Opinion
C081157
03-25-2019
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JOSEPH SHEPARDSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F00741)
Defendant William Joseph Shepardson pled no contest to possessing methamphetamine for sale and admitted three prior drug conviction allegations under Health and Safety Code section 11370.2, subdivision (c). He appeals the trial court's denials of his motions to suppress and to disclose police personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. In supplemental briefing he urges us to strike his prior drug conviction enhancements because of amendments to section 11370.2 that are applicable to him.
Further section references are to the Health and Safety Code unless indicated otherwise.
We conclude the trial court properly denied defendant's suppression motion, but improperly denied his Pitchess motion. Accordingly we conditionally reverse the judgment for a Pitchess hearing and an opportunity for defendant to present any discoverable evidence to the trial court as part of a reconsidered motion to suppress. We further agree with defendant that his three section 11370.2 enhancements must be stricken.
FACTUAL AND PROCEDURAL BACKGROUND
On February 2, 2015, at 9:45 p.m., California Highway Patrol Officer Gheorghe Nesinov pulled defendant over for speeding and making a "jerky movement" when merging. Defendant was driving a minivan and pulled it over on the narrow shoulder of westbound Interstate 80 between an on-ramp and the interchange to Interstate 5.
Dashcam footage of the traffic stop and resulting search was admitted into evidence at the suppression hearing.
Once pulled over, Officer Nesinov approached the passenger side of the van with his partner, Officer Mason, standing behind him. Defendant gave Officer Nesinov his identification card and told the officer he was driving with a suspended license. Defendant also said the van belonged to his girlfriend. Based on defendant's claim his license was suspended, Officer Nesinov contemplated impounding the van. He returned to his patrol car to confirm defendant's license status and to run a warrant check. The check revealed defendant's driver's license had been suspended for five years. It further revealed that he had no outstanding warrants, but had previously been arrested 166 times, mostly for drug related offenses.
Officer Mason's first name does not appear in the record.
"After [running warrants], [and] based on the return [Officer Nesinov] got from the driver's license being suspended, [he] decided to write [defendant] a ticket for driving on a suspended license and speeding, and subsequently decided to impound the car," citing Vehicle Code section 14602.6. "The reasoning [for impounding the car] was that [defendant's] license was suspended," defendant's drug arrests did not factor into Officer Nesinov's consideration. Officer Nesinov put defendant in the back of the patrol car so he could eventually take him somewhere to call for a ride home. He suspected the impound and inventory search process would take him 15 to 20 minutes to complete. Officer Nesinov did not call the registered owners of the van or ask defendant if a licensed driver could pick up the van before deciding to impound it. That is his practice. When children are involved, however, because of road-side safety and car seat transfer concerns, he usually does not impound the car.
Before returning to the van, Officer Nesinov asked defendant whether there was anything in the van he should know about given defendant's prior drug arrests. Once at the van, Officer Nesinov told Officer Mason of defendant's prior arrests. He then began an inventory search of the van so it could be impounded. Departmental procedure required Officer Nesinov to fill out a "CHP 180 form," which has boxes to identify the vehicle and a comment section to list "any type of inventory . . . , such as laptops or wallets or whatever people leave in their car and they don't take." The purpose of the inventory is so nobody could later claim something was missing from the vehicle. Officer Nesinov believed his search needed to be "reasonable" to fulfill that purpose. "So I have to look in places where things of value could be, basically, the interior of the passenger cabin, the interior of the vehicle for property . . . ."
As they were beginning the search, both Officers Nesinov and Mason smelled marijuana coming from inside the van. Officer Nesinov saw a canvas bag and thought marijuana was inside. When he opened it, he found several small canvass pouches containing what appeared to be methamphetamine. Officer Nesinov had the van moved to a parking lot to more safely conduct a thorough search. Upon that more thorough search, Officer Nesinov found 800 grams of methamphetamine, two jars of marijuana, and a large sum of money.
Defendant moved to suppress the evidence found in the van arguing the inventory search was unreasonable. He also moved for disclosure of Officer Nesinov's personnel record to prove the officer was dishonest and impounded the van as a ruse to perform an investigatory search. The trial court denied both motions. As for Officer Nesinov's personnel records, the court found defendant failed to allege officer misconduct. In fact, the parties agreed to the events of the traffic stop and subsequent search but disagreed about the officer's subjective intent when impounding the van. Defendant's factual allegation, the court concluded, did not trigger the court's duty to view Officer Nesinov's personnel record in camera.
As for defendant's suppression motion, the court found Officer Nesinov decided to impound defendant's van because of defendant's suspended license, and that the officer did not suspect the presence of drugs until he smelled marijuana at the start of his inventory search. "I cannot conclude that this was simply a ruse to rummage for contraband nor has the defense shown that there was no standardized procedure for opening containers during the impound search. [¶] Defense counsel questioned Officer Nesinov about paragraph 3 of [departmental policy] but did not question him about [para]graph 4 which clearly states that it is CHP policy that, quote, all property located should be opened and inventoried. The canvas bag and other containers were property that, in my view, a reading of the CHP policy, is supposed to be opened and inventoried for impound search; therefore, the motion to suppress is denied."
Defendant later pled no contest to possession of methamphetamine for sale and admitted three prior drug convictions, enhancing his sentence three years for each section 11370.2, subdivision (c) enhancement. Defendant's total sentence was for 12 years.
DISCUSSION
This matter was assigned to the panel as presently constituted in January 2019.
I
The Court Properly Denied Defendant's Suppression Motion
Defendant challenges the trial court's denial of his suppression motion on multiple grounds. He argues the court improperly assigned the burden to him to prove a Fourth Amendment violation did not occur instead of requiring the prosecution to prove the search complied with the Fourth Amendment. He also argues the search of the van was predicated upon an unreasonable decision to impound it and was further not justified by the community caretaking exception. Finally, he argues the search itself did not comply with departmental procedures and was a ruse to look for suspected contraband. We disagree.
The initial burden is on the defendant to establish that the government conducted a search without a warrant. The burden then shifts to the prosecution to justify the warrantless search. (People v. Williams (1999) 20 Cal.4th 119, 127 ["the prosecution has the burden of proving, if it can, some justification for a warrantless search"].) A warrantless search is presumptively unreasonable. (People v. Simon (2016) 1 Cal.5th 98, 120.) The prosecution must prove by a preponderance of the evidence that the search falls within an exception to the Fourth Amendment warrant requirement. (People v. Torres (1992) 6 Cal.App.4th 1324, 1334.)
Vehicle inventory searches are a well-defined exception to the Fourth Amendment warrant requirement. (Colorado v. Bertine (1987) 479 U.S. 367, 371 [93 L.Ed.2d 739, 745].) Law enforcement officers do not need a warrant to impound and search a vehicle where the impound and inventory search both conform to standardized protocol. (People v. Quick (2016) 5 Cal.App.5th 1006, 1010; People v. Williams (2006) 145 Cal.App.4th 756, 761-762.)
As an initial matter, we dispense of defendant's complaint the trial court placed the burden of proof on him to prove a constitutional violation when it should have belonged with the prosecution to prove the absence thereof. Defendant points to the court's finding he " 'failed to make a showing of Fourth Amendment unlawfulness' " and the prosecution's failure to provide the written departmental policy regarding the search of containers to prove the burden was improperly placed with the defense. While the court did characterize its ruling as one where defendant failed to prove a Fourth Amendment violation, it based its ruling on the affirmative showing that Officer Nesinov decided to impound the van because defendant drove it with a suspended license and because the written departmental policy provided by defendant allowed for the search of closed containers during an inventory search. The fact that it was defendant and not the prosecution to offer these written policies into evidence is of no consequence. Defendant cites no authority requiring the trial court to ignore evidence relevant to its decision simply because it was offered by the party who did not carry the burden. Officer Nesinov testified about the departmental policies as he understood them and defendant offered the written versions of those policies into evidence. The court's reliance on those written policies did not shift the burden of proof to defendant, nor does the court's finding imply that it did. Moreover, our review is de novo making any error in this regard harmless.
Defendant also attacks Officer Nesinov's decision to impound the van as being unreasonable. We disagree. "The decision to impound the vehicle must be justified by a community caretaking function 'other than suspicion of evidence of criminal activity' [citation] because inventory searches are 'conducted in the absence of probable cause' [citation]." (People v. Torres (2010) 188 Cal.App.4th 775, 787.) "Police officers may exercise discretion in determining whether impounding a vehicle serves their community caretaking function, 'so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.' [Citation.] Statutes authorizing impounding under various circumstances 'may constitute a standardized policy guiding officers' discretion' [citation], though 'statutory authorization does not, in and of itself, determine the constitutional reasonableness of the seizure' " (Ibid.)
Defendant argues Officer Nesinov's decision to impound the van was not supported by an authorizing statute. Not so. While true that Officer Nesinov's reliance on Vehicle Code section 14602.6 as justification to impound the van was misplaced, Vehicle Code section 22651, subdivision (p) authorizes an impound "if the peace officer issues the driver of a vehicle a notice to appear for a violation of [Vehicle Code] Section . . . 14601.1 [(driving with a suspended license)] . . . and the vehicle is not impounded pursuant to [Vehicle Code] Section 22655.5 [(allowing for impound when there is probable cause the vehicle was used in the commission of a crime or contains evidence of a crime)]." Thus, while mistaken on the specific Vehicle Code section, Officer Nesinov was not mistaken that he had statutory authorization to impound the van.
Vehicle Code section 14602.6, subdivision (a)(1) allows for impound of a car driven by a person while his or her license is suspended after he or she is arrested or after the car was involved in a collision. Defendant was not arrested prior to the decision to impound nor was he involved in a traffic collision.
Statutory authorization, however, does not end our inquiry. "Just as inventory searches are exceptions to the probable cause requirement, they are also exceptions to the usual rule that the police officers' '[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. . . .' [C]ourts will explore police officers' subjective motivations for impounding vehicles in inventory search cases, even when some objectively reasonable basis exists for the impounding." (People v. Torres, supra, 188 Cal.App.4th at pp. 787-788.)
"[A]s the United States Supreme Court has explained, inventory search cases apply 'the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into "a purposeful and general means of discovering evidence of crime. . . ." ' [¶] And so courts invalidate inventory searches when the police impound vehicles without serving a community caretaking function, suggesting the impoundings were pretexts for conducting investigatory searches without probable cause." (People v. Torres, supra, 188 Cal.App.4th at p. 778.)
Defendant argues that beside pointing to the Vehicle Code, Officer Nesinov did not purport to impound the van for any community caretaking purpose or pursuant to any departmental policy, indicating his true purpose was to conduct an investigatory search without probable cause. We disagree. Officer Nesinov testified to his usual practice of impounding cars when driven by a person with a suspended license, except when children are involved in the traffic stop. To Officer Nesinov, the amount of time necessary to conduct an inventory search and transfer the children to a licensed driver is unsafe while on the side of the road. Although he did not elaborate about his reason for impounding the van beyond defendant's suspended license and his usual practice, Officer Nesinov did describe the circumstances of the traffic stop and the safety concerns he had about performing a prolonged search of the van on the side of the freeway. Confirming his concerns was the dashcam video of the traffic stop, which showed the van stopped on a narrow shoulder on the side of a multi-lane freeway between an on-ramp for cars to enter the freeway and an interchange for cars to continue onto another freeway. The video also revealed the limited visibility provided on that stretch of roadway at the time of the stop -- 9:45 p.m. Thus, while Officer Nesinov did not testify he impounded the van because of safety concerns, his testimony about his usual practice and the safety concerns he perceived during the traffic stop leave little doubt it factored into his decision.
Defendant disagrees and contends the whole of the evidence shows Officer Nesinov's decision to impound was a ruse to conduct an investigatory search without probable cause. He points to the lack of a departmental impound policy guiding officer discretion, Officer Nesinov's failure to inquire whether a licensed driver or the registered owners could pick up the van, and Officer Nesinov's decision to impound only after discovering defendant's prior drug-related arrests as revealing Officer Nesinov's true intent.
First, defendant places too much emphasis on the lack of a departmental impound procedure. To be reasonable, an impound must be conducted pursuant to a standardized procedure, not a specific departmental procedure. (People v. Torres, supra, 188 Cal.App.4th at p. 787.) Officer Nesinov testified he decided to impound the van pursuant to the Vehicle Code, which when considered with Officer Nesinov's safety concerns, provides the standard procedure preventing him from exercising unfettered discretion.
Second, Officer Nesinov testified it would take him 15 to 20 minutes to inventory the van before it could be driven off the freeway. Given the time of night (9:45 p.m.) and the heightened safety concerns associated with the visibility and location of the traffic stop, Officer Nesinov reasonably concluded removing the van from the freeway as quickly as possible was the best course of action. Indeed, after discovering the methamphetamine in the van, Officer Nesinov had the van moved to a parking lot so a more thorough 30-minute search could be conducted.
And finally, when considering the totality of the traffic stop and Officer Nesinov's decision to impound, we conclude the prosecution met its burden in showing the officer was not motivated by defendant's prior drug arrests. Officer Nesinov testified he contemplated impounding the van when defendant said he had a suspended license, before learning of his prior arrests. He then ran defendant's name to confirm his status and then decided to impound the van based on that confirmation. The dashcam and audio recording of the traffic stop confirms the officer's account. When Officer Nesinov ran defendant's name, he exclaimed shock at the length of time defendant had a suspended license and immediately decided to impound the van. He placed defendant in the back of the police car while talking to him about the impound process. The fact that Officer Nesinov did not arrest defendant immediately as he was authorized to do (Veh. Code, § 14602.6), confirms his testimony he decided to impound based on defendant's citable offense of driving with a suspended license and not for a suspected violation of a more serious criminal offense. It was not until after Officer Nesinov started filling out the impound form and had removed defendant from the van that Officer Nesinov mentioned defendant's prior drug arrests.
Taking all circumstances into account, we conclude the prosecution met its burden in showing Officer Nesinov did not impound the van as a ruse to conduct a warrantless investigatory search. The decision to impound was reasonable.
We need not consider Officer Nesinov's subjective intent in searching the containers within the van because once he and Officer Mason smelled marijuana, they had probable cause to search containers where marijuana could be found. (People v. Waxler (2014) 224 Cal.App.4th 712, 725-726 [the observation of any amount of marijuana, which could be contraband, established probable cause to search an automobile]; People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059-1060 [finding probable cause to search a vehicle based on the odor of marijuana, despite the defendant's presentation of a medical marijuana card].) Defendant urges us not to reach this conclusion because the prosecutor did not rely on this theory in the trial court. We, however, may affirm the trial court's ruling if correct on any theory of applicable law. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
He further attempts to distinguish his case because the officers did not smell burning marijuana. Defendant's reliance on this fact is misplaced. "The continuing regulation of marijuana leads us to believe that Strasburg and Waxler still permit law enforcement officers to conduct a reasonable search to determine whether the subject of the investigation is adhering to the various statutory limitations on possession and use, and whether the vehicle contains contraband or evidence of a crime." (People v. Fews (2018) 27 Cal.App.5th 553, 562.) Officers Nesinov and Mason detected the odor of marijuana emanating from the van at a time when Proposition 64 had not yet been passed. There was no indication defendant had a medical marijuana card or was in otherwise lawful possession of marijuana despite Officer Nesinov asking whether defendant wanted to tell him anything about the contents of the van. At that point the officers were entitled to conduct a reasonable search to determine whether defendant followed the statutory limitations of possession and use. The trial court properly denied defendant's motion to suppress.
Control, Regulate and Tax Adult Use of Marijuana Act, as approved by the voters, General Election, November 8, 2016.
Unlike defendant's challenge to the inventory search, our probable cause analysis cannot weigh Officer Nesinov's subjective intentions. (See Horton v. California (1990) 496 U.S. 128, 137-138 [110 L.Ed.2d 112, 123-124].) --------
II
The Court Erroneously Denied Defendant's Pitchess Motion
Defendant contends the trial court erred by denying his Pitchess motion. The People counter that defendant's claim is not cognizable on appeal because he pled guilty and his Pitchess motion is not intertwined with his suppression motion. We agree with defendant that his claim is cognizable and that the court erred.
In People v. Collins (2004) 115 Cal.App.4th 137, the court considered the defendant's Pitchess claim on appeal pursuant to Penal Code section 1538.5, subdivision (m), which provides "[a] defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty." Relying on Penal Code section 1538.5, subdivision (m), the Collins court held that a trial court's ruling on a Pitchess motion may be considered on appeal if the Pitchess motion is intertwined with the suppression motion and directed to the legality of the search and seizure. (Collins, at pp. 150-151.)
In Collins, the defendant's Pitchess motion sought information concerning the officers' " 'illegal activities, improper tactics, dishonesty, planting evidence, improper search and seizure, and harassment' " because the defendant contended the officers " 'failed to follow search procedures[,]' " " 'tamper[ed] with evidence[,] acting without probable cause on an unreliable and bogus confidential letter that was destroyed by design.' " (People v. Collins, supra, 115 Cal.App.4th at pp. 149-150.)
Here, defendant's Pitchess motion sought evidence to impeach Officer Nesinov's credibility as to whether he performed an inventory search for the purpose of impounding the van or as a pretext to searching the van for drugs without the required probable cause. To that end, defendant sought evidence of complaints made against Officer Nesinov for unlawful searches and seizures and any resulting investigations and reports. Defense counsel declared Officer Nesinov's record was material to showing he "conducted an unlawful search and seizure during the investigation of this case." Counsel ultimately sought "to locate and call witnesses to testify to a pattern or policy of said officer to secure evidence by unlawful methods."
The People argue defendant's Pitchess motion is not intertwined with his suppression motion because defendant did not allege Officer Nesinov destroyed or fabricated evidence. This, however, goes to the merits of defendant's motion not to its cognoscibility on appeal. Like in Collins, defendant's Pitchess motion attacked the legality of the search based on defendant's allegation that Officer Nesinov did not reasonably decide to impound and search the van. Defendant's Pitchess motion is not aimed at proving his innocence of the charged crimes, but at invalidating a search he believed was illegal. Thus, defendant's Pitchess motion is intertwined with his suppression motion and may be reviewed on appeal.
To obtain discovery of a peace officer's personnel file, the defendant must file a noticed motion supported by a good cause affidavit setting forth: (1) the materiality of the request to the pending litigation; and (2) a reasonable belief that the agency has the records or information. (Evid. Code, § 1043; Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) "This two-part showing of good cause is a 'relatively low threshold for discovery.' " (Warrick, at p. 1019.)
"[A] showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1021.) Good cause may be established by "a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Id. at p. 1025.) "[A] plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Id. at p. 1026.)
If good cause is shown, the trial court conducts an in camera examination of the records to determine whether there is any relevance to the issues presented by the litigation. (Evid. Code, § 1045; Warrick v. Superior Court, supra, 35 Cal.4th at p. 1019.) These procedures balance the confidentiality of peace officers against the defendant's need for disclosure to pursue his or her defense. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86.) We review a trial court's ruling on a Pitchess motion for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1286.)
The trial court found its duty to review Officer Nesinov's personnel record in camera was not triggered because defendant did not allege an alternative factual scenario showing officer misconduct. In fact, "[t]he facts are the same from both sides. [¶] In other words, the declaration doesn't suggest that the officer provided false evidence at all. He, in fact, says that he ran the defendant, and he was aware that he had prior drugs in his background. [¶] So because what we're trying to determine is whether or not the discovery sought would support the fact that the officer falsely made indications in his report, I don't see anything in the declaration that he made any false statement at all in the report."
The problem with the trial court's reasoning is that defendant sought to prove Officer Nesinov engaged in misconduct by securing evidence through unlawful means, in addition to being untruthful. While defendant's factual allegation did not allege Officer Nesinov was untruthful when relating the events of the traffic stop, it could plausibly support a scenario where Officer Nesinov impounded defendant's car based on defendant's prior drug arrests and not his suspended license. Indeed, defense counsel's declaration states defendant told Officer Nesinov he had a suspended license when he was pulled over. Officer Nesinov ran defendant's name through a database and learned defendant had prior drug arrests. He then decided to impound the van.
That this factual scenario is the same as the scenario related by Officer Nesinov is of no consequence. A good cause showing merely requires a specific factual scenario that is plausible -- "both internally consistent and supports the defense proposed to the charges." (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1026.) Defendant presented such a scenario. He challenged Officer Nesinov's search arguing the officer ordered his van impounded as a pretext to search it for drugs. If this is true, then the search was unlawful. (People v. Torres, supra, 188 Cal.App.4th at pp. 787-788 [courts will explore an officer's subjective motivations as it relates to the decision to impound and search a vehicle].) To support this assertion to his case, defendant pointed to the uncontradicted events of the traffic stop and requested complaints of a similar nature against Officer Nesinov. While the events of the traffic stop support a valid search as demonstrated above, they could also plausibly support an invalid search as argued by defendant. The Pitchess motion should have been granted.
The remedy here, however, "is not outright reversal, but a conditional reversal with directions to review the requested documents in chambers on remand." (People v. Gaines (2009) 46 Cal.4th 172, 180.) If the new Pitchess hearing results in discoverable information, defendant's motion to suppress should be reconsidered in light of any discoverable evidence which is disclosed during the new Pitchess proceeding.
III
Defendant's Three Section 11370 .2 Enhancements Should Be Stricken
Defendant contends the three prior drug conviction enhancements he admitted to as part of his plea deal should be stricken because of amendments to former section 11370.2, subdivision (c) that apply to him. The People agree the amendment applies to defendant but disagree that his enhancements should be stricken because they were imposed as part of his plea deal. We agree with defendant and accordingly strike his three prior drug conviction enhancements.
Section 11370.2, former subdivision (c), provided for three-year sentence enhancements for a number of specified prior drug offense convictions. (People v. Millan (2018) 20 Cal.App.5th 450, 454.) Senate Bill No. 180 (the amendment), signed by the Governor on October 11, 2017, amended section 11370.2, subdivision (c), to provide the three-year sentencing enhancement only applies to violations of section 11380, which criminalizes the use of a minor to commit a drug offense. The amendment removed sentencing enhancements based upon prior violations of other drug statutes, including the statutes defendant had previously been convicted under. (Millan, at pp. 454-455; Stats. 2017, ch. 677, § 1; People v. Camba (1996) 50 Cal.App.4th 857, 865-866 [absent an urgency clause, new legislation is operative January 1 of the year following enactment].)
The purpose of the amendment was to reduce imprisonment for nonviolent drug offenders. The author and supporters of the amendment stated the prior sentencing policy of imposing long periods of incarceration for nonviolent prior drug convictions led to overcrowded jails and prisons and crippled state and local budgets with "expensive and ineffective punishment." (Assem. Com. on Pub. Safety, Analysis of Sen. Bill No. 180 (2017-2018 Reg. Sess.) June 27, 2017, pp. 3-4.)
The "general rule in California is that the plea agreement will be ' "deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. . . ." ' [Citation.] That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them." (Doe v. Harris (2013) 57 Cal.4th 64, 66.) Parties to a plea agreement "are deemed to know and to understand that the state . . . may enact laws that will affect the consequences attending the conviction entered upon the plea" and "the terms of the plea agreement can be affected by changes in the law" unless the facts of an individual case show the parties agreed otherwise. (Id. at pp. 70, 74.) There is no such indication here. (See People v. Wright (2019) 31 Cal.App.5th 749.)
In Harris, the Supreme Court rejected an argument the prosecution should be able to rescind a plea agreement in the context of a petition for resentencing under Proposition 47. (Harris v. Superior Court (2016) 1 Cal.5th 984, 987.) Finding support in the Doe analysis, the court concluded the Legislature, or the electorate, " 'for the public good and in the furtherance of public policy, . . . has the authority to modify or invalidate the terms of [a plea] agreement' " and "bind the [prosecution] to a unilateral change in a sentence without affording them the option to rescind the plea agreement." (Harris, at p. 992.)
The People rely on People v. Collins (1978) 21 Cal.3d 208, for the proposition that where the change in the law eliminates the benefit the prosecution bargained for in the agreement, it is appropriate to set aside the plea. (Id. at p. 214.) The court in that case concluded, "When a defendant gains total relief from his vulnerability to sentence, the state is substantially deprived of the benefits for which it agreed to enter the bargain. Whether the defendant formally seeks to withdraw his guilty plea or not is immaterial; it is his escape from vulnerability to sentence that fundamentally alters the character of the bargain." (Id. at p. 215.) Here, however, the change in the law did not eviscerate the plea or the judgment and does not allow defendant to escape his vulnerability to sentence. Defendant remains convicted of possessing methamphetamine for sale and is subject to his three-year sentence for that crime. As such, the Collins analysis is inapplicable. (Harris v. Superior Court, supra, 1 Cal.5th at p. 993.)
Our Supreme Court in Harris observed that since one of the primary purposes of Proposition 47 was to "reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious," allowing the prosecution to rescind a plea agreement and reinstate the original charges would undermine the purpose as well as the financial and social benefits of the new law. (Harris v. Superior Court, supra, 1 Cal.5th at p. 992.) Similarly, here, the purpose of the amendment to section 11370.2, subdivision (c), to reduce terms of imprisonment for nonviolent drug offenders would be frustrated by allowing the prosecution to rescind or modify the plea agreement. Accordingly, we must strike the enhancements.
DISPOSITION
Defendant's judgment is conditionally reversed to allow the court on remand to conduct a new Pitchess hearing to review in camera the personnel file of Officer Nesinov. If the new Pitchess hearing results in discoverable information, the remedy should include an opportunity for defendant to present evidence and argument that he was unable to present at the suppression hearing. However, if no new information is discoverable after the Pitchess hearing, the court is directed to reinstate the judgment with modification. Specifically, the judgment is modified to strike the enhancements imposed pursuant to section 11370.2, subdivision (c). The trial court is directed to prepare an amended abstract of judgment reflecting the modification and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Renner, J.