Opinion
H047468
05-29-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA TANNAHILL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18CR001291)
Joshua Tannahill pleaded no contest to grand theft (Pen. Code, § 487, subd. (a)), and admitted he had a prior prison conviction (§ 667.5, subd. (b)). He was sentenced to three years in state prison, plus one consecutive year for having served a prior prison term.
All further statutory references are to the Penal Code.
On appeal, Tannahill asserts Senate Bill No. 136, which amends section 667.5, subdivision (b) to allow an enhanced sentence only in cases where the defendant served a prior prison term for a sexually violent offense, applies retroactively to his case. We agree, and strike Tannahill's prior prison enhancement.
I. STATEMENT OF THE FACTS AND CASE
The underlying facts are omitted because they are not relevant to the issue on appeal. --------
In May 2019, Tannahill was charged by information with Count 1-grand theft (§ 487, subd. (a)); Count 2-second degree burglary (§ 459); Count 3-receiving stolen property (§ 496, subd. (a)); and Count 4-driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). The information also alleged that Tannahill had served prior prison terms (§ 667.5, subd. (b)).
On July 18, 2019, Tannahill pleaded no contest to grand theft in Count 1 and admitted a prison prior in exchange for a stipulated prison sentence of four years. Pursuant to a negotiated disposition, the trial court sentenced Tannahill to the upper term of three years for grand theft, and an additional consecutive one-year term for the prison prior. Tannahill filed a notice of appeal on October 15, 2019, and the trial court granted a certificate of probable cause on October 16, 2019.
II. DISCUSSION
At the time of Tannahill's plea in July 2019, section 667.5, subdivision (b) mandated that a one-year sentence enhancement be imposed for the prior prison term he had served. Senate Bill No. 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b) to provide that the sentence enhancement shall be imposed only where the defendant has a prior conviction of "a sexually violent offense . . . ." The amendment was signed by the Governor on October 8, 2019, and took effect on January 1, 2020. Tannahill's judgment was not final before the effective date of the amendment.
Tannahill and the Attorney General agree that the changes effected by Senate Bill No. 136 should be applied retroactively in this case. Where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740 (Estrada) " 'that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' [Citations.]" (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) Conversely, the Estrada rule " 'is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of an express saving clause or its equivalent.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 185, italics omitted.) Nothing in the amendment set forth in Senate Bill No. 136 indicates the Legislature intended it to apply only prospectively; therefore, Estrada's inference of retroactively applies. (People v. Jennings (2019) 42 Cal.App.5th 664, 682.)
The effect of Senate Bill No. 136 is to reduce the punishment imposed where the defendant in a criminal case has served a prior prison term for an offense that is not a sexually violent crime. This change rendered many individuals ineligible for the enhancement, including Tannahill, who served a prior prison term for grand theft of the person (§ 487, subd. (a)). Therefore, Tannahill's prior prison term may no longer be used to enhance his sentence, and must be stricken.
Tannahill urges us to strike the enhancement, whereas the Attorney General asks that we remand the matter, so Tannahill can withdraw his plea, and place the parties in the same position as they were before they agreed to a plea bargain. This would allow the parties to negotiate a new disposition with the understanding that a prior prison term can no longer be used to enhance Tannahill's sentence. The Attorney General represents that "the impact of a retroactive change in the sentencing law upon a plea bargain to an agreed term is pending before the California Supreme Court in People v. Fox (2019) 34 Cal.App.5th 1124, 1137-1139 [(Fox)], review granted July 31, 2019, S256298 [15-year stipulated sentence], and People v. Kelly (2019) 32 Cal.App.5th 1013 [(Kelly)], review granted June 12, 2019, S255145 [18-year stipulated sentence]." However, the specific issue on review in Fox and Kelly is whether a certificate of probable cause is required for a defendant to challenge a sentence set forth in a plea agreement based on a subsequent ameliorative change in the law. (See California Supreme Court E-Docket, case no. S256298 <https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2288875&doc_no=S256298&request_token=NiIwLSEmXkw7WzBFSCNdXExIQDw0UDxTJiM%2BTzNRMCAgCg%3D%3D> [as of May 27, 2020], archived at < https://perma.cc/FWS5-6UGS>.) Fox and Kelly are not relevant to this case because the trial court granted Tannahill a certificate of probable cause.
The California Supreme Court has made it clear that applying statutory changes to the terms of a plea agreement does not violate the agreement unless the agreement explicitly provides that it will be unaffected by changes to the law. "[A]s a general rule, . . . requiring the parties' compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law." (Doe v. Harris (2013) 57 Cal.4th 64, 73-74 (Doe).) Similarly, in enacting a proposition with retroactive effect, "[t]he electorate may bind the People to a unilateral change in a sentence without affording them the option to rescind the plea agreement." (Harris v. Superior Court (2016) 1 Cal.5th 984, 992 (Harris).) "Under Doe and Harris, a plea agreement is deemed to incorporate subsequent changes in the law so long as those changes were intended by the Legislature or the electorate to apply to such a plea agreement." (People v. Baldivia (2018) 28 Cal.App.5th 1071, 1078.)
The Attorney General argues that the rationale of Doe and Harris only applies when the Legislature has expressly stated that the new law is intended to apply in plea cases. Because Senate Bill No. 136 contains no such statement by the Legislature, the Attorney General maintains that it does not apply to Tannahill's plea bargain.
The Attorney General's position regarding Senate Bill No. 136 is contrary to cases that address the application of other newly enacted ameliorative sentencing laws to plea agreements. In People v. Hurlic (2018) 25 Cal.App.5th 50, 57 (Hurlic), the Second District Court of Appeal held that Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended section 12022.53 to grant trial courts the discretion to strike section 12022.53's firearm enhancements (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2), applied to reduce a sentence in a case in which the defendant entered into a plea agreement. Citing Doe, the Hurlic court stated: "Unless a plea agreement contains a term requiring the parties to apply only the law in existence at the time the agreement is made, however, '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.' " ' (Doe v. Harris (2013) 57 Cal.4th 64, 66, 158 Cal.Rptr.3d 290, 302 P.3d 598,...)" (Hurlic, supra, 25 Cal.App.5th at p. 57.) Like Senate Bill No. 136, the Legislature did not expressly provide that it intended Senate Bill No. 620 to apply to plea agreements; however, the court in Hurlic found there was no need for express declaration by the Legislature.
Similarly, the Fifth District Court of Appeal in People v. Ellis (2019) 43 Cal.App.5th 925, 941 (Ellis), held that the Doe rationale applied to Senate Bill No. 1393, which amended Penal Code sections 667, former subdivision (a)(1), and 1385, former subdivision (b), and granted trial courts the discretion to strike or dismiss the previously mandatory five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1) (Stats. 2018, ch. 1013, §§ 1, 2). Like Senate Bill No. 136, the Legislature did not expressly provide that Senate Bill No. 1393 applied to plea bargains. The Ellis court found such an express declaration by the Legislature was unnecessary, stating: "most cases are resolved by plea bargain and we are unpersuaded by the proposition ... that those who pled guilty or no contest in exchange for a stipulated sentence are categorically excluded from seeking relief under" an ameliorative statute. (Id. at p. 942, emphasis in original.)
Moreover, the Legislature recently enacted Penal Code section 1016.8, effective January 1, 2020, which states: "(a) The Legislature finds and declares all of the following: (1) The California Supreme Court held in Doe v. Harris (2013) 57 Cal.4th 64 that, as a general rule, plea agreements are deemed to incorporate the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. 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. [¶] ... [¶] (b) A provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy."
We find that the ameliorative benefits of Senate Bill No. 136 apply to Tannahill's plea bargain. Since Tannahill can no longer be punished for having served a prior prison term, we will strike the one-year prior enhancement from his sentence.
III. DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement imposed under section 667.5, subdivision (b). The modified judgment shall reflect a sentence of three years in state prison. As modified, the judgment is affirmed.
The clerk of the trial court is directed to prepare an amended abstract of judgment reflecting Tannahill's new sentence of three years in state prison and forward it to the Department of Corrections and Rehabilitation.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.