People v. Joaquin ( 2020 )

Filed 12/4/20; Opinion on transfer from Supreme Court
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A152786
v.
JEFFREY ALLAN JOAQUIN, (Mendocino County
Super. Ct. No.
Defendant and Appellant.
SCUKCRCR1789461001)
Jeffrey Allan Joaquin (Appellant) appeals from a judgment sentencing
him to 12 years in prison after he pled no contest to attempted murder and
admitted allegations that he had personally used a firearm and had
previously served a prison term. (Pen. Code, §§ 187, subd. (a), 664, 667.5,
subd. (b), 12022.5, subd. (a).)1 He contends the case must be remanded for
resentencing because the Legislature subsequently passed Senate Bill
No. 620 (Senate Bill 620) (Reg. Sess. 2017-2018), which amended section
12022.5 to give trial courts discretion to strike firearm use enhancements in
the interests of justice. (§ 12022.5, subd. (c), Stats. 2017, ch. 682, § 2.)
We need not address that claim because Appellant’s plea agreement
has been rendered unenforceable by Senate Bill No. 136 (Senate Bill 136)
1 All undesignated statutory references are to the Penal Code.
1
(Reg. Sess. 2019-2020), effective January 1, 2020.2 Pursuant to that
enactment, the prior prison term enhancement is inapplicable to Appellant.
We direct the trial court to strike the one-year prior prison term
enhancement imposed under section 667.5, subdivision (b), which has the
effect of releasing the parties from the agreement. On 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.3
BACKGROUND
On March 21, 2017, appellant fired a shotgun at the victim from a
distance of about 60 feet. He was charged by felony complaint with three
counts: premeditated attempted murder with an allegation that he personally
and intentionally discharged a firearm (§§ 187, subd. (a), 664, 12022.53,
subd. (c)), possessing a firearm having been previously convicted of a felony
(§ 29800, subd. (a)(1)), and assault with a firearm (§ 245, subd. (a)(2)). The
complaint also included a firearm use allegation and a prior prison term
allegation. (§§ 12022.5, subd. (a), 667.5, subd. (b).) The prior prison term
was based on a conviction for infliction of corporal injury on a spouse or
cohabitant (§ 273.5).
2 We requested supplemental briefs from the parties and both agreed that
Appellant’s plea agreement is unenforceable in light of Senate Bill 136, even
though Appellant did not raise that issue on appeal. (See In re Harris (1993)
5 Cal.4th 813, 842 [“An appellate court may ‘correct a sentence that is not
authorized by law whenever the error comes to the attention of the court.’ ”].)
3 This court previously filed a decision in this appeal on June 25, 2019. On
September 11, 2019, the California Supreme Court granted respondent’s
petition for review, and, on October 14, 2020, the Supreme Court transferred
the matter to this court with directions to reconsider the cause in light of the
decision in People v. Stamps (2020) 9 Cal.5th 685 (Stamps). (See Cal. Rules
of Court, Rule 8.528(d).) As explained herein, Stamps makes clear that
Senate Bill 136, which became effective after the Supreme Court’s grant of
review, renders Appellant’s plea agreement unenforceable.
2
Appellant entered into a plea agreement that called for him to plead no
contest to attempted murder without premeditation and to admit a firearm
use allegation under section 12022.5, subdivision (a) and a prior prison term
under section 667.5, subdivision (b). The parties stipulated to a sentence of
12 years: the seven-year middle term for unpremeditated attempted murder,
the four-year middle term for the firearm use allegation, and one year for the
prior prison term. The trial court accepted the plea in August 2017 and
imposed the 12-year sentence at a September sentencing hearing. At a
subsequent hearing, the court recalculated Appellant’s presentence credits to
comply with section 2933.1. This appeal followed.4
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. 2014, ch. 442, § 10.) 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
Section 6600 of the Welfare and Institutions Code.” (§ 667.5, subd. (b); Stats.
2019, ch. 590, § 1; see also People v. Hernandez (2020) 55 Cal.App.5th 942,
946-947 (Hernandez).)5 The prior prison term at issue in the present case
was imposed for infliction of corporal injury on a spouse or cohabitant (§
4
By a separate order we denied Appellant’s companion petition for writ of
habeas corpus. (In re Jeffrey Allan Joaquin, A156067 [nonpub. order].)
5 Section 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 . . . .”
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273.5), which is not a qualifying offense under the current version of section
667.5, subdivision (b). Senate Bill 136 applies retroactively to non-final
judgments. (Hernandez, at p. 947)
In People v. Griffin (Nov. 30, 2020) ___ Cal.App.5th ___ [2020 Cal.App.
LEXIS 1138] (Griffin), this court applied the reasoning of the Stamps
decision in the context of Senate Bill 136. This court first held that the
section 667.5, subdivision (b) enhancement imposed under the plea
agreement in the case had to be stricken, but that doing so would render the
remainder of the agreement unenforceable. (Griffin, at p. __ [2020 Cal.App.
LEXIS 1138, 4]; see also Hernandez, supra, 55 Cal.App.5th at pp. 948–949
[reaching same conclusion].) Consistent with Stamps, we concluded that the
legislative history to Senate Bill 136 did not demonstrate the Legislature
intended to authorize the trial court to “ ‘exercise its discretion to strike the
enhancement but otherwise maintain the plea bargain.’ ” (Griffin, at p. ___
[2020 Cal.App. LEXIS 1138, 6], quoting Stamps, supra, 9 Cal.5th at p. 692;
see also Hernandez, at p. 947.)
Stamps involved an enactment that granted the trial court discretion to
strike an enhancement, and 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
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such a modification agreement, ‘the prosecutor is entitled to the same remedy
as the defendant—withdrawal of assent to the plea agreement . . . .’ ” (Ibid.)
Applying Stamps in the context of Senate Bill 136, Griffin observed,
“[t]here 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.” (Griffin, supra, ___ Cal.App.5th ___ [2020 Cal.App.
LEXIS 1138, 12].) We agreed with the following statement in People v.
Barton (2020) 52 Cal.App.5th 1145, regarding an analogous enactment:
“[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.” (Id. at p. 1159.)
The final issue this court addressed in Griffin was 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.” (Griffin,
supra, ___ Cal.App.5th ___ [2020 Cal.App. LEXIS 1138, 13].) We concluded it
would be contrary to the Legislature’s intent for the trial court to do so
because “[t]he purpose of [Senate Bill 136] was to decrease the length of
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sentences imposed on repeat felons by substantially narrowing the scope of
application of the prior prison term enhancement.” (Griffin, at p. __ [2020
Cal.App. LEXIS 1138, 14-15].) Further, the California Supreme Court’s
decision in People v. Collins (1978) 21 Cal.3d 208 (Collins) supported “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.” (Griffin, at p. __ [2020 Cal.App. LEXIS 1138, 14].) To do
otherwise would deny the defendant “the benefit of his bargain” where it was
“external events . . . that have rendered the judgment insupportable.”
(Collins, at p. 216.)
Applying the reasoning of Collins to a Senate Bill 136 remand, we
observed in Griffin, “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.’ [Citation.] But it would be contrary to
legislative intent and deprive Griffin of the benefit of his bargain were the
trial court on remand to impose a longer sentence following Griffin’s entry of
a guilty plea pursuant to a new agreement.” (Griffin, supra, ___ Cal.App.5th
___ [2020 Cal.App. LEXIS 1138, 16-17].)
Unlike the defendant in Griffin, Appellant was also sentenced for a
firearm enhancement. At the time of sentencing, firearm enhancements
under section 12022.5, subdivision (a) were mandatory and could not be
stricken in the interests of justice. (§ 12022.5, former subd. (c), as amended
by Stats. 2011, ch. 39. § 60.) On October 11, 2017, the Governor signed
Senate Bill 620. Effective January 1, 2018, the bill amended section 12022.5,
subdivision (c), to state in part, “The court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.” (§ 12022.5,
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subd. (c); Stats. 2017, ch. 682, § 2.) Appellant argued on appeal that this
court should remand with directions that the trial court exercise the
discretion granted by the enactment. Given that the plea agreement is now
unenforceable, that request is moot. Nevertheless, because “ ‘ “the court
must restore the parties to the status quo ante” ’ ” (Stamps, supra, 9 Cal.5th
at p. 707), Appellant on remand may accept or reject a plea agreement
including a firearm use enhancement under section 12022.5, subdivision (a).
If he rejects such an agreement, he retains the opportunity to ask the trial
court to exercise its discretion to strike the enhancement, should Appellant
subsequently enter into an open plea or be subject to sentencing following a
conviction at trial.
Following Griffin, 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.
(Griffin, supra, ___ Cal.App.5th ___ [2020 Cal.App. LEXIS 1138, 18-19].)
DISPOSITION
The judgment is reversed and remanded for further proceedings
consistent with this opinion.
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SIMONS, Acting P.J.
We concur.
NEEDHAM, J.
BURNS, J.
(A152786)
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Superior Court of Mendocino County, No. SCUKCRCR1789461001, Hon.
Keith Faulder, Judge.
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Laurence K. Sullivan and Catherine A. Rivlin, Deputy Attorneys General, for
Plaintiff and Respondent.
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