Opinion
B295582
07-17-2020
THE PEOPLE, Plaintiff and Respondent, v. LONNIE SHEPPARD, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA147061) APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Shultz, Judge. Affirmed as modified. James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy Attorneys General for Plaintiff and Respondent.
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The question is whether defendants who negotiated plea deals should have their prior prison term enhancements stricken when the enhancements no longer apply due to Senate Bill No. 136 (2019-2020 Reg. Sess.) (SB 136). The answer, we hold, comes from People v. Matthews (2020) 47 Cal.App.5th 857 (Matthews), a recent case nearly identical to this one. Matthews is the only published case fully analyzing SB 136 in the context of plea agreements. Matthews did not create a split in authority; no published case has reached different results. Matthews held prior prison term enhancements must be stricken, whether or not defendants have obtained a certificate of probable cause. (Id. at pp. 862-869.) We follow Matthews and order the enhancements in this case stricken.
All statutory citations are to the Penal Code.
I
The following factual background is from the preliminary hearing and Sheppard's probation report. In September of 2018, Sheppard texted a woman, "I should have killed you in 2013." The woman had a protective order against Sheppard. Days after he sent the text, he went to the woman's home, banged on the door, and said, "Where's my money bitch? Bitch you gonna catch a fade." The woman said "catch a fade" means to fight.
An information charged Sheppard with three counts: making criminal threats under section 422, subdivision (a) (count one), disobeying a domestic relations order under section 273.6, subdivision (a) (count two), and stalking under section 646.9, subdivision (b) (count three). The information alleged Sheppard had served three prior prison terms and had two serious felony strikes. Had a jury found Sheppard guilty, he could have faced a sentence of life in prison, according to the information.
At a hearing on January 10, 2019, Sheppard and the prosecution entered a plea agreement in which they stipulated to a specific sentence.
The transcript from the sentencing hearing begins with the court reciting the plea deal's terms. Sheppard would plead no contest to count one, admit a prior strike, and admit two prior prison terms. In exchange, the prosecution would agree to dismiss count two, count three, and one prior strike allegation. According to the deal, the trial court would sentence Sheppard to 13 years, calculated as follows. The court would sentence Sheppard to the high term of three years for the criminal threats charge, double it to six years due to his prior strike, add five years under section 667, subdivision (a), and add two years due to his two prior prison terms under section 667.5, subdivision (b). Six plus five plus two equals 13.
Sheppard agreed the court's description of the deal was correct.
The trial court took Sheppard's plea. Sheppard admitted prior prison terms for convictions of Vehicle Code section 2800.2, felony evading, and Vehicle Code section 20001, subdivision (a), hit and run. The court sentenced Sheppard to 13 years according to the parties' deal.
Sheppard filed a notice of appeal with a request for a certificate of probable cause on January 25, 2019. The trial court denied his request for a certificate of probable cause on January 29, 2019.
Then the law changed concerning enhancements for prior prison terms. At the time of sentencing, section 667.5, subdivision (b) required the court to impose a one-year term for each prior separate prison term under section 1170, subdivision (h). On October 8, 2019, the Governor signed SB 136 and the change became effective January 1, 2020. This bill amended section 667.5, subdivision (b) to allow the enhancement only for prior prison terms that were for sexually violent offenses. Sheppard had no prior prison terms for sexually violent offenses.
II
We have jurisdiction to consider the appeal.
On appeal following a plea, a criminal defendant typically must obtain a certificate of probable cause. (§ 1237.5, Cal. Rules of Court, rule 8.304.) The certificate requirement is meant to discourage and weed out frivolous or vexatious challenges to convictions following pleas. The leading case on this issue is People v. Panizzon (1996) 13 Cal.4th 68, 75 (Panizzon).
The Panizzon case is especially important to this case, because we ordered the parties for supplemental briefing on this question: "Appellant failed to obtain a certificate of probable cause to appeal, as required by [section] 1237.5. [(Panizzon, supra, 13 Cal.4th at p. 89.)] Should the appeal be dismissed?"
We issued this order, citing Panizzon, on April 3, 2020. On April 14, 2020, Sheppard submitted an opening brief in response to our request. On April 15, 2020, the Court of Appeal decided Matthews. On April 20, 2020, Sheppard sent a letter notifying us and the prosecution of the new Matthews decision. On April 27, 2020, the prosecution filed a supplemental brief on the certificate issue. This brief elected to ignore Matthews, despite Sheppard's April 20 announcement of it and despite the fact the case is directly on point. The brief made no attempt to distinguish or argue against Matthews. In his supplemental reply brief of May 5, 2020, Sheppard cited Matthews again and discussed its application to his case.
Matthews held courts in SB 136 cases have jurisdiction notwithstanding the appellant's lack of a certificate of probable cause. (Matthews, supra, 47 Cal.App.5th at p. 864.) In May 2019, Matthews entered into a plea agreement with a stipulated sentence. (Id. at p. 861.) The trial court sentenced Matthews to 10 years, which included four 1-year terms under section 667, subdivision (b). Matthews appealed without a certificate of probable cause. (Matthews, at pp. 861-862.) As we did in this case, the Matthews court sought supplemental briefing about the certificate issue. (Id. at p. 862.) Matthews cited the Panizzon case, (id. at pp. 862-863), and determined it had jurisdiction to consider the appeal. (Id. at p. 864.)
An intervening Supreme Court case bolsters Matthews. Our high court decided People v. Stamps (June 25, 2020, S255843) ___ Cal.5th ___ <https://www.courts.ca.gov/opinions/documents/S255843.PDF> (Stamps), after the parties completed supplemental briefing in the present case. Stamps dealt with Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB 1393), which allowed trial courts to dismiss serious felony enhancements that had previously been mandatory. (Stamps, at [p. 2].) The defendant in Stamps did not attack his plea as defective when it was made but rather sought "retroactive application of a subsequently enacted ameliorative provision." (Id. at [p. 6].) As in Matthews, the court reasoned this was not an attack on the plea's validity, therefore the defendant did not need a certificate of probable cause. (Ibid.) Sheppard, who seeks retroactive application of a later-enacted ameliorative provision, fits squarely within the Stamps holding.
Under Stamps and Matthews, we have jurisdiction.
III
We turn to the merits of Sheppard's appeal. The parties correctly agree SB 136 applies retroactively to a person like Sheppard, whose judgment was not final when the law took effect. (Stamps, supra, ___ Cal.5th ___ <https://www.courts.ca.gov/opinions/documents/S255843.PDF> [pp. 11-12].) The parties also correctly agree the amended statute applies to Sheppard's case. SB 136 limited prior prison term enhancements under section 667.5, subdivision (b) to terms that were for sexually violent offenses. The prosecution concedes and we agree Sheppard's prior prison terms were not for sexually violent crimes.
IV
We turn now to the proper remedy.
SB 136's retroactive application to Sheppard's case notwithstanding, the prosecution says the enhancements may not be stricken because they were part of a negotiated plea. That is incorrect.
We look again to Matthews, which determined the section 667.5, subdivision (b) enhancements must be stricken. (Matthews, supra, 47 Cal.App.5th at pp. 864-865.)
The result in Matthews is consistent with the Sixth District Court of Appeal case People v. Petri (2020) 45 Cal.App.5th 82 (Petri). In Petri, the defendant admitted a prior prison term under section 667.5, subdivision (b) and he agreed to a stipulated sentence. (Petri, at pp. 85-86.) The court ordered the enhancement stricken because SB 136 was retroactive, Petri's prior prison term was not for a sexually violent offense, and his case was not final. (Id. at pp. 93-95.) The prosecution in Petri conceded the enhancement should be stricken.
Sheppard is like the defendants in Matthews and Petri in all respects: Sheppard negotiated a deal with enhancements under section 667.5, subdivision (b) before SB 136; Sheppard's prior prison terms were not for sexually violent offenses; and Sheppard's case is not final.
Yet the prosecution says we should reach a different result. The prosecution relies on a single case, People v. Wilson (2019) 42 Cal.App.5th 408, 411, which the recent Stamps case specifically disapproved. (Stamps, supra, ___ Cal.5th ___ <https://www.courts.ca.gov/opinions/documents/S255843.PDF> [p. 27 & fn. 6].)
Again we are puzzled by the prosecution's decision pointedly to avoid discussing Matthews in our court.
We reject the prosecution's alternative proposal. The prosecution says we could reverse the judgment of conviction, allow the prosecution to reinstate its dismissed counts, and add a condition Sheppard be sentenced for no more than 13 years. In the 2016 decision in Harris v. Superior Court (2016) 1 Cal.5th 984, 991-992, however, a statute changed a defendant's felony to a misdemeanor and the Supreme Court rejected the prosecution's request to reinstate the original charges. (Ibid.) The court focused on "whether the electorate intended the change to apply to the parties to this plea agreement." (Id. at p. 991.) The Harris court determined allowing the prosecution to withdraw and reinstate the original charges would make resentencing under the new law meaningless. It would also thwart a primary purpose of the new law, which was to reduce the number of nonviolent offenders in state prisons. (Id. at pp. 991-992.) The same reasoning applies to SB 136.
The prosecution cites two older cases: People v. Collins (1978) 21 Cal.3d 208 (Collins) and In re Blessing (1982) 129 Cal.App.3d 1026 (Blessing). Both cases have substantially different facts. The differences are fatal to the prosecution's arguments.
In Collins, the prosecution agreed to dismiss 14 of 15 felony counts for the defendant's guilty plea to one remaining count. (Collins, supra, 21 Cal.3d at p. 211.) Before sentencing, an amendment decriminalized the single remaining offense. (Id. at p. 215.) The court explained, "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." (Ibid., italics added,) In contrast, Sheppard does not seek to invalidate his conviction or to eliminate his punishment. With enhancements stricken, his sentence will be reduced two years, from 13 years to 11. This is a smaller change, both in total years and in proportion, than the change in Matthews. (Matthews, supra, 47 Cal.App.5th at pp. 860, 869 [four years out of 10-year term stricken].) Enforcing SB 136 does not deprive the prosecution of the benefits of its bargain.
In Blessing, the defendant attacked his plea agreement based on an intervening court decision. But here Sheppard is asking us to apply a statute prohibiting the enhancement. (Blessing, supra, 129 Cal.App.3d at p. 1029.) The decision to allow the prosecution to withdraw from a plea agreement in Blessing does not provide guidance here.
We pause briefly to mention the applicability of the new Stamps case to the remedy issue. Again, Stamps was about SB 1393, which gave trial courts discretion to dismiss enhancements that had previously been mandatory. (Stamps, supra, ___ Cal.5th ___ <https://www.courts.ca.gov/opinions/documents/S255843.PDF> [p. 2].) Stamps made no reference to SB 136 or to Matthews. The remedy reasoning in Stamps centered around whether or not the Legislature intended to overturn long-standing law preventing a court from unilaterally modifying an agreed-upon term by using its discretion to strike enhancements. (Id. at [pp. 14-20].) Stamps therefore addressed a different issue from the issue facing SB 136 cases and therefore does not alter our result.
V
Sheppard filed two petitions for writs of habeas corpus (B297375 and B298773) in propria persona while this appeal was pending. We consider both in a separate order.
DISPOSITION
We strike Sheppard's two 1-year sentences imposed under section 667.5, subdivision (b). The judgment is otherwise affirmed. The trial court is instructed to issue an amended abstract of judgment and to notify the California Department of Corrections and Rehabilitation.
WILEY, J. We concur:
GRIMES, Acting P. J.
STRATTON, J.