People v. Brunsvik CA3 ( 2021 )

Filed 9/17/21 P. v. Brunsvik CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C093014
Plaintiff and Respondent, (Super. Ct. No. 18F2009)
v.
NICHOLAS CRAIG BRUNSVIK,
Defendant and Appellant.
Defendant Nicholas Craig Brunsvik pled no contest to receiving stolen property
and resisting a peace officer and admitted a prior prison term under Penal Code1
section 667.5, subdivision (b). The plea agreement included a stipulated sentence of four
years, split into six months in county jail, followed by a three-year, six-month term of
mandatory supervision. Defendant ultimately violated the terms of his mandatory
1 Undesignated statutory references are to the Penal Code.
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supervision and the court ordered him to serve the remainder of the term in custody.
Defendant now appeals asserting the one-year prior prison term enhancement must be
stricken because of recently adopted Senate Bill No. 136 (2019-2020 Reg. Sess.). Under
the circumstances of this case, we will modify the judgment to strike the enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged defendant with one count of receiving stolen property
and two counts of misdemeanor resisting a peace officer. The prosecution also alleged
defendant had served a prior prison term for a 2012 conviction for evading a peace
officer. Defendant pled no contest to the receiving stolen property count and one
resisting a peace officer count and admitted the prior prison term allegation. The court
dismissed the outstanding count, along with two other misdemeanor cases, consistent
with the plea agreement.
At the sentencing hearing, in December 2018, the court imposed the agreed-upon
sentence of four years, including the upper term of three years for the receiving stolen
property count, one year for the prior prison term enhancement, and 180 days to run
concurrently, for the resisting a peace officer count. The four-year term was split into a
six-month term in custody and three years six months on mandatory supervision.
Defendant did not file a notice of appeal.
Defendant eventually admitted two violations of the terms of his mandatory
supervision. In October 2020, the court remanded defendant into custody and ordered
defendant to serve the remainder of his sentence in custody. Defendant then filed a
notice of appeal.
DISCUSSION
Defendant argues Senate Bill No. 136 applies retroactively to him and asserts the
prior prison term enhancement must be stricken. The People disagree, both with respect
to the retroactivity of Senate Bill No. 136 and to the proposed remedy. We agree Senate
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Bill No. 136 applies retroactively and find it appropriate in this case to strike the
enhancement.
I
Retroactivity
Senate Bill No. 136 was signed by the Governor on October 8, 2019, and,
effective January 1, 2020, amended section 667.5, subdivision (b) to eliminate the one-
year prior prison term enhancement for most prior convictions. (Stats. 2019, ch. 590,
§ 1.) An exception, not applicable here, is made for a qualifying prior conviction of a
sexually violent offense, as defined in Welfare and Institutions Code section 6600,
subdivision (b).
The People assert Senate Bill No. 136 should not be applied retroactively to
defendant’s case because defendant’s sentence included a mandatory supervision
component. In their view, defendant’s sentence was imposed on the date of his
sentencing hearing and the judgment in the case became final after he failed to appeal at
that point. Thus, they conclude, the judgment in defendant’s case was final before Senate
Bill No. 136 took effect, and its ameliorative benefits should not extend to defendant
under In re Estrada (1965) 63 Cal.2d 740.
Our Supreme Court recently considered a similar issue in People v. Esquivel
(2021) 11 Cal.5th 671. In Esquivel, the defendant pled no contest to a felony and
admitted two prior prison terms. (Id. at p. 673.) The trial court suspended execution of a
state prison sentence and placed the defendant on probation, the terms of which defendant
proceeded to violate. (Ibid.) The court then ordered the sentence into effect. (Ibid.)
Defendant appealed and, while the appeal was pending, the Legislature passed Senate
Bill No. 136. (Ibid.) Considering whether In re Estrada extended the benefits of Senate
Bill No. 136 to the defendant, despite the fact he had not appealed the original order
placing him on probation, our Supreme Court observed the “case was not final” at that
point “because the ‘criminal prosecution or proceeding’ brought against defendant was
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not complete when the ameliorative legislation at issue took effect. [Citation.]
Defendant had not exhausted direct review of the order causing his carceral punishment
to take effect. The time for him to seek that review had not expired. And he had not
successfully completed probation.” (Id. at p. 678.) Thus, our Supreme Court concluded,
“legislation ameliorating punishment presumptively applies to suspended execution cases
pending on appeal from an order causing a previously imposed sentence to take effect.”
(Id. at p. 681.)
We see no reason why defendant’s situation should be treated differently in this
respect from the defendant in Esquivel. Although defendant was placed on mandatory
supervision, rather than probation, defendant “had not exhausted direct review of the
order causing his carceral punishment to take effect” when his sentence was initially
imposed. (People v. Esquivel, supra, 11 Cal.5th at p. 678.) As the People acknowledge,
the appellate cases considering In re Estrada’s applicability to cases involving mandatory
supervision have concluded that the imposition of a split sentence is not a “final
judgment” under In re Estrada. (People v. Lopez (2020) 57 Cal.App.5th 409, 412 [“a
defendant who remains on mandatory supervision is not yet subject to a final judgment”];
People v. Martinez (2020) 54 Cal.App.5th 885, 889 [“a split sentence consisting of a
county jail term followed by a period of mandatory supervision does not automatically
become a final judgment of conviction for purposes of Estrada retroactivity when the
time to appeal from the imposition of that sentence expires”]; People v. Conatser (2020)
53 Cal.App.5th 1223, 1229 [same].)
None of the cases the People cite for the proposition that mandatory supervision is
different than probation involved the application of Estrada retroactivity. And, the
People’s argument distinguishing defendant’s sentence from a probation sentence, which
asserts defendant’s sentence was imposed at sentencing, rather than suspended, as it
typically would be for probation, relies on a distinction between suspended imposition
and suspended execution of sentence that was rejected by Esquivel, and has been rejected
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by other appellate courts considering Estrada’s applicability. (People v. Esquivel, supra,
11 Cal.5th at p. 678; see also People v. Andahl (2021) 62 Cal.App.5th 203, 209-210,
review granted June 16, 2021, S268336; People v. Martinez, supra, 54 Cal.App.5th at
p. 893.) Thus, we conclude the benefits of Senate Bill No. 136 extend to defendant.
II
Remedy
As to the remedy, we observe appellate courts are currently split on how to
retroactively apply Senate Bill No. 136 to plea agreements with stipulated sentences that
include prior prison term enhancements. (See, e.g., People v. France (2020)
58 Cal.App.5th 714, 730, review granted Feb. 24, 2021, S266771 [appellate court striking
unauthorized prior prison term enhancement; prosecution may not withdraw from plea
agreement]; People v. Hernandez (2020) 55 Cal.App.5th 942, 944, review granted Jan.
27, 2021, S265739 [allowing the People to withdraw from plea agreement when prior
prison term enhancement is stricken; no cap as to any subsequent sentence]; People v.
Joaquin (2020) 58 Cal.App.5th 173, 175, review granted Feb. 24, 2021, S266594 [Senate
Bill No. 136 renders plea agreement unenforceable; “[o]n remand, the parties may enter
into a new plea agreement, but, if they do, the trial court may not impose a longer
sentence than that in the original agreement”].) Our Supreme Court is now poised to
provide clarification. In the meantime, we believe it is appropriate to strike the
enhancement at issue here.
As a threshold matter, the parties disagree about whether the remedy in this case is
dictated by People v. Stamps (2020) 9 Cal.5th 685 (Stamps). In Stamps, our Supreme
Court considered the applicability of Senate Bill No. 1393 (2017-2018 Reg. Sess.), which
allowed a trial court to dismiss a serious felony enhancement in furtherance of justice, as
provided under section 1385, to a plea agreement that included the admission of a serious
felony enhancement. (Stamps, supra, at p. 693.) Our Supreme Court concluded the
remedy should be to remand the matter, give defendant an opportunity to seek relief
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under Senate Bill No. 1393, and allow the prosecution the opportunity to withdraw from
the plea agreement if the trial court “indicates an inclination to exercise its discretion
under section 1385.” (Stamps, at p. 707.)
The court reasoned, “Senate Bill [No.] 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.” (Stamps, supra, 9 Cal.5th at p. 702.) Thus, “to allow the court to strike
the serious felony enhancement but otherwise retain the plea bargain, would frustrate the
Legislature’s intent to have section 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 [No.] 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.” (Id. at
p. 704.)
Unlike the application of Senate Bill No. 1393 in Stamps, however, Senate Bill
No. 136 “does not involve any unilateral action by the trial court.” (People v. Andahl,
supra, 62 Cal.App.5th at p. 214.) Rather, “ ‘under Senate Bill [No.] 136, the Legislature
itself has mandated the striking of affected prison priors . . . . Thus, Senate Bill [No.] 136
does not involve Stamps’s repeated and carefully phrased concern with the “long-
standing law that a court cannot unilaterally modify an agreed-upon term by striking
portions of it under section 1385.” ’ ” (Ibid.) “When a case is remanded under Senate
Bill [No.] 1393, the trial court can choose not to strike the enhancement and preserve the
plea agreement, but a trial court applying Senate Bill [No.] 136 has no such option
because an enhancement ‘cannot stand . . . when it rests upon conduct that is no longer
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sanctioned.’ ” (Id. at p. 215.) Nothing prevents the Legislature from modifying a plea
agreement in such a way. (See Doe v. Harris (2013) 57 Cal.4th 64, 73 [“the general rule
in California is that a plea agreement is ‘ “deemed to incorporate and contemplate not
only the existing law but the reserve power of the state to amend the law or enact
additional laws for the public good and in pursuance of public policy” ’ ”]; People v.
Knowles (1950) 35 Cal.2d 175, 181 [“[s]ubject to the constitutional prohibition of cruel
and unusual punishment, the Legislature may define and punish offenses as it sees fit”].)
The Legislature has thus effectively made defendant’s prior prison term
enhancement an unauthorized sentence, as it “could not lawfully be imposed under any
circumstance,” and it must be stricken. (People v. Scott (1994) 9 Cal.4th 331, 354; In re
Andrews (1976) 18 Cal.3d 208, 212 [“A court is without authority to impose a sentence
not prescribed by statute”]; People v. Harvey (1980) 112 Cal.App.3d 132, 139 [“in
computing one’s sentence under a plea bargain, even though agreed to by the parties, the
court may not give effect to an enhancement unauthorized by law”].) The Legislature
was presumptively aware that Senate Bill No. 136 would retroactively render sentences
in nonfinal cases unauthorized, and that courts must strike an unauthorized sentence, even
with respect to plea agreements. (See Estate of McDill (1975) 14 Cal.3d 831, 839 [it is a
generally accepted principle that in adopting legislation the Legislature is presumed to
know existing law]; Harvey, at p. 139 [“in computing one’s sentence under a plea
bargain, even though agreed to by the parties, the court may not give effect to an
enhancement unauthorized by law”]; People v. Collins (1978) 21 Cal.3d 208, 211-212.)
And, the Legislature “may bind the People to a unilateral change in a sentence without
affording them the option to rescind the plea agreement.” (Harris v. Superior Court
(2016) 1 Cal.5th 984, 991-992.)
Similarly, Stamps is inapplicable because it allowed defendant the choice on
remand to decide whether to file a motion under Senate Bill No. 1393 to strike the prior
serious felony enhancement. (Stamps, supra, 9 Cal.5th at p. 707.) Here, defendant has
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no such choice; as explained above, the prior prison term enhancement is now
unauthorized and must be stricken. Because of this, applying the Stamps remedy to
Senate Bill No. 136 would essentially result in the unintentional expansion of the remedy
discussed in People v. Collins, supra, 21 Cal.3d at page 208, which permitted the
prosecution to “revive one or more” of the counts it had dismissed before entering into a
plea agreement with the defendant, in all cases. (Id. at p. 216.) In Harris v. Superior
Court, our Supreme Court explained Collins as follows: “In Collins . . . , the defendant
was charged with 15 felonies, including burglary, attempted burglary, forcible rape,
assault with intent to commit rape, and forcible oral copulation. ‘Pursuant to a plea
bargain, defendant entered a plea of guilty to one count of oral copulation; in return, the
allegations of commission of that crime by means of force and of a prior felony
conviction were stricken, and the other 14 counts were dismissed.’ [Citation.] After the
plea, the Legislature decriminalized nonforcible oral copulation, the crime to which the
defendant had pleaded guilty. Nevertheless, the trial court sentenced him to state prison.
On appeal, because the conduct to which the defendant pleaded guilty was no longer
criminal, this court reversed the conviction. [Citation.] As we summarized, ‘A
conviction cannot stand on appeal when it rests upon conduct that is no longer
sanctioned.’ [Citation.]
“We then considered the effect of the reversal on the dismissed counts. We stated
the issue as being ‘whether the prosecution has been deprived of the benefit of its bargain
by the relief granted herein. We conclude that it has and hence the dismissed counts may
be restored. [¶] The state, in entering a plea bargain, generally contemplates a certain
ultimate result; integral to its bargain is the defendant’s vulnerability to a term of
punishment. . . . When a defendant gains total relief from his vulnerability to sentence,
the state is substantially deprived of the benefits for which it agreed to enter the bargain.
Whether the defendant formally seeks to withdraw his guilty plea or not is immaterial; it
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is his escape from vulnerability to sentence that fundamentally alters the character of the
bargain.
“ ‘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.’ [Citation.]
“Regarding remedy, we concluded that the state could revive one or more of the
dismissed counts, but the defendant could not receive a more severe punishment than that
to which the plea agreement had subjected him.” (Harris v. Superior Court, supra,
1 Cal.5th at pp. 989-990.)
Here, as with Collins, the court has no discretion to enforce the plea agreement
under its pre-Senate Bill No. 136 terms and the unauthorized sentence must be stricken.
But, unlike Collins, applying Senate Bill No. 136 here does not eviscerate the plea
agreement and deprive the prosecution of its bargain as to defendant’s vulnerability to
sentence. If the Stamps remedy were applied to Senate Bill No. 136 in stipulated
sentence cases, however, the result would be the same as in Collins -- the prosecution
would be able to withdraw from the plea agreement and reinstate all dismissed charges.
Our Supreme Court has not expanded the Collins remedy to such circumstances.
Thus, we conclude Stamps is not controlling with respect to the remedy in
defendant’s case. The Legislature unilaterally modified the plea agreement when it
enacted Senate Bill No. 136 without giving the prosecution the option to withdraw from
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the agreement. The retroactive application of Senate Bill No. 136 does not eviscerate the
plea agreement in this case, and we will thus strike the prior prison term enhancement.2
DISPOSITION
The one-year enhancement imposed under section 667.5, subdivision (b) is
stricken. The trial court is directed to prepare an amended abstract of judgment and to
forward a certified copy to the Shasta County Sheriff’s Office. As modified, the
judgment is affirmed.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Renner, J.
2 The parties dispute whether, assuming defendant is resentenced, the trial court can
impose a higher sentence than defendant originally received. Because our remedy does
not require resentencing, we need not reach this argument.
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