Filed 6/13/22 P. v. Joaquin CA1/5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In 2017, appellant Jeffrey Allan Joaquin (Appellant) pled no contest to attempted murder and admitted allegations that he had personally used a firearm and had previously served a prison term. (Pen. Code, §§ 187, subd. (a), 664, 667.5, subd. (b), 12022.5, subd. (a).)[1] Pursuant to the negotiated disposition, the trial court sentenced Appellant to 12 years in prison, which included one year for the prior prison term enhancement.

On appeal, Appellant initially argued the case must be remanded for resentencing because, subsequent to his sentencing, the Legislature passed Senate Bill No. 620 (Reg. Sess. 2017‑2018), which amended section 12022.5 to give trial courts discretion to strike firearm use enhancements in the interests of justice. (§ 12022.5, subd. (c), as amended by Stats. 2017, ch. 682, § 2.) In June 2019, this court filed a decision reversing the judgment and remanding the matter to permit the court to determine whether to strike the firearm use enhancement. In September 2019, the California Supreme Court granted respondent’s petition for review, and, in October 2020, the Supreme Court transferred the matter to this court with directions to reconsider the cause in light of the decision in People v. Stamps (2020) 9 Cal.5th 685.

After transfer, we asked the parties to address whether the enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.), effective January 1, 2020 (Stats. 2019, ch. 590, § 1), rendered Appellant’s plea agreement unenforceable. That enactment limited imposition of the section 667.5, subdivision (b), enhancement to prior prison terms for sexually violent offenses. In December 2020, this court filed a decision concluding that Senate Bill No. 136 renders Appellant’s plea agreement unenforceable. We directed the trial court to dismiss the enhancement and to allow the parties to reconsider the plea agreement. However, we specified that, if the parties entered into a new plea agreement, the trial court could not impose a longer sentence than that in the original agreement. In light of that disposition, we concluded it was unnecessary to address Appellant’s request for remand to permit the trial court to exercise its discretion to strike the firearm use enhancement.[2]

Respondent petitioned for review. The Supreme Court granted review and deferred briefing “pending consideration and disposition of a related issue in People v. Hernandez, S265739.” (People v. Joaquin, review granted April 20, 2022, S266594.) Before the Supreme Court issued a decision in Hernandez, the Governor signed Senate Bill No. 483 (2021-2022 Reg. Sess.) (SB 483), which addressed the issues presented in Hernandez, including whether a plea agreement remains intact following the striking of a prior prison term enhancement and whether a longer sentence could be imposed upon resentencing. The Supreme Court subsequently transferred Appellant’s case back to this court with directions to reconsider the cause in light of SB 483. We now direct the trial court to dismiss Appellant’s enhancement under former section 667.5, subdivision (b), and remand for resentencing. Because we remand for resentencing, we need not address Appellant’s claim regarding Senate Bill No. 620 and the firearm use enhancement.

BACKGROUND

On March 21, 2017, Appellant fired a shotgun at the victim from a distance of about 60 feet. He was charged by felony complaint with three counts: premeditated attempted murder with an allegation that he personally and intentionally discharged a firearm (§§ 187, subd. (a), 664, 12022.53, subd. (c)), possessing a firearm having been previously convicted of a felony (§ 29800, subd. (a)(1)), and assault with a firearm (§ 245, subd. (a)(2)). The complaint also included a firearm use allegation and a prior prison term allegation. (§§ 12022.5, subd. (a), 667.5, subd. (b).) The prior prison term was based on a conviction for infliction of corporal injury on a spouse or cohabitant (§ 273.5).

Appellant entered into a plea agreement that called for him to plead no contest to attempted murder without premeditation and to admit a firearm use allegation under section 12022.5, subdivision (a) and a prior prison term under section 667.5, subdivision (b). The parties stipulated to a sentence of 12 years: the seven-year middle term for unpremeditated attempted murder, the four-year middle term for the firearm use allegation, and one year for the prior prison term. The trial court accepted the plea in August 2017 and imposed the 12-year sentence at a September sentencing hearing. At a subsequent hearing, the court recalculated Appellant’s presentence credits to comply with section 2933.1.

Appellant appealed, and this court remanded the matter to permit the trial court to exercise its discretion regarding the firearm use enhancement. Following the procedural history described in the opening paragraphs of this opinion, the Supreme Court transferred Appellant’s case to this court with directions to reconsider the cause in light of SB 483. Respondent submitted a supplemental brief that we address in footnote four, post. Appellant did not submit a supplemental brief.

DISCUSSION

Under the version of the statute in effect when Appellant was sentenced, section 667.5, subdivision (b) required a one-year enhancement for each prior prison term served for “any felony,” with an exception not applicable here. (Stats. 2018, ch. 423, § 65.) Senate Bill No. 136 substantially narrowed the enhancement, limiting its application only to a prior prison term served “for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.” (§ 667.5, subd. (b); see also People v. Matthews (2020) 47 Cal.App.5th 857, 862.)[3] Senate Bill No. 136 applies retroactively to non-final judgments. (Matthews, at pp. 864–865.) The prior prison term at issue in the present case was imposed for infliction of corporal injury on a spouse or cohabitant (§ 273.5), which is not a qualifying offense under the current version of section 667.5, subdivision (b).

Effective January 1, 2022, SB 483 added section 1171.1, which invalidates any enhancement under former section 667.5, subdivision (b), that was imposed prior to January 1, 2020, “except for any enhancement imposed for a prior conviction for a sexually violent offense.” (§ 1171.1, subd. (a), added by Stats. 2021, ch. 728, § 3; see also People v. Flores (2022) 77 Cal.App.5th 420, 443.) The statute specifies procedures for resentencing and, among other requirements, provides: “Resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.” (§ 1171.1, subd. (d)(1).) An uncodified portion of SB 483 articulates the Legislature’s intent regarding the effect of the enactment on sentences negotiated as part of plea agreements: “It is the intent of the Legislature that any changes to a sentence as a result of the act that added this section shall not be a basis for a prosecutor or court to rescind a plea agreement.” (Stats. 2021, ch. 728, § 1.)

SB 483 makes clear that the proper remedy in the present case is to strike the invalid prior prison term enhancement while leaving the remainder of the plea agreement intact. Because the trial court did not impose the maximum sentence for the attempted murder to which Appellant pled, and because Appellant may request the trial court to exercise its discretion to strike the firearm use enhancement on remand,[4] we will direct the trial court to strike the prior prison term enhancement and resentence Appellant under section 1171.1. (Cf. People v. Lopez (2019) 42 Cal.App.5th 337, 342 [no need to remand for resentencing after striking a section 667.5, subdivision (b), enhancement where trial court imposed the maximum sentence].) The court shall impose a lesser sentence than the sentence originally imposed “unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” (§ 1171.1, subd. (d)(1).) In no event shall the court impose a sentence greater than the sentence originally imposed. (Ibid.)

Disposition

The matter is remanded to the trial court with directions to strike the one-year prior prison term enhancement imposed under section 667.5, subdivision (b), consider any request by Appellant that the trial court exercise its discretion to strike the firearm use enhancement, and resentence Appellant consistent with section 1171.1 and this opinion.

SIMONS, J.

I concur.

JACKSON, P.J.

BURNS, J.

(A152786)

[1] All undesignated statutory references are to the Penal Code.

[2] By a separate order we denied Appellant’s companion petition for writ of habeas corpus. (In re Jeffrey Allan Joaquin, (Jun. 25, 2019, A156067) petn. den.)

[3] Section 667.5, subdivision (b) provides in relevant part, “[I]f the new offense is any felony for which a prison sentence . . . is imposed . . . , 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 . . . .”

[4] In a supplemental brief following transfer of the case from the California Supreme Court, respondent argues that, if the trial court on remand were to exercise its discretion to strike the firearm use enhancement, it would constitute a “unilateral modification of sentence against the wishes of the prosecution which would trigger a right … to prosecutorial rescission of its agreement to the plea bargain.” Because it is unknown whether the trial court will exercise its discretion to strike the firearm use enhancement—respondent argues it is “highly unlikely” the court will do so—it would be premature to consider the issue respondent raises.