Opinion
C092097
08-11-2021
The PEOPLE, Plaintiff and Respondent, v. Nathan John HENDERSON, Defendant and Appellant.
William D. Farber, San Rafael, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of part I of the Discussion.
William D. Farber, San Rafael, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
MAURO, J.
Defendant Nathan John Henderson pleaded no contest to possession of a nunchaku ( Pen. Code, § 22010 ) and admitted a prior prison term ( § 667.5, subd. (b) ). On August 8, 2018, the trial court imposed an aggregate sentence of four years, consisting of the following: three years for the nunchaku possession plus a consecutive year for the prior prison term enhancement pursuant to section 667.5, subdivision (b). The trial court suspended execution of the final 1,096 days of the sentence and ordered them to be served as a period of mandatory supervision with various terms and conditions. (§ 1170, subd. (h).) Defendant subsequently admitted violating his mandatory supervision on four occasions. On May 27, 2020, the trial court terminated defendant's mandatory supervision, reaffirmed his sentence, but declined to strike the prior prison term enhancement pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), effective January 1, 2020, concluding that defendant's sentence had become a final judgment 60 days after his sentence was pronounced on August 8, 2018, and thus defendant was not entitled to retroactive relief.
Undesignated statutory references are to the Penal Code.
Defendant now contends the trial court erred in declining to strike the prior prison term enhancement. In the unpublished portion of this opinion, we agree. However, in light of the California Supreme Court's decision in People v. Stamps (2020) 9 Cal.5th 685, 264 Cal.Rptr.3d 769, 467 P.3d 168 ( Stamps ), we asked the parties for supplemental briefing on whether striking the prior prison term enhancement while maintaining the remainder of the plea agreement would deprive the People of the benefit of their bargain, such that the People must be afforded an opportunity to withdraw from the plea agreement. Defendant argues we may strike the enhancement and keep the plea deal intact, whereas the People assert we must remand to permit them to withdraw from the plea agreement.
In the published portion of this opinion, we conclude Stamps is not on point because in this case the parties entered into an open plea agreement rather than agreeing to a stipulated sentence. We will modify the judgment to strike defendant's prior prison term enhancement and affirm the judgment as modified.
DISCUSSION
See footnote *, ante .
II
The parties submitted supplemental briefs addressing whether we must give the People the opportunity to withdraw from the open plea agreement where, as here, we determine defendant is entitled to the benefits of Senate Bill 136. Although there is a split in authority in the context of a plea agreement involving a stipulated sentence, defendant argues Stamps is distinguishable from this case and that we should keep the remainder of the open plea deal intact, following the settled rule that plea agreements are deemed to incorporate changes in the law. The People counter that Stamps controls here, and that striking the prior prison term enhancement without allowing them to withdraw from the plea agreement would deprive the People of the benefit of the bargain.
Compare, e.g., People v. Joaquin (2020) 58 Cal.App.5th 173, 272 Cal.Rptr.3d 267, review granted Feb. 24, 2021, S266594, People v. Griffin (2020) 57 Cal.App.5th 1088, 272 Cal.Rptr.3d 170, review granted Feb. 17, 2021, S266521, People v. Hernandez (2020) 55 Cal.App.5th 942, 269 Cal.Rptr.3d 824, review granted Jan. 27, 2021, S265739, People v. Barton (2020) 52 Cal.App.5th 1145, 266 Cal.Rptr.3d 742, with People v. France (2020) 58 Cal.App.5th 714, 272 Cal.Rptr.3d 689, review granted Feb. 24, 2021, S266771, People v. Andahl (2021) 62 Cal.App.5th 203, 276 Cal.Rptr.3d 526.
In Stamps , the parties entered into a negotiated plea with a specified prison term, which included a prior serious felony enhancement. ( § 667, subd. (a) ; Stamps, supra , 9 Cal.5th at p. 693, 264 Cal.Rptr.3d 769, 467 P.3d 168.) After the defendant entered his plea, the Legislature passed Senate Bill No. 1393 (2017-2018 Reg. Sess.), which granted the trial court discretion to strike the prior serious felony enhancement in the furtherance of justice. ( Stamps, at p. 692, 264 Cal.Rptr.3d 769, 467 P.3d 168.) The defendant appealed, seeking remand to allow the trial court to strike the enhancement from the agreed-upon sentence but otherwise keep the plea bargain intact. ( Id . at p. 700, 264 Cal.Rptr.3d 769, 467 P.3d 168.) The California Supreme Court concluded that Senate Bill No. 1393 applied retroactively but rejected defendant's argument that, on remand, the trial court could dismiss the five-year prior serious felony enhancement while otherwise maintaining the plea agreement. ( Stamps, at pp. 693-699, 700, 264 Cal.Rptr.3d 769, 467 P.3d 168.) Noting that the parties entered into a plea agreement for a specified prison term based on the prior serious felony enhancement, the Court said the trial court could not unilaterally modify the terms absent the prosecution's agreement. ( Id. at pp. 700-704, 264 Cal.Rptr.3d 769, 467 P.3d 168.) Relying on the stipulated nature of the sentence, the Court explained that " ‘Senate Bill No. 1393 does not entitle defendants who negotiated stipulated sentences "to whittle down the sentence ‘but otherwise leave the plea bargain intact.’ " ’ " ( Stamps, at p. 706, 264 Cal.Rptr.3d 769, 467 P.3d 168.) That would fundamentally alter the terms of the agreement, depriving the People of the benefit of their bargain. ( Id. at p. 703, 264 Cal.Rptr.3d 769, 467 P.3d 168.)
But such concerns are absent in the context of this open plea case. An open plea is one under which there is no promise about the nature or duration of the defendant's sentence. ( People v. Williams (1998) 17 Cal.4th 148, 156, 69 Cal.Rptr.2d 917, 948 P.2d 429.) Here, although the parties agreed to a maximum possible sentence of four years, they left the matter of probation and sentencing to the discretion of the trial judge. The open plea agreement contemplated a range of possible sentencing outcomes, from a grant of probation to four years in prison (the upper term of three years for possession plus one year for the prior prison term enhancement). And although it chose not to, the trial court had discretion in the context of the open plea to dismiss defendant's prior prison term enhancement in the interests of justice under section 1385. ( People v. Thomas (1992) 4 Cal.4th 206, 209-210, 14 Cal.Rptr.2d 174, 841 P.2d 159.) The plea deal permitted, but did not necessarily include, the additional year for the prior prison term enhancement.
Under the circumstances, striking the one-year enhancement would not be inconsistent with the open plea agreement. The sentence would stay within the range of possible outcomes agreed to by the parties. Thus, striking the enhancement while preserving the plea deal does not deprive the People of the benefit of their bargain, or grant defendant a bounty to which he is not entitled, or require the trial court to unilaterally restructure the terms of the plea deal. Striking the enhancement in this case does not require remand. DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement. ( § 667.5, subd. (b).) As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
We concur:
RAYE, P. J.
DUARTE, J.