Filed 11/17/21 P. v. Hurtado CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA MARCELLO HURTADO,

Defendant and Appellant.

F081639

(Super. Ct. No. F15906007)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. 

Harrell III, Judge.

Moran Law Firm, Amanda K. Moran and Janay D. Kinder for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and 

Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Poochigian, Acting P. J., Peña, J. and De Santos, J.
2.

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 robbery (§ 209, 

subd. (b)(1); count 1), kidnapping to commit a carjacking (§ 209.5, subd. (a); count 2), 

and criminal threats (§ 422; count 3), and found true a firearm enhancement as to each 

count (§ 12022.53, subd. (b), counts 1 & 2; § 12022.5, subd. (a), count 3). Defendant 

later admitted a prior prison term enhancement. (§ 667.5, former subd. (b).) On 

April 13, 2018, the court sentenced defendant on count 1 to a term of life with the 

possibility of parole, plus 10 years for the firearm enhancement and one year for the prior 

prison term enhancement. Sentence on count 2, including firearm and prior prison term 

enhancements, was stayed pursuant to section 654. On count 3, the court sentenced 

1 Undesignated statutory references are to the Penal Code.
3.

defendant to a concurrent term of three years; sentence on the associated firearm 

enhancement was stayed pursuant to section 12022.53, subdivision (f). (People v. 

Hurtado (May 13, 2020, F077363) [nonpub. opn.] (Hurtado).) 

On May 13, 2020, this court issued its opinion in defendant’s direct appeal. 

Therein, we affirmed the judgment, but remanded for the trial court to consider whether 

to exercise its discretion to strike or dismiss the firearm enhancements imposed pursuant 

to sections 12022.5 and 12022.53 pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) 

(Stats. 2017, ch. 682, §§ 1, 2). We also directed the court to strike the prior prison term 

enhancements under Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, 

§ 1). (Hurtado, supra, F077363.) 

On August 6, 2020, the trial court issued a minute order for “Chambers Work,” 

which stated: “The Court considered it’s [sic] discretion to strike the [section 12022.53, 

subdivision (b)] enhancement . . . as to count 001, and denied the request.” The minute 

order did not address the firearm enhancements imposed on counts 2 and 3.2 

This timely appeal followed. 

DISCUSSION

The trial court did not hold a hearing on remand before issuing a minute order in 

which it declined to strike the firearm enhancement to count 1. The People concede 

defendant was entitled to a resentencing hearing at which he had the right to be present 

with counsel. We accept the People’s concession. (See People v. Rocha (2019) 32 

Cal.App.5th 352, 359-360 [a hearing with the presence of the defendant is required, 

unless waived, when court considers whether to strike or dismiss a firearm enhancement 

pursuant to Sen. Bill No. 620 (2017-2018 Reg. Sess.)]; accord, People v. Rodriguez

(1998) 17 Cal.4th 253, 260 [a hearing with the presence of the defendant is required

2 Furthermore, the record on appeal does not contain an amended abstract of 

judgment reflecting that the prior prison term enhancements were stricken as directed in 

this court’s prior opinion.
4.

when the court considers whether to strike prior felony conviction allegations pursuant to 

§ 1385].) 

We also accept the People’s concession that the failure to hold a hearing was not 

harmless. We acknowledge the parties had an opportunity at defendant’s initial 

sentencing to brief and argue the issue of whether the court should strike or dismiss the 

firearm enhancements. However, we previously held the record suggested the trial court 

did not, at that time, understand the scope of its discretionary sentencing authority, and 

we could not conclude that a remand would be futile. (Hurtado, supra, F077363.) 

Likewise, we cannot now conclude that the presence of defendant and his counsel at a 

hearing on the issue of whether to strike or dismiss the enhancements would not have 

affected the outcome. (See People v. Rocha, supra, 32 Cal.App.5th at p. 360.) 

Accordingly, we will reverse the court’s order and remand for further proceedings.

DISPOSITION

The order is reversed. The case is remanded with directions to the trial court to 

decide, at a hearing at which defendant has the right to be present with counsel, whether 

it will exercise its discretion to strike the firearm enhancements to counts 1, 2, and 3 

under sections 12022.5, subdivision (c) and 12022.53, subdivision (h). To the extent the 

court has yet to strike the prior serious felony enhancements (§ 667.5, former subd. (b)),

it is once again directed to do so, and to send a certified copy of the amended abstract of 

judgment to the appropriate authorities.