People v. Hurtado CA5

INTRODUCTION

In defendant Joshua Marcello Hurtado’s prior appeal, we remanded for the trial court to consider whether to exercise its discretion to strike or dismiss firearm enhancements imposed on counts 1 through 3 (Pen. Code, 1 § 12022.53, subd. (b), counts 1 & 2; § 12022.5, subd. (a), count 3), and to strike a prior prison term enhancement (§ 667.5, former subd. (b)). On remand, the court did not hold a hearing, but instead issued a minute order in which it declined to strike the firearm enhancement to count 1. In this second appeal, defendant contends the trial court erred in failing to hold a resentencing hearing at which defendant had the right to be present with counsel. The People concede error. We accept the People’s concession and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On September 5, 2015, defendant went with two codefendants to the home of an acquaintance, held the acquaintance at gunpoint and took various items, drove the acquaintance away in the acquaintance’s car and, before the acquaintance’s eventual escape, told the acquaintance not to say anything or he would face consequences. On June 22, 2017, a jury convicted defendant of kidnapping to commit a…