Opinion
H044892
12-14-2020
THE PEOPLE, Plaintiff and Respondent, v. LUIS ALFONSO MADRIGAL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1226816)
Defendant Luis Alfonso Madrigal pleaded no contest and not guilty by reason of insanity to one count of a lewd act on a child under 14. He also pleaded no contest to one count of kidnapping. He admitted he had suffered a prior strike conviction and a prior serious felony conviction. As to the lewd act, the trial court found Madrigal was legally insane at the time and committed him to a state hospital. For kidnapping, the court imposed a total term of 21 years in state prison, including a mandatory five-year term for the prior serious felony conviction, to be served upon release from the hospital.
After Madrigal was sentenced, the Legislature enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), granting trial courts the discretion not to impose a five-year term for a prior serious felony conviction. Madrigal contends we must remand for possible resentencing because this change in law applies retroactively to his case. In a prior nonpublished opinion, we concluded Madrigal was entitled to retroactive application of the statute and we ordered a remand for the trial court to consider striking the five-year enhancement. After the Attorney General sought review, the California Supreme Court decided People v. Stamps (2020) 9 Cal.5th 685 (Stamps) [defendant appealing from negotiated plea agreement is entitled to retroactive application of Senate Bill 1393 without first obtaining a certificate of probable cause, but if the trial court strikes the enhancement on remand, the prosecution is entitled to withdraw from the plea agreement and trial court may disapprove plea agreement]. Upon issuing Stamps, the Supreme Court directed us to vacate our prior opinion in this matter and reconsider the matter.
We have done so, and having vacated our prior opinion, we again conclude Madrigal is entitled to retroactive application of Senate Bill 1393 notwithstanding the absence of any certificate of probable cause. (Stamps, supra, 9 Cal.5th at p. 692.) In accordance with Stamps, we will reverse the judgment and remand the matter to allow Madrigal an opportunity to seek relief under Senate Bill 1393.
I. BACKGROUND
The facts of the offenses are immaterial to this opinion. The prosecution charged Madrigal with two counts: Count 1—lewd or lascivious act on a child under 14 (Pen. Code, § 288, subd. (a)); and count 2—kidnapping (§ 207, subd. (a)). The information further alleged Madrigal had suffered a prior strike conviction and a prior serious felony conviction (§ 667, subds. (a), (b)-(i)).
Subsequent undesignated statutory references are to the Penal Code. --------
In June 2017, the parties reached a plea agreement. On count 1, Madrigal pleaded no contest and not guilty by reason of insanity. He pleaded no contest on count 2 and admitted the prior allegations. After a court trial on the insanity plea to count 1, the court found Madrigal was legally insane when he committed the offense. At sentencing for count 1, the court found Madrigal had not been restored to sanity. In accord with the plea agreement, the court committed him to the Department of State Hospitals for a maximum term of 16 years. On count 2, the court imposed a term of 16 years, equal to twice the aggravated term of eight years based on the prior strike conviction. The court imposed an additional five-year term for the prior felony conviction, resulting in a total term of 21 years. However, the court stayed the 21-year term pending a finding that Madrigal's sanity is restored and his commitment to the mental hospital is not extended.
Madrigal filed a notice of appeal in July 2017. He did not obtain a certificate of probable cause.
II. DISCUSSION
In 2017, the trial court imposed a mandatory five-year term based on Madrigal's admission of a prior serious felony conviction. Effective January 1, 2019, Senate Bill 1393 amended section 667, subdivision (a) and section 1385, subdivision (b) to give trial courts the discretion to strike or dismiss a prior serious felony conviction at sentencing. (Stats. 2018, ch. 1013, §§ 1-2.) Although Senate Bill 1393 took effect after Madrigal was sentenced, he originally contended it applied to his case under the retroactivity doctrine of In re Estrada (1965) 63 Cal.2d 740 (Estrada) and its progeny. In briefing submitted after the Supreme Court returned the matter to us for reconsideration in light of Stamps, supra, Madrigal now contends we must remand for further proceedings based on this change in law consistent with that decision.
The Attorney General originally conceded that the change in law would apply retroactively to Madrigal's case. But in his respondent's brief, filed before the Supreme Court decided Stamps, supra, the Attorney General contended we must dismiss this appeal based on Madrigal's failure to obtain a certificate of probable cause. Assuming the claim was not barred, the Attorney General argued we should not remand for resentencing because the 21-year term imposed by the trial court shows it would not have stricken the five-year enhancement even if it had the discretion to do so. We invited the Attorney General to file additional briefing after the Supreme Court remanded the matter to this court, but the Attorney General declined to file a brief on the matter.
A. No Certificate of Probable Cause Was Required
The Attorney General contended Madrigal's claim is not cognizable without a certificate of probable cause under section 1237.5 (precluding certain claims on appeal after a plea of no contest or guilty unless the trial court has granted a certificate of probable cause). In Stamps, the Supreme Court rejected this argument. "We hold defendant was not required to obtain a certificate of probable cause [citation] to claim on appeal that the new law applied to him retroactively, and that the new law applies because his case is not yet final on appeal." (Stamps, supra, 9 Cal.5th at p. 692.) In accordance with Stamps, we conclude Madrigal's claim is cognizable on appeal, and he is entitled to retroactive application of Senate Bill 1393, should he decide to seek relief below.
Because Madrigal resolved his case with a plea agreement as opposed to an open plea of guilty or a trial, there may be consequences to the disposition he negotiated with the District Attorney if he elects to seek relief under Senate Bill 1393 on remand to the trial court. The Supreme Court made clear in Stamps that neither the prosecutor nor the trial court is obliged to strike the section 667, subdivision (a) five-year enhancement from the negotiated plea agreement and otherwise enforce the agreement. "If he desires, defendant should be given the opportunity to seek the court's exercise of its section 1385 discretion. If the court on remand declines to exercise its discretion under section 1385, that ends the matter and defendant's sentence stands. [¶] However, if the court is inclined to exercise its discretion . . . . such a determination would have consequences to the plea agreement . . . . [T]he court is not authorized to unilaterally modify the plea agreement by striking the serious felony enhancement but otherwise keeping the remainder of the bargain." (Stamps, supra, 9 Cal.5th at p. 707.) If the trial court determines that it might exercise its discretion under section 1385, the prosecution can "agree to modify the bargain to reflect the downward departure in the sentence such exercise would entail." (Ibid.) Absent such an agreement, the prosecution is entitled to withdraw assent to the plea agreement. (Ibid.) Similarly, the trial court "may withdraw its prior approval of the plea agreement" if it grants the relief Madrigal requests under section 1385, subdivision (a). (Id. at p. 708.)
Because of the potential consequences of a request that the trial court exercise its discretion under amended section 1385, subdivision (a), Madrigal has the right to determine whether he wishes to pursue the opportunity to obtain the relief that we afford him. "In light of these potential consequences to the plea agreement, we emphasize that it is ultimately defendant's choice whether he wishes to seek relief under Senate Bill 1393. . . . While it is true that defendant has consistently argued on appeal that Senate Bill 1393 should retroactively apply to him, his argument has always been coupled with his claim that the proper remedy should be to simply allow the trial court to reduce his sentence by five years while otherwise maintaining the remainder of the plea agreement. Now that we have rejected his proposed remedy, defendant's calculus in seeking relief under Senate Bill 1393 may have changed. Defendant should be allowed to make an informed decision whether to seek relief on remand." (Stamps, supra, 9 Cal.5th at p. 708.) As a result of the Supreme Court's determination, we will remand the case so that Madrigal may consult with counsel to decide whether he wishes to seek the relief afforded by Senate Bill 1393.
B. Retroactive Application of Senate Bill 1393 Requires Remand
The Attorney General argued that even if Madrigal is entitled to retroactive application of Senate Bill 1393, no remand is necessary because the trial court's imposition of a 21-year term as part of a negotiated disposition shows it would not strike the enhancement even if it had the discretion to do so. "We are not required to remand to allow the court to exercise its discretion if 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement' even if it had the discretion. [Citation.]" (People v. Jones (2019) 32 Cal.App.5th 267, 272-273.) Apart from the fact that the sentence was negotiated, however, there is nothing in the record to support the Attorney General's assertion. As Madrigal points out, the trial court made clear it was imposing the enhancement because the enhancement was mandatory. At sentencing, the court stated, "The 16-year term is two times the aggravated term of 8 years, exacerbated by the strike prior conviction that was admitted. [¶] In addition, the Court must impose the mandatory five-year serious felony prior, for a total of 21 years." (Italics added.)
This record does not clearly indicate the trial court would decline to strike the enhancement on resentencing. Consistent with the disposition in Stamps, we will remand the case to the trial court so that Madrigal can consult with counsel and decide whether he now wishes to request that the trial court exercise its section 1385 discretion to strike the section 667, subdivision (a) five-year enhancement imposed on him as a result of a plea agreement. (Stamps, supra, 9 Cal.5th at p. 709.)
III. DISPOSITION
The judgment is reversed, and the matter is remanded to the superior court to allow Madrigal an opportunity to seek relief under Senate Bill 1393. If Madrigal does not seek relief under Senate Bill 1393, the superior court will reinstate the judgment. If the court grants relief under Senate Bill 1393, either the prosecution may withdraw assent to the plea agreement or the court may withdraw its approval of the plea agreement. If the court concludes Madrigal is ineligible for resentencing, the superior court will reinstate the judgment.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Elia, J.