People v. Griffin ( 2020 )

Filed 11/30/20 (see concurring opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A159104
v.
RANSOM HUNTLEY (Lake County
GRIFFIN, Super. Ct. Nos.
CR952884, CR953175-B,
Defendant and Appellant.
CR953305-A)
Senate Bill No. 136 (2018-2019 Reg. Sess.) (Senate Bill 136) 1
eliminated the Penal Code section 667.5, subdivision (b) 2 enhancement for all
prior prison terms except those based on sexually violent offenses. Defendant
and appellant Ransom Huntley Griffin (Appellant) appeals from the trial
court’s October 2019 judgment pursuant to a plea agreement resolving three
criminal cases. He contends the one-year enhancement for a prior felony
conviction imposed under section 667.5, subdivision (b) as part of the plea
agreement must be stricken due to Senate Bill 136. Respondent agrees the
enactment is retroactive, and the enhancement must be stricken, but argues
the prosecution must be given the opportunity to withdraw from the plea
agreement.
1 (See Stats. 2019, ch. 590, § 1, effective January 1, 2020.)
2 All undesignated statutory references are to the Penal Code.
1
We agree with respondent on that issue, following the reasoning of the
California Supreme Court in People v. Stamps (2020) 9 Cal.5th 685 (Stamps)
and a recent Fifth District decision, People v. Hernandez (2020) 55
Cal.App.5th 942 (Hernandez). However, we part with Hernandez in one
respect and conclude it would be an abuse of discretion for the trial court to
impose a longer sentence than the original agreement if a new plea
agreement is entered on remand.
BACKGROUND 3
In December 2018, the Lake County District Attorney filed a felony
complaint in case number CR952884 charging Appellant with possession of
methamphetamine for sale (Health & Saf. Code, § 11378), possession of
materials with the intent to make an explosive (§ 18720), and possession of
ammunition by a prohibited person (§ 30305, subd. (a)(1)). The complaint
further alleged that Appellant was prohibited from possessing a firearm
pursuant to Welfare and Institutions Code sections 8100 and 8103.
In February 2019, the Lake County District Attorney filed a felony
complaint in case number CR953175-B charging Appellant with entry with
intent to commit larceny (§ 459), malicious destruction of personal property
over $400 (§ 594, subd. (a)), being a felon in possession of a firearm (§ 29800,
subd. (a)(1)), and assault with a firearm (§ 245, subd. (a)(2)). The complaint
further alleged that Appellant personally used and discharged a firearm
within the meaning of various Penal Code provisions, and that two prior
prison term enhancements applied under section 667.5, subdivision (b). The
prior prison term enhancements were based on convictions for weapons
offenses (§§ 21310 & 22210).
3The details of the underlying offenses are not relevant to the issues on
appeal and are not summarized herein.
2
Also in February 2019, the Lake County District Attorney filed a felony
complaint in case number CR953305-A charging Appellant with felony
transportation of methamphetamine with intent to sell (Health & Saf. Code,
§ 11379, subd. (a)), felony possession of methamphetamine for sale (Health &
Saf. Code, § 11378), felony withholding of a ring stolen by extortion (§ 496,
subd. (a)), misdemeanor possession of psilocybin mushrooms (Health & Saf.
Code, § 11377, subd. (a)), and misdemeanor possession of paraphernalia
(Health & Saf. Code, § 11364). The complaint further alleged two prior
prison term enhancements under section 667.5, subdivision (b).
In September 2019, Appellant entered into a plea agreement for all
three cases. In case numbers CR952884 and CR953305-A, Appellant pled no
contest to possession of a controlled substance for sale (Health & Saf. Code,
§ 11378). The stipulated term was eight months for each offense. In case
number CR953175-B, Appellant pled no contest to burglary (§ 459) and
admitted a prior prison term (§ 667.5, subd. (b)). The stipulated term was
seven years: a six-year term for burglary and the one-year section 667.5
enhancement.
In October 2019, the trial court sentenced Appellant to a prison term of
eight years, four months pursuant to the plea agreement.
This appeal followed.
DISCUSSION
Under the version of the statute in effect when Appellant was
sentenced, section 667.5, subdivision (b) required a one-year enhancement for
each prior prison term served for “any felony,” with an exception not
applicable here. (Stats. 2018, ch. 423, § 65.) Senate Bill 136 substantially
narrowed the enhancement, limiting its application only to a prior prison
term served “for a sexually violent offense as defined in subdivision (b) of
3
Section 6600 of the Welfare and Institutions Code.” (§ 667.5, subd. (b); see
also Hernandez, supra, 55 Cal.App.5th at p. 947; People v. Matthews (2020)
47 Cal.App.5th 857, 862 (Matthews).) 4 Appellant contends and respondent
agrees that Senate Bill 136 applies retroactively to non-final judgments.
(Matthews, at pp. 864–865; Hernandez, at p. 947.)
Because neither of the prior prison term enhancements alleged below
were based on a sexually violent offense, we agree the one-year enhancement
imposed under section 667.5, subdivision (b) must be stricken. However, we
reject Appellant’s argument that the trial court may strike the enhancement
and leave the remainder of the agreement intact. Instead, the plea
agreement is now unenforceable. On remand, the parties may enter into a
new plea agreement that does not include the enhancement, but the trial
court may not impose a longer sentence than that imposed under the original
agreement.
I. On Remand, the Trial Court Must Strike the Enhancement, but
Thereafter it May Not Enforce the Remainder of the Agreement
The first disputed issue on appeal is whether the 667.5, subdivision (b)
enhancement must be stricken while the rest of the sentence remains intact.
Appellant urges this court to follow Matthews, supra, 47 Cal.App.5th 857,
decided before Stamps, which held that where there is an agreed-upon
sentence for each offense that was part of a plea deal, those parts of the
sentence may not be reconsidered when a trial court strikes a section 667.5,
subdivision (b) enhancement. (Matthews, at pp. 867-869.) Matthews
4Section 667.5, subdivision (b) provides in relevant part, “[W]here the new
offense is any felony for which a prison sentence . . . is imposed . . . , in
addition and consecutive to any other sentence therefor, the court shall
impose a one-year term for each prior separate prison term for a sexually
violent offense as defined in subdivision (b) of Section 6600 of the Welfare
and Institutions Code . . . .”
4
reasoned that the benefits of Senate Bill 136 “would not be fully realized if
the trial courts and the People could abandon a plea agreement whenever a
defendant seeks retroactively to obtain elimination of an enhancement
invalidated by” the enactment. (Matthews, at p. 869.) Matthews remanded
with directions that the trial court strike all section 667.5, subdivision (b)
enhancements “and leave the remainder of the sentences imposed under the
plea agreements intact.” (Matthews, at p. 869.)
Matthews’ reasoning is no longer sustainable in light of the decision on
a related issue in Stamps, supra, 9 Cal.5th 685, subsequently followed by the
Fifth District in People v. Barton (2020) 52 Cal.App.5th 1145 (Barton)
(regarding an enactment analogous to Senate Bill 136) and Hernandez,
supra, 55 Cal.App.5th 942 (regarding Senate Bill 136 itself). In Stamps, the
defendant’s plea agreement specified a nine-year prison sentence that
included a five-year prior serious felony conviction enhancement. (Stamps, at
pp. 692–693.) While the defendant’s “appeal was pending, a new law went
into effect permitting the trial court to strike a serious felony enhancement in
furtherance of justice [citation], which it was not previously authorized to do.”
(Id. at. p. 692.) The change in the law resulted from Senate Bill No. 1393
(2017–2018 Reg. Sess.) (Senate Bill 1393). (Stamps, at p. 700.) The Supreme
Court held the matter should be remanded to give the defendant an
opportunity to request that the trial court exercise its newly granted
discretion to strike under section 1385. (Stamps, at p. 692.) But the court
rejected the defendant’s suggestion “that the [trial] court is authorized to
exercise its discretion to strike the enhancement but otherwise maintain the
plea bargain.” (Ibid.)
Stamps reasoned, “Even when applicable, section 1385 ordinarily does
not authorize a trial court to exercise its discretion to strike in contravention
5
of a plea bargain for a specified term. Section 1192.5 allows a plea to ‘specify
the punishment’ and ‘the exercise by the court thereafter of other powers
legally available to it,’ and ‘[w]here the plea is accepted by the prosecuting
attorney in open court and is approved by the court, the defendant, except as
otherwise provided in this section, cannot be sentenced on the plea to a
punishment more severe than that specified in the plea and the court may not
proceed as to the plea other than as specified in the plea.’ ” (Stamps, supra, 9
Cal.5th at p. 700.) Stamps continued, “In order to justify a remand for the
court to consider striking his serious felony enhancement while maintaining
the remainder of his bargain, defendant must establish not only that Senate
Bill 1393 applies retroactively, but that, in enacting that provision, the
Legislature intended to overturn long-standing law that a court cannot
unilaterally modify an agreed-upon term by striking portions of it under
section 1385.” (Id. at p. 701.)
In Stamps, the defendant argued there was sufficient indication of
legislative intent because, in enacting Senate Bill 1393, the Legislature
sought “ ‘to reduce prison overcrowding, save money, and achieve a more just,
individualized sentencing scheme.’ ” (Stamps, supra, 9 Cal.5th at p. 702.)
The Supreme Court concluded that was insufficient because “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. . . .
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.” (Ibid.)
6
Stamps distinguished Harris v. Superior Court (2016) 1 Cal.5th 984. In
Harris, the defendant had pleaded guilty to felony grand theft with a prior in
exchange for a stipulated prison sentence of six years. (Harris, at pp. 987–
989.) As Stamps explained, “After passage of Proposition 47, which ‘reduced
certain nonviolent crimes . . . from felonies to misdemeanors’ [citation], [the
defendant] petitioned to have his theft conviction resentenced as a
misdemeanor. [Citation.] The People argued the reduction violated the plea
agreement and sought to withdraw from the bargain.” (Stamps, supra, 9
Cal.5th at p. 702, quoting Harris, at p. 988.) Noting that the enactment
“specifically applied to a person ‘serving a sentence for a conviction, whether
by trial or plea,’ Harris concluded that ‘[b]y expressly mentioning convictions
by plea, Proposition 47 contemplated relief to all eligible defendants.’ ”
(Stamps, at p. 703, quoting Harris, at p. 991.) Stamps observed that, unlike
the enactment in Harris, “Senate Bill 1393 is silent regarding pleas and
provides no express mechanism for relief,” which “undercuts any suggestion
that the Legislature intended to create special rules for plea cases involving
serious felony enhancements.” (Stamps, at p. 704.)
Stamps concluded the appropriate remedy was to remand to provide
the defendant an opportunity to ask the trial court to exercise its newly
granted discretion; “[h]owever, if the court is inclined to exercise its
discretion, . . . the court is not authorized to unilaterally modify the plea
agreement by striking the serious felony enhancement but otherwise keeping
the remainder of the bargain.” (Stamps, supra, 9 Cal.5th at p. 707.) Instead,
“[i]f the court indicates an inclination to exercise its discretion . . . , the
prosecution may, of course, agree to modify the bargain to reflect the
downward departure in the sentence such exercise would entail. Barring
7
such a modification agreement, ‘the prosecutor is entitled to the same remedy
as the defendant—withdrawal of assent to the plea agreement . . . .’ ” (Ibid.)
In People v. Barton (2020) 52 Cal.App.5th 1145 (Barton), the Fifth
District followed Stamps in a statutory context similar to that involved in the
present case. The issue in Barton was application of Senate Bill No. 180
(2017–2018 Reg. Sess.) (Senate Bill 180) to a non-final judgment. (Barton, at
p. 1149.) Senate Bill 180 amended Health and Safety Code section 11370.2
“by eliminating its three-year enhancements for most drug-related prior
convictions.” (Barton, at p. 1149.) As in the present case, the parties agreed
the enactment was retroactive, and, like Appellant, the defendant in Barton
argued “the proper remedy is to vacate the enhancements and leave the
remainder of her plea agreement intact.” (Ibid.)
In light of Stamps, Barton reasoned that “the scope of the trial court’s
authority on remand depends on the legislative intent behind Senate Bill
180.” (Barton, supra, 52 Cal.App.5th at p. 1157.) The court of appeal
concluded the legislative history did not show “the Legislature intended for
Senate Bill 180 to override the strictures of . . . section 1192.5.” (Id. at
p. 1150.) The history showed the Legislature intended to reduce
overcrowding, re-allocate resources, and improve fairness in sentencing, but
the history was silent regarding pleas, as was the case in Stamps. (Id. at
p. 1159.) Thus, the trial court was required to “abide by” section 1192.5 on
remand. (Ibid.)
Finally, in Hernandez, supra, 55 Cal.App.5th 942, the Fifth District
followed Stamps as to Senate Bill 136, the enactment at issue in the present
case. Hernandez considered “whether the Legislature intended for Senate
Bill 136’s amendments to section 667.5, subdivision (b) to allow the trial court
to unilaterally modify the plea agreement once the prior prison term
8
enhancements are stricken.” (Hernandez, at p. 957.) The court cited the
Senate Bill 136’s author’s statement that the enhancement “re-punishes
people for previous jail or prison time served instead of the actual crime when
convicted of a non-violent felony. By ignoring the actual offense committed,
this enhancement exacerbates existing racial and socio-economic disparities
in our criminal justice system. Additionally, wide-spread research refutes the
underlying premise that arbitrary enhancements increase public safety or
deter future crime. . . . Given that this 1-year enhancement is commonly
used, the Department of Finance projects that repealing this single
enhancement will save California tax payers tens of millions dollars each
year. It will also keep families together, redirect funds to evidence-based
rehabilitation and reintegration programs, and move California away from
our failed mass incarceration policies.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, Analysis of Senate Bill No. 136 (2019-2020 Reg. Sess.), as amended
Sept. 3, 2019, pp. 2–3; see also Hernandez, at pp. 957-958.) Hernandez
rightly observed that “[t]he legislative intent for the enactment of Senate Bill
136 is very similar to the intents discussed in Stamps and Barton.”
(Hernandez, at p. 958; see also Stamps, supra, 9 Cal.5th at p. 702; Barton,
supra, 52 Cal.App.5th at pp. 1158–1159.) Further, “[i]n contrast to Harris’s
analysis of Proposition 47 and section 1170.18, Senate Bill 136 is silent
regarding pleas and provides no express mechanism for relief, and thus
refutes any suggestion the Legislation intended to create special rules for the
court to unilaterally modify the plea agreement once the enhancements are
stricken.” (Hernandez, at p. 958; see also Stamps, at p. 704; Barton, at
p. 1159.) 5
5Hernandez recognized that Matthews, supra, 47 Cal.App.5th 857, reached a
different result with respect to Senate Bill 136. (Hernandez, supra, 55
9
There is one significant difference between Senate Bill 1393, at issue in
Stamps, and Senate Bill 136. Senate Bill 1393 gave trial courts discretion to
strike an enhancement, while Senate Bill 136 categorically removed
authorization to impose the section 667.5, subdivision (b) enhancement in the
circumstances of the present case. Thus, while Stamps’ remand instructions
provided that the prosecution could withdraw from the plea agreement only if
the trial court indicated its intent to exercise its discretion to strike the
serious felony enhancement, the plea agreement in the present case is no
longer enforceable. The same was true of the enactment addressed in Barton,
leading the court to declare, “[T]he parties’ plea agreement is unenforceable
and the trial court cannot approve of the agreement in its current form.
[Citation.] 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.” (Barton, supra, 52 Cal.App.5th at p. 1159.) The same reasoning
applies with respect to Senate Bill 136.
Cal.App.5th at p. 959) Hernandez concluded the Matthews remand
instructions were no longer proper in light of Stamps, supra, 9 Cal.5th 685.
We also note that the decisions in People v. Martinez (2020) 54 Cal.App.5th
59, review granted November 10, 2020, S264848, and People v. Petri (2020)
45 Cal.App.5th 82 remanded with instructions to strike section 667.5,
subdivision (b) enhancements due to enactment of Senate Bill 136, but those
courts did not consider the remand instruction issues addressed in Stamps,
Matthews, Barton, and Hernandez.
10
II. The Trial Court May Not Impose a Longer Sentence Than the
Original Plea Agreement
The second disputed issue on appeal is whether on remand the trial
court may impose a longer sentence than that provided in the original plea
agreement, if the parties enter into a new agreement. We conclude it may
not. 6
At the outset, we observe such a result plainly would be inconsistent
with the legislative intent underlying Senate Bill 136. The purpose of the
enactment was to decrease the length of sentences imposed on repeat felons
by substantially narrowing the scope of application of the prior prison term
enhancement. An increased sentence due to retroactive application of the
enactment would be directly contrary to the result the Legislature intended.
The risk of an increased sentence would also discourage defendants from
exercising their right to challenge unauthorized section 667.5 subdivision (b)
enhancements. Indeed, that risk might also discourage some defendants
from filing or maintaining an appeal on non-sentencing issues. For example,
a defendant who lost a search and seizure motion and then entered into a
plea bargain impacted by Senate Bill 136 or other sentencing reform
measures might be hesitant to appeal the search issue, fearing the possibility
that a reviewing court will reverse a judgment including an unauthorized
enhancement even absent a request from a party to do so. (See In re Harris
(1993) 5 Cal.4th 813, 842 [“An appellate court may ‘correct a sentence that is
6 We do not address a situation where the parties fail to enter into a new plea
agreement after a post-Senate Bill 136 remand, and the defendant is
convicted at trial. Whether the trial court could sentence that defendant to a
term in excess of the originally agreed upon sentence, and what
circumstances might affect that determination, are questions well beyond the
scope of the present appeal.
11
not authorized by law whenever the error comes to the attention of the
court.’ ”].)
The California Supreme Court’s decision in People v. Collins (1978) 21
Cal.3d 208 (Collins), supports a conclusion that the trial court may not on
remand approve a new plea agreement imposing a longer sentence than that
in the original plea agreement. In Collins, the defendant pleaded guilty to
oral copulation in violation of former section 288a, in exchange for dismissal
of numerous remaining charges. (Collins, at p. 211.) Prior to the sentencing
hearing, the Legislature repealed former section 288a and decriminalized
“the act of oral copulation between consenting, nonprisoner adults . . . .”
(Collins, at p. 211.) The Supreme Court held that decriminalization of the
offense applied retroactively and that the trial court improperly imposed a
sentence on the offense. (Id. at p. 212.) However, the court rejected the
defendant’s suggestion that he could “gain relief from the sentence imposed
but otherwise leave the plea bargain intact.” (Id. at p. 215.) Instead, the
court held the prosecution could “revive one or more of the dismissed counts”
on remand. (Id. at p. 216.)
Nevertheless, and as relevant to the present appeal, Collins
emphasized the defendant was “also entitled to the benefit of his bargain.”
(Collins, supra, 21 Cal.3d at p. 216.) The court explained, “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.” (Collins, at p. 216.) To preserve the benefit for the
defendant, the court held the defendant’s sentence on remand could not
exceed the punishment the plea agreement had subjected him to. (Id. at
pp. 216–217.) That disposition “permits the defendant to realize the benefits
12
he derived from the plea bargaining agreement, while the People also receive
approximately that for which they bargained.” (Id. at p. 217.) As support for
its result, Collins invoked cases from the double jeopardy context. (Id. at
p. 216.) The court explained the “concern there was specifically to preclude
vindictiveness and more generally to avoid penalizing a defendant for
pursuing a successful appeal.” (Ibid.) Similarly, the defendant in Collins
“should not be penalized for properly invoking [precedent] to overturn his
erroneous conviction and sentence by being rendered vulnerable to
punishment more severe than under his plea bargain.” (Id. at p. 217; see also
People v. Hanson (2000) 23 Cal.4th 355, 366 [following Collins and
emphasizing “the chilling effect on the right to appeal generated by the risk
of a more severe punishment”].)
The same reasoning applies here. Appellant, like the defendant in
Collins, did not repudiate his plea; “he attacks only the judgment, and does so
on the basis of external events . . . that have rendered the judgment
insupportable.” (Collins, supra, 21 Cal.3d at p. 216.) Rejection of Appellant’s
request to leave the remainder of the plea bargain intact ensures he will not
receive a “bounty in excess of that to which he is entitled.” (Id. at p. 215.)
But it would be contrary to legislative intent and deprive Appellant of the
benefit of his bargain were the trial court on remand to impose a longer
sentence following Appellant’s entry of a guilty plea pursuant to a new
agreement. “ ‘The process of plea bargaining . . . contemplates an agreement
negotiated by the People and the defendant and approved by the court.’ ”
(Stamps, supra, 9 Cal.5th at p. 705.) “ ‘In exercising their discretion to
approve or reject proposed plea bargains, trial courts are charged with the
protection and promotion of the public’s interest in vigorous prosecution of
the accused, imposition of appropriate punishment, and protection of victims
13
of crimes. [Citation.] For that reason, a trial court’s approval of a proposed
plea bargain must represent an informed decision in furtherance of the
interests of society . . . .” (Id. at p. 706.) We conclude that imposing a longer
sentence would constitute an abuse of discretion.
Respondent urges this court to follow Hernandez, supra, 55 Cal.App.5th
947, which rejected the idea of extending the reasoning of Collins to a Senate
Bill 136 remand. Hernandez stated, “we 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. 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, at p. 959.) We respectfully disagree. Stamps never addressed
the language in Collins capping the sentence that could be imposed on
remand, and Stamps never addressed whether the trial court could properly
impose a longer sentence on remand. (Stamps, supra, 9 Cal.5th at pp. 703–
704.) More fundamentally, as Appellant argues, the present case is more like
Collins than Stamps: Any new plea agreement on remand in Stamps would
have been the result of the defendant’s decision to seek relief under Senate
Bill 1393. (Stamps, supra, 9 Cal.5th at p. 708.) In contrast, in both Collins
and the present case, the legislative enactments were “external events” that
simply rendered the plea agreements unenforceable. (Collins, supra, 21
Cal.3d at p. 216.) Under the reasoning of Collins, that distinction supports
different remand instructions here than in Stamps. 7
7We note that Stamps questions no aspect of the Collins decision and, in
2016, the California Supreme Court observed, “Contrary to defendant’s
argument, we did not impliedly overrule Collins in Doe v. Harris.” (Harris v.
Superior Court, supra, 1 Cal.5th at p. 993.) The concurring opinion urges our
14
Because “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” (Collins, supra, 21 Cal.3d at pp. 215–216), we
reverse the judgment and direct the trial court to strike the section 667.5,
subdivision (b) enhancement and to give the parties an opportunity to
negotiate a new plea agreement consistent with our ruling. 8
DISPOSITION
The judgment is reversed and remanded for further proceedings
consistent with this opinion.
high court to reconsider Collins. We instead urge the Legislature to clarify
its intent on how its differing sentencing reform measures should be applied.
8 Because “ ‘ “the court must restore the parties to the status quo ante” ’ ”
(Stamps, supra, 9 Cal.5th at p. 707), respondent may be able to fashion a new
plea agreement that imposes the same sentence as the now unenforceable
agreement by “reviv[ing] one or more of the dismissed counts.” (Collins,
supra, 21 Cal.3d at p. 216.) Respondent may also seek to file an amended
complaint or complaints pursuant to section 1009, which may aid the parties
in reaching a new plea agreement that imposes the same sentence as the now
unenforceable agreement. (See also People v. Michaels (2002) 28 Cal.4th 486,
513.)
15
SIMONS, Acting P.J.
I concur.
NEEDHAM, J.
(A159104)
16
Reardon, J., Concurring.
I agree fully with the conclusion in Part I of the majority opinion that,
on remand, the trial court must strike the one-year enhancement and,
thereafter, may not otherwise enforce the remainder of the original plea
agreement, absent the consent of the parties. Under the authority of our
Supreme Court’s decision in People v. Collins (1978) 21 Cal.3d 208 (Collins),
I concur with the opinion’s further conclusion in Part II that, on remand, the
trial court may not accept a new plea agreement with a sentence longer than
that contemplated by the original plea agreement.
This area of the law admits of several different permutations. Among
them, as noted in the majority opinion, is whether the change in law which
undermines the original plea agreement is one that, as here, renders the
agreement unenforceable because a provision of law has been repealed or no
longer applies to the matter, or is a change that renders the agreement newly
subject to judicial discretion, as in People v. Stamps (2020) 9 Cal.5th 685(Stamps). In the former circumstance, the plea agreement is nullified by
operation of law; in the latter, by judicial determination. As explained in the
majority opinion, per the reasoning in Stamps (id. at p. 707), the parties are
no longer bound by the agreement in either instance.
The majority opinion goes on to conclude that the original plea
agreement continues to operate as a cap on punishment, even if the parties
otherwise agree. I believe this result is compelled by language in Collins,
supra, 21 Cal.3d at pages 216–217. I also agree with my colleagues that an
implied overruling of Collins did not occur in Stamps. (See maj. opn. ante, at
p. 14, fn. 7.) The court in Stamps cited Collins approvingly on a related point
(Stamps, supra, 9 Cal.5th at pp. 703–704), and had the opportunity to
overrule Collins on this one and did not. (Cf. People v. Hernandez (2020)
1
55 Cal.App.5th 942, 949.) However, I believe the court’s analysis in Stamps
indicates a willingness to reconsider Collins on this point. I write here to
encourage that reconsideration.
The majority opinion confines its analysis to those situations wherein,
upon remand, the parties enter into a new plea agreement. (See maj. opn.
ante, at pp. 10–11, fn. 6.) 1 However, as I explain below, whether to impose
a sentencing cap on remand to new plea agreements is implicated by whether
a cap would apply in other situations, namely to sentencing following trial.
Consequently, I discuss that situation as well.
I see no reason to prevent the parties on remand from reaching a new
agreement that contemplates a punishment in excess of the original
agreement. 2 Any new agreement would, of course, be subject to the trial
court’s approval. “ ‘Judicial approval is an essential condition precedent to
1The majority opinion notes that the situation in which, after a post-
Senate Bill No. 136 (2019–2020 Reg. Sess.) remand, the defendant is
convicted at trial “is not before us.” But neither is the situation in which that
same defendant is convicted, after remand, upon a plea. In short, the
defendant here is being granted a post-Senate Bill No. 136 remand; we do not
know what will happen next. I would decline to provide guidance for either
eventuality. That said, any guidance as to one implicates the other.
2 I question on what basis a trial court’s acceptance of a new plea
agreement in excess of the cap would even be reviewable on appeal. The
Stamps court’s discussion of Penal Code section 1237.5, subdivision (a)’s
requirement of a certificate of probable cause on appeal from a plea is
instructive on this point. (Stamps, supra, 9 Cal.5th at pp. 694–698.) A
defendant may seek appellate relief without obtaining a certificate of
probable cause when “the law subsequently changed to his potential benefit.”
(Id. at p. 698.) But, having been granted that relief and having entered into
a new plea agreement, there seems no reason to relax the requirement of the
certificate. It is not clear on what basis the trial court would grant a
certificate in the face of a plea that the parties had agreed to and that the
court had approved. Undesignated statutory references are to the Penal
Code.
2
the effectiveness of the “bargain” worked out by the defense and prosecution.’
[Citations.] [¶] The statutory scheme contemplates that a court may initially
indicate its approval of an agreement at the time of the plea but that ‘it may,
at the time set for the hearing on the application for probation or
pronouncement of judgment, withdraw its approval in the light of further
consideration of the matter . . . .’ [Citation.] ‘The code expressly reserves to
the court the power to disapprove the plea agreement’ up until sentencing.
[Citation.] ‘In exercising their discretion to approve or reject proposed plea
bargains, trial courts are charged with the protection and promotion of the
public’s interest in vigorous prosecution of the accused, imposition of
appropriate punishment, and protection of victims of crimes. [Citation.] For
that reason, a trial court’s approval of a proposed plea bargain must
represent an informed decision in furtherance of the interests of society.’ ”
(Stamps, supra, 9 Cal.5th at pp. 705–706.) I would expect the trial court to
exercise its discretion appropriately in approving or rejecting the new
agreement, but I would not limit that discretion or the ability of the parties to
freely contract by imposing a cap. (People v. Segura (2008) 44 Cal.4th 921,
930 [“[A] ‘negotiated plea agreement is a form of contract.’ ”].)
The parties to a plea bargain must consider all possibilities, from
complete acquittal with no punishment to conviction on all charges and
imposition of the maximum sentence. A plea bargain represents a meeting of
the minds between those two poles based upon the parties’ individual risk-
benefit analysis. (See Stamps, supra, 9 Cal.5th at p. 705.) If subsequent
alteration of the legal landscape, through the fault of neither party,
invalidates the plea agreement and the parties are sent back to the
bargaining table, the imposition of a cap based upon the originally agreed-
3
upon term substantially weakens the People’s bargaining position and may,
as a result, inure to the detriment of the defendant.
Take as an example a defendant charged, prior to the passage of Senate
Bill No. 136, with one count of residential burglary (§ 460) and one prison
prior (§ 667.5, subd. (b)). The state prison term options upon a plea as
charged would be the principal offense triad of two, four, or six years, plus
one year for the enhancement. The parties could structure an agreed-upon
term of two, three, four, five, six or seven years. Suppose the defendant
proposes two years, the People propose four years, and they settle on three
years: low term for the burglary plus the one-year enhancement. Following
a post-Senate Bill No. 136 remand, in the absence of the one-year
enhancement, the parties’ statutory options would be limited to the burglary
triad: two, four, or six years. The proposed cap would further limit them to
one option—two years—the only term not to exceed the previous agreement.
Thus, in order to resolve the matter by plea, the People would have to accept
the two-year term. Of course, the goal posts have shifted to the extent the
defendant’s maximum exposure is now only six years, rather than seven.
But, the People, who originally rejected the idea that two years was an
appropriate resolution of the case, now have that resolution thrust upon
them. They may well assess that two years is appropriate in light of the new
exposure, but possibly not. Instead, they could choose to go to trial. I know
of no authority whereby the appellate court or the trial court could force the
People to enter into a plea agreement. In that case, the cap could have the
unintended consequence of forcing a trial. But, the defendant may not want
a trial, unless of course the sentencing cap were to apply also to any trial
following remand—to which I now turn.
4
Take a second example in which a defendant pleads guilty to one of
many counts, the plea is invalidated, and the matter remanded. Suppose
further that no new agreement is reached and the matter goes to trial. If the
defendant is convicted of more offenses at trial than incorporated in the plea
bargain, any cap would act to hamstring the trial court’s appropriate exercise
of sentencing discretion. Certainly, a court approving a plea bargain weighs
different interests and different information when approving that bargain
than does a court at sentencing following trial.
In addition, a cap on any posttrial sentence would inordinately skew
the plea bargaining process in favor of the defendant. Returning to my first
example of the defendant facing one count of residential burglary. On
remand, the cap, represented by the term of the original plea bargain, would
be three years—a term not available in the sentencing triad for residential
burglary. In light of the cap, the only term available for a plea agreement or
after trial would be two years. Now, at the renewed plea bargaining session,
the parties know that the defendant’s maximum exposure is two years under
any circumstance, rather than six. Indeed, such a defendant would have
little to lose by rejecting a plea deal and taking the matter to trial. The effect
of such a cap is likely to be magnified in my second example, which
contemplates a post-remand trial on numerous charges. In essence, the new
bargaining session would be substantially altered to the detriment of the
People: the greatest downside for the defendant is the cap, not the maximum
sentence carried by the charged offenses. This would seem to be an unfair
result. As noted, the alteration in the legal landscape was not the
defendant’s fault, but it was also not the People’s.
Here, for instance, defendant was charged in three different dockets
with a variety of offenses. Should he choose not to enter into a new
5
agreement, the People would face the prospect of trying all three cases, yet
being limited to a potential punishment no greater than that contemplated by
the original plea agreement. Certainly, any concession by the People
reflected by the original plea term, in the name of efficiency, the interests of
victims, convenience of witnesses, guaranteed result, finality, etc., would be
lost if the cases had to be tried. And, the greater potential punishment that
the People forwent by entering into the plea bargain would also be lost by the
imposition of a cap. For this reason, in addition to the inappropriate
limitation on a sentencing court’s discretion after trial, the imposition of a
sentencing cap on any trial after remand is not advisable.
The majority opinion relies, in part, on the laudable principle that our
ruling should not dissuade individuals from seeking appellate redress. (See
maj. opn. ante, at p. 11.) But, at the time a defendant is deciding whether to
appeal in these situations, he does not know if he will be able to reach a new
plea agreement with the People, and neither he nor the court can force one.
That is to say, he may have to go to trial, where no cap would apply. Thus,
there seems to be no way to avoid the potential of dissuading him from
appealing.
The court in Stamps held: “Defendant should be allowed to make an
informed decision whether to seek relief on remand.” (Stamps, supra,
9 Cal.5th at p. 708.) Of course, there, the original plea bargain was not
unlawful on its face. Rather, on remand, a defendant would be inviting the
trial court’s exercise of discretion as to whether or not to strike the serious
felony prior conviction. I see no meaningful distinction where, as here, the
plea bargain is nullified by operation of law. A defendant need not seek
redress if on balance he feels it is in his best interest not to do so. The
defendant is simply put to the choice of whether or not, considering all the
6
potential outcomes, to make that request. We presume the defendant
knowingly, intelligently and voluntarily entered into the original plea
agreement. Why would we presume otherwise when considering a decision
whether to seek appellate redress?
It is important to note that this balancing by the defendant of the risks
and benefits of appellate review pertains only in cases of a plea bargain.
When a defendant is convicted following trial or after entering an open plea
to all the charges, no plea bargain is involved. On remand for resentencing,
the sentencing court simply “reconsider[s] its sentence in light of its newly
conferred authority.” (Stamps, supra, 9 Cal.5th at p. 700.) The sentencing
court is appropriately limited by its original sentence should the matter be
remanded for resentencing following the alteration of the legal landscape.
(People v. Ali (1967) 66 Cal.2d 277, 281.) In the former case, the People have
had their opportunity to prove all the charges; in the latter, the defendant
has admitted all the charges. The parties’ bargaining positions have not been
altered. Rather, the sentencing court having originally exercised its
discretion to impose a certain sentence is simply limited by that sentence on
remand. A defendant convicted under either of those scenarios would not be
dissuaded from pursuing his appellate rights for fear of receiving a greater
sentence.
As a general proposition, the court has no interest in preserving
erroneous judgments. (People v. Henderson (1963) 60 Cal.2d 482, 497.) Yet,
the Legislature did not go so far as to apply the remedy of Senate Bill No. 136
to final judgments, which it could have done. (See Sen. Bill No. 1437 (2017–
2018 Reg. Sess.), granting retroactive relief when liability for murder under
the theories of felony murder and natural and probable consequence was
7
altered.) Is the interest, therefore, so great that we would require alteration
of a nonfinal judgment that a defendant understandably did not request?
The majority opinion also explains that a cap on post-remand plea
bargains would be consistent with the legislative intent underlying Senate
Bill No. 136, namely to decrease prison sentences imposed on repeat felons.
(See maj. opn. ante, at p. 11.) However, the Supreme Court’s discussion in
Stamps explains the persuasive limits of that intent in light of the wording of
the statute at issue there (similar to the one before us), particularly when
compared to the more sweeping language of Proposition 47, analyzed in
Harris v. Superior Court (2016) 1 Cal.5th 984 and referenced in the majority
opinion. (Stamps, supra, 9 Cal.5th at pp. 702–705 [“[T]his bill . . . says
nothing about the proper remedy should we conclude a law retroactively
applies.”].) The Stamps court concluded that the legislative intent to reduce
sentences did not extend so far as to lock the People into a diminished plea
bargain.
This brings us to what is, in my view, the persuasive reason for the
holding in Part II of the majority opinion: Collins, supra, 21 Cal.3d 208. In
that case, the defendant was charged with various felonies, including several
forcible sexual assaults. Pursuant to a plea bargain, he pled guilty to one
count of nonforcible oral copulation, which at that time was unlawful even
between consenting adults. He was committed for treatment as a mentally
disordered offender. By the time he was later returned to court for further
proceedings, consensual oral copulation had been legalized. Overruling his
objection, the court sentenced Collins to prison for an indeterminate term of
one to fifteen years. (Id. at pp. 211–212.)
The Collins court did four things. First and unremarkably, it applied
its earlier ruling in People v. Rossi (1976) 18 Cal.3d 295, holding that the
8
change in law legalizing the conduct for which Collins had been convicted
applied retroactively, thus nullifying Collins’s conviction. (Collins, supra,
21 Cal.3d at pp. 212–213.) Secondly, it determined that “the proper remedy
is to reverse the judgment with directions to dismiss the count involved
herein,” rather than uphold the conviction and indicate “ ‘no penalty,’ ” as
suggested by Collins. (Id. at p. 214.) Thirdly, it provided guidance to the
trial court on remand by finding that the counts that were dismissed at the
time of the plea could be reinstated. Because the defendant in Rossi had
been convicted at trial of only nonforcible oral copulation, the question of
other, dismissed counts had not been presented in that case. “Critical to plea
bargaining is the concept of reciprocal benefits. When either the prosecution
or the defendant is deprived of benefits for which it has bargained,
corresponding relief will lie from concessions made. . . . [¶] The question
to be decided, then, is 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.” (Collins, at pp. 214–215.)
The court in Stamps relied upon Collins on this third point. (Stamps, supra,
9 Cal.5th at pp. 703–704.)
But, Collins went one step further by limiting the defendant’s potential
sentence on remand “to not more than three years in state prison, the term
of punishment set by the Community Release Board pursuant to the
determinate sentencing act.” (Collins, supra, 21 Cal.3d at p. 216.) 3 In so
3After Collins’s original plea and before the Supreme Court’s ruling,
the former indeterminate sentencing law was replaced with the determinate
sentencing law. The prison terms of those sentenced under the former law
were subject to recalculation by the Community Release Board, forerunner of
our current Board of Parole Hearings. (See, generally, In re Gray (1978)
85 Cal.App.3d 255, 259–260; Hoffman v. Superior Court (1981) 122
9
doing, the Collins court seemed to suggest, without explanation, that the
parties must enter into another plea agreement. The court did not expressly
contemplate the possibility that the parties may be unable to reach a new
agreement. Additionally, the court acknowledged: “We find precedent for the
foregoing result in a line of cases based on principles of double jeopardy. Our
concern there was specifically to preclude vindictiveness and more generally
to avoid penalizing a defendant for pursuing a successful appeal.” (Id. at
p. 216.)
Any concern that the People would be acting vindictively, I believe, is
adequately addressed through the trial court’s traditional powers of
supervision and approval of plea bargains. As I have explained above, the
potential chilling of a defendant’s appellate remedies is a weighty factor
where the defendant has been sentenced following trial—the cases relied
upon by the court in Collins. (Collins, supra, 21 Cal.3d at pp. 216–217.)
I find it less weighty and, indeed, unavoidable in the quite complicated
context of plea bargaining.
As mentioned, the Stamps court relied upon Collins as to the third
point: the restoration of the dismissed counts. Curiously, the court did not
rely upon Collins on the fourth and final point—the post-remand cap—or
even take that issue up, in so many words. Instead, the court discussed at
length and with approval People v. Ellis (2019) 43 Cal.App.5th 925, as to
whether remand for resentencing would be futile in that case. As Stamps
explained: “In light of these potential consequences to the plea agreement,
we emphasize that it is ultimately defendant’s choice whether he wishes to
Cal.App.3d 715, 724–725 [Board of Prison Terms, formerly Community
Release Board]; Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1059–1060,
fn. 4 [Board of Parole Hearings, formerly Board of Prison Terms].)
10
seek relief under Senate Bill 1393. As Ellis reasoned: ‘Given that defendants
in criminal cases presumably obtained some benefit from the plea agreement,
we anticipate that there will be defendants who determine that,
notwithstanding their entitlement to seek relief based on the change in the
law, their interests are better served by preserving the status quo. That
determination, however, lies in each instance with the defendant.’ [Citation.]
While it is true that defendant has consistently argued on appeal that Senate
Bill 1393 should retroactively apply to him, his argument has always been
coupled with his claim that the proper remedy should be to simply allow the
trial court to reduce his sentence by five years while otherwise maintaining
the remainder of the plea agreement. Now that we have rejected his
proposed remedy, defendant’s calculus in seeking relief under Senate Bill
1393 may have changed. Defendant should be allowed to make an informed
decision whether to seek relief on remand.” (Stamps, supra, 9 Cal.5th at
p. 708.)
Clearly, the court did not contemplate that any sentencing cap would
pertain when it described the defendant’s informed decisionmaking on
remand. The court did not express concern that the absence of a cap would
deter the exercise of appellate redress or be inconsistent with the legislative
intent to reduce sentences, even though these ramifications would be as
likely in the case of remand to allow the court to exercise its discretion as it
would in a remand to correct an erroneous judgment.
The discussion in Stamps suggests a willingness by our Supreme Court
to revisit Collins. I hope my thoughts may encourage that. Nonetheless, I
agree that Collins remains our Supreme Court’s clearest pronouncement on
this point and that we are compelled to follow it. Thus, I join in the majority
opinion’s conclusion in Part II as well.
11
_________________________
Reardon, J. *
A159104
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
12
Superior Court of Lake County, Nos. CR952884, CR953175-B, CR953305-A,
Hon. Arthur H. Mann, Judge.
Nathan Siedman, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Catherine A. Rivlin and Bruce M. Slavin, Deputy Attorneys General, for
Plaintiff and Respondent.
13