Filed 4/28/22 P. v. Atwell CA6

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Opinion following remand from Supreme Court.

Pursuant to a negotiated plea agreement, appellant Michael Vincent Atwell pleaded no contest to felony taking or unauthorized use of a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)), carrying a loaded firearm when having a prior felony conviction (Pen. Code, § 25850, subd. (c)[1]), and misdemeanor resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1)). He also admitted allegations that he had served a prior prison term (§ 667.5, subd. (b)) (hereafter “prior prison term enhancement”) and had suffered a prior strike conviction (§§ 667, subd. (b)–(i), 1170.12). Consistent with the terms of the plea agreement, the trial court sentenced Atwell to five years in state prison, which included one year for the prior prison term enhancement.

In his initial appeal to this court, Atwell contended this court should strike the prior prison term enhancement in light of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). The Attorney General conceded that the prior prison term enhancement was invalid under current law but argued this court should remand the case to allow the district attorney and the trial court to withdraw their approval of the plea agreement.

Relying on the California Supreme Court’s ruling in People v. Stamps (2020) 9 Cal.5th 685 (Stamps), this court reversed the judgment and remanded the matter to permit Atwell the opportunity to request relief under Senate Bill 136 in the trial court. Thereafter, the California Supreme Court granted Atwell’s petition for review, ordered this court to vacate its decision, and remanded the matter for reconsideration in light of the enactment of Senate Bill No. 483 (2021–2022 Reg. Sess.) (Senate Bill 483).

As explained further below, Senate Bill 483, effective on January 1, 2022, added section 1171.1 to the Penal Code (Stats. 2021, ch. 728) and made a number of statutory changes relevant to Atwell’s appeal. Having considered Senate Bill 483, we now strike the one-year prior prison term enhancement under former section 667.5, subdivision (b) and remand the matter to the trial court for resentencing consistent with section 1171.1.

I. Procedural and legal background

A. Trial Court

On February 8, 2019, the Santa Clara County District Attorney filed a felony complaint charging Atwell with taking or unauthorized use of a vehicle with the intent to temporarily deprive the owner of possession while having a prior conviction for violating section 496d (Veh. Code, § 10851, subd. (a); § 666.5; count 1), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), carrying a loaded firearm by a felon (§ 25850, subd. (c)(1); count 3), misdemeanor resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1); count 4), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 5).[2] The complaint also alleged that Atwell had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and had served two prior prison terms within the meaning of section 667.5, subdivision (b). One of the prior prison terms had resulted from Atwell’s conviction for receiving a stolen vehicle (§ 496d) and the other from his conviction for auto theft (Veh. Code, § 10851).

On April 4, 2019, pursuant to a negotiated written plea agreement, Atwell pleaded no contest to counts 1, 3, and 4. He also admitted the prior strike conviction allegation and the prior prison term enhancement allegation related to his conviction for receiving a stolen vehicle. In exchange, the People moved to dismiss counts 2 and 5 and strike the other prior prison term enhancement allegation. The parties agreed that Atwell’s total prison term would be five years. The plea agreement did not contain any provision stating that it would be unaffected by future statutory changes. The trial court accepted Atwell’s plea.

On September 30, 2019, the trial court conducted a sentencing hearing. The trial court commenced Atwell’s sentencing by stating that, pursuant to the plea agreement, it was committing Atwell to prison for five years. The sentence was comprised of the low term of four years on count 1, concurrently with the midterm of four years on count 3, plus one year for the prior prison term enhancement.[3]

After the trial court stated the sentence, defense counsel asked to approach the bench and an unrecorded discussion ensued. Subsequently, the court explained that the bench conference concerned a potential change in the law governing the prior prison term enhancement (presumably Senate Bill 136). The court noted that the agreed-upon five-year prison term could not be attained otherwise in this case “without manipulating the terms on Count 1 and 3” and said it “would not have approved the plea bargain if it was not five years or more.” The court continued: “Accordingly, for some reason, if it cannot be a 5-year agreement, it may be [Atwell will] have to withdraw his plea. We’ll worry about that when and if the Court of Appeal gives us a chance to look at it.” Defense counsel responded by asking the court to strike the one-year prior prison term enhancement and impose a four-year sentence. Alternatively, defense counsel objected to imposition of the prior prison term enhancement. The court asked defense counsel if he wanted to withdraw Atwell’s plea, but defense counsel did not directly address that question and instead requested a continuance in light of the impending change in the law.[4] The prosecutor commented that Atwell could move to withdraw from the plea agreement but not object to the five-year sentence at that point in the proceeding. The prosecutor also opined that there was no good cause for a continuance. The court denied the defense motion to continue. The court also reiterated it “would not have agreed to a four-year [sentence],” given that the midterm sentence on count 1 is six years and Atwell had “three previous prison commitments.” Atwell did not move to withdraw his plea.

The trial court then continued with Atwell’s sentencing. Pursuant to the plea agreement and the prosecutor’s prior motion, the court dismissed counts 2 and 5 and struck one of the prior prison term enhancements. The court ordered victim restitution, restitution fines, fees, and assessments. On count 4, the court imposed 30 days in the county jail to run concurrently with the other counts, noting that Atwell had credit for time served on count 4.

B. Initial Appeal

In his initial appeal to this court, Atwell contended that Senate Bill 136 required vacatur of his sentence. Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b), to limit prior prison term enhancements solely to prior 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; People v. Lopez (2019) 42 Cal.App.5th 337, 341.)

With the exception of the appropriate remedy, Atwell and the Attorney General agreed on the resolution of the substantive issues posed by Atwell’s initial appeal.

Atwell and the Attorney General agreed the prior prison term underlying the prior prison term enhancement allegation that Atwell admitted pursuant to the plea agreement was not served for a sexually violent offense. We concurred. (§ 667.5, subd. (b).) The parties also agreed, as did we, that the changes effected by Senate Bill 136 apply retroactively to cases in which the judgment is not yet final. (People v. Winn (2020) 44 Cal.App.5th 859, 872; People v. Petri (2020) 45 Cal.App.5th 82, 94.) Lastly, the parties agreed, and we concurred, that the prior prison term enhancement thus no longer applies to Atwell’s case.

The parties in their initial briefing on appeal did not agree on the appropriate remedy. Atwell contended that we should simply strike the one-year prior prison term enhancement—thereby reducing his sentence from five to four years—and otherwise leave the underlying plea agreement intact. The Attorney General, relying on the California Supreme Court’s recent decision in Stamps, supra, 9 Cal.5th 685, asserted that we should remand the case to allow the district attorney, with the trial court’s approval, either to accept a one-year reduction of Atwell’s sentence or to withdraw from the plea agreement. In his reply brief, Atwell offered an alternative to the Attorney General’s proposal. Citing Stamps, Atwell asserted that if we decline to simply strike the one-year prior prison term enhancement from his sentence, we should remand this case to the trial court, and Atwell should be permitted to decide in the trial court whether to request relief under Senate Bill 136.

In a decision issued on November 20, 2020, this court agreed with Atwell that the prison prior enhancement must be stricken but rejected his proposed remedy. This court followed the reasoning of the Court of Appeal in People v. Hernandez (2020) 55 Cal.App.5th 942, 956–960, review granted on January 27, 2021, matter transferred to the Court of Appeal with directions to vacate its decision and reconsider the cause on December 22, 2021, S265739, that the analysis in Stamps should control since “there is no evidence the Legislature intended Senate Bill 136 to permit the trial court to unilaterally modify a plea agreement once the prior prison term enhancements are stricken.” (Id. at p. 958.)

Because the one-year prior prison term enhancement was a material part of Atwell’s plea bargain originally negotiated by the parties and approved by the court (and under which the district attorney dismissed two remaining charges), we concluded that the district attorney and the trial court must be given the opportunity to withdraw their approval of the original plea agreement if Atwell desired the benefit of the retroactive change in law effected by Senate Bill 136. Atwell filed a petition for review in the California Supreme Court of this court’s decision.

C. Supreme Court Review

On February 24, 2021, the California Supreme Court granted Atwell’s petition for review and on March 30, 2022, transferred the matter back to this court, without issuing an opinion but with directions to vacate the decision and reconsider the cause in light of the enactment of Senate Bill 483. That same day, this court vacated its prior decision.

Neither party filed a supplemental brief in this court following remand by the California Supreme Court.

II. Discussion

1. Senate Bill 483

Senate Bill 483, effective on January 1, 2022, added section 1171.1 to the Penal Code. (Stats. 2021, ch. 728, § 3.) Section 1171.1 declares that enhancements imposed before January 1, 2020, under former section 667.5, subdivision (b), are legally invalid (except under circumstances not applicable here). (§ 1171.1, subd. (a).) Senate Bill 483 extends the modifications brought about by Senate Bill 136 to judgments already final on appeal (Stats. 2021, ch. 728, § 3), and applies retroactively “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 483 also provides for resentencing of defendants already sentenced to prison term enhancements and sets out specific instructions for any such resentencing. (§ 1171.1, subds. (c)–(e).) For example, section 1171.1, subdivision (d)(1) 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).)

Senate Bill 483 further expresses the Legislature’s intent “that any changes to a sentence as a result of [Senate Bill 483] shall not be a basis for a prosecutor or court to rescind a plea agreement.” (Stats. 2021, ch. 728, § 1.)

2. Application of Senate Bill 483 and Section 1171.1

By its text, Senate Bill 483’s invalidation of the prior prison term enhancement applies to Atwell. (§ 1171.1, subd. (a) [“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.”].)

Although the language of the recall and resentencing provisions of section 1171.1 suggests they apply to individuals whose convictions are final, we decide that the statute also provides the appellate remedy for Atwell, who has been sentenced for an enhancement under former section 667.5, subdivision (b) but whose judgment is not yet final. Further, pursuant to the express legislative intent of Senate Bill 483 (and contrary to our conclusion in the initial appeal), that remedy does not allow the prosecutor or court to rescind the plea agreement already reached in Atwell’s matter.

Accordingly, we will strike the one-year prior prison term enhancement previously imposed under former section 667.5, subdivision (b), vacate Atwell’s sentence, and remand for resentencing consistent with section 1171.1. Upon remand, “ ‘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.) On resentencing, the trial court shall comply with the provisions of section 1171.1.

III. Disposition

The judgment is modified to strike the prior prison term enhancement, the sentence is vacated, and the matter is remanded for resentencing under current law (Pen. Code, § 1171.1). Following resentencing, the trial court is directed to prepare a new abstract of judgment and to forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

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Danner, J.

WE CONCUR:

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Greenwood, P.J.

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Grover, J.

H047618

People v. Atwell

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

[2] The underlying facts of Atwell’s offenses are not recounted here because they are not stated in the appellate record and are not relevant to the issues in this appeal.

[3] We note that concurrent sentences are permitted under section 667, subdivision (c)(6) of the three strikes law, in the trial court’s discretion, “where a sentencing court determines that two or more current felony convictions were either ‘committed on the same occasion’ or ‘aris[e] from the same set of operative facts.’ ” (People v. Lawrence (2000) 24 Cal.4th 219, 233.) Here, although the trial court did not state any findings about why it sentenced Atwell concurrently on counts 1 and 3, the complaint alleged the same commission date for both offenses, and neither party challenges the legality of this aspect of Atwell’s sentence.

[4] The Governor signed Senate Bill 136 into law on October 8, 2019, eight days after Atwell’s sentencing. (People v. Lopez (2019) 42 Cal.App.5th 337, 340.)