Filed 5/31/18 P. v. Redko CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

RION JAKUS REDKO,

Defendant and Appellant.
H044104
(Santa Cruz County
Super. Ct. No. F25529)
I. INTRODUCTION
In Santa Clara County in 2014, defendant Rion Jakus Redko pleaded no contest to possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)). (People v. Redko (Super. Ct. Santa Clara County, 2014, No. F1348700).) He also admitted that he had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), and that he had served a prior prison term (§ 667.5, subd. (b)). Defendant entered his plea and admissions pursuant to a plea agreement providing for 32 months in prison, although the parties understood that his sentence might be less if he was already serving a prison sentence in another case. (See § 1170.1, subd. (a).)
At the time of sentencing in the Santa Clara County case, defendant was serving a seven-year prison sentence in Santa Cruz County Superior Court (case No. F25529) for petty theft with a prior conviction (former § 666) and a prior prison term enhancement (§ 667.5, subd. (b)). The Santa Clara County Superior Court sentenced defendant to 16 months in prison for possession of a firearm by a felon, consecutive to the seven-year term for the uncompleted sentence in the Santa Cruz County case, for a total term of eight years four months. (See § 1170.1, subd. (a) [“term for each consecutive offense shall consist of one-third of the middle term”].)
In 2016, defendant filed a successful petition in Santa Cruz County Superior Court to have his petty theft with a prior conviction (former § 666) resentenced as a misdemeanor pursuant to section 1170.18. The Santa Cruz County Superior Court believed that in resentencing defendant in both cases, the only restriction was that it could not resentence him to more than eight years four months, which was the original sentence for both cases. The court proceeded to sentence defendant in the Santa Clara County case to five years in prison, although the earlier plea agreement had provided for a 32-month term.
On appeal, defendant contends that the trial court erred in resentencing him to a five-year term in the Santa Clara County case after his successful Proposition 47 petition in the Santa Cruz County case. He argues that the sentence violated his plea agreement in the Santa Clara County case, which provided for a 32-month term. Defendant requests that the matter be remanded to the trial court with directions to resentence in accordance with the plea agreement.
The Attorney General concedes the issue and agrees that the matter should be remanded for resentencing.
We will reverse the judgment, remand for resentencing, and direct that defendant’s prison sentence in the Santa Clara County case not be longer than 32 months.
II. BACKGROUND
A. The Santa Cruz County Case
On February 27, 2014, in Santa Cruz County Superior Court, defendant pleaded no contest to making criminal threats (§ 422; count 2), petty theft with a prior conviction (former § 666; count 3), and misdemeanor falsely identifying himself to an officer (§ 148.9, subd. (a); count 4). He also admitted that he had a prior strike conviction (§ 667, subds. (b)-(i)), and that he had served two prior prison terms (§ 667.5, subd. (b)). Defendant entered his pleas and admissions with the understanding that he would receive seven years in prison.
The trial court reduced the count for making criminal threats to a misdemeanor (§ 17, subd. (b)) and sentenced defendant to seven years in prison. The sentence consisted of six years for petty theft with a prior conviction (double the upper term) and a consecutive term of one year for one of the prison priors (§ 667.5, subd. (b)). The court struck the punishment for the remaining prison prior pursuant to section 1385, subdivision (c). The court imposed concurrent 90-day terms for the misdemeanor counts, with credit for time served.
B. The Santa Clara County Case
Defendant was subsequently charged by first amended complaint in Santa Clara County Superior Court with two counts that were allegedly committed in September 2013. In July 2014, defendant pleaded no contest to one of the counts, possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). He also admitted that he had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), and that he had served a prior prison term (§ 667.5, subd. (b)). The remaining count was submitted for dismissal at the time of sentencing. Defendant entered his plea and admissions with the understanding that he would receive a “32-month top and bottom.” After defendant entered his no-contest plea, his trial counsel stated to the court that the prosecutor and trial counsel were not sure whether defendant was currently serving a prison sentence in another case, or whether there was a parole violation. Trial counsel stated that if defendant was currently serving a prison sentence in another case, then the agreed-upon 32-month sentence “may become a 16-month consecutive [sentence] by law.”
In a waived referral report, the Santa Clara County probation officer confirmed that defendant had been sentenced to a seven-year term in Santa Cruz County Superior Court in February 2014.
The sentencing hearing in Santa Clara County Superior Court was held in August 2014. The court sentenced defendant to 16 months (one-third the middle term, doubled) for possession of a firearm by a felon, consecutive to the seven-year term for the Santa Cruz County case, for a total term of eight years four months in both cases. The court struck the punishment for the prison prior and dismissed the remaining count.
C. The Proposition 47 Petition in the Santa Cruz County Case
In July 2016, defendant filed a petition in Santa Cruz County Superior Court pursuant to section 1170.18, subdivision (a), which was enacted as part of Proposition 47. Proposition 47 reduced certain crimes from felonies to misdemeanors. (Harris v. Superior Court (2016) 1 Cal.5th 984, 991 (Harris).) In his petition, defendant requested that his conviction for petty theft with a prior conviction (former § 666) be resentenced as a misdemeanor.
On September 1, 2016, the trial court granted the petition and reduced the conviction to a misdemeanor. The court set the matter for resentencing.
D. Resentencing in Both Cases
At a resentencing hearing on September 15, 2016, the trial court observed that it had to resentence defendant in both the Santa Cruz County and Santa Clara County cases. In order to do this, the court indicated that it needed court records from the Santa Clara County case, including the abstract of judgment. The court set another date for resentencing.
After defendant obtained copies of the records in the Santa Clara County case, he filed a written sentencing memorandum in the trial court. He contended that the records from the Santa Clara County case reflected a plea agreement of 32 months, and that in resentencing him in that case, the court could impose a term of 32 months only.
The prosecutor filed a sentencing memorandum contending that the trial court could impose a seven-year term in the Santa Clara County case. The prosecutor observed that a trial court in resentencing a defendant after a successful Proposition 47 petition may not impose a sentence longer than the original sentence. The prosecutor argued that this meant that in resentencing a defendant, the total term for two cases had to be equal to or less than the original total term. The prosecutor observed that the seven-year term originally imposed in the Santa Cruz County case was being reduced due to defendant’s successful Proposition 47 petition. The prosecutor contended that the court could resentence defendant in the Santa Clara County case to a seven-year term, as along as the total term for both the Santa Clara County and Santa Cruz County cases was not longer than the original total term.
The continued hearing for defendant’s resentencing was held on October 25, 2016. Defendant argued that the trial court was “bound by” the 32-month plea bargain that the Santa Clara County Superior Court had “accepted” when sentencing defendant in the Santa Clara County case.
The trial court indicated its understanding that in resentencing defendant after his successful Proposition 47 petition, the “only restriction” on the court was that it could not sentence him to more than eight years four months, which was the original sentence for both cases.
The trial court proceeded to sentence defendant in the Santa Clara County case to five years in prison. The sentence consisted of the midterm of two years, doubled, for possession of a firearm by a felon (§ 29800, subd. (a)(1)), and a consecutive term of one year for the prison prior (§ 667.5, subd. (b)). In the Santa Cruz County case, in which defendant filed the successful Proposition 47 petition, the court imposed a one-year jail term to run consecutive to the five-year term imposed in the Santa Clara County case.
III. DISCUSSION
Defendant contends that the trial court erred in resentencing him to a five-year term in the Santa Clara County case after his successful Proposition 47 petition in the Santa Cruz County case. He argues that the sentence violated his plea agreement in the Santa Clara County case, which provided for a 32-month term. Defendant requests that the matter be remanded to the trial court with directions to resentence in accordance with the plea agreement.
The Attorney General concedes that the matter should be remanded because the trial court improperly resentenced defendant in the Santa Clara County case to a prison term greater than the 32 months provided by the plea agreement in that case. We find the Attorney General’s concession appropriate.
A defendant with a qualifying felony conviction may petition under Proposition 47’s provisions to have his or her sentence recalled and to be resentenced to a misdemeanor. (§ 1170.18, subds. (a) & (b); Harris, supra, 1 Cal.5th at p. 989.) Resentencing after a defendant’s successful Proposition 47 petition “encompasses the entire sentence, not merely the portion attributed to the qualifying felony.” (People v. Cortez (2016) 3 Cal.App.5th 308, 316 (Cortez).) The trial court “may . . . reconsider all components of the original aggregate sentence.” (People v. Roach (2016) 247 Cal.App.4th 178, 186 (Roach).) In other words, the court generally may recalculate the terms for any remaining felony convictions, as well as revisit its misdemeanor sentencing decisions. (People v. Sellner (2015) 240 Cal.App.4th 699, 701-702; People v. Mendoza (2016) 5 Cal.App.5th 535, 538-539; Roach, supra, at p. 185; Cortez, supra, at p. 317). However, the new aggregate sentence may not exceed the original aggregate sentence. (§ 1170.18, subd. (e); People v. McDowell (2016) 2 Cal.App.5th 978, 982; Cortez, supra, at p. 317.)
Proposition 47 applies to defendants who have been convicted by plea, including those defendants whose plea was the result of a plea agreement. (§ 1170.18, subd. (a); Harris, supra, 1 Cal.5th at p. 991.) “ ‘A plea agreement “is a tripartite agreement which requires the consent of the defendant, the People and the court.” [Citations.] “Acceptance of the agreement binds the court and the parties to the agreement.” ’ [Citation.] ‘Although a plea agreement does not divest the court of its inherent sentencing discretion, “a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain.” ’ [Citation.] ‘ “Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly.” ’ [Citations.]” (K.R. v. Superior Court (2017) 3 Cal.5th 295, 303-304 (K.R.); see § 1192.5 [if a court withdraws approval of a plea, the defendant must be allowed to withdraw his or her plea].)
After the Proposition 47 resentencing in this case, the California Supreme Court in Harris held that the People were not entitled to have a plea agreement set aside after the defendant successfully petitioned under Proposition 47 to have his felony conviction resentenced to a misdemeanor. (Harris, supra, 1 Cal.5th at p. 987.) In Harris, the defendant pleaded guilty to grand theft from the person and admitted a prior conviction pursuant to a plea agreement that he would receive a six-year prison sentence. (Ibid.) In return, the People dismissed a robbery charge and other allegations. (Ibid.) The defendant was sentenced pursuant to the plea agreement. Later, the defendant petitioned under Proposition 47 to have the grand theft conviction reduced to a misdemeanor. (Harris, supra, at p. 987.) In response, the People argued that reducing the sentence would deprive them of the benefit of the bargain, and they should be permitted to rescind the plea agreement and reinstate the original robbery charge. (Ibid.)
The California Supreme Court disagreed with the People. The court stated that “[t]he resentencing process that Proposition 47 established would often prove meaningless if the prosecution could respond to a successful resentencing petition by withdrawing from an underlying plea agreement and reinstating the original charges filed against the [defendant].” (Harris, supra, 1 Cal.5th at p. 992.) The court explained that “[o]ne of Proposition 47’s primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative. [Citations.] Accepting the People’s position would be at odds with that purpose. . . . ‘If a reduction of a sentence under Proposition 47 results in the reinstatement of the original charges and elimination of the plea agreement, the financial and social benefits of Proposition 47 would not be realized, and the voters’ intent and expectations would be frustrated.’ ” (Ibid.)
Based on the reasoning of Harris, we determine that the trial court did not have the authority to disregard the plea agreement in the Santa Clara County case by imposing a prison term in that case that was greater than the 32-month term provided by the plea agreement. Harris indicates that, although Proposition 47 may affect a sentence that was the result of a plea agreement, the remaining terms of the plea agreement that are unaffected by the misdemeanor reduction are still binding on the parties. In this case, the plea agreement in the Santa Clara County case provided for a 32-month prison term. While defendant filed a successful Proposition 47 petition in the Santa Cruz County case, the standalone plea agreement in the Santa Clara County case remained intact.
Further, although in Harris it was the People seeking to rescind the plea agreement while in this case it was the trial court that determined the plea agreement was no longer binding, we believe the California Supreme Court’s reasoning in Harris is equally applicable. When defendant was originally sentenced in the Santa Clara County case, the trial court accepted the plea agreement and sentenced defendant accordingly (although the agreed-upon 32-month term in the Santa Clara County case ultimately became a 16-month subordinate term to the principal term in the Santa Cruz County case). (See § 1170.1, subd. (a).) Although a trial court may reconsider all parts of the original sentence when resentencing after a defendant’s successful Proposition 47 petition (Cortez, supra, 3 Cal.App.5th at p. 316; Roach, supra, 247 Cal.App.4th at p. 186), and although a trial court has the authority to reject a plea bargain that it considers unacceptable (K.R., supra, 3 Cal.5th at p. 304), the trial court in Santa Clara County had previously accepted the parties’ plea agreement. Based on the reasoning of Harris, we believe the court on resentencing may not reject a plea agreement that it previously accepted and sentenced in accordance with, where the plea agreement involved an offense and an agreed-upon prison term that were unaffected by Proposition 47, and thereafter impose a longer term. As explained in Harris, “[o]ne of Proposition 47’s primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative. . . . ‘If a reduction of a sentence under Proposition 47 results in [a longer prison term] and elimination of the plea agreement [that was unaffected by Proposition 47], the financial and social benefits of Proposition 47 would not be realized, and the voters’ intent and expectations would be frustrated.’ ” (Harris, supra, 1 Cal.5th at p. 992.) Under the circumstances, specific enforcement of the plea bargain providing for a 32-month term in the Santa Clara County case is the appropriate remedy. (See People v. Mancheno (1982) 32 Cal.3d 855, 860-861.)
Accordingly, we will remand the matter for resentencing and direct the trial court to impose a term no greater than 32 months in the Santa Clara County case, pursuant to the plea agreement that the Santa Clara County Superior Court had previously accepted and had previously sentenced defendant in accordance with. On resentencing, the court must order defendant to pay the appropriate fines, fees, and/or assessments, and any such amounts must be listed in the amended abstract of judgment. (People v. Hamed (2013) 221 Cal.App.4th 928, 940.)
IV. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing. On remand, defendant’s prison sentence in the Santa Clara County case (People v. Redko (Super. Ct. Santa Clara County, 2014, No. F1348700)) shall not be longer than 32 months.






___________________________________________
BAMATTRE-MANOUKIAN, J.






WE CONCUR:






__________________________
ELIA, ACTING P.J.






__________________________
MIHARA, J.








People v. Redko
H044104