People v. Shaw CA2/6 ( 2020 )

Filed 11/3/20 P. v. Shaw CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303360
(Super. Ct. No. 2018029461)
Plaintiff and Respondent, (Ventura County)
v.
JASON MACKENZIE SHAW,
Defendant and Appellant.
Appellant Jason Mackenzie Shaw used another person’s
identification to purchase a vehicle at a dealership. Pursuant to
a plea agreement, appellant pled guilty to unlawful taking of a
vehicle (Veh. Code, § 10851, subd. (a)) and possession of personal
identification information of another (Pen. Code, § 530.5, subd.
(c)(2)). Appellant also admitted two prior felony prison term
allegations. (§ 667.5, subd. (b).)1
Appellant’s negotiated 28-month jail sentence consists of
the low term of 16 months on the Vehicle Code section 10851
violation, a concurrent 16-month sentence on the identity theft
conviction (§ 530.5, subd. (c)(2)), plus a consecutive one-year prior
felony prison term enhancement under section 667.5(b). The
court struck the second enhancement and dismissed a receiving
stolen property count (§496d, subd. (a).)
Effective January 1, 2020, Senate Bill No. 136 (S.B. 136)
amended section 667.5(b) to apply only when the prior prison
term was served for a sexually violent offense. (Ibid.; see SB 136
(2019-2020 Reg. Sess.) § 1.) The new statute applies to nonfinal
judgments on appeal. (People v. Winn (2020) 44 Cal. App. 5th 859,
872-873.) Appellant contends, and the Attorney General
concedes, the one-year enhancement must be stricken pursuant
to S.B. 136 and section 667.5(b). We accept this concession and
order the trial court to strike the enhancement.
DISCUSSION
Although the parties agree the enhancement must be
stricken, they disagree as to whether a remand for resentencing
is required. The People claim the trial court should be allowed to
reconsider its sentencing options following the striking of the
enhancement. (See People v. Hill (1986) 185 Cal. App. 3d 831,
834.) We agree with the People.
Relying upon People v. Matthews (2020) 47 Cal. App. 5th 857
(Matthews), appellant argues that where, as here, the parties
1All statutory references are to the Penal Code unless
otherwise stated. Further references to this statute shall be
shortened to “section 667.5(b).”)
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enter into a negotiated plea agreement, the defendant is entitled
to the benefit of that bargain even if an enhancement must be
stricken. In his plea agreement, appellant acknowledged he
“could be sentenced to . . . state prison for a maximum possible
term of 5 years, 5 months.” The record reflects the parties agreed
to the 28-month sentence either before or at the early disposition
hearing. The trial court approved the overall sentence in the
“Court’s Position on Sentence” portion of the plea agreement. (All
caps. omitted.) Rather than structure the sentence themselves,
the parties left that to the trial court. Finding no other way to
structure it, the court memorialized the offer made to appellant
and imposed “28 months felony jail; no mandatory supervision;
midterm of 16 months on Count 1. On Count 3, [§] 530.5(c), low
term, 16 months concurrent; propose [667.5(b)] prior, 28 months
felony jail.” The court also struck three additional prison prior
enhancements.
In contrast, the plea agreement in Matthews required the
trial court to impose a specific stipulated sentence for each
offense, plus four one-year section 667.5(b) enhancements.
(Matthews, supra, 47 Cal.App.5th at pp. 867-868.) The Court of
Appeal determined “the trial court cannot, in striking the
enhancements invalidated by [S.B.]136, . . . reconsider other
aspects of the sentences the defendant and the People specifically
agreed to under the plea agreements.” (Matthews, at p. 869.) It
explained that in “‘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.’
[Citation.]” (Id. at p. 867, italics omitted.) The court ordered that
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the section 667(b) enhancements be stricken but left intact “the
remainder of the sentence[] imposed under the plea agreement[].”
(Id. at p. 869.)
Unlike in Matthews, appellant’s plea agreement provides
for the stipulated 28-month term, but does not specify its
calculation. The prosecutor informed the trial court the parties
“were in agreement for the 28 months sentence . . . however, the
court wants to structure it.” Since the court, not the parties,
selected the sentencing options, this case falls outside the
Matthews holding. (See Matthews, supra, 47 Cal.App.5th at pp.
867-869.)
DISPOSITION
The sentence is vacated. On remand, the trial court shall
strike the one-year section 667.5(b) enhancement and resentence
appellant. Appellant’s new sentence may not exceed his previous
28-month sentence. The court shall notify the California
Department of Corrections and Rehabilitation or any other
appropriate agency of the modified sentence.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J. TANGEMAN, J.
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Bruce A. Young, Judge
Superior Court County of Ventura
______________________________
Jolene Larimore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithy, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and Stacy S. Schwartz, Deputy
Attorney General.
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