Opinion
F079555
11-06-2020
THE PEOPLE, Plaintiff and Respondent, v. LESTER LEWIS, Defendant and Appellant.
James E. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DF012753A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. David E. Wolf, Judge. James E. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Snauffer, J. and DeSantos, J.
-ooOoo-
Defendant Lester Lewis was sentenced to an agreed-upon term of imprisonment based on a plea agreement. He contends on appeal that the three one-year prior prison term enhancements imposed as part of the plea agreement should be stricken pursuant to Penal Code section 667.5, subdivision (b), as amended by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). The parties agree the enhancements should be stricken and the matter should be remanded. We asked the parties to submit supplemental briefing regarding whether, on remand, the People or trial court should be permitted to rescind approval for the plea agreement. Defendant contends that the prior prison term enhancements should be stricken but the plea agreement should remain otherwise untouched. The People contend the trial court and the People must be permitted to rescind approval of the plea agreement in light of People v. Stamps (2020) 9 Cal.5th 685 (Stamps). We order the prior prison term enhancements stricken and remand for further proceedings consistent with Stamps. In all other respects, we affirm.
All further statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL SUMMARY
On July 5, 2018, the Kern County District Attorney charged defendant with two counts of indecent exposure with a prior conviction for the same (§ 314, subd. (1); counts 1 and 2). As to both counts, the amended information alleged defendant had suffered three prior felony "strike" convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served three prior prison terms (§ 667.5, subd. (b)).
The information charged defendant with a violation of section "314.1." No such section exists. However, section 314, subdivision (1), does criminalize the charged misconduct.
On May 17, 2019, defendant entered a plea of no contest on both counts and admitted the prior strike convictions and prior prison term allegations. Defendant admitted that the prior prison terms were served for two convictions of possession of a firearm by a felon (former § 12021, subd. (a)(1), current § 29800, subd. (a)(1)) and one conviction of robbery (§ 211). The plea agreement stipulated that all three prior strike convictions would be stricken for purposes of Three Strikes law sentencing pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and the court would impose a total term of six years eight months as follows: on count 1, the court would impose an upper term of three years, plus three one-year prior prison term enhancements; and on count 2, the court would impose one-third of the middle term of eight months.
On June 26, 2019, the trial court struck the three prior strike convictions and sentenced defendant to a total term of imprisonment of six years eight months in the manner set out in the plea agreement.
On July 1, 2019, defendant filed a notice of appeal.
FACTUAL SUMMARY
On October 13, 2016, defendant was an inmate at Kern Valley State Prison. At roughly 12:15 p.m., a correctional officer observed defendant seated in the back of his cell and stroking his exposed penis. The correctional officer moved away, and defendant moved to the door of his cell, continued to look at the correctional officer, and continued to masturbate.
Defendant engaged in the same conduct with the same correctional officer on April 2, 2017.
DISCUSSION
A. Defendant's Prior Prison Term Enhancements Must Be Stricken
Defendant argues his prior prison term enhancements must be vacated based on the retroactive application of Senate Bill 136. The People agree, as do we.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b) to limit application of prior prison term enhancements to only prior prison terms that were served for sexually violent offenses as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That amendment applies retroactively to all cases not yet final on Senate Bill 136's effective date. (People v. Lopez (2019) 42 Cal.App.5th 337, 342 (Lopez), citing In re Estrada (1965) 63 Cal.2d 740, 742.)
Here, the trial court imposed three one-year section 667.5, subdivision (b) prior prison term enhancements based on terms of imprisonment for two convictions of robbery (§ 211) and one conviction of possession of a firearm by a felon (former § 12021, subd. (a)(1), current § 29800, subd. (a)(1)), neither of which is a violent sexual offense as defined in Welfare and Institutions Code section 6600, subdivision (b). On January 1, 2020, defendant's case was not yet final. Therefore, as the parties agree, defendant is entitled to the ameliorative benefit of Senate Bill 136's amendment to section 667.5, subdivision (b).
B. Remedy
The parties agree that the matter should be remanded to the trial court but disagree on the appropriate scope of the remand. Their disagreement surrounds the impact striking the prior prison term enhancements has on the plea agreement. Defendant contends that Harris v. Superior Court (2016) 1 Cal.5th 984 (Harris) controls because Senate Bill 136 speaks in mandatory (not discretionary) terms, and as a result, the trial court must strike the prior prison term enhancements but must also leave the remainder of the plea agreement intact. The People argue that Stamps, supra, 9 Cal.5th 685, controls and on remand, after the trial court strikes the prior prison term enhancements, the trial court and prosecutor must be afforded the opportunity to rescind their approval of the plea agreement because the Legislature did not intend Senate Bill 136 to modify plea agreements without giving the People an opportunity to rescind those agreements. We agree with the People.
This court recently confronted the issue now before us. In People v. Hernandez (Oct. 14, 2020, F080131) ___ Cal.App.5th ___, (Hernandez), we decided that when a prior prison term enhancement imposed as a term of a plea agreement is stricken pursuant to Senate Bill 136, the prosecutor and the trial court must be afforded the option to rescind approval of the agreement. We agree with the reasoning of Hernandez and we follow it here.
Generally, where an appellate court strikes a portion of a sentence, remand for " 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' " (People v. Buycks (2018) 5 Cal.5th 857, 893.) That rule applies equally to resentencing after reversal of a count of conviction or striking of an enhancement. (See ibid., citing with approval People v. Sanchez (1991) 230 Cal.App.3d 768, 771-772 [consideration of all sentencing choices on remand is appropriate after reversal for erroneous application of a section 12022.1 bail enhancement]; Lopez, supra, 42 Cal.App.5th at p. 342.)
However, the full resentencing rule does not apply when a plea agreement specifies the punishment to be imposed. (People v. Barton (2020) 52 Cal.App.5th 1145, 1156 (Barton).) A plea agreement is a form of contract to which a court consents to be bound by approving the agreement. (People v. Segura (2008) 44 Cal.4th 921, 929-930.) A trial court "may approve or reject [a negotiated plea] agreement, but the court may not ... [approve the agreement and then] effectively withdraw its approval by later modifying the terms of the agreement it had approved." (Id. at pp. 931-932; see § 1192.5.) Therefore, when a portion of an agreed-upon sentence must be stricken, full resentencing is not appropriate because it would not conform with the terms of the plea agreement. (Barton, at p. 1156; see Hernandez, supra, ___ Cal.App.5th ___ [p. 17].)
We also note that a trial court cannot ignore a change in the law and decline to modify an agreed-upon sentence as based on the terms of a plea agreement. (See Doe v. Harris (2013) 57 Cal.4th 64, 66 ["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."].)
The available remedies after striking a portion of an agreed-upon sentence are to restore the parties to the status quo ante or, if the legislature so intended, strike only the portions modified by the enactment and leave the remainder of the agreement intact. (See Stamps, supra, 9 Cal.5th at pp. 695-696; Harris, supra, 1 Cal.5th at p. 991; People v. Segura, supra, 44 Cal.4th at pp. 929-930; People v. Collins (1978) 21 Cal.3d 208, 215.) The Legislature " 'may bind the People to a unilateral change in sentence without affording them the option to rescind the plea agreement.' " (Stamps, at p. 703; accord, Hernandez, supra, ___ Cal.App.5th ___ [pp. 18-19].) However, we do not presume that to be the case. As a default position, a court "may not proceed as to the plea other than as specified in the plea" (§ 1192.5), and therefore cannot modify only a part of an agreed-upon sentence, unless such a modification is a result of a change in the law and the defendant establishes "the Legislature [(or electorate)] intended to overturn long-standing law that a court cannot unilaterally modify an agreed-upon term by striking portions of it" while leaving the remainder intact (Stamps, at p. 701; accord, Harris, at pp. 987, 992; Hernandez, at [pp. 12-13]).
In Stamps, the Supreme Court considered the impact of Senate Bill No. 1393 (Senate Bill 1393)—which allows a trial court to strike a serious felony enhancement pursuant to section 667, subdivision (a)—on sentences not yet final on appeal that were imposed pursuant to plea agreements. (Stamps, supra, 9 Cal.5th at pp. 692, 701-703.) The court discussed the legislative history of Senate Bill 1393 and concluded that it did "not demonstrate any intent to overturn existing law regarding a court's lack of authority to unilaterally modify a plea agreement. Indeed, none of the legislative history materials mention plea agreements at all." (Stamps, at p. 702.) For that reason, the Stamps court determined that "[n]othing 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." (Stamps, at p. 704.)
The Stamps court explained that the same test applied in Harris but the intent of the electorate was different in enacting the operative law. (Stamps, supra, 9 Cal.5th at pp. 702-703.) In Harris, the defendant had "pled [guilty] to felony grand theft (§ 487, subd. (c)) and admitted a prior robbery conviction in exchange for a six-year prison term and dismissal of a robbery count." (Stamps, at p. 702.) Before the defendant's case was final on appeal, Proposition 47 was passed, and he petitioned to have his conviction reduced to a misdemeanor. (Ibid.) Critical to whether the prosecutor could withdraw from the plea agreement after the defendant sought reduction of his felony conviction to a misdemeanor was the "intent behind Proposition 47." (Stamps, at p. 702.) Harris noted that Proposition 47 expressly applied to a person " 'serving a sentence for a conviction, whether by trial or by plea[.] Harris reasoned that '[b]y expressly mentioning convictions by plea, Proposition 47 contemplated relief to all eligible defendants.' " (Stamps, at p. 703.)
Defendant argues that Harris (rather than Stamps) should control because this case, like Harris, "involves a legislative mandate, rather than newly given discretion to a trial court." We disagree. As we have explained, Stamps and Harris both made clear that "[c]ritical to [whether a prosecutor or trial court can withdraw from a plea agreement based on a legislative modification to a sentence] is the intent behind [the enactment]." (Harris, supra, 1 Cal.5th at p. 991; Stamps, supra, 9 Cal.5th at p. 702.) It is immaterial for this purpose that Senate Bill 136 requires eligible prior prison terms stricken (Hernandez, supra, ___Cal.App.5th ___ [p. 12, fn. 4]; Lopez, supra, 42 Cal.App.5th at p. 342), and Proposition 47 requires certain theft and drug offenses reduced to misdemeanors (Harris, at pp. 991-992), whereas Senate Bill 1393 affords courts discretion to strike prior serious felony conviction enhancements (Stamps, at pp. 706-707).
"[S]ection 1170.18, subdivision (b), provides that a person meeting the requirements [to have his felony conviction reduced to a misdemeanor] 'shall' be resentenced 'unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' " (Harris, supra, 1 Cal.5th at pp. 991-992.)
Here, as discussed above, Senate Bill 136 requires that prior prison term enhancements be stricken for any eligible defendant whose case is not final on appeal. However, like Senate Bill 1393, as discussed in Stamps, the legislative history for Senate Bill 136 reveals no "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." (Stamps, supra, 9 Cal.5th at p. 704; accord, Hernandez, supra, ___ Cal.App.5th ___ [pp. 18-19]; Barton, supra, 52 Cal.App.5th at pp. 1150, 1156-1157.) The legislative history for Senate Bill 136 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, at p. 704; accord, Hernandez, at [p. 19].) Because the Legislature did not express any intent for Senate Bill 136 to operate as an exception to the rule that a court cannot modify an agreed-upon sentence without the parties' agreement, we conclude that the matter must be remanded to allow the People and the trial court the opportunity to rescind approval for the plea agreement.
The Senate floor analysis for Senate Bill 136 identified the goals behind the legislation—eliminating an enhancement that "re-punishe[d] people for previous jail or prison time served ... [and] exacerbate[d] existing racial and socioeconomic disparities in [the] criminal justice system." (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 136 (2019-2020 Reg. Sess.) as amended Sept. 3, 2019, p. 2.)
We note that at least two courts of appeal have concluded courts may strike prior prison term enhancements from an agreed-upon sentence pursuant to Senate Bill 136 but must leave all other portions of the sentence intact. (People v. Matthews (2020) 47 Cal.App.5th 857, 861; People v. Petri (2020) 45 Cal.App.5th 82, 85-86.) For the reasons discussed in this opinion, we agree with Hernandez and disagree with Matthews and Petri. --------
DISPOSITION
The judgment is reversed and remanded to the superior court with directions to strike the three prior prison term enhancements (§ 667.5, subd. (b)), and for further appropriate proceedings consistent with Stamps, supra, 9 Cal.5th 685. In all other respects, the judgment is affirmed.