Opinion
C090667
04-23-2021
THE PEOPLE, Plaintiff and Respondent, v. BENNIE EDWARD DICKINSON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CF05137)
Defendant Bennie Edward Dickinson pleaded guilty to fleeing a pursuing peace officer's motor vehicle while driving recklessly and admitted he served two prior prison terms. The trial court sentenced him to serve an aggregate term of five years in state prison, including two years for the two prior prison term enhancements. Additionally, the court imposed court operations and conviction assessments and a restitution fine. On appeal, defendant contends: (1) the prior prison term enhancements must be vacated based on the retroactive application of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020); (2) the imposition of the court assessments violates his constitutional rights because there was no determination of his ability to pay them; (3) the imposition of a restitution fine without an ability to pay hearing violates the excessive fines prohibition; and (4) the imposition of a restitution fine without an ability to pay hearing violates equal protection.
We conclude that, by virtue of the retroactive change in the law, defendant's one-year enhancements are unauthorized and must be stricken. We reverse the judgment and remand this matter to the trial court with directions to strike the enhancements. In accordance with the California Supreme Court's recent decision in People v. Stamps (2020) 9 Cal.5th 685, 705-709 (Stamps), we also direct the court to allow the prosecution an opportunity to withdraw its assent to the plea agreement. We reject defendant's remaining contentions.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant recklessly drove a motor vehicle as he willfully fled from or attempted to elude a pursuing police officer's vehicle. Pursuant to a negotiated agreement, defendant pleaded guilty to one count of fleeing a pursuing peace officer's motor vehicle while driving recklessly (Veh. Code, § 2800.2, subd. (a)), and admitted two prior prison term allegations. The remaining misdemeanor count and three prior prison term enhancements were dismissed. The trial court sentenced defendant to state prison to serve a stipulated aggregate sentence of five years, comprised of the upper term of three years for fleeing a pursuing peace officer's motor vehicle while driving recklessly plus two years (one year for each), consecutive, for the prior prison term enhancements pursuant to Penal Code section 667.5, subdivision (b). The court imposed various fines and fees, including a restitution fine in the amount of $300, a stayed $300 mandatory supervision revocation fine, a $40 court operations assessment, a $30 conviction assessment, and a $4 Emergency Medical Air Transportation Act (EMAT) fee pursuant to Government Code section 76000.10. Defendant did not object to the imposition of these fines and fees.
Undesignated statutory references are to the Penal Code.
Defendant appeals without a certificate of probable cause.
Neither party raised the issue of whether challenging the prior prison term enhancements under a subsequent change in law violates the plea agreement. During the pendency of this appeal, the California Supreme Court held that such a challenge "does not attack the plea itself and does not require a certificate of probable cause." (Stamps, supra, 9 Cal.5th at p. 698.)
DISCUSSION
I
Senate Bill 136
Defendant claims his prior prison term enhancements must be vacated based on the retroactive application of Senate Bill 136. The People agree.
On October 8, 2019, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.) that amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). Senate Bill 136 narrowed eligibility for the one-year prior prison term enhancement to those who have served a prior prison sentence for a sexually violent offense, as defined. The amended provision states in pertinent part: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5, subd. (b).)
We agree with the parties that the amendment to Senate Bill 136 should be applied retroactively in this case. Whether a particular statute is intended to apply retroactively is a matter of statutory interpretation. (See People v. Superior Court (Lara) 4 Cal.5th 299, 307 [noting, " 'the role of a court is to determine the intent of the Legislature' "].) Generally speaking, new criminal legislation is presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740 " '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.]" (Lara, at p. 308, fn. omitted.) "A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court the discretion to do so. [Citation.]" (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Here, Senate Bill 136 narrowed eligibility for a section 667.5, subdivision (b), prior prison term enhancement, thus rendering ineligible many individuals, including defendant, who served prior prison terms for a conviction in 2017 for violating Vehicle Code section 2800.2 and for convictions in 2015 for violating sections 29800, 30305, and 33210. There is nothing in the bill or its associated legislative history that indicates an intent that the court not apply this amendment to all individuals whose sentences are not yet final. Under these circumstances, we conclude Estrada's inference of retroactive application applies. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference of retroactivity to legislative changes to section 12022.6, subdivisions (a) and (b) enhancements].)
In their opening briefs, the parties agreed that if Senate Bill 136 applied, the proper remedy would be to strike the one-year prior prison term enhancements while otherwise leaving the plea bargain intact. However, we requested supplemental briefing from the parties in light of the Supreme Court's recent decision in Stamps, supra, 9 Cal.5th 685.
In Stamps, the defendant pleaded no contest to one count of first degree burglary and stipulated to a nine-year sentence consisting of two years for the burglary, doubled under the Three Strikes law (§ 1170.12, subd. (c)(1)), plus five years for a prior serious felony enhancement (§ 667, subd. (a)(1)). (Stamps, supra, 9 Cal.5th at p. 693.) In exchange for the plea, two other counts of first degree burglary and a second prior serious felony enhancement allegation were dismissed. (Ibid.)
At the time of sentencing, the trial court did not have discretion to strike the serious felony enhancement imposed under section 667, subdivision (a)(1). (Stamps, supra, 9 Cal.5th at p. 693.) However, while defendant's appeal was pending, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) took effect, giving trial courts the discretion to strike such enhancements. (Stamps, at p. 693.) On appeal, the defendant argued that Senate Bill 1393 applied retroactively to his case and required a remand so the trial court could decide whether to strike the serious felony enhancement, while otherwise preserving the plea agreement. (Stamps, at p. 693.)
After concluding that the defendant was not required to obtain a certificate of probable cause, and that Senate Bill 1393 applied retroactively to his case on appeal, the Supreme Court turned to the question of remedy. (Stamps, supra, 9 Cal.5th at pp. 698, 699, 700-709.) The court rejected the defendant's argument that the proper remedy was to remand the matter to the trial court to consider striking the serious felony enhancement, while otherwise maintaining the balance of the negotiated plea agreement. (Id. at p. 700.) Noting that the parties entered into a plea agreement for a specific prison term, the court held that under long-standing law (see, e.g., § 1192.5), once a court has accepted the terms of a plea agreement, it cannot modify the terms of that bargain without the agreement of the parties. (Stamps, at pp. 700-701.) While recognizing that the Legislature could authorize courts to modify or invalidate the terms of a plea agreement without affording the People an option to rescind the agreement, the court found nothing to demonstrate the Legislature intended Senate Bill 1393 to have that effect. (Stamps, at pp. 702-704.)
In reaching its conclusion, the court distinguished Harris v. Superior Court (2016) 1 Cal.5th 984 (Harris), which held that the People are not entitled to withdraw from a plea agreement when a defendant petitions to have a felony conviction recalled and resentenced as a misdemeanor under Proposition 47 (enacted by the electorate Nov. 4, 2014). (Stamps, supra, 9 Cal.5th at pp. 702-704; see Harris, at p. 993.) In Harris, it was undisputed that the defendant was entitled to have his conviction reduced and resentenced as a misdemeanor under Proposition 47. (Harris, at p. 989.) The question before the court was whether the People should be permitted to withdraw from the plea on the basis that the resentencing would deprive them of the benefit of their bargain. (Id. at pp. 988-989.) The court held that the answer to this question depended on the "intent behind Proposition 47." (Id. at p. 991.) Based on "unambiguous language" that Proposition 47 applies to defendants convicted by plea, and the expressed intent of Proposition 47 to reduce the number of nonviolent offenders in state prisons, the court concluded that the Legislature intended to modify or invalidate the terms of plea agreements without affording the People the option to withdraw from the agreement. (Harris, at pp. 992-993.)
Unlike the legislation in Harris, the court noted that Senate Bill 1393 was "silent regarding pleas." (Stamps, supra, 9 Cal.5th at p. 704.) Further, the court held, allowing a defendant to strike an enhancement under Senate Bill 1393 while otherwise retaining the benefits of the bargain would frustrate the legislative intent to have the law apply uniformly, by creating "special rules" for plea cases. (Stamps, at p. 704.) Thus, the court held that Senate Bill 1393 was not intended "to change well-settled law that a court lacks discretion to modify a plea agreement unless the parties agree to the modification." (Stamps, at p. 702.)
Rejecting the defendant's argument that he should be permitted to " ' "whittle down the sentence 'but otherwise leave the plea bargain intact' " ' " (Stamps, supra, 9 Cal.5th at p. 706), the court concluded in Stamps that the proper remedy is to give defendant the choice whether to seek relief under Senate Bill 1393, knowing that if the trial court exercises its discretion to strike the enhancement, the People (and the court) will be entitled to withdraw their prior approval of the plea agreement. (Stamps, at pp. 706-709.)
In supplemental briefing, defendant argues that we should not follow Stamps and strike the one-year prior prison term enhancements while otherwise leaving the plea bargain intact. Defendant argues that because Senate Bill 136 is mandatory, and the trial court lacks any sentencing discretion except to eliminate the enhancements, the court has no choice but to strike the enhancements while leaving the remainder of the agreement intact. He further argues that it would frustrate the ameliorative purpose of Senate Bill 136 for defendants convicted by pleas if striking the enhancements allowed the People to withdraw from the agreement.
The People argue in their supplemental briefing that we should follow Stamps and, on remand, allow the prosecution the opportunity to choose whether to uphold the remainder of the plea without the enhancement or withdraw their approval. They submit that Stamps should control because granting defendant the ameliorative benefit unilaterally deprives the People of the benefit of the plea bargain. Thus, they contend "the matter should be remanded so that the parties can consider whether to withdraw from the plea agreement and be restored to the same position they were in before the agreement."
The People have the better argument. The changes made by Senate Bill 136 limiting the prior offenses that qualify for a prior prison term enhancement, are similar to the changes made by Senate Bill 1393, allowing courts to strike a serious felony enhancement in furtherance of justice. Although Senate Bill 136 is mandatory, and the trial court's authority under Senate Bill 1393 is discretionary, both Stamps and Harris make clear that the key inquiry is not whether legislation is mandatory or discretionary, but whether the Legislature intended the legislation to overturn existing law that a court cannot modify an agreed-upon term without the parties' agreement. (Stamps, supra, 9 Cal.5th at pp. 701-705; Harris, supra, 1 Cal.5th at pp. 991-992.) "[T]he legislative intent for Senate Bill 136 is virtually identical to the intents subsequently discussed in Stamps and [People v.] Barton [(2020) 52 Cal.App.5th 1145] that supported the enactments of Senate Bills 1393 and 180, and failed to address the critical issue: whether the amendments were intended 'to change well-settled law that a court lacks discretion to modify a plea agreement unless the parties agree to the modification.' [Citation.]" (People v. Hernandez (2020) 55 Cal.App.5th 942, 959, review granted Jan. 27, 2021 (S265739).) We conclude that Senate Bill 136 reflects no such intent, as it is "silent regarding pleas and provides no express mechanism for relief undercut[ting] any suggestion that the Legislature intended to create special rules for plea cases . . . ." (Stamps, supra, 9 Cal.5th at p. 704.)
Our interpretation does not nullify the legislative purpose behind the ameliorative provisions of the legislation because the legislation was never intended to overturn the "well-settled law" that a court lacks discretion to modify a plea agreement without the parties' consent. (Stamps, supra, 9 Cal.5th at p. 702.)
The one-year prior prison term enhancements were a material part of defendant's plea bargain. As a result of the retroactive change in the law, the one-year enhancements are no longer authorized and must be stricken. Thus, we remand this matter to the trial court with directions to strike the prior prison term enhancements, allowing the People (and the court) the opportunity to withdraw their approval of the plea.
II
Imposition of Mandatory Assessments
Defendant argues the trial court's imposition of the court operations assessment and conviction assessment violated his constitutional rights because the trial court did not determine his ability to pay before imposing them. He asks this court to stay each of these assessments. Defendant's argument relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 that held "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under . . . section 1465.8 and Government Code section 70373." (Id. at p. 1164.) The Dueñas court also held "that although . . . section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
The Attorney General responds by arguing this claim is forfeited by defendant's failure to raise the issue of his ability to pay in the trial court. Assuming, without deciding, defendant's challenges to these assessments have not been forfeited, we conclude Dueñas was wrongly decided and therefore reject defendant's claim on that basis.
Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, at pp. 95-96.)
In the meantime, we join several other courts in concluding the principles of due process do not require determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 (Aviles); People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant's Dueñas challenge to the mandatory assessments.
III
Prohibition on Excessive Fines
Defendant contends the trial court violated federal and state constitutional prohibitions on excessive fines by imposing a $300 restitution fine without holding a hearing to determine his ability to pay. The Attorney General contends defendant's claim is forfeited.
Assuming, without deciding, defendant's challenge has not been forfeited, we are not persuaded by defendant's claim that imposing the restitution fine without considering his ability to pay violated the excessive fines clauses of the federal and state constitutions. (U.S. Const., 8th Amend; Cal. Const., art. I, § 17; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 731 [after examining the relevant considerations, a reviewing court can decide for itself whether a fine or penalty is unconstitutionally excessive].) "The Eighth Amendment prohibits the imposition of excessive fines. The word 'fine,' as used in that provision, has been interpreted to be ' "a payment to a sovereign as punishment for some offense." ' " (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1040 (conc. opn. of Benke, J.) (Gutierrez).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in United States v. Bajakajian (1998) 524 U.S. 321 (Bajakajian). (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., at pp. 728-729 [applying Eighth Amendment analysis to both defendant's federal and state excessive fines claims].)
"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." (Bajakajian, supra, 524 U.S. at p. 334.) "The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]' (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)" (Aviles, supra, 39 Cal.App.5th at p. 1070.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Aviles, at p. 1072.)
Here, defendant's recklessly driving a motor vehicle as he willfully fled from or attempted to elude a pursuing police officer's vehicle was not grossly disproportionate to the level of harm or defendant's culpability in this conduct. In light of defendant's disregard for public safety and law enforcement safety, it was not grossly disproportionate to impose the statutory minimum restitution fine of $300. Accordingly, we conclude the $300 restitution fine imposed in this case was not excessive under the Eighth Amendment. (See Aviles, supra, 39 Cal.App.5th at p. 1072.)
IV
Equal Protection
Defendant challenges the $300 restitution fine, arguing imposition of this fine without consideration of his ability to pay violates equal protection. The Attorney General contends defendant's claim is forfeited.
Assuming, without deciding, defendant's challenge has not been forfeited, we conclude defendant's argument fails. As noted in Aviles, supra, 39 Cal.App.5th 1055, "Dueñas's due process and equal protection analysis was improperly based on a series of cases that addressed the concern 'that due process and equal protection guaranteed an indigent criminal defendant a free transcript of trial proceedings in order to provide that defendant with access to a court of review, where he [or she] would receive an adequate and effective examination of his criminal conviction. [Citation.]' (Gutierrez, supra, 35 Cal.App.5th at p. 1039 (conc. opn. of Benke, J.).) Dueñas's reliance on certain statutes was also incorrect because 'these statutes instead ensure that all people, without regard to economic status, have equal access to our justice system.' (Ibid.) The fine and assessments imposed on the probationer in Dueñas did not raise 'an issue of access to our courts or justice system' or satisfy 'the traditional due process definition of a taking of life, liberty or property.' (Ibid.) '[There is] no general due process and equal protection authority which requires a court to conduct a preassessment present ability-to-pay hearing before imposing any fine or fee on a defendant, as Dueñas seems to conclude.' " (Aviles, at pp. 1068-1069, italics omitted.) We agree and conclude the trial court did not violate equal protection in not conducting an ability to pay hearing prior to imposing the $300 restitution fine.
DISPOSITION
The judgment is reversed and remanded to the superior court with directions to strike the one-year prior prison term enhancements under section 667.5, subdivision (b), and to allow the People and court the opportunity to withdraw their prior approval of the plea agreement. Once the new judgment is entered, the trial court is directed to prepare a new abstract of judgment, reflecting the new judgment, and forward a copy to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. Murray, J., Concurring.
I fully concur in the majority opinion, and as to Discussion part I, concerning retroactive application of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), I concur in the result. I agree with the application of People v. Stamps (2020) 9 Cal.5th 685, 705-709 (Stamps) as discussed in People v. Hernandez (2020) 55 Cal.App.5th 942 (Hernandez). I accordingly agree defendant is entitled to have his section 667.5, subdivision (b) sentences dismissed based on Senate Bill 136 and In re Estrada (1965) 63 Cal.2d 740 (Estrada). I also agree that the trial court and the prosecution are entitled to withdraw consent from the plea agreement — but only to the extent defendant still seeks such relief after learning consent could be withdrawn.
On this point, I disagree with the notion that defendant's section 667.5, subdivision (b) sentence is unauthorized and must be corrected. "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) This definition of unauthorized necessarily looks back to the original imposition of the sentence. Here, defendant's sentence was authorized when it was imposed. And but for his appeal seeking Estrada relief, he would still be serving that authorized sentence. Thus, the sentence of a person in defendant's position remains authorized if he wants to preserve the benefit of his original bargain instead of facing increased exposure should the court or prosecution withdraw from the original negotiated agreement.
This approach, unlike the majority opinion, is consistent with Stamps, which emphasized that it was the defendant's choice whether to continue to seek relief, under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) on remand, because the trial court or prosecution might withdraw consent from the plea agreement. (Stamps, supra, 9 Cal.5th at p. 708.) The court explained: " 'we anticipate that there will be defendants who determine that, notwithstanding their entitlement to seek relief based on the change in the law, their interests are better served by preserving the status quo. That determination, however, lies in each instance with the defendant.' " (Ibid., quoting People v. Ellis (2019) 43 Cal.App.5th 925, 944.) The court continued: "While it is true that defendant has consistently argued on appeal that Senate Bill 1393 should retroactively apply to him, his argument has always been coupled with his claim that the proper remedy should be to simply allow the trial court to reduce his sentence by five years while otherwise maintaining the remainder of the plea agreement. Now that we have rejected his proposed remedy, defendant's calculus in seeking relief under Senate Bill 1393 may have changed. Defendant should be allowed to make an informed decision whether to seek relief on remand." (Stamps, at p. 708.)
Nevertheless, I concur in the result here because it does not appear that defendant is actually exposed to a greater sentence than originally negotiated. The record indicates defendant was sentenced to the upper term on the only felony he was charged with, and the only charge dismissed as part of the global agreement that could be reinstated if consent is withdrawn is a misdemeanor possession of a controlled substance charge. If that charge was reinstated, defendant's maximum exposure would be less than the originally negotiated sentence, so as a practical matter, it seems defendant will likely continue to seek retroactive application of Senate Bill 136 even if the court or prosecution withdraws from the plea agreement. Consequently, I need not say more on the matter, or address my colleague's dissenting opinion, which I disagree with. Suffice it to say, I agree the matter should be remanded, consistent with Stamps and Hernandez.
Defendant had three other section 667.5, subdivision (b) enhancements that were dismissed as part of the plea agreement, none of which are qualifying sex offenses that would qualify for one-year enhancements under the Senate Bill 136 amendment.
Accordingly, I concur in the result as to the Senate Bill 136 issue.
/s/_________
MURRAY, J. BLEASE, Acting P. J., Concurring and Dissenting.
I agree with the majority except for the directions on remand. While Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) applies retroactively to this case, I do not agree that striking the prior prison term enhancements pursuant to Senate Bill 136 gives the People the option of withdrawing from the plea.
A plea agreement generally does not insulate the parties from subsequent changes in the law even if the change alters the terms of the agreement. Although the parties and the trial court may not unilaterally alter the terms of a plea agreement, subsequent statutory enactments or amendments may effectively alter its terms. (Doe v. Harris (2013) 57 Cal.4th 64, 66 (Doe).) In California, the general rule is that plea agreements 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. . . ." ' " (Ibid.) "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." (Ibid.)
While parties may agree that a plea's consequences will remain fixed notwithstanding future changes in the law, prosecutorial and judicial silence on the issue should not ordinarily be interpreted to be an implied promise that the defendant will not be subject to an amended law. (Doe, supra, 57 Cal.4th at p. 71; id. at p. 73 ["the rule in California is that a plea agreement's reference to a statutory consequence attending a conviction, even when coupled with prosecutorial and judicial silence on the possibility the Legislature might amend the statute, does not give rise to an implied promise that the defendant, by pleading guilty or nolo contendere, will be unaffected by a change in the law"].) Thus, the fact that a change in the law may disadvantage one party or the other to a plea agreement generally does not afford the disadvantaged party the right to revoke it. (Harris v. Superior Court (2016) 1 Cal.5th 984, 991-993 (Harris).) A limited exception to this latter rule applies where a subsequent change in the law completely eviscerates a plea bargain by rendering a defendant no longer vulnerable to any punishment. (See People v. Collins (1978) 21 Cal.3d 208, 214-215.) That exception does not apply here as defendant is still subject to substantial punishment even after the two prison priors are stricken.
The majority does not apply this general rule, instead giving the People the option to withdraw from the plea based on People v. Stamps (2020) 9 Cal.5th 685 (Stamps). Stamps is readily distinguished from the case before us, and cannot justify departure from the rule that application of a change in the law does not allow a party to withdraw from a plea agreement.
While it is true that the Supreme Court in Stamps held that the prosecution must be given the opportunity to withdraw from a plea bargain if a defendant requests, and the trial court was inclined, to exercise newly granted discretion to strike a prior serious felony enhancement under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), the court did so based on well-settled law that limits the court's unilateral authority to strike an enhancement yet maintain other provisions of a plea bargain. (Stamps, supra, at pp. 700-701, 704-708.) The court reasoned that when enacting Senate Bill 1393, the Legislature did not "intend[] to overturn long-standing law that a court cannot unilaterally modify an agreed-upon term [of a plea agreement] by striking portions of it under [Penal Code] section 1385." (Stamps, at p. 701.) As the court explained, "the remedy [the] defendant seeks, to allow the court to strike the serious felony enhancement but otherwise retain the plea bargain, would frustrate the Legislature's intent to have [Penal Code] section 1385 apply uniformly, regardless of the type of enhancement at issue, by granting the court a power it would otherwise lack for any other enhancement." (Id. at p. 704.) While the Supreme Court agreed that the defendant should be given the opportunity to request that the trial court exercise its newly granted discretion to strike the prior serious felony enhancement, it concluded the People should be allowed to withdraw from the plea bargain if the trial court indicated its inclination to exercise its discretion to strike the enhancement. (Id. at p. 707.)
Senate Bill 136, by contrast, confers no such discretion on trial courts. Instead, in enacting Senate Bill 136, the Legislature declared that those who served a prior prison term for offenses other than certain sexually violent offenses should no longer be subject to the prior prison term enhancement under Penal Code section 667.5, subdivision (b). Unlike in Stamps, where a trial court might choose to exercise discretion to unilaterally change the terms of the plea bargain contrary to section 1192.5, the trial court here would not unilaterally change the terms of the plea bargain—it would exercise no discretion at all. Defendant's plea agreement, which is deemed to incorporate changes in the law such as Senate Bill 136 (Doe, supra, 57 Cal.4th at p. 73), simply would be conformed to apply the new law by striking the now inapplicable enhancements (see Harris, supra, 1 Cal.5th at pp. 990-991 [requiring parties to comply with changes in the law made retroactive to them does not violate the terms of a plea agreement]). Section 667.5, subdivision (b) states in pertinent part:
"[W]here the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended."
Undesignated statutory references are to the Penal Code.
Section 1192.5 allows a plea to "specify the punishment," and further provides in relevant part: "Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea."
Although Stamps distinguished Harris, the manner in which Harris was distinguished does not support the result reached by the majority here. Stamps summarized Harris's treatment of Proposition 47 and its resentencing provision, section 1170.18, as follows: "The electorate thus evinced an intent that these offenses be treated as misdemeanors no matter how or when a defendant suffered the conviction. As Harris reasoned, to allow the prosecution, in response to a successful resentencing petition, to withdraw from a plea agreement and reinstate dismissed charges would frustrate electoral intent to treat these offenses uniformly as misdemeanors, essentially denying meaningful relief to those convicted through plea bargains. [Citation.]" (Stamps, supra, 9 Cal.5th at p. 704.)
Stamps distinguished Harris through section 1192.5. "Similar considerations do not apply here. Nothing in the language and legislative history of Senate Bill 1393 suggests an intent to modify section 1192.5's mandate that 'the court may not proceed as to the plea other than as specified in the plea' without the consent of the parties. As discussed, Senate Bill 1393's amendment of section 1385 now allows a trial court to strike a serious felony enhancement just as it may do with any other enhancement. Unlike in Harris, the remedy defendant seeks, to allow the court to strike the serious felony enhancement but otherwise retain the plea bargain, would frustrate the Legislature's intent to have section 1385 apply uniformly, regardless of the type of enhancement at issue, by granting the court a power it would otherwise lack for any other enhancement. That Senate Bill 1393 is silent regarding pleas and provides no express mechanism for relief undercuts any suggestion that the Legislature intended to create special rules for plea cases involving serious felony enhancements." (Stamps, supra, 9 Cal.5th at p. 704.)
Section 1192.5 provides an essential context to understanding and applying Stamps. Rather than creating a new exception to the rule that a party disadvantaged by a change in the law cannot unilaterally withdraw from a plea agreement, Stamps simply applied, through section 1192.5, well-established rules addressing the trial court's exercise of its discretion to alter the terms of the plea agreement. Although the Legislature, through Senate Bill 1393, gave trial courts new authority to alter a plea agreement by striking a serious felony enhancement, this legislation did not alter the terms of any plea agreement. Only a trial court, through the exercise of its discretion to strike the serious felony enhancement, may alter the terms of the plea agreement pursuant to Senate Bill 1393. Stamps did no more than come to the unsurprising conclusion that section 1192.5 applied where a trial court chose to reject the plea and strike the serious felony enhancement.
For this reason, I am likewise unpersuaded by the decisions taking other approaches to this issue, People v. Griffin (2020) 57 Cal.App.5th 1088 and People v. Hernandez (2020) 55 Cal.App.5th 942. Griffin holds the fact that the prison priors are now unauthorized renders the plea agreement unenforceable, requiring the plea to be set aside. (Griffin, at p. 1096.) On remand, the trial court cannot impose a greater sentence than in the original plea agreement. (Id. at p. 1097.) Hernandez holds the prison priors must be stricken, the prosecution can either accept the modified plea or withdraw from the plea agreement, and any new sentence on remand may be greater than the one imposed under the plea. (Hernandez, at pp. 958-959.) Both cases err by failing to apply the general rule that a plea agreement can be subject to an intervening change in the law and an unfavorable change in the law generally does not allow a party to withdraw from the plea agreement. Hernandez also allows for the perverse result of a defendant receiving a higher sentence as a result of Senate Bill 136 (if the People withdraw from the plea on remand and eventually obtain a higher sentence in subsequent proceedings) even though the Legislature intended for this legislation to reduce sentences. (See Hernandez, at pp. 957-959 [noting Sen. Bill 136 intended to eliminate an ineffective enhancement, reduce mass incarceration, save money, and reduce sentencing disparity].)
"Preventing Senate Bill 136 from applying to plea-bargained sentences would thwart or delay the full achievement of the Legislature's intent to reduce the expense and ineffectiveness of enhanced prison sentences based on prior prison terms, especially given that pleas of guilty or no contest 'represent the vast majority of felony and misdemeanor dispositions in criminal cases.' [Citations.]" (People v. France (2020) 58 Cal.App.5th 714, 728, fn. omitted.) I agree. Giving the prosecution an effective veto over giving a defendant the full benefit of Senate Bill 136 frustrates the legislative intent of that bill and ignores the rule that the Legislature can alter the terms of a plea agreement in the defendant's favor. In addition, this result would also undermine the principle of In re Estrada (1965) 63 Cal.2d 740 that, in the absence of an express retroactivity provision, legislation reducing punishment is given full retroactive effective to cases not final on appeal. (France, at p. 730; In re Estrada, at pp. 744-745.)
Since this case involves a legislative rather than a judicial alteration of a plea agreement, the general rule applies and the People should not be allowed to withdraw from the plea and the prison priors should be stricken.
/s/_________
BLEASE, Acting P. J.