People v. Hibbard CA3 ( 2020 )

Filed 12/23/20 P. v. Hibbard CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE, C090609
Plaintiff and Respondent, (Super. Ct. No. PR940086)
v.
RICHARD HIBBARD,
Defendant and Appellant.
Defendant Richard Hibbard appeals the denial of his Penal Code section 1170.911
petition for resentencing arguing the trial court prejudicially erred in failing to find him
eligible for resentencing despite his showing that he may have suffered from substance
abuse because of his military service. Defendant argues nothing in section 1170.91
required him to affirmatively demonstrate that his “substance abuse problems resulted
1 Further undesignated statutory references are to the Penal Code.
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from military service, but merely to show that a reasonable person could infer that the
military service caused or exacerbated the problem.” Thus, he reasons that his teenage
drug use did not alter that he had established his eligibility for relief by presenting
evidence that he had a substance abuse problem in the military, which ultimately resulted
in his discharge.
We find defendant is ineligible for resentencing for another, more fundamental
reason. As we shall explain, defendant is ineligible for resentencing under section
1170.91 because defendant’s indeterminate sentence and sentencing enhancement were
not imposed pursuant to section 1170, subdivision (b), thus rendering section 1170.91
inapplicable.
BACKGROUND
On March 17, 1995, a jury convicted defendant of second degree murder (§ 187)
and found true the special enhancement that he had used a firearm in the commission of
the offense (§ 12022.5, subd. (a)). On May 12, 1995, defendant received a sentence of 15
years to life for the murder and a consecutive term of five years for the firearm
enhancement. We affirmed this judgment in an unpublished opinion, People v. Hibbard
(Mar. 18, 1996, C021065) [nonpub. opn.]. Because this case turns on the ineligibility
stemming from defendant’s sentence and not the particulars of the crime itself, we will
not recount the details of the murder here.
Thereafter, on June 5, 2019, defendant petitioned for modification of his sentence
under section 1170.91, arguing his substance abuse and mental health disorder resulting
from military service were not considered in mitigation at sentencing. In support of this
motion, defendant submitted both pre and postconviction materials, including the
presentencing report prepared by probation, as well as certain military records.
Defendant argued these materials showed he had no history of alcohol abuse when
entering the military, that he began using drugs and alcohol to cope with the stresses
associated with being in the military, and that he was ultimately discharged from the
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military because of that substance abuse. On June 21, 2019, the court appointed a public
defender to assist defendant with his petition.
The People filed a written opposition on August 1, 2019, arguing defendant was
ineligible for relief because as admitted in his presentence probation report, defendant’s
substance abuse predated his military service. The People further opposed the petition
because section 1170.91 was inapplicable to defendant’s sentence of 15 years to life for
second degree murder and would be moot as to defendant’s sentence for the firearm
enhancement because that five-year term had been served first.
On September 30, 2019, the trial court held a hearing on the matter, including
argument, ultimately denying defendant’s petition. In so ruling, the court noted
defendant’s substance abuse predated his enlistment in the military and determined that
defendant “ha[d] not established that his substance abuse was as a result of his military
service.” The court continued that even if defendant had established eligibility, the court
had reviewed the factors in aggravation and mitigation and would not exercise its
discretion at any resentencing to either reduce the firearm enhancement or alter the
second degree murder sentence.
Defendant timely appealed.
DISCUSSION
First enacted in 2014, section 1170.91 created a mechanism for courts to consider
mental health and substance abuse problems stemming from military service as a
mitigating factor when imposing a determinate term under section 1170, subdivision (b).
(See Stats. 2014, ch. 163, § 2 [“If the court concludes that a defendant convicted of a
felony offense is, or was, a member of the United States military who may be suffering
from . . . post-traumatic stress disorder . . . or mental health problems as a result of his or
her military service, the court shall consider the circumstance as a factor in mitigation
when imposing a term under subdivision (b) of Section 1170 . . . .”]; see also § 1170.91,
subd. (a) [same].)
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Effective January 1, 2019, Assembly Bill No. 865 (2017-2018 Reg. Sess.)
amended section 1170.91 to extend its application to persons “currently serving a
sentence for a felony conviction, whether by trial or plea, who is, or was, a member of the
United States military and who may be suffering from . . . post-traumatic stress disorder
. . . or mental health problems as a result of his or her military service. . . .” (§ 1170.91,
subd. (b)(1); see also Stats. 2018, ch. 523, § 1.) Those persons “may petition for a recall
of sentence, before the trial court that entered the judgment of conviction in his or her
case, to request resentencing pursuant to subdivision (a) if the person meets [certain
conditions]. . . .” (§ 1170.91, subd. (b)(1); see also Stats. 2018, ch. 523, § 1.)
“Upon receiving a petition under this subdivision, the court shall determine, at a
public hearing held after not less than 15 days’ notice to the prosecution, the defense, and
any victim of the offense, whether the person satisfies the criteria in this subdivision. At
that hearing, the prosecution shall have an opportunity to be heard on the petitioner’s
eligibility and suitability for resentencing. If the person satisfies the criteria, the court
may, in its discretion, resentence the person following a resentencing hearing.”
(§ 1170.91, subd. (b)(3); see also Stats. 2018, ch. 523, § 1.)
As we noted above, defendant argues on appeal that the trial court prejudicially
erred in failing to find him eligible for resentencing despite his showing that he may have
suffered from substance abuse because of his military service. However, as highlighted
by the People, defendant has not explained how he is eligible for recall of his sentence to
an indeterminate term with a firearm enhancement. This presents a question of statutory
construction, which we review de novo. (John v. Superior Court (2016) 63 Cal.4th 91,
95.)
By its plain language, section 1170.91 applies only to terms imposed under section
1170, subdivision (b), which addresses determinate terms. (See § 1170.91, subd. (a)
[directing in pertinent part that if the court concludes that a former member of the
military “may be suffering from . . . substance abuse . . . as a result of his . . . military
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service, the court shall consider the circumstance as a factor in mitigation when imposing
a term under subdivision (b) of Section 1170”].) Indeterminate terms, such as a term
imposed for murder, are imposed under section 1168, subdivision (b). (People v. Felix
(2000) 22 Cal.4th 651, 654-655.) Further, enhancement terms, like the firearm
enhancement here, are imposed pursuant to section 1170.1, subdivision (d). Therefore, as
a matter of law, section 1170.91 does not apply to defendant’s sentence consisting of an
indeterminate term for murder and its associated firearm enhancement.
DISPOSITION
The trial court’s order denying defendant’s petition is affirmed.
/s/
BLEASE, J.
We concur:
/s/
RAYE, P. J.
/s/
ROBIE, J.
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