Opinion
C083652
04-26-2021
THE PEOPLE, Plaintiff and Respondent, v. MARQUIS PETER WARREN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. STKCRFE20150006750; SF131734A)
Defendant Marquis Peter Warren, pleaded guilty, pursuant to a plea agreement, to one count of second degree robbery and a firearm enhancement. (Pen. Code, §§ 211; 12022.5) A second robbery count related to a second victim, two firearm enhancements under section 12022.53, subdivision (b), two counts of assault with a semi-automatic firearm related to both victims and the associated firearm enhancements under section 12022.5, subdivision (a), were dismissed pursuant to the negotiated resolution. Defendant was sentenced to a stipulated aggregate term of five years in state prison.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
Appellate counsel for defendant originally filed a Wende brief. We granted a request for supplemental briefing in which defendant asserts remand is warranted to allow the court to exercise its discretion to strike or dismiss the firearm enhancement in the interest of justice pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (S.B. 620), but maintain intact the remainder of the agreed sentence.
People v. Wende (1979) 25 Cal.3d 436.
Pursuant to People v. Stamps (2020) 9 Cal.5th 685 (Stamps), we shall remand for the purpose of allowing defendant the opportunity to seek relief under S.B. 620, but if he does so, the court as well as the prosecution shall be permitted to withdraw consent from the original agreement; in which case, the original charges and enhancements, including those previously dismissed pursuant to the agreement, shall be reinstated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the preliminary hearing transcript. At the change of plea hearing, the parties stipulated that the factual basis for defendant's plea and admission is contained in the transcript.
Around 11:20 p.m. on June 21, 2015, Nancy Gusman and Jose Minguela were robbed at gunpoint by two men while they were sitting inside Gusman's parked car in Stockton. Prior to fleeing on foot, the two men took Minguela's wallet and cell phone as well as jewelry and cash from Gusman. Shortly after the robbery, police officers conducted a field showup. Gusman and Minguela separately identified defendant as the perpetrator who used the gun during the robbery.
On August 10, 2015, defendant was charged by felony information with two counts of second degree robbery (Pen. Code, § 211) and two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). It was also alleged that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b) as to the two robbery counts and personally used a firearm within the meaning of section 12022.5, subdivision (a) as to the two assault counts.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
Pursuant to a negotiated disposition, defendant entered a no contest plea to the first robbery count and admitted a firearm enhancement under section 12022.5. Consistent with the parties' agreement, the trial court sentenced defendant to an aggregate term of five years in prison at 85 percent time. The remaining counts and allegations were dismissed.
Prior to defendant's admission of the firearm enhancement, the prosecutor, pursuant to the negotiated sentence, requested to amend the information to allege that defendant personally used a firearm in the commission of the first robbery offense within the meaning of section 12022.5, subdivision (a), and the court granted that motion.
DISCUSSION
Defendant contends he is entitled to retroactive application of S.B. 620, despite the fact that he was sentenced on the firearm enhancement based on a negotiated sentence. The People agree S.B. 620 applies retroactively, but argue remand would be futile because defendant was sentenced pursuant to a plea deal and the trial court is without authority to dismiss components of the negotiated sentence.
It is not disputed that S.B. 620 applies to defendant retroactively. (People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091.) The issue presented here relates to remedy. Our high court has since outlined the proper remedy in Stamps, supra, 9 Cal.5th 685.
In Stamps, the defendant pled to one count of first degree burglary and stipulated to a nine-year sentence, which included a five-year serious felony enhancement under section 667, subdivision (a). (Stamps, supra, 9 Cal.5th at p. 693.) Two other first degree burglary counts, a second serious felony conviction (which would have exposed defendant to a 25-years-to-life sentence under the three strikes law), as well as the additional five-year enhancement under section 667, subdivision (a), and three prior prison term enhancements were dismissed. (Stamps, at p. 693.)
During the pendency of the defendant's appeal, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (S.B. 1393) took effect, giving trial courts the discretion to strike section 667, subdivision (a) enhancements in the interest of justice pursuant to section 1985 (Stamps, supra, 9 Cal.5th at p. 693), just as the Legislature had done that same year with firearm enhancements in S.B. 620. On appeal, the defendant sought retroactive relief under S.B. 1393 to allow the trial court to decide whether to strike the serious felony enhancement, but keep the remaining components of the plea agreement intact. (Id. at p. 700.)
Our high court agreed with the defendant that S.B. 1393 applied retroactively. (Stamps, supra, 9 Cal.5th at p. 699.) But as to remedy, the court rejected the defendant's argument that if on remand the trial court struck or dismissed the serious felony enhancement, the rest of the originally agreed upon sentence was to remain intact. (Id. at p. 700.) Our high court reasoned that even when applicable, section 1385 "ordinarily does not authorize a trial court to exercise its discretion to strike in contravention of a plea bargain for a specified term." The court further observed that section 1192.5 prohibits a trial court from modifying the terms of a plea bargain once the court has accepted the terms of the agreement. (Id. at p. at pp. 700-701.)
Like defendant here, the defendant in Stamps relied on Harris v. Superior Court (2016) 1 Cal.5th 984. (Stamps, supra, 9 Cal.5th at pp. 702-704.) In Harris, our high court rejected the People's argument that the prosecution should be permitted to withdraw from the plea because Proposition 47 relief would deprive the People of the benefit of the negotiated agreement. (Harris, at p. 993.) Distinguishing relief under S.B. 1393, the Stamps court reasoned that the "unambiguous language" of Proposition 47 applied its provisions to defendants " 'serving a sentence for a conviction, whether by trial or plea,' " and thus, the electorate intended in Proposition 47 to modify terms of plea agreements without the approval of the prosecution. (Stamps, supra, 9 Cal.5th at p. 704, italics added.) In contrast, the court noted that "[n]othing in the language and legislative history of Senate Bill [S.B.] 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, supra, 9 Cal.5th at p. 704.) "That [S.B.] 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." (Id. at p. 704) The Legislature's action in enacting S.B. 1393 "did not operate to change well-settled law that a court lacks discretion to modify a plea agreement unless the parties agree to the modification." (Id. at p. 702.) Accordingly, the Stamps court concluded the proper remedy is to give defendant the choice whether to seek relief in the trial court under S.B. 1393, but also allow both the prosecution and the court to withdraw approval of the plea agreement if the defendant does seek such relief. (Id. at pp. 706-709.)
Our high court's reasoning in Stamps relative to S.B. 1393 also applies to S.B. 620. Accordingly, we order the same remedy.
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DISPOSITION
The judgment is reversed. We order the matter remanded for the purpose of allowing defendant the opportunity to seek relief under S.B. 620, but if he does so, the court as well as the prosecution shall be permitted to withdraw consent from the original agreement and the original charges and enhancements, including those previously dismissed pursuant to the agreement, shall be reinstated.
/s/_________
MURRAY, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
HOCH, J.