Opinion
F080191
05-20-2021
THE PEOPLE, Plaintiff and Respondent, v. ALBERT BRENT CORTEZ, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DF014322A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. David E. Wolf, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P.J., Smith, J. and DeSantos, J.
-ooOoo-
Defendant Albert Brent Cortez entered into a stipulated plea agreement that included a prior prison term enhancement. He contends on appeal that his one-year prior prison term enhancement should be stricken pursuant to Penal Code section 667.5, subdivision (b), as amended by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). The People agree. We directed the parties to submit supplemental briefing regarding whether remand is necessary for the People or trial court to be permitted to rescind approval for the plea agreement in light of People v. Stamps (2020) 9 Cal.5th 685 (Stamps). The People contend the matter must be remanded for the trial court and the People to be permitted to elect whether to rescind approval of the plea agreement. The People further argue that if the plea agreement is vacated, the matter must be restored to the status quo ante and the sentence must not be capped by the original plea agreement. Defendant disagrees on both accounts. We agree with the People. We vacate the sentence, order the prior prison term enhancement stricken, and remand for further proceedings consistent with Stamps. In all other respects, we affirm.
All further statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL SUMMARY
On May 8, 2019, the Kern County District Attorney charged defendant in case No. DF014322A with battery on a prison officer by gassing (§ 4501.1; count 1). The complaint further alleged that defendant had suffered a prior felony "strike" conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served a prior prison term (§ 667.5, subd. (b)).
All further dates refer to the year 2019 unless otherwise stated.
On August 2, defendant entered a plea of no contest on count 1 and admitted the prior strike conviction and prior prison term allegations. The admitted prior prison term was served for a conviction of unlawful taking or driving of a motor vehicle (Veh. Code, § 10851). The plea agreement stipulated that defendant would be sentenced to four years on count 1 (the lower term of two years, doubled because of the prior strike conviction) plus a one-year prior prison term enhancement. The plea agreement also provided that defendant would be resentenced in case No. DF013009A to a consecutive term of two years (one-third of the middle term of three years, doubled because of the prior strike conviction).
On August 30, the trial court sentenced defendant to the stipulated sentence.
On October 28, defendant filed a notice of appeal.
DISCUSSION
Because defendant raises only sentencing issues, the facts underlying the offenses are not relevant and are omitted from this opinion.
A. Defendant's Prior Prison Term Enhancement Must Be Stricken
Defendant argues his prior prison term enhancement must be stricken based on the retroactive application of Senate Bill 136. The People agree, as do we.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b) to limit application of prior prison term enhancements to only prior prison terms that were served for sexually violent offenses as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That amendment applies retroactively to all cases not yet final on Senate Bill 136's effective date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342, citing In re Estrada (1965) 63 Cal.2d 740, 742.)
Here, the trial court imposed a one-year section 667.5, subdivision (b) prior prison term enhancement for a term served for a conviction of unlawful taking or driving of a motor vehicle (Veh. Code, § 10851), which is not a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). On January 1, 2020, defendant's case was not yet final. Therefore, as the parties agree, defendant is entitled to the ameliorative benefit of Senate Bill 136's amendment to section 667.5, subdivision (b). Defendant's prior prison term enhancement must therefore be stricken.
B. The People and the Trial Court Must Be Given an Opportunity to Rescind Approval of the Plea Agreement
Generally, where an appellate court strikes a portion of a sentence, remand for " 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' " (People v. Buycks (2018) 5 Cal.5th 857, 893.) That rule applies equally to resentencing after reversal of a count of conviction or striking of an enhancement. (See ibid., citing with approval People v. Sanchez (1991) 230 Cal.App.3d 768, 771-772 [consideration of all sentencing choices on remand is appropriate after reversal for erroneous application of a section 12022.1 on-bail enhancement]; People v. Lopez, supra, 42 Cal.App.5th at p. 342.)
However, the full resentencing rule does not apply when a plea agreement specifies the punishment to be imposed. (People v. Barton (2020) 52 Cal.App.5th 1145, 1156.) A plea agreement is a form of contract to which a court consents to be bound by approving the agreement. (People v. Segura (2008) 44 Cal.4th 921, 929-930.) A trial court "may approve or reject [a negotiated plea] agreement, but the court may not ... [approve the agreement and then] effectively withdraw its approval by later modifying the terms of the agreement it had approved." (Id. at pp. 931-932; see § 1192.5.) Therefore, when a portion of an agreed-upon sentence must be stricken, full resentencing is not appropriate because it would not conform with the terms of the plea agreement. (Barton, at p. 1156; People v. Hernandez (2020) 55 Cal.App.5th 942, 957 (Hernandez), review granted Jan. 27, 2021, S265739.)
We also note that a trial court cannot ignore a change in the law and decline to modify an agreed-upon sentence as based on the terms of a plea agreement. (See Doe v. Harris (2013) 57 Cal.4th 64, 66 ["That the parties enter into a plea agreement ... does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them."].) A defendant is entitled to the benefit of ameliorative changes in the law like that effected by Senate Bill 136. Such unknown future benefits cannot be waived by plea bargain. (§ 1016.8, subds. (a) & (b).)
The available remedies after striking a portion of an agreed-upon sentence are to restore the parties to the status quo ante or, if the legislature so intended, to strike only the portions modified by the enactment and leave the remainder of the agreement intact. (See Stamps, supra, 9 Cal.5th at pp. 695-696; Harris v. Superior Court (2016) 1 Cal.5th 984, 991; People v. Segura, supra, 44 Cal.4th at pp. 929-930; People v. Collins (1978) 21 Cal.3d 208, 215.) The Legislature " 'may bind the People to a unilateral change in sentence without affording them the option to rescind the plea agreement.' " (Stamps, at p. 703; accord, Hernandez, supra, 55 Cal.App.5th at pp. 957-958.) However, we do not presume that to be the case. As a default position, a court "may not proceed as to the plea other than as specified in the plea" (§ 1192.5), and therefore cannot modify only a part of an agreed-upon sentence, unless such a modification is a result of a change in the law and the defendant establishes "the Legislature [(or electorate)] intended to overturn long-standing law that a court cannot unilaterally modify an agreed-upon term by striking portions of it" while leaving the remainder intact. (Stamps, at p. 701; accord, Harris, at pp. 987, 992; Hernandez, at p. 953.)
As we explained in Hernandez, the legislative history for Senate Bill 136 reveals no "intent to modify section 1192.5's mandate that 'the court may not proceed as to the plea other than as specified in the plea' without the consent of the parties." (Hernandez, supra, 55 Cal.App.5th at pp. 957-958; People v. Griffin (2020) 57 Cal.App.5th 1088, (Griffin) review granted Feb. 17, 2021, S266521; People v. Joaquin (2020) 58 Cal.App.5th 173, review granted Feb. 24, 2021, S266594; see Stamps, supra, 9 Cal.5th at p. 704.) The legislative history for Senate Bill 136 is "silent regarding pleas and provides no express mechanism for relief undercut[ting] any suggestion that the Legislature intended to create special rules for plea cases." (Stamps, at p. 704; accord, Hernandez, at p. 958.) Because the Legislature did not express any intent for Senate Bill 136 to operate as an exception to the rule that a court cannot modify an agreed-upon sentence without the parties' agreement, we conclude that the matter must be remanded to allow the People and the trial court the opportunity to rescind approval for the plea agreement.
A different conclusion was reached in People v. France (2020) 58 Cal.App.5th 714 (review granted Feb. 24, 2021, S266771). The France court reasoned that because courts do not have discretion regarding whether to strike prior prison term enhancements under Senate Bill 136, the Legislature intended trial courts to strike prior prison term enhancements imposed as part of a negotiated plea while leaving the other terms intact. (France, at pp. 729-730 & p. 729 fn. 6 ["[I]t matters very much whether a court makes a discretionary change to a plea bargain (as in Stamps) or the Legislature makes a change in the law that necessarily affects the bargain (as here)."].) We respectfully disagree as we explained in Hernandez. (Hernandez, supra, 55 Cal.App.5th at pp. 957-958.)
C. If the Plea Agreement Is Rescinded , Defendant Could Be Sentenced to a Greater Term of Imprisonment Than Provided for in the Original Agreement
The People argue that, if "the defendant ... wishes to withdraw from the agreed-upon bargain[,]" the status quo ante must be restored, including "the entire spectrum of prosecution and punishment." We agree.
In Hernandez, we "acknowledge[ed] the holding in [People v.] Collins [(1978) 21 Cal.3d 208] that allowed the prosecution to refile the previously dismissed charges as long as the defendant was not resentenced to a greater term than provided in the original plea agreement." (Hernandez, supra, 55 Cal.App.5th at p. 959.) We then concluded that "Stamps did not extend Collins to permit such a" limitation of sentencing options. (Hernandez, at p. 959.) Stamps "instead held the People could completely withdraw from a plea agreement if the prior serious felony enhancement was dismissed." (Hernandez, at p. 959.) We do not depart from Hernandez. Upon remand, if the plea agreement is vacated, the matter will be restored to the status quo ante and any eventual sentence will not be capped by the sentence imposed pursuant to the original plea agreement.
The court in Griffin, supra, 57 Cal.App.5th at p. 1099, disagreed with our conclusion. The Griffin court commented that "Stamps never addressed the language in Collins capping the sentence that could be imposed on remand, and Stamps never addressed whether the trial court could properly impose a longer sentence on remand." (Griffin, at p. 1099.) The Griffin court further found that the limitation of sentence imposed in Collins was more appropriate than the restoration to the status quo ante in Stamps because Senate Bill 136—like the decriminalization of an act to which the defendant had pled guilty in Collins—was an " 'external event[]' that simply rendered the plea agreement[] unenforceable." (Griffin, at p. 1099.) We respectfully disagree with Griffin.
DISPOSITION
The sentence is vacated and the matter remanded to the superior court with directions to strike the prior prison term enhancement (§ 667.5, subd. (b)), and for further appropriate proceedings consistent with Stamps, supra, 9 Cal.5th 685 and Hernandez, supra, 55 Cal.App.5th 942. In all other respects, the judgment is affirmed.