THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTONIO HERNANDEZ, Defendant and Appellant.
F080131 (Kern Super. Ct. No. BF177632A)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 10/14/20
CERTIFIED FOR PARTIAL PUBLICATION*
CERTIFIED FOR PARTIAL PUBLICATION*
OPINION
APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa, Judge.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant/defendant Jose Antonio Hernandez entered a plea negotiation in which he agreed to a term of 10 years in state prison. The 10-year term included the imposition of two prior prison term enhancements. In this appeal, he asserts the enhancements must be dismissed because of the subsequent enactment of Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136) that amended
Based on the California Supreme Court‘s recent ruling in People v. Stamps (2020) 9 Cal.5th 685 (Stamps), we vacate the sentence and remand to the trial court to dismiss the prior prison term enhancements, and further hold the People may then either agree to modify the bargain to reflect the downward departure in the sentence, or choose to withdraw from the original plea agreement, and the court may choose to withdraw its prior approval of the plea agreement.
FACTS2
On August 1, 2019, officers responded to a business on a dispatch that a person was brandishing a weapon at an employee. Upon arrival, an officer contacted Jaime Baez, a security guard at the business, while other officers located defendant. Defendant was in possession of a black folding knife and arrested.
PROCEDURAL BACKGROUND
On August 5, 2019, a complaint was filed in the Superior Court of Kern County that charged defendant with count 1, assault with a deadly weapon, a knife (
As to both counts, it was alleged defendant had two prior strike convictions; two prior serious felony enhancements (
The plea hearing
On August 15, 2019, the court was scheduled to conduct the preliminary hearing. However, the parties advised the court they had reached a plea agreement. The court stated the terms to defendant:
“It has been indicated to me that you are going to plead guilty or no contest to Count 1, assault with a deadly weapon, which is a serious felony, you are going to admit you have two prior strike convictions and that you have served two prior terms in prison. You would receive a total of ten years in the Department of Corrections. And all remaining charges will be dismissed. [¶] ... [¶] In order to reach this disposition I have agreed that I‘m going to strike one of your two strike convictions, so your sentence would be doubled, so it would be a total of ten years.”
Defendant agreed that the court correctly stated the terms of the plea agreement, and that he read, understood, and signed the waiver of rights form.
After being advised of and waiving his constitutional rights, defendant pleaded no contest to count 1, assault with a deadly weapon, and admitted the two prior strike convictions and two prior prison term enhancements. The court granted the People‘s motion to dismiss count 2 and the personal use enhancement, and the two additional prior prison term enhancements, on the
The sentencing hearing
On September 13, 2019, the court conducted the sentencing hearing. The court dismissed the prior strike conviction pursuant to
The court ordered defendant to pay a $300 restitution fine (
On October 16, 2019, defendant filed a timely notice of appeal, and the court granted his request for a certificate of probable cause.
DISCUSSION
I. The Prior Prison Term Enhancements
Defendant‘s negotiated disposition was for a sentence of 10 years, which included two one-year terms for the
After briefing was completed, the California Supreme Court‘s issued its ruling in People v. Stamps, supra, 9 Cal.5th 685. As we will discuss below, Stamps held that as a result of Senate Bill 1393‘s amendments to
Defendant argues the
The People counter that based on the rationale in Stamps, the district attorney may completely withdraw from the original plea agreement since there is no evidence the Legislature intended that Senate Bill 136‘s amendments to
As we will explain, we agree with the People‘s argument and are compelled to remand consistent with Stamps.
A. Section 667.5 and Senate Bill 136
At the time of defendant‘s plea and sentencing hearing, “section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. [Citation.] Courts nevertheless had discretion to strike that enhancement pursuant to
Defendant contends, and the People concede, that his prior prison terms were not served for sexually violent offenses, and his admissions and the two
B. Plea Agreements and Changes in the Law
The disputed question is whether the required dismissal of the two consecutive one-year terms, that were imposed as part of the specified sentence of 10 years, has any effect on the underlying plea agreement that the parties entered into and that was approved by the court.
“We have held that when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ [Citations.]” (People v. Buycks (2018) 5 Cal.5th 857, 893.)
There are different considerations in the case of plea agreements. “[T]he process of plea negotiation ‘contemplates an agreement negotiated by the People and the defendant and approved by the court. [Citations.] ... Judicial approval is an essential condition precedent to the effectiveness of the “bargain” worked out by the defense and prosecution. [Citations.]’ ” (People v. Segura (2008) 44 Cal.4th 921, 929–930 (Segura).)
“[O]nly the prosecutor is authorized to negotiate a plea agreement on behalf of the state. ‘[T]he court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of “plea bargaining” to “agree” to a disposition of the case over prosecutorial objection. Such judicial activity would contravene express statutory provisions requiring the prosecutor‘s consent to the proposed disposition, would detract from the judge‘s ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge‘s participation in the matter. [Citation.]’ [Citations.]” (Segura, supra, 44 Cal.4th at p. 930.)
“Because a ‘negotiated plea agreement is a form of contract,’ it is interpreted according to general contract principles. [Citation.] Acceptance of the agreement binds the court and the parties to the agreement. [Citations.]” (Segura, supra, 44 Cal.4th at pp. 930–931.)
” ‘Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted the terms of the negotiated plea, “[it] lacks jurisdiction
“[I]n the context of a negotiated plea the trial court may approve or reject the parties’ agreement, but the court may not attempt to secure such a plea by stepping into the role of the prosecutor, nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved.” (Segura, supra, 44 Cal.4th at pp. 931–932, italics added.)
C. Collins
In a series of cases, the California Supreme Court has addressed the impact of amendments or repeals of statutes, either by the legislative or initiative process, that had provided for sentences that were part of a plea agreement for a specified sentence.
As noted above, defendant argues that remand in this case should be consistent with People v. Collins, supra, 21 Cal.3d 208, where the defendant was charged with 15 felony counts and several special allegations. He pleaded guilty to oral copulation in violation of former section 288a, in exchange for dismissal of the remaining charges and allegations, pursuant to a plea agreement. Prior to the sentencing hearing, the Legislature repealed former section 288a and decriminalized “the act of oral copulation between consenting, nonprisoner adults ....” Nevertheless, the court sentenced the defendant to one to 15 years, the term previously prescribed for the repealed offense. (Id. at pp. 211–212.)
Collins held the decriminalization of the offense applied retroactively under In re Estrada (1965) 63 Cal.2d 740 (Estrada) because the defendant‘s conviction was not yet final. Collins further held the trial court improperly imposed the sentence previously mandated by the repealed statute “because the conduct which he admitted in pleading guilty was no longer punishable at the time of sentencing.” (Collins, supra, 21 Cal.3d at p. 212.)
Collins explained that on remand, the district attorney could reinstate the counts that had been dismissed as part of the plea agreement. (Collins, supra, 21 Cal.3d at p. 214.) Since the oral copulation offense had been decriminalized, the prosecution had been “deprived of the benefit of its bargain by the relief granted herein,” and the People could restore the dismissed counts because “the state [was] substantially deprived of the benefits for which it agreed to enter the bargain.” (Id. at p. 215.)
“[The] defendant seeks to gain relief from the sentence imposed but otherwise leave the plea bargain intact.
This is bounty in excess of that to which he is entitled. The intervening act of the Legislature in
decriminalizing the conduct for which he was convicted justifies a reversal of defendant‘s conviction and a direction that his conduct may not support further criminal proceedings on that subject; but it also destroys a fundamental assumption underlying the plea bargain – that defendant would be vulnerable to a term of imprisonment. The state may therefore seek to reestablish defendant‘s vulnerability by reviving the counts dismissed.
“Under the circumstances posed herein, however, the defendant is also entitled to the benefit of his bargain. This is not a case in which the defendant has repudiated the bargain by attacking his guilty plea; he attacks only the judgment, and does so on the basis of external events - the repeal and reenactment of section 288a – that have rendered the judgment insupportable. This court has long recognized that the state has no interest in preserving erroneous judgments [citation] and that convictions should not rest on noncriminal conduct. Here external events and not defendant‘s repudiation undermined this plea bargaining agreement. Accordingly, we must fashion a remedy that restores to the state the benefits for which it bargained without depriving defendant of the bargain to which he remains entitled.” (Id. at pp. 215–216, italics added, fns. omitted.)
Collins further held that on remand, the People could revive one or more of the dismissed counts, but the defendant could not receive a more severe punishment than the term which the plea agreement had subjected him. (Collins, supra, 21 Cal.3d at pp. 216–217.)
D. Harris and Proposition 47
The California Supreme Court again addressed this issue in Harris v. Superior Court (2016) 1 Cal.5th 984 (Harris), where the defendant was charged with robbery. He pleaded guilty to felony grand theft (
The People argued the proposed resentencing would deprive both parties of the benefit of their bargain and moved to completely withdraw from the plea agreement and reinstate the dismissed robbery charge and prior felony conviction allegations. The trial court granted the defendant‘s petition for
Harris held the People were not entitled to rescind the plea agreement when the court reclassified his felony conviction to a misdemeanor. (Harris, supra, 1 Cal.5th at p. 987.) In reaching this decision, Harris focused on the intent behind the enactment of Proposition 47 and
“[E]ntering into a plea agreement does not insulate the parties ‘from changes in the law that the Legislature has intended to apply to them.’ (Italics added.) Here, of course, it was not the Legislature, but the electorate, that enacted Proposition 47. So the question is whether the electorate intended the change to apply to the parties to this plea agreement. We conclude it did.” (Harris, at p. 991.)
Harris found
“The 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 petitioner. Many criminal cases are resolved by negotiated plea.... Nothing in Proposition 47 suggests an intent to disrupt this process. [¶] One 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....” (Ibid.)
Harris acknowledged that Collins allowed the People to reinstate certain charges that had been dismissed because of the plea agreement in that case, with certain limitations, but found Collins “distinguishable both substantively and procedurally” since the legal change in Collins “decriminalized the offense to which the defendant had pled” and “eviscerated the judgment and the underlying plea entirely, and it did so before the judgment. That is not the case here.” (Harris, supra, 1 Cal.5th at p. 993, italics added.)
E. Stamps and Senate Bill 1393
In Stamps, supra, 9 Cal.5th 685, the defendant entered into a plea agreement for a specified term of nine years, pleaded no contest to one count
At the time of sentencing in Stamps, the trial court did not have discretion to strike the five-year term for the
Stamps held Senate Bill 1393‘s amendments to
As for the appropriate remedy, Stamps held the trial court and the prosecution were not bound by the terms of the original plea agreement if, on remand, the trial court decided to dismiss the prior serious felony enhancement that the defendant admitted as part of the plea agreement. (Stamps, supra, 9 Cal.5th at p. 699.)4
“If defendant stood convicted of a crime with an
enhancing prior as a result of trial or an open plea of guilty as charged, his case could be remanded for the court to reconsider its sentence in light of its newly conferred authority to strike the enhancement. This case is procedurally different because both parties entered a plea agreement for a specific prison term. [¶] Even when applicable, section 1385 ordinarily does not authorize a trial court to exercise its discretion to strike in contravention of a plea bargain for a specified term.” (Id. at p. 700, italics added.)
Since the defendant entered into the plea agreement for a specified prison term, the trial court could not modify the terms of that bargain by dismissing the five-year prior serious felony enhancement without the agreement of both parties. (Stamps, supra, 9 Cal.5th at pp. 700–701 overturn long-standing law that a court cannot unilaterally modify an agreed-upon term by striking portions of it under section 1385. We are not persuaded that the Legislature intended this result.” (Id. at p. 701.)
Stamps examined the legislative intent behind Senate Bill 1393 and found no evidence the Legislature intended the amendments to permit the court to unilaterally restructure a plea in the absence of the prosecution‘s agreement. (Stamps, supra, 9 Cal.5th at pp. 702–704.)
“The Legislature may have intended to modify the sentencing scheme, but the legislative history does not demonstrate any intent to overturn existing law regarding a court‘s lack of authority to unilaterally modify a plea agreement. Indeed, none of the legislative history materials mention plea agreements at all. What legislative intent can be discerned runs counter to defendant‘s position. As described, Senate Bill 1393 was intended to bring a court‘s discretion to strike a five-year serious felony enhancement in line with the court‘s general discretion to strike other enhancements. Thus, the Legislature gave a court the same discretion to strike a serious felony enhancement that it retains to strike any other sentence enhancing provision. Its action did not operate to change well-settled law that a court lacks discretion to modify a plea agreement unless the parties agree to the modification.” (Id. at p. 702.)
Stamps distinguished the intent behind Senate Bill 1393‘s amendments to
“The [resentencing] provision [of Proposition 47] ... allowed defendants who had already completed their sentences to have their offenses designated as misdemeanors. [Citation.] The electorate thus evinced an intent that these offenses be treated as misdemeanors no matter how or when a defendant suffered the conviction. As Harris reasoned, to allow the prosecution, in
response to a successful resentencing petition, to withdraw from a plea agreement and reinstate dismissed charges would frustrate electoral intent to treat these offenses uniformly as misdemeanors, essentially denying meaningful relief to those convicted through plea bargains. [Citation.] “Similar considerations do not apply here. Nothing in the language and legislative history of Senate Bill 1393 suggests an intent to modify
section 1192.5 ‘s mandate that ‘the court may not proceed as to the plea other than as specified in the plea’ without the consent of the parties. As discussed, Senate Bill 1393‘s amendment ofsection 1385 Harris, the remedy defendant seeks, to allow the court to strike the serious felony enhancement but otherwise retain the plea bargain, would frustrate the Legislature‘s intent to havesection 1385 apply uniformly, regardless of the type of enhancement at issue, by granting the court a power it would otherwise lack for any other enhancement. That Senate Bill 1393 is silent regarding pleas and provides no express mechanism for relief undercuts any suggestion that the Legislature intended to create special rules for plea cases involving serious felony enhancements.” (Ibid., italics added.)
Notes
As explained above, a sentencing court was previously required to impose the five-year term for the
In contrast, the amendment to