Filed 5/9/22 P. v. Barrera CA5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Michael J. Reinhart, Judge.

Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler, Sean M. McCoy and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Matthew Joseph Barrera entered into a stipulated plea agreement that included four prior prison term enhancements. In our prior opinion, we ordered the enhancements stricken based on the modifications to Penal Code section 667.5, subdivision (b),[1] brought about by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136) and the matter remanded to the trial court to permit the People and trial court an opportunity to withdraw from the plea agreement. Our Supreme Court granted review then remanded the matter to us with direction to “vacate [our] decision and reconsider the cause in light of Senate Bill No. 483” (2021–2022 Reg. Sess.) (Senate Bill 483).

The parties have submitted supplemental briefing. Defendant contends that we should strike the prior prison term enhancements and remand for resentencing. The People argue that—despite the Legislature’s express intent “that any changes to a sentence as a result of [Senate Bill 483 ] … not be a basis for a prosecutor or court to rescind a plea agreement”—the matter should be remanded to permit the People to withdraw from the plea agreement. (Stats. 2021, ch. 728, § 1.) We vacate defendant’s sentence and remand to the trial court with direction to strike defendant’s prior prison term enhancements and resentence defendant.

PROCEDURAL SUMMARY

On July 1, 2019, the Kings County District Attorney charged defendant with sale of heroin (Health & Saf. Code, § 11352, subd. (a); count 1), possession of heroin for sale (Health & Saf. Code, § 11351; count 2), sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 3), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 4), misdemeanor driving under the influence of a drug (Veh. Code, § 23152, subd. (f); count 5), and misdemeanor disobeying a court order (§ 166, subd. (a)(4); count 6). The complaint further alleged that defendant had served four prior prison terms (§ 667.5, subd. (b)).

On August 19, 2019, defendant pled guilty to counts 1 and 3, and admitted the prior prison term allegations. The admitted prior prison terms were served for convictions of possession of a controlled substance (Health & Saf. Code, § 11377), assault with a deadly weapon (§ 245, subd. (a)(1)), false imprisonment by violence (§ 236), and unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)). The plea agreement stipulated that defendant would be sentenced to a term of 10 years as follows: on count 1, five years (the upper term), plus four one-year prior prison term enhancements; and on count 3, a consecutive term of one year (one-third of the middle term of 3 years). That term was to be served as a split sentence (§ 1170, subd. (h)) with three years to be served in local jail and seven years of mandatory supervision.

On November 13, 2019, the trial court sentenced defendant to the stipulated sentence.

On January 10, 2020, defendant filed a notice of appeal.

On June 1, 2021, we ordered defendant’s sentence vacated and the matter remanded to the trial court with directions to strike the prior prison term enhancements and permit the People and trial court an opportunity to withdraw approval for the plea agreement. Our Supreme Court granted review. On March 30, 2022, it transferred the matter to us with direction to “vacate [our] decision and reconsider the cause in light of Senate Bill [] 483.

DISCUSSION[2]

Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b) to limit application of prior prison term enhancements to only prior prison 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.) That amendment was applied retroactively, pursuant to In re Estrada, to all cases not yet final on Senate Bill 136’s effective date. (People v. Lopez (2019) 42 Cal.App.5th 337,

341–342, citing In re Estrada (1965) 63 Cal.2d 740, 742.)

Senate Bill 483 added section 1171.1. (Stats. 2021, ch. 728, § 3.) Section 1171.1, subdivision (a) reads: “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.” The Legislature expressed its intent “that any changes to a sentence as a result of [Senate Bill 483] … not be a basis for a prosecutor or court to rescind a plea agreement.” (Stats. 2021, ch. 728, § 1.) Resentencing after relief pursuant to section 1171.1 “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” and “shall not result in a longer sentence than the one originally imposed.” (§ 1171.1, subd. (d)(1).)

The parties agree that defendant’s prior prison term enhancements must be stricken and he must be resentenced. However, the People encourage us to allow the recall and resentencing mechanism created by section 1171.1 to provide the path to strike defendant’s prior prison term enhancements and resentence defendant. Although section 1171.1 creates a mechanism for recall and resentencing of final sentences, because the section 667.5 subdivision (b) enhancements are now legally invalid, defendant’s sentence is not final, and the matter is now before us, we order the enhancement stricken and defendant resentenced.

The People further argue that “Under [People v.] Stamps [(2020) 9 Cal.5th 685], the People may consider whether to withdraw from the plea bargain even though there are no charges or enhancements that could be reinstated ….” The People are incorrect. As noted, Senate Bill 483 expressly disallowed withdrawal from a plea agreement based on relief afforded pursuant to Senate Bill 483. (Stats. 2021, ch. 728, § 1.)

On remand, the trial court must resentence defendant by the terms of the plea agreement insofar as it can do so consistent with section 1171.1. Insofar as there is any discrepancy between the terms of the plea agreement and the requirements of section 1171.1, section 1171.1 controls. (See § 1171.1, subd. (d)(1)–(5).) 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 sentence is vacated and the matter remanded to the superior court with directions to strike the prior prison term enhancements (§ 667.5, subd. (b)) and resentence defendant consistent with section 1171.1 and this opinion. Following resentencing, the trial court is directed to prepare an amended abstract of judgment and to forward it to the appropriate authorities. In all other respects, the judgment is affirmed.

* Before Hill, P.J., Smith, J. and DeSantos, J.

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] Because defendant again raises only sentencing issues, the facts underlying the offenses are not relevant and are omitted from this opinion.