Opinion
G058271
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO SANDOVAL, Defendant and Appellant.
Jason Szydlik, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CF0966) OPINION Appeal from a judgment of the Superior Court of Orange County, Andre Manssourian, Judge. Remanded for further proceedings. Jason Szydlik, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
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Before Moore, Acting P.J., Aronson, J., and Fybel, J.
Defendant Fernando Sandoval pleaded guilty to two counts of attempted carjacking. (Pen. Code, §§ 215, subd. (a), 664, subd. (a).) He also admitted two prior strike convictions (§§ 667, subd. (d)), 1170.12, subd. (b)), two prior serious felony convictions (§ 667, subd. (a)(1)), and two prior prison term convictions (§ 667.5, subd. (b)).
Unless cited otherwise, all statutory references are to the Penal Code. --------
Consistent with the indicated sentence communicated to defendant prior to his guilty plea, the trial court sentenced defendant to seven years in prison. The court struck one prior strike and both serious felony prior convictions. The sentence included five years for one count of attempted carjacking (§ 215, subd. (b) [5-year midterm]; § 664, subd. (a) [one-half for attempt]; § 667, subd. (e)(1) [double for one strike]), a concurrent five years for the other count of carjacking, and consecutive one-year terms for the two prior prison term enhancements (§ 667.5, subd. (b)).
The only issue raised on appeal is that the prior prison enhancements (§ 667.5, subd. (b)) are unauthorized by law pursuant to a recent statutory amendment. The Attorney General concedes that defendant is entitled to relief.
"On October 8, 2019, the Governor signed Senate Bill 136 into law. This amends section 667.5, subdivision (b). Under this amendment, a one-year prior prison term enhancement will only apply if a defendant served a prior prison term for a sexually violent offense . . . ." (People v. Lopez (2019) 42 Cal.App.5th 337, 340-341 (Lopez).) Neither of defendant's prison priors were sexually violent offenses, as defined by Welfare and Institutions Code section 6600, subdivision (b).
Absent legislative intent to the contrary, favorable changes to criminal laws apply retroactively to judgments not yet final on appeal. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 745.) "The amendment to section 667.5, subdivision (b) became effective on January 1, 2020. [Citation.] The amendment applies retroactively to all defendants whose judgments are not yet final as of that date." (People v. Petri (2020) 45 Cal.App.5th 82, 94 (Petri).) Like the defendant in Petri, here "[d]efendant's case was not final on the effective date of the amendment to section 667, subdivision (b). Further, the parties agree that defendant's prior prison term was not for a sexually violent offense . . . ." (Petri, at p. 94.)
We agree with the analysis provided by the parties and accept the Attorney General's concession of error. The prior prison enhancements imposed pursuant to section 667, subdivision (b), must be stricken.
The only remaining issue is the proper disposition. The Petri and Lopez courts struck the section 667.5, subdivision (b), enhancements and affirmed the judgments in those cases as modified. (Petri, supra, 45 Cal.App.4th at p. 94; Lopez, supra, 42 Cal.App.5th at p. 342.) Defendant asks us to do the same here. However, as the instant case involves a guilty plea pursuant to an indicated sentence after which the trial court exercised its discretion to strike other enhancements, we agree with the Attorney General that the proper disposition here is to remand for resentencing. (People v. Keene (2019) 43 Cal.App.5th 861, 865.) The trial court should have the opportunity to resentence defendant afresh in light of the unavailability of section 667.5, subdivision (b), enhancements.
Defendant points to People v. Mathews (2020) 47 Cal.App.5th 857 in support of his preferred disposition. But Mathews held that a plea bargain with specific negotiated sentences for each charge and enhancement could not be undone. (Id. at pp. 866-869.) The instant case features a guilty plea procured by a general indication of a seven-year prison term, not specific binding terms as to specific sentence components.
DISPOSITION
The sentence is vacated. The trial court is ordered to strike the two section 667.5, subdivision (b), prison prior enhancements and to resentence defendant. Defendant's new sentence shall not exceed his previous sentence, i.e., seven years in prison. Following resentencing, the trial court shall amend the abstract of judgment and forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.