Filed 9/4/20 P. v. Hubbard CA3
(opinion on rehearing)
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C085620
Plaintiff and Respondent, (Super. Ct. Nos. 13F6066,
16F3752)
v.
GINA ELIZABETH HUBBARD,
Defendant and Appellant.
Following a negotiated plea agreement, defendant Gina Elizabeth Hubbard was
convicted of possessing methamphetamine and found in violation of a previously
imposed probation. Pursuant to the terms of her plea agreement, defendant was
sentenced to a split sentence of seven years eight months. On appeal, defendant contends
the trial court erred in denying her motion to suppress evidence. She further contends her
prior conviction for transporting methamphetamine was void and thus the sentence
imposed in this matter is unlawful. She claims in the alternative that she received
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ineffective assistance of counsel because her trial counsel failed to challenge the prior
conviction and erroneously advised her to admit violating her probation.
As to her search claim, we conclude there was no error. Of her remaining claims,
only one is cognizable on appeal without a certificate of probable cause, the rest are not.
BACKGROUND
In October 2013, in Shasta County Superior Court case No. 13F6066 (case
No. 066), defendant pleaded guilty to transporting methamphetamine (Health & Saf.
Code, § 11379, subd. (a)),1 with the allegation she was transporting for purposes of sale
stricken from the information, and admitted to a prior narcotics conviction (§ 11370.2,
subd. (c)). The trial court suspended imposition of sentence and placed defendant on
three years’ formal probation.
On May 12, 2016, Shasta County Sheriff’s Deputy Gregory Ketel stopped
defendant while she was driving a motorcycle on Highway 44 in Shasta County.
Defendant told Deputy Ketel she was on searchable probation. Deputy Ketel searched
defendant and found .069 grams of methamphetamine and a methamphetamine pipe in
her pocket. He also found multiple bags of methamphetamine (one weighing .83 grams
and the rest weighing a combined total of approximately 13 grams) and another glass
pipe in her backpack, as well as bottles of alcohol in the motorcycle’s “saddle bags.”
In Shasta County Superior Court case No. 16F3752 (case No. 752), the People
charged defendant with possession of methamphetamine for sale (§ 11378) and
transportation of methamphetamine (§ 11379, subd. (a)). To both charges, the People
appended allegations that defendant was previously convicted of possession for sale and
possession for sale or transportation (§ 11370.2). The People further alleged defendant
was ineligible for probation as a result of these prior convictions.
1 Undesignated statutory references are to the Health and Safety Code.
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Defendant moved to suppress evidence pursuant to Penal Code section 1538.5.
According to Deputy Ketel’s testimony at the hearing on her motion, on May 12, 2016, at
approximately 8:00 p.m., he was on routine patrol in Shasta County. He was driving on
Highway 44 and came upon two cars trailing behind defendant, who was driving a
motorcycle. Defendant was driving approximately 15 miles per hour below the posted
speed limit of 65 miles per hour. In addition to the two cars ahead of Deputy Ketel and
directly behind defendant, two other cars were behind Deputy Ketel. The lighting at that
time was “good” and the road “pretty straight.” Based on his experience and training,
these factors led Deputy Ketel to suspect defendant was under the influence of drugs or
alcohol. He continued behind the two vehicles and defendant for approximately two
miles.
When defendant exited Highway 44, Deputy Ketel followed. He then activated
his overhead lights to initiate a vehicle stop. Defendant pulled over; she told Deputy
Ketel she was on searchable probation, and he found the illegal narcotics.
Defendant negotiated a plea agreement to resolve both pending cases. In case
No. 752, defendant pleaded no contest to possession of a controlled substance and
admitted to one prior narcotics conviction; she agreed to serve eight months for the
possession conviction and three years for the sentencing enhancement. Defendant also
admitted to violating her probation in case No. 066 and agreed to serve four years for that
conviction. In sum, defendant agreed to a split sentence totaling seven years eight
months: one year in county jail and six years eight months on mandatory supervision.
The court sentenced defendant in accordance with the terms of her plea agreement.
DISCUSSION
A. Motion to Suppress
Defendant moved to suppress all evidence seized as a result of the traffic stop
initiated by Deputy Ketel and now contends the trial court erred in denying her motion.
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She argues the traffic stop was unreasonable under the Fourth Amendment to the United
States Constitution and therefore all evidence seized as a result of that stop should have
been suppressed. We conclude there was no error.
“[A] police officer can legally stop a motorist only if the facts and circumstances
known to the officer support at least a reasonable suspicion that the driver has violated
the Vehicle Code or some other law.” (People v. Miranda (1993) 17 Cal.App.4th 917,
926.) The “ ‘possibility of an innocent explanation does not deprive the officer of the
capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal
function of his investigation is to resolve that very ambiguity and establish whether the
activity is in fact legal or illegal—to “enable the police to quickly determine whether they
should allow the suspect to go about his business or hold him to answer charges.” ’ ”
(People v. Leyba (1981) 29 Cal.3d 591, 599.)
“When discussing how reviewing courts should make reasonable-suspicion
determinations, [the United States Supreme Court has] repeatedly said they must look at
the ‘totality of the circumstances’ of each case to see whether the officer has ‘a
particularized and objective basis’ for suspecting legal wrongdoing.” (United States v.
Arvizu (2002) 534 U.S. 266, 273 [151 L.Ed.2d 740].)
We review the court’s denial of defendant’s suppression motion under the
following well-established standard: “We defer to the trial court’s factual findings,
express or implied, where supported by substantial evidence. In determining, on the facts
so found, the search or seizure was reasonable under the Fourth Amendment, we exercise
our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362; accord,
People v. Leyba, supra, 29 Cal.3d at pp. 596-597; People v. Lawler (1973) 9 Cal.3d 156,
160.)
Here, Deputy Ketel stopped defendant’s vehicle because she was driving 15 miles
per hour under the posted speed limit, on a relatively straight road that was well-lit. She
continued at that slow speed for two miles, with at least five cars trailing behind her,
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including Deputy Ketel. Based on his training and experience, driving slowly without
any obvious explanation, Deputy Ketel suspected defendant may have been driving under
the influence of drugs or alcohol. This was a reasonable conclusion. (See People v.
Gibson (1963) 220 Cal.App.2d 15, 20 [that a driver proceeds at a speed slower than the
speed limit under circumstances where he or she might normally proceed at the higher
speed is a factor that justifies an officer’s investigation].)
We find no error.
B. Certificate of Probable Cause
On appeal, defendant argued that her conviction for transportation of
methamphetamine in case No. 066 is void following the 2013 amendments to section
11379, which clarified that transporting methamphetamine for personal use was not a
crime. (See Assem. Conc. Sen. Amends. to Assem. Bill No. 721 (2013-2014 Reg. Sess.)
as amended June 27, 2013.) Accordingly, she argued, the agreed-upon sentence is
unauthorized. We agreed with the People that defendant was required to obtain a
certificate of probable cause to raise this claim on appeal.
Defendant petitioned for rehearing and asked this court to strike the prior drug
offense enhancement included in her stipulated prison term pursuant to Senate Bill No.
180 (2017-2018 Reg. Sess.) and terminate the probation on her 2013 conviction for drug
transportation based on changes in the law. She argued no certificate of probable cause
was needed to raise these claims. We granted rehearing to address the certificate of
probable cause issue.
In a recent decision, our Supreme Court ruled that even when a defendant has
stipulated to a particular sentence, if he or she “seeks relief because the law subsequently
changed to his [or her] potential benefit,” that defendant is not required to obtain a
certificate of probable cause. (People v. Stamps (2020) 9 Cal.5th 685, 698 (Stamps).)
On the other hand, the court affirmed that “when the parties reach an agreement in
the context of existing law, a claim that seeks to avoid a term of the agreement, as made,
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is an attack on the plea itself,” and a certificate of probable cause is required. (Stamps,
supra, 9 Cal.5th at p. 695.)
1. Senate Bill No. 180
Here, defendant admitted to being previously convicted of section 11379 and, as
part of her negotiated plea, agreed to be sentenced to an additional three years as a result
of that conduct under former section 11370.2, subdivision (c). Subsequent to her plea,
the Legislature enacted Senate Bill No. 180, which removed sentencing enhancements
based upon prior violations of other drug statutes, including the statute defendant was
previously convicted under. (Stats. 2017, ch. 677, § 1; People v. Millan (2018)
20 Cal.App.5th 450, 454-455; People v. Camba (1996) 50 Cal.App.4th 857, 865-866
[absent an urgency clause, new legislation is operative January 1 of the year following
enactment].)
Defendant, therefore, is seeking “relief because the law subsequently changed to
[her] potential benefit.” (Stamps, supra, 9 Cal.5th at p. 698.) Accordingly, no certificate
of probable cause is required to consider her claim relative to Senate Bill No. 180.2
(Stamps, at p. 698.)
The People properly concede defendant is entitled to the benefit of the change to
section 11370.2. Furthermore, because Senate Bill No. 180 “rendered the conduct to
which [defendant] admitted no longer punishable as an enhancement, the three-year
enhancement must be stricken. On remand the trial court is to resentence [defendant] in
accordance with the applicable statutes and rules, provided the aggregate term does not
2 Our decision here is limited to circumstances where either the Legislature or the
electorate eliminate a crime or enhancement, thereby rendering a stipulated sentence
invalid or unauthorized. We do not consider circumstances such as those presented in
People v. Hurlic (2018) 25 Cal.App.5th 50 (Hurlic) and People v. Fox (2019)
34 Cal.App.5th 1124, review granted July 31, 2019, S256298, where the courts
considered the impact of statutory amendments that give trial courts newfound sentencing
discretion, on a stipulated sentence.
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exceed the stipulated sentence. [Citations.]” (People v. Wright (2019) 31 Cal.App.5th
749, 756, superseded by statute on another ground as stated in People v. Barton (2020)
52 Cal.App.5th 1145, 1153.)
2. Health and Safety Code section 11379
Defendant also contends her conviction for transportation of methamphetamine in
case No. 066 is void following the 2013 amendments to section 11379, which clarified
that transporting methamphetamine for personal use was not a crime. (See Assem. Conc.
Sen. Amends. to Assem. Bill No. 721 (2013-2014 Reg. Sess.) as amended June 27,
2013.)3 Accordingly, she contends, the agreed upon sentence is unauthorized and she
asks us to terminate her probation. Relying on People v. Baldivia (2018) 28 Cal.App.5th
1071 and Hurlic, supra, 25 Cal.App.5th 50, defendant argues she is not required to obtain
a certificate of probable cause to challenge her conviction in case No. 066. We disagree.
Here, defendant seeks to benefit from a change in the law that occurred three years
before she negotiated her plea agreement in case No. 752. (See Assem. Conc. Sen.
Amends. to Assem. Bill No. 721 (2013-2014 Reg. Sess.) as amended June 27, 2013.) In
short, she is seeking to avoid a term of her plea agreement that was reached under the law
as it existed at the time of her plea negotiations. Such a claim is an attack on the plea
itself and requires a certificate of probable cause on appeal. (Stamps, supra, 9 Cal.5th at
p. 695.)
3 “[Assembly Bill No.] 721 would clarify the Legislature’s intent to only apply felony
drug transportation charges to individuals involved in drug trafficking or sales.
Currently, an ambiguity in state law allows prosecutors to charge drug users—who are
not in any way involved in drug trafficking—with TWO crimes for simply being in
possession of drugs. . . . [P]rosecutors are using this wide interpretation to prosecute
individuals who are in possession of drugs for only personal use, and who are not in any
way involved in a drug trafficking enterprise. [¶] This bill makes it expressly clear that a
person charged with this felony must be in possession of drugs with the intent to sell. . . .”
(Assem. Conc. Sen. Amends. to Assem. Bill No. 721 (2013-2014 Reg. Sess.) as amended
June 27, 2013, p. 2.)
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C. Leave to Amend Prior Request
On rehearing defendant also asks for leave to amend her “prior request for a
certificate [of probable cause] based on new grounds discovered after this Court ordered
the record prepared in case No. 13F6066.” Her request is denied.
DISPOSITION
The true finding on the section 11370.2, subdivision (c) enhancement is reversed,
and the matter is remanded to the trial court for resentencing. The judgment is affirmed
in all other respects. Upon resentencing, the trial court shall prepare an amended
abstract of judgment and forward a certified copy of the same to the appropriate
department.
/s/
RAYE, P. J.
We concur:
/s/
MAURO, J.
/s/
RENNER, J.
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