Filed 8/19/14
                           CERTIFIED FOR PUBLICATION




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                            THIRD APPELLATE DISTRICT
                                       (Sacramento)
                                            ----




THE PEOPLE,                                                     C073340

                Plaintiff and Respondent,              (Super. Ct. No. 96F00664)

        v.

SIDNEY SCOTT HUBBARD,

                Defendant and Appellant.



       APPEAL from a judgment of the Superior Court of Sacramento County, Laurie M.
Earl, Judge. Affirmed.

      George Bond and Deborah Prucha, under appointment by the Court of Appeal, for
Defendant and Appellant.

      Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Stephen G. Herndon, Deputy Attorney General, for Plaintiff and Respondent.


        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

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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, subds. (e)(1), (e)(2)(A) & (C); cf. id., former subd. (e)(2), as amended by Stats.
1994, ch. 12, § 1, p. 74.)1 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 2012.2 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.3 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


1 Undesignated statutory references are to the Penal Code.

2 Accordingly, we do not need to address whether defendants with sentences not yet
final on appeal at the time of the 2012 amendments to section 667 are entitled to
application of the revised sentencing provisions without filing a petition for recall
pursuant to section 1170.126. (People v. Yearwood (2013) 213 Cal.App.4th 161
(Yearwood) [no retroactive effect]; People v. Conley (2013) 215 Cal.App.4th 1482,
review granted August 14, 2013, S211275.)
3 We affirmed the judgment, the record in which we have incorporated by reference at
defendant’s request. (People v. Hubbard (Jan. 12, 1999, C025306) [nonpub. opn.].)


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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 appeal as a petition for a writ of habeas corpus and
deny it.

       The facts underlying defendant’s convictions are not relevant to the issues on
appeal and we shall omit them as a result. We also do not need to add any additional
procedural facts from the present proceeding to those described in this introduction.

                                        DISCUSSION

                Eligibility Under Section 1170.126 Is Determined by the
                       Judgment as a Whole and Not Per Offense

       The language in section 1170.126 is not pellucid about the statute’s application to
a petitioning defendant who is presently sentenced to a hybrid indeterminate life sentence
composed of indeterminate life terms for both qualifying and disqualifying offenses.
It declares its intent to apply “exclusively to persons presently serving an indeterminate
term of imprisonment . . . whose sentence . . . would not have been an indeterminate life
sentence” under the 2012 amendments to section 667. (§ 1170.126, subd. (a), italics
added.) It then authorizes “[a]ny person serving an indeterminate term of life
imprisonment” under former section 667 “upon conviction . . . of a felony or felonies that
are not defined as serious and/or violent felonies” to file a recall petition for sentencing
under the present provisions. (§ 1170.126, subd. (b), italics added.) The petition must
include “all of the currently charged [sic] felonies[ ] [that] resulted in the sentence”
presently served, along with all the findings of prior serious or violent felony convictions.

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(Id., subd. (d), italics added.) The inmate is “eligible” for relief if “serving an
indeterminate term of life imprisonment . . . for a conviction of a felony or felonies that
are not defined as serious and/or violent felonies” (id., subd. (e)(1), italics added) and the
“current sentence was not imposed for any of the offenses” specified in other exceptions
to the statute (id., subd. (e)(2), italics added [cross-referencing § 667, subds. (e)(2)(C)(i-
iii)].) Certain prior convictions also disqualify an inmate. (§ 1170.126, subd. (e)(3)
[cross-referencing § 667, subd. (e)(2)(C)(iv)].)4 Upon “receiving” the petition, the trial
court determines whether the inmate is eligible for resentencing; upon a finding of
eligibility, the trial court then “shall” resentence the inmate under the 2012 amendments
to section 667 (i.e., a doubled prison term) unless it determines in its discretion that the
resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126,
subd. (f).)

       Section 1170.126 does not expressly refer to a hybrid indeterminate life sentence
such as defendant’s. We look to the plain language of the statute to determine its proper
application. We should give primacy to subdivision (a) of the statute because it is a
declaration of purpose.5 It states that the statute is intended to apply exclusively to
persons serving a sentence of an indeterminate life term that would not have been an
indeterminate life term under the 2012 prospective amendments. The only way the
current sentence would not have been an indeterminate life term under the prospective




4 The People do not assert that defendant’s prior felony convictions disqualify him from
relief under section 1170.126, so we do not address these other exceptions.
5 In light of this express declaration of the intended scope of section 1170.126, we do not
need to consider the People’s argument that we should infer a similar purpose from the
procedural directive in subdivision (d) of the statute (to include all commitment and prior
convictions in the petition) because this indicates an intent to look at the judgment as a
whole for disqualifying convictions.


                                               4
provisions is if no commitment conviction was disqualifying, and thus eligibility must be
assessed on the commitment judgment as a whole and not per offense.6

       As the intrinsic language of the statute does not result in any ambiguity about the
purpose of the statute in the context of hybrid sentences, we do not need to resort to any
extrinsic indicia of the intent of the electorate. (County of Sacramento v. Superior Court
(2012) 209 Cal.App.4th 776, 782; see People v. Meyer (2010) 186 Cal.App.4th 1279,
1283 [interpretation of statutes]; see also People v. McRoberts (2009) 178 Cal.App.4th
1249, 1255 [court applies same interpretive rules to initiatives].) However, as is often the
practice in the Supreme Court (see, e.g., Soukup v. Law Offices of Herbert Hafif (2006)
39 Cal.4th 260, 279 [justifying resort to extrinsic indicia of intent to “buttress”
interpretation of statute’s plain language]), we note that these extrinsic interpretive aids
confirm our analysis of the statute’s language.

       As noted in Yearwood, supra, 213 Cal.App.4th 161, the proponents of the
initiative amending section 667 and enacting section 1170.126 made six arguments in its
favor in the official voting materials, captioned as making punishment “fit” the crime;



6 While the language of the different subdivisions of section 1170.126 can in isolation be
read both ways, this would violate the well-established principles of statutory
construction to look at the language as a whole to interpret their meaning in the context of
the entire statutory or regulatory scheme of which they are a part. (Hassan v. Mercy
American River Hospital (2013) 31 Cal.4th 709, 715; Department of Health Services v.
Civil Service Com. (1993) 17 Cal.App.4th 487, 494-495.) In the context of section
1170.126’s declaration of purpose, the language of subdivisions (b) and (e)(1) further
supports the interpretation of “sentence” as an aggregate sentence and “term” as a total
term of years rather than only one component of an aggregate sentence. Both
subdivisions could apply to a single term imposed for multiple felonies. Also, the
language in subdivisions (e)(2) and (e)(3) supports looking at the judgment as a whole
instead of the offenses. Both mandate that the overall current sentence cannot include a
commitment or prior conviction for any disqualifying offenses. Additionally, subdivision
(d)’s requirement to list all of the currently charged offenses and all of the prior
convictions can be read to support looking at the judgment as a whole.


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saving over $100 million every year; making room in prison for truly dangerous felons;
having law enforcement support; having taxpayer support; and being tough and smart
on crime. Boiled down, the ballot arguments focused on saving money while protecting
public safety, because otherwise prison overcrowding would result in the indiscriminate
release of dangerous criminals. “ ‘People convicted of shoplifting a pair of socks, [or]
stealing bread or baby formula don’t deserve life sentences’ ”; the initiative “ ‘will keep
dangerous criminals off the streets’ ” because its expert drafters “ ‘carefully crafted [it] so
that truly dangerous criminals will [not] receive [any] benefits whatsoever from the
reform.’ ” (Yearwood, at p. 171, italics added.)

       Given these expressed concerns, it would not be in accordance with imputed voter
intent to interpret section 1170.126 as allowing it to apply to the component commitment
convictions of a hybrid indeterminate life sentence that are not serious or violent felonies.
It is true that it would save money and perhaps be more fitting to the crime of reckless
evasion if defendant were to serve only a consecutive determinate doubled base term.
But the intent of the voters discussed above does not give equal weight both to the public
fisc and the protection of the public, such that there is any call for giving effect to the
“ ‘rule of lenity.’ ” (People v. McCoy (2012) 208 Cal.App.4th 1333, 1339, fn. 6.)
Rather, the voters were concerned with saving money only if public safety were ensured
at the same time. (People v. White (2014) 223 Cal.App.4th 512, 522 [noting electorate
“approved a mandate” that amendments be “liberally construed” to protect safety of
people of California]; Yearwood, supra, 213 Cal.App.4th at p. 175 [enhancing public
safety is key purpose of amendments].) Therefore, if a “truly dangerous” felon—i.e., one
who has committed a present serious or violent felony—is not to get any benefit under
section 1170.126, then a situation in which this felon committed even more felonies in
addition to a disqualifying serious or violent felony is not one entitling such felon to any
amelioration of the resulting sentence. We also do not agree, as has been suggested, that



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the “danger to public safety” determination is the vehicle through which to deny relief to
defendants with hybrid sentences. The eligibility analysis is focused on screening out
offenses that are deemed to be a danger to society, and the public safety analysis serves to
screen out offenders whose characteristics otherwise represent a danger. In sum, we
conclude that the voters did not intend to allow a defendant who has a disqualifying
current conviction to benefit from section 1170.126. Even if defendant is serving “an
indeterminate term of life imprisonment” under sections 667 or 1170.12, he is not
someone “whose sentence under this act would not have been an indeterminate life
sentence” had he been sentenced under the current law (§ 1170.126, subd. (a)).7

       Defendant argues that the principle in People v. Garcia (1999) 20 Cal.4th 490
(Garcia) authorizing a trial court to exercise its power to strike recidivist findings in the
interests of justice on an offense-specific basis (id. at pp. 492-493, 499-500) should apply
in this context as well. This analogy is a non sequitur. Garcia is premised on an
examination of a trial court’s power to exercise its discretion pursuant to section 1385 on
the basis of a defendant’s individual characteristics notwithstanding the mandates of the
sentencing scheme otherwise applying to that defendant’s convictions. (Garcia, at
pp. 496-499.) This does not have any bearing on a trial court’s exercise of its authority
under section 1170.126 to determine whether the commitment convictions are eligible as
a matter of law. (Even if section 1385 had any relevance whatsoever, the sentencing
court in this case has already found defendant undeserving of any relief under the criteria
of section 1385, an exercise of discretion we upheld on appeal (People v. Hubbard,




7 This issue is pending in the Supreme Court. (In re Machado (2014) 226 Cal.App.4th
1044, review granted July 30, 2014, S219819; Braziel v. Superior Court (2014)
225 Cal.App.4th 933, review granted July 30, 2014, S218503; In re Martinez (2014)
223 Cal.App.4th 610, review granted May 14, 2014, S216922.)


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supra, C025306, slip opn. at pp. 9-10).) As a result, it is not a basis for applying section
1170.126 per offense.

       Accordingly, defendant was not eligible for resentencing. The trial court was
therefore correct in denying the petition on receipt without a hearing.

                                      DISPOSITION

       We assume the order is appealable, regardless of defendant’s eligibility for
resentencing, and affirm it. (Alternately, we treat the appeal as a petition for a writ of
habeas corpus and deny the petition.)




                                                             BUTZ              , Acting P. J.



I concur:



        HOCH                 , J.




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DUARTE, J., Concurring.

       I agree with the majority’s conclusion that, after careful analysis, the language of
this statute does not contain any ambiguity regarding the electorate’s intended treatment
of what we are referring to as “hybrid” sentences. I write separately, however, because in
my view an extra step is necessary to reach this correct conclusion. I cannot join the
majority in reaching it by viewing subdivision (a) of this statute (Pen. Code, § 1170.126)
in isolation.
       The majority relies on subdivision (a), the statute’s declaration of purpose, noting
that subdivision (a) “states that the statute is intended to apply exclusively to persons
serving a sentence of an indeterminate life term that would not have been an
indeterminate life term under the 2012 prospective amendments” and concluding
therefore that “[t]he only way the current sentence would not have been an indeterminate
life term under the prospective provisions is if no commitment conviction was
disqualifying, and thus eligibility must be assessed on the commitment judgment as a
whole and not per offense.” (Maj. opn., ante, at pp. 4-5, emphases in original.)
       I disagree that the first observation, although accurate, leads inexorably to the
second without further analysis.
       Within our court system’s lexicon, the words “term” and “sentence” are at various
times employed to describe different components of an aggregate sentence--that is, the
“term” or “sentence” imposed on a single count of a multiple count sentence--and also to
describe the total term of months or years of incarceration, also known as the aggregate
sentence, or at times merely “sentence.” This variety of use demonstrates how “persons
serving a sentence of an indeterminate life term that would not have been an
indeterminate life term under the 2012 prospective amendments” might include
defendant--a person presently sentenced to a hybrid indeterminate life sentence composed
of indeterminate life terms for both qualifying and disqualifying offenses. In my view,
“sentence” as used in subdivision (a) could arguably apply to that component of the
aggregate sentence which constitutes the indeterminate life term only for the qualifying



                                              1
offense, despite the presence of a second term (or “sentence”) for the disqualifying
offense.
       This potential ambiguity in subdivision (a), the statute’s declaration of purpose,
requires a continued examination of the statute for clarity. As I have explained, the
critical determination for our purposes is whether “sentence” as used in the statute means
the sentence per count or the sentence in the aggregate. In examining the remaining
subdivisions, I find most helpful the mandate of subdivision (d) that “[t]he petition . . .
shall specify all of the currently charged felonies, which resulted in the sentence”
presently served. In my view this language is critical as it clearly employs “sentence” to
mean the aggregate sentence--the sentence that resulted from the total of all felonies
charged and convicted. “It is . . . ‘generally presumed that when a word is used in a
particular sense in one part of a statute, it is intended to have the same meaning if it
appears in another part of the same statute.’ ” (Delaney v. Baker (1999) 20 Cal.4th 23,
41.)
       I agree with the majority that the language of the remaining subdivisions further
supports the interpretation of “sentence” as an aggregate sentence and “term” as a total
term of years rather than only one component of an aggregate sentence. But I find the
language of subdivision (d) the most compelling, and therefore respectfully concur to
explain my reasoning.




                                                          DUARTE        , J.




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BUTZ, Acting P. J., Concurring and Dissenting.

       “Naturally, I concur in the majority opinion I have prepared for the court” (People
v. Jones (1998) 17 Cal.4th 279, 319 (conc. opn. of Mosk, J.)); “[o]bviously, I concur fully
in the majority opinion I have authored” (Cowan v. Superior Court (1996) 14 Cal.4th
367, 378 (conc. opn. of Chin, J.)).

       I write separately to explain my disagreement with the chosen disposition that my
colleagues favor. While there is a debate whether an accurate determination that a
petition facially establishes a defendant’s ineligibility is appealable and thus subject to
summary dismissal (see People v. Elder (2014) 227 Cal.App.4th 1308, 1318 (conc. & dis.
opn. of Butz, J.)), whereas here a trial court at the time of its order went beyond the face
of the petition to determine ineligibility as a matter of statutory interpretation, a petitioner
is entitled to appeal the accuracy of an issue not then confirmed in any binding authority.
However, upon determining on the merits that a defendant is not eligible for relief under
section 1170.126, the proper disposition of the appeal should be to dismiss it because
denial of the petition accordingly did not affect any substantial right of the defendant.
(See Elder, at pp. 1317-1318, 1319-1321 (conc. & dis. opn. of Butz, J.).)




                                                            BUTZ                 , Acting P. J.




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