Filed 4/29/22 P. v. Kleinau CA3

On transfer

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada)

----

This case returns to us on transfer from the California Supreme Court.

Defendant James Anthony Kleinau pleaded no contest to reckless evading of a peace officer and admitted four prior prison terms as part of a negotiated plea agreement that included a stipulated sentence. The trial court sentenced defendant to a term of seven years in prison, including the upper term of three years in prison on the evading charge and one year for each of the four prior prison terms. On appeal, defendant contends that Senate Bill No. 136 (2019-2020 Reg. Sess.) applies retroactively to his case and requires that the four prior prison term enhancements be stricken. The Attorney General agrees. However, the parties disagree as to the effect of the new law’s application on the plea agreement.

In March 2021, we filed an unpublished opinion remanding the matter with directions to strike the enhancements and provide both parties an opportunity to withdraw from the plea agreement. (People v. Kleinau (March 4, 2021, C092104) [nonpub. opn.].) On May 12, 2021, our Supreme Court granted defendant’s petition for review and deferred the matter pending consideration of related issues in People v. Hernandez (2020) 55 Cal.App.5th 942 (judg. vacated and cause remanded for reconsideration in light of Sen. Bill No. 483 (Stats. 2021, ch. 728)).

In October 2021, the Governor signed Senate Bill No. 483 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 728) (Senate Bill No. 483). Effective January 1, 2022, Senate Bill No. 483 added section 1171.1 to the Penal Code,[1] which states: “Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.” (§ 1171.1, subd. (a).) Senate Bill No. 483 also explains: “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.)

On March 30, 2022, our Supreme Court transferred this case to us with directions to vacate our prior decision and reconsider the matter in light of Senate Bill No. 483. The parties filed supplemental briefing in which they agreed the case should be remanded with directions to strike the enhancements and resentence defendant under section 1171.1. We agree with the parties and will remand the case accordingly.

PROCEDURAL BACKGROUND

The details of defendant’s crimes are not relevant to this appeal. It suffices to say that defendant was charged with evading a peace officer (Veh. Code, § 2800.2, subd. (a); count I), resisting a peace officer (Pen. Code, § 148, subd. (a)(1), count II), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count III), and possession of a controlled substance injection/ingestion device (Health & Saf. Code, § 11364, subd. (a); count IV). The prosecution also alleged defendant had a prior strike conviction and had served four prior prison terms.

Defendant pleaded no contest to evading a peace officer and admitted the four prior prison terms; the prosecution dismissed the three remaining counts and the prior strike allegation per the negotiated plea agreement. The trial court imposed the seven-year prison sentence stipulated to by the parties, which included the upper term for the evading charge and one year for each of the four prior prison terms. The court suspended execution of the sentence and placed defendant on probation. Defendant later violated the terms of probation, and the court executed the imposed sentence. Defendant timely appealed.

DISCUSSION

Defendant contends, and the People agree, that Senate Bill No. 136, which limits the prior offenses that qualify for a prior prison term enhancement under section 667.5, subdivision (b) applies retroactively to his case. We agree with the parties. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Sen. Bill No. 136 applies retroactively to cases not yet final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].) Senate Bill No. 483 confirms this conclusion, explaining that, “it is the intent of the Legislature to retroactively apply . . . Senate Bill 136 of the 2019-20 Regular Session to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements.” (Stats. 2021, ch. 728, § 1.) “Senate Bill 136 amended section 667.5, subdivision (b) such that a one-year enhancement for a prior prison term shall be imposed only if the prior term was for a sexually violent offense.” (People v. Winn (2020) 44 Cal.App.5th 859, 872.) Because defendant’s prior prison terms were not for sexually violent offenses, his one-year enhancements, which were lawful at the time of sentencing, are now unauthorized. (See In re Blessing (1982) 129 Cal.App.3d 1026, 1030; People v. Harvey (1980) 112 Cal.App.3d 132, 139.)

As noted above, Senate Bill No. 483 clarifies that striking a prior prison term enhancement cannot be the basis for the People to withdraw from a plea agreement. (Stats. 2021, ch. 728, § 1.) Senate Bill No. 483 also enacted section 1171.1, which confirms that “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5 [except for sexually violent offenses] is legally invalid.” Among other things, section 1171.1 explains the process for recalling and resentencing defendants whose sentences included prior prison term enhancements. (§ 1171.1, subds. (b)-(d).) The statute also provides guidelines for resentencing such defendants; for instance, it requires courts to resentence defendants to sentences lower than those originally imposed, “unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” (Id., subd. (d).)

Because section 1171.1 requires the trial court to make new findings of fact and consider new factors in its resentencing decision, we agree with the parties that the matter must be remanded for the trial court to resentence defendant. We will direct the trial court to strike the prior prison term enhancements and resentence defendant under section 1171.1.

Defendant adds a request that we direct the trial court to apply any excess custody credits he has earned toward satisfaction of his term of postrelease community supervision, while noting that there is a currently a split in authority as to the propriety of this approach. (Compare People v. Steward (2018) 20 Cal.App.5th 407 with People v. Espinoza (2014) 226 Cal.App.4th 635.) Because we are remanding the case for resentencing and this will necessarily require a calculation of defendant’s custody credits, we leave the initial consideration of any such request made in the trial court to the sentencing judge. On remand, the trial court should calculate defendant’s custody credits as part of defendant’s resentencing and may consider any reasoned and supported argument as to the application of those credits.

DISPOSITION

The matter is remanded to the trial court with directions to strike the four one-year prior prison term enhancements under section 667.5, subdivision (b) and resentence defendant in a manner that is consistent with section 1171.1 and this opinion.

/s/

Duarte, J.

We concur:

/s/

Raye, P. J.

/s/

Mauro, J.

[1] Undesignated statutory references are to the Penal Code.