 years.
On December 6, 2023, defendant's appointed counsel filed a motion for resentencing pursuant to section 1172.75 and to recall the matter under section 1172.1 because upon remand in 2012 defendant did not receive a full resentencing hearing. Defendant argued that all sentences with an invalid prison prior are eligible for full resentencing, regardless of whether the prior was imposed, stayed or stricken, and that postconviction factors support recalling and resentencing him under sections 1172.75 and 1172.1.
On December 29, 2023, following a hearing, the trial court found defendant ineligible for resentencing under sections 1172.75 and 1172.1. The court explained: "So since 2016, the defendant has not been serving any term for a prison prior. Because I'm looking at the 2016 abstract of judgment. It reflects a total aggregate term of 18 years arrived at by the upper term doubled on his offense, plus two nickel priors. The defendant is statutorily ineligible for relief. The suggestion that the resentencing that happened at that remittitur was inappropriate, the defendant was obliged -- if he believed he was entitled to more at that resentencing -- to file an appeal from that sentencing decision. [¶] This vehicle is not the appropriate vehicle to attack the improper resentencing that he's suggesting. He is not a person described by [section] 1172.75, has not been a person described by [section] 1172.75 since 2016. And so for that reason, I find that his presence here is [] wholly unnecessary. He is not serving a term for [section] 667.5[, subdivision] (b), prison prior that is no longer authorized by law. And relief is denied. To the extent that he has filed [a section] 1172.1, he is not a person who is currently authorized to have his sentence recalled pursuant to [section] 1172.1. So that request is denied." Defendant timely appealed.
III. DISCUSSION
After defendant appealed, we appointed counsel to represent defendant on appeal, and counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 setting forth a statement of the case, facts, and procedural background and asking us to conduct an independent review of the record. Under Anders, which requires "a brief referring to anything in the record that might arguably support the appeal" (Anders, supra, at p. 744), counsel raises the issues of whether (1) a petitioner is entitled to resentencing under section 1172.75 where a prior prison term was stricken by the court prior to the adoption of section 1172.75, and he was not at that time afforded a full resentencing hearing, and (2) whether the court should have considered his request to recall his sentence under section 1172.1.
When appealing from a postconviction order a defendant does not have a constitutional right to independent review under Anders/Wende if appellate counsel cannot identify any arguable issues. (People v. Delgadillo (2022) 14 Cal.5th 216, 227, 231.) Thus, we need not examine the entire record ourselves to look for arguable grounds for reversal. Nevertheless, the court is to inform the defendant that he may personally file a supplemental brief, and "[i]f the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Id. at p. 232.) "If the defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss the appeal as abandoned." (Ibid.) "If the appeal is dismissed as abandoned, the Court of Appeal does not need to write an opinion but should notify the defendant when it dismisses the matter." (Ibid.)
Here, after appellate counsel filed a brief notifying us defendant's appeal presented no arguable issues, we offered defendant an opportunity to file a personal supplemental brief, and he did not. However, a notice provided to the defendant may be "suboptimal" if the defendant "reasonably could have concluded" from it "that the Court of Appeal would conduct an independent review of the record, even absent a supplemental brief." (People v. Delgadillo, supra, 14 Cal.5th at p. 233.)
Here, the brief filed by defendant's appellate counsel and served on defendant does not mention Delgadillo. It instead states, "[t]he applicable law in this case is . . . Wende[, supra,] 25 Cal.3d 436 and Anders[, supra,] 386 U.S. 738." In addition, the notice provided to defendant was "suboptimal." The notice stated that counsel "has filed a brief stating no arguable issues can be found (. . . Wende[, supra,] 25 Cal.3d 436). The appellant is personally granted 30 days to file any supplemental brief deemed necessary." Because notice to defendant was suboptimal, we have examined the record to ensure that the appeal lacks merit, and we can discern that it does.
The appeal comes from the denial of the defendant's request for resentencing under section 1172.75 and to recall his sentence under section 1172.1. Section 1172.75 invalidates prior prison term enhancements imposed under section 667.5, subdivision (b), before January 1, 2020. Following August 2016, defendant's sentence does not include a prior prison term enhancement. Thus, the court correctly found defendant ineligible for resentencing under that section.
In addition, section 1172.1 does not apply to defendant. Under section 1172.1, a "court may, within 120 days of the date of commitment on its own motion, at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced ...." (§ 1172.1, subd. (a)(1).) Thus, only a court, the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings, a county correctional administrator, a district attorney, or the Attorney General may recommend or otherwise seek resentencing under section 1172.1. The statute does not authorize the defendant themselves to recommend or seek resentencing. We thus lack the authority to render a decision on the merits of appeals from a defendant's attempt to seek resentencing under section 1172.1. (People v. Hernandez (2019) 34 Cal.App.5th 323, 326.)
We have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV. DISPOSITION
The trial court's orders denying defendant's motion for resentencing under section 1172.75 and motion to recall the sentence pursuant to section 1172.1 are affirmed.
We concur: McKINSTER Acting P. J., FIELDS J.