Filed 10/19/15 P. v. Huffman CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142785
v.
JOHN EDWARD HUFFMAN,                                                 (Del Norte County
                                                                     Super. Ct. No. 96056C)
         Defendant and Appellant.


                                                             I.
         Appellant John Edward Huffman appeals from the denial of his motion for
resentencing under Penal Code section 1170.126,1 the Three Strikes Reform Act of 2012
(Proposition 36). He contends on appeal that the court erred in denying his motion
because: (1) he was not present at the resentencing hearing despite his not having waived
his right to be present; (2) his counsel provided ineffective assistance of counsel in
connection with the resentencing motion and hearing; and (3) the trial court erred in
applying retroactively the definition of “unreasonable risk of danger to public safety” set
out in Proposition 47 to his section 1170.126 petition.
         Respondent concedes it was reversible error for the trial court to proceed with the
disposition of the resentencing petition without appellant’s presence and in the absence of
a valid waiver. Accordingly, we reverse the order denying the petition and remand the
case to the superior court for a new hearing on the petition. Because we reverse on this


         1
             All further undesignated statutory references are to the Penal Code.


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procedural ground, we need not, and do not, address the alternative grounds asserted for
reversal.
                                               II.
       In 1996 appellant was first charged in an information filed by the Del Norte
County District Attorney with taking or driving a motor vehicle without the consent of
the owner (Veh. Code, § 10851). He was also charged under the Three Strikes law with
having two prior 1991 Oregon convictions: attempted rape and attempted sodomy.
       In May 1996, following his conviction for this offense by a jury, the court
sentenced him to 25 years to life under the Three Strikes law. The judgment and
sentence were appealed to this court, which were subsequently affirmed in a
nonpublished opinion (People v. Huffman (Mar. 12, 1997, A074731)).
       In June 2013, appellant initiated resentencing proceedings under Proposition 36 by
filing a request for appointment of counsel, stating that he “need[ed] attorney [sic] for
Prop. 36 writ of Habe[as] Corpus . . . .” On April 7, 2014, appellant, who was then
represented by counsel, filed a petition for recall of sentence pursuant to section
1170.126, alleging that he is eligible for resentencing because (1) he is serving a third-
strike sentence for a conviction of a felony that is not defined as “serious” or “violent,”
(2) his current sentence was not imposed for an offense appearing in section 667,
subdivision (e)(2)(C)(i)-(iii) or section 1170.12, subdivision (c)(2)(C)(i)-(iii); and (3) he
has no prior convictions for any such offenses.
       Four days later, on April 11, 2014,2 a hearing was held before the Honorable Chris
Doehle. Appellant was then represented by attorney Dale Trigg. Appellant was not
personally present at the hearing, but defense counsel indicated that counsel would waive
appellant’s presence at the hearing on the petition if the prosecution stipulated to a
finding that appellant did not pose an unreasonable risk of danger, and “the court [would]
be in a position to just resentence him without him being here at that time[.]” Because
appellant had already served his time if resentenced as a two-strike defendant, the court

       2
            All further dates are in the calendar year 2014 unless otherwise indicated.


                                                2
indicated “it would be my anticipation if he’s resentenced at that time there would be an
order that he be released.” The matter was put over to May 2 for a further hearing.3
       A further hearing on the petition took place on August 4.4 This time appellant was
represented by new counsel, Karen Olson, and the prosecution appeared through Deputy
Attorney General Brian Newman. Ms. Olson reiterated that the file indicated appellant
had waived his presence through counsel for resentencing: “It’s anticipated he will be
resentenced and he’ll be released.” Mr. Newman stated that it appeared to him that a
sentencing hearing was contemplated and that appellant would not waive his personal
appearance. Newman indicated too that a telephonic appearance by him might be
appropriate inasmuch as “[i]t sounds like there—this is mostly a technical issue is just
what I’m gathering from the court.” The court stated its intention to set a hearing and to
take steps to have appellant transported from custody to attend the hearing. The matter
was put over to August 12.
       The August 12 hearing began by the court reciting that Ms. Olson had waived
appellant’s presence at the hearing. Mr. Newman then made the following statement:
“Your Honor, until the court called my office a moment ago I did not know about this
case and had not looked inside of the file, so I am completely unable to respond to any
questions or argue in any fashion or concede the argument because I just don’t have
anything to do it with.”
       In light of the prosecutor’s comment, the court continued the hearing again to the
following day—August 13.
       The next day, the court again recited without inquiry that appellant “is
incarcerated and his presence has been waived for the purpose of today’s hearing.” In
calling on Mr. Newman to comment on the petition, the prosecutor for the first time
       3
         At the May 2 hearing, the court simply received a report from the prosecution
and the matter was taken under submission.
       4
           The clerk’s transcript indicated the hearing was held on August 4, while the
reporter’s transcript indicated the hearing was on August 14. In the context of the rest of
the trial court record, it appears the clerk’s transcript is correct and the reporter’s
transcript is in error.


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indicated his opposition to the petition, arguing that appellant posed an unreasonable
danger to the public should he be released from prison. Counsel then proceeded to
discuss at considerable length those factors gleaned from the file which supported his
opposition to the petition.
       At the conclusion of both counsels’ remarks, the court denied the petition.
                                            III.
       Although reciting that appellant had waived his presence at the hearing on his
resentencing petition, no such waiver appears in the record. In fact, at times during the
numerous hearings there were indications that no waiver had been made and that
arrangements were being made to have appellant transported from custody to attend the
hearing. At best, it appears that any consideration of waiver was occasioned by the
expectation that the prosecution would not oppose the petition, and that the court would
similarly find him to be suitable for resentencing and release.
       Of course, there is no question that appellant had a right to attend the resentencing
hearing. The resentencing scheme under the Three Strikes Reform Act of 2012
specifically contemplates a personal appearance by the petitioner: “(i) Notwithstanding
subdivision (b) of Section 977, a defendant petitioning for resentencing may waive his or
her appearance in court for the resentencing, provided that the accusatory pleading is not
amended at the resentencing, and that no new trial or retrial of the individual will occur.
The waiver shall be in writing and signed by the defendant.” (§ 1170.126, subd. (i).)
       Respondent not only concedes error, but also that prejudice occurred from
appellant’s absence from the resentencing hearing. (People v. Rodriguez (1998) 17
Cal.4th 253, 258.) We agree. Therefore, the order denying appellant’s resentencing
petition is vacated and this matter is remanded for a rehearing either with appellant
present, or with his waiver duly noted and filed with the court.




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                                           IV.
                                     DISPOSITION
       The order denying appellant’s resentencing petition is vacated and this matter is
remanded for a rehearing either with appellant present, or with his waiver duly noted and
filed with the court.




                                                 _________________________
                                                 RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
STREETER, J.




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