Opinion
D073029
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. DOUANDTA XAYPANYA, Defendant and Appellant.
Jane L. Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amada E. Casillas, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD273208) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Vacated in part; affirmed as modified with directions. Jane L. Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amada E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION AND BACKGROUND
The underlying facts are not at issue in this appeal. We draw the background from the factual basis for the plea admitted by the defendant and the procedural history.
Douandta Xaypanya pleaded guilty to one count of unlawfully transporting a controlled substance of a useable amount for sale (Health & Saf. Code, § 11379, subd. (a); count 3) and admitted he had a prior conviction for sale of a controlled substance in violation of section 11379, subdivision (a), within the meaning of section 11370.2, former subdivision (c). In exchange, the People stipulated to a sentence of five years to be served in local prison and dismissal of the balance of the charges. On September 28, 2017, pursuant to the stipulation, the court sentenced Xaypanya to five years in local custody based upon the low term of two years for count 3 plus three years for the prior conviction enhancement pursuant to section 11370.2, former subdivision (c), and dismissed the remaining charges.
All further statutory references are to the Health and Safety Code unless otherwise stated.
The following counts and enhancement allegations were dismissed: (1) transportation of a controlled substance, methamphetamine, (§ 11379, subd. (a); count 1) with allegations the substance contained more than 28.5 grams of methamphetamine (Pen. Code, § 1203.073, subd. (b)(2)) and defendant had a prior conviction under section 11379 within the meaning of section 11370.2, former subdivision (c); (2) possession for sale of a controlled substance, methamphetamine, (§ 11378; count 2) with allegations the substance contained more than 28.5 grams of methamphetamine (Pen. Code, § 1203.073, subd. (b)(2)) and defendant had a prior conviction under section 11379 within the meaning of section 11370.2, former subdivision (c); (3) possession for sale of a controlled substance, methamphetamine, (§ 11378; count 4) with allegations defendant was released from custody on bail at the time of the offense (Pen. Code, § 12022.1, subd. (b)) and had a prior conviction under section 11379 within the meaning of section 11370.2, former subdivision (c). An out-of-bail enhancement pursuant to Penal Code section 12022.1, subdivision (b) was also dismissed in connection with count 3.
Xaypanya contends on appeal his three-year sentence enhancement should be stricken because section 11370.2, subdivision (c), was amended shortly after he was sentenced to eliminate a prior conviction for violation of section 11379 from the list of prior convictions that qualify a defendant for imposition of a three-year enhancement. The People agree the amendment to section 11370.2, subdivision (c), applies retroactively to cases such as this where the judgment is not final because the amendment reduced punishment for a specific crime. (In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada); People v. Rossi (1976) 18 Cal.3d 295, 300-301 [Estrada analysis applies amendments eliminating criminal sanction for an act].) However, the People contend striking the enhancement would deprive the People of the benefit of the plea bargain and, instead, request the matter be remanded to allow the People to reinstate dismissed counts or enhancement allegations up to the stipulated five years. We disagree with the People and conclude the three-year sentencing enhancement under section 11370.2, former subdivision (c), must be vacated. In all other respects, we affirm the judgment as modified.
We granted Xaypanya's unopposed motion to allow for the late filing of a certificate of probable cause and amended notice of appeal. Therefore, the People's contention the appeal should be dismissed for lack of a certificate of probable cause is moot. --------
DISCUSSION
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 section 11379. (Id. 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. 70-71, 74.)
In Harris v. Superior Court (2016) 1 Cal.5th 984, 987, the Supreme Court rejected an argument the People should be able to rescind a plea agreement in the context of a petition for resentencing under Proposition 47. Finding support in the Doe v. Harris, supra, 57 Cal.4th 64 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 People to a unilateral change in a sentence without affording them the option to rescind the plea agreement." (Harris v. Superior Court, supra, at p. 992.)
The People rely on People v. Collins (1978) 21 Cal.3d 208, 214, for the proposition that where the change in the law eliminates the benefit the People bargained for in the agreement, it is appropriate to set aside the plea. 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 Xaypanya to escape his vulnerability to sentence. Xaypanya remains convicted of violating section 11379, subdivision (a), and is subject to his two-year sentence for that crime. As such, the Collins analysis is inapplicable. (Harris v. Superior Court, supra, 1 Cal.5th at p. 993.)
The Supreme Court in Harris v. Superior Court, 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 People 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. (Id. 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 People to rescind or modify the plea agreement.
DISPOSITION
We vacate the three-year enhancement under section 11370.2, former subdivision (c), and affirm the judgment as modified. (People v. Zabala (2018) 19 Cal.App.5th 335, 344.) The superior court is directed to prepare and transmit to the California Department of Corrections and Rehabilitation an amended abstract of judgment reflecting the modified sentence consisting of a total period of confinement of two years.
MCCONNELL, P. J. WE CONCUR: BENKE, J. O'ROURKE, J.