People v. Mendez CA5 ( 2021 )

Filed 6/15/21 P. v. Mendez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 PEOPLE,
F079853
Plaintiff and Respondent,
(Super. Ct. No. F17901716)
v.
MARCO ANTONIO MENDEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Heather
Mardel Jones, Judge.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Peña, J. and Meehan, J.
INTRODUCTION
On March 11, 2017, officers with the Fresno Police Department searched
defendant Marco Antonio Mendez’s vehicle and arrested him after locating a loaded
firearm and a box of ammunition.1 Defendant was subsequently charged by information
filed August 27, 2018, with possession of a firearm by a felon (Pen. Code, § 29800, subd.
(a)(1); count 1),2 carrying a loaded firearm in public (§ 25850, subd. (a); count 2),
carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1); count 3), and possession
of ammunition by a felon (§ 30305, subd. (a)(1); count 4). The information also alleged
two prior prison term enhancements pursuant to section 667.5, former subdivision (b).
On July 22, 2019, defendant pleaded no contest to count 1 and admitted one prior
prison term allegation in exchange for dismissal of the remaining counts and the second
prior prison term allegation, and a stipulated prison term of three years. On August 19,
2019, the trial court sentenced defendant to the middle term of two years on count 1 plus
an additional one year for the prior prison term enhancement, in accordance with the
terms of the plea bargain. The court also imposed a restitution fine of $300 under
section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $300 under
section 1202.45, subdivision (a), suspended; a court operations assessment of $40 under
section 1465.8; and a court facilities assessment of $30 under Government Code
section 70373.
Defendant advances one claim on appeal. He requests that we vacate the one-year
prior prison term enhancement under Senate Bill No. 136 (2019–2020 Reg. Sess.)
(Senate Bill No. 136), which became effective January 1, 2020.
1 The facts underlying defendant’s crimes are not relevant to the issues raised on appeal,
and, therefore, we do not summarize them further.
2 All further statutory references are to the Penal Code unless otherwise stated.
2.
The People agree that in light of Senate Bill No. 136, the prior prison term
enhancement must be stricken. However, pursuant to People v. Stamps (2020) 9 Cal.5th
685 (Stamps) and this court’s decision in People v. Hernandez (2020) 55 Cal.App.5th 942(Hernandez), review granted January 27, 2021, S265739, they request remand to allow
the trial court to withdraw its approval and the prosecutor to withdraw from the
negotiated plea agreement.
We agree with the People that defendant is entitled to relief under Senate Bill
No. 136, but because the one-year prior prison term enhancement was an integral part of
his plea agreement, he is not entitled to have the one-year term stricken while keeping the
remainder of the plea agreement intact. Therefore, we vacate defendant’s sentence and
remand the matter to the trial court with instructions to strike defendant’s admission to
the one-year prior prison term enhancement allegation and the one-year term imposed,
and to conduct further proceedings consistent with Stamps and Hernandez, discussed
below.
DISCUSSION
I. Senate Bill No. 136
Pursuant to section 667.5, subdivision (a), and subject to an exception not relevant
here, trial courts are required to impose a three-year sentence for each prior, separate
prison term served by the defendant for a violent felony where the current offense is also
a violent felony, as defined in subdivision (c) of the statute. For other felonies, pursuant
to former subdivision (b) of section 667.5 and subject to exceptions not relevant here,
trial courts are required to impose an additional one-year term for each prior, separate
prison term or county jail felony term. As amended by Senate Bill No. 136,
subdivision (b) of section 667.5 limits imposition of the additional one-year term to each
prior, separate prison term served for a conviction of a sexually violent offense as defined
in Welfare and Institutions Code section 6600, subdivision (b).
3.
In accordance with the California Supreme Court’s decision in In re Estrada
(1965) 63 Cal.2d 740, 744, “‘“[a]n amendatory statute lessening punishment is presumed
to apply in all cases not yet reduced to final judgment as of the amendatory statute’s
effective date” [citation], unless the enacting body “clearly signals its intent to make the
amendment prospective, by the inclusion of either an express saving clause or its
equivalent” [citations].’” (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting People v.
DeHoyos (2018) 4 Cal.5th 594, 600; accord, People v. Frahs (2020) 9 Cal.5th 618, 624.)
We agree with the parties that Senate Bill No. 136 is retroactive under the Estrada rule
and that the amendment to section 667.5, subdivision (b), applies to this case.
We also agree with the parties that defendant’s prior conviction for assault by
means of force likely to produce great bodily injury, in violation of section 245,
subdivision (a)(4), is not a qualifying offense under section 667.5, subdivision (b), as
amended. Therefore, the one-year prior prison term enhancement imposed as part of
defendant’s plea agreement must be stricken. However, defendant was sentenced in
accordance with a negotiated plea agreement and the one-year prior prison term
enhancement comprised one-third of his total three-year sentence. As such, we must
consider the appropriate remedy.
II. Remedy
In Stamps, the California Supreme Court addressed, in the context of plea
agreements, Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill No. 1393), which
amended sections 1385 and 667 to allow trial courts the discretion to strike or dismiss a
serious felony enhancement, or strike the additional punishment, “in the furtherance of
justice” (§ 1385, subd. (b)(1); see Stamps, supra, 9 Cal.5th at p. 692). Stamps concluded,
“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
4.
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.” (Stamps, supra, at p. 702.)
Therefore, although the defendant was entitled to seek the benefit of the ameliorative
change in the law pursuant to Senate Bill No. 1393, if the trial court was inclined to grant
the relief sought, the prosecutor was entitled to withdraw from the plea agreement and the
trial court, too, could withdraw its prior approval of the plea agreement. (Id. at pp. 707–
708.)
Subsequently, in Hernandez, this court considered the appropriate remedy in cases
in which a defendant sentenced pursuant to a plea agreement is entitled to relief from a
prior prison term enhancement under Senate Bill No. 136, which, unlike Senate Bill
No. 1393, is not discretionary. (Hernandez, supra, 55 Cal.App.5th at pp. 946–947,
review granted.) Hernandez reviewed the legislative history of Senate Bill No. 136, the
decision in Stamps, and this court’s decision in People v. Barton (2020) 52 Cal.App.5th
1145, 1159 (Barton), which considered the effect of Senate Bill No. 180 (2017–2018
Reg. Sess.) (Senate Bill No. 180) on the defendant’s plea agreement through the lens of
Stamps.3 Hernandez concluded that where a defendant is entitled to relief from a prior
3 The defendant in Barton was sentenced to eight years eight months under her plea
agreement, six years of which were attributable to two enhancements for drug-related prior
convictions under former Health and Safety Code section 11370.2, subdivision (c). (Barton,
supra, 52 Cal.App.5th at p. 1149.) Senate Bill No. 180, effective January 1, 2018, “amended
[Health and Safety Code] section 11370.2 by eliminating its three-year enhancements for most
drug-related prior convictions,” including the defendant’s. (Barton, supra, at p. 1149.) This
court rejected the defendant’s argument that she was entitled to benefit from the change in the
law under Senate Bill No. 180 but keep the remainder of her plea bargain intact. (Barton, supra,
at pp. 1149, 1155–1156.) The court explained, “Senate Bill 180 applies retroactively such that
the sentence upon which defendant’s plea was conditioned is now unauthorized. Consequently,
the parties’ plea agreement is unenforceable and the trial court cannot approve of the agreement
in its current form. [Citations.] Whether by withdrawal of its prior approval or the granting of a
withdrawal/rescission request by one or both of the parties, the trial court ‘“‘must restore the
parties to the status quo ante.’”’ [Citations.] The parties may then enter into a new plea
agreement, which will be subject to the trial court’s approval, or they may proceed to trial on the
reinstated charges.” (Id. at p. 1159.)
5.
prison term enhancement under Senate Bill No. 136 and the enhancement was “an
integral part of the defendant’s specified sentence,” the trial court must dismiss the
enhancement, but “it cannot unilaterally modify the plea agreement by keeping the
remainder of the bargain intact .…” (Hernandez, supra, at pp. 958–959.) We explained
that once the prior prison term enhancement is dismissed, the prosecutor 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 trial court may also
“‘withdraw its prior approval of the plea agreement.’” (Id. at p. 960.)
Although we recognize review has been granted in Hernandez, we agree with the
analysis and conclusion therein. We decline defendant’s invitation, advanced in his reply
brief, to follow People v. Griffin (2020) 57 Cal.App.5th 1088, 1097–1099, review granted
February 17, 2021, S266521, which agreed in part with Hernandez, but held that if a new
plea agreement was reached on remand, “imposing a longer sentence would constitute an
abuse of discretion.” (People v. Griffin, supra, at p. 1099, citing People v. Collins (1978)
21 Cal.3d 208.) We rejected this argument in Hernandez, explaining, “[W]e
acknowledge the holding in Collins that allowed the prosecution to refile the previously
dismissed charges as long as the defendant was not resentenced to a greater term than
provided in the original plea agreement. [However,] Stamps did not extend Collins to
permit such a resolution, and instead held the People could completely withdraw from the
plea agreement if the prior serious felony enhancement was dismissed.” (Hernandez,
supra, 55 Cal.App.5th at p. 959, review granted.)
In sum, defendant is entitled to relief from his admission to the prior prison term
enhancement and the resulting one-year sentence enhancement imposed as part of his
plea agreement. However, the one-year prior prison term enhancement was an integral
part of defendant’s three-year stipulated sentence. Therefore, remand for further
proceedings consistent with Stamps and Hernandez is the appropriate remedy. (Stamps,
6.
supra, 9 Cal.5th at pp. 707–708; Hernandez, supra, 55 Cal.App.5th at p. 960, review
granted.)
DISPOSITION
The sentence is vacated and this matter is remanded to the trial court with
directions to strike defendant’s admission to the section 667.5, former subdivision (b),
prior prison term enhancement allegation and the resulting one-year sentence imposed.
The trial court shall conduct further proceedings as set forth in Stamps, supra, 9 Cal.5th
at pages 707–708 and Hernandez, supra, 55 Cal.App.5th at page 960, review granted.
7.