People v. Galindo CA1/1

Filed 12/10/20 P. v. Galindo CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A154509
v. (Mendocino County
SAMMUEL PAUL GALINDO, Super. Ct. Nos. SCUK-CRPA-17-
92745, SCUK-CRCR-17-92746)
Defendant and Appellant.
MEMORANDUM OPINION1
Defendant Sammuel Paul Galindo was charged in December 2017 with
one count of mayhem (Pen. Code,2 § 203; count one), and one count of
criminal threats (§ 422; count two). The complaint alleged two prior strikes
(§§ 667, 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and
three prior prison term commitments (§ 667.5, subd. (b)). The same day the
complaint was filed, the Division of Adult Parole Operations filed a petition
to revoke defendant’s parole.
Defendant was subject to a 37-year maximum prison term based on the
charges, but agreed to a negotiated plea of 19 years in state prison. Pursuant
We resolve this case by a memorandum opinion pursuant to the
1
California Standards of Judicial Administration, section 8.1(1) & (2).
2 All further statutory references are to the Penal Code.
to the plea, defendant pled no contest to mayhem and admitted one prior
strike, two prior serious felony convictions, and one prior prison term
commitment. The trial court also found defendant in violation of parole
pursuant to his plea.
After he was sentenced, defendant appealed, arguing that his case
must be remanded for resentencing under Senate Bill No. 1393 (2017–2018
Reg. Sess.) (Senate Bill 1393), which allows trial courts to decide whether to
strike or dismiss prior serious felony convictions, a discretionary authority
they lacked at the time defendant was sentenced. We concluded that
although Senate Bill 1393 applied retroactively to defendant’s case, his
appeal must be dismissed because he failed to obtain a certificate of probable
cause from the trial court.
Defendant filed a petition for review in the California Supreme Court.
The Supreme Court granted the petition and deferred further action pending
its decision in People v. Stamps, review granted June 12, 2019, S255843.
People v. Stamps (2020) 9 Cal.5th 685 (Stamps) held that a defendant does
not need a certificate of probable cause to obtain a remand for the trial court
to exercise its discretion under Senate Bill 1393. (Stamps, at p. 692.) Stamps
reasoned that such an appellate claim “does not constitute an attack on the
validity of [the] plea because the claim does not challenge [the] plea as
defective when made.” (Id. at p. 696.)
Stamps agreed with us, however, that a defendant is not entitled to
have the trial court “exercise its discretion to strike [an] enhancement but
otherwise maintain [a] plea bargain” for a specified term. (Stamps, supra,
9 Cal.5th at p. 692.) Rather, if a trial court exercises its discretion to strike
an enhancement on remand, the prosecution is entitled to withdraw from the
plea agreement, and the court is entitled to withdraw its approval of the
2
agreement. (Id. at pp. 707–708.) Recognizing that its holding might change
the defendant’s “calculus in seeking relief under Senate Bill 1393,” the
Supreme Court emphasized that “it is ultimately [a] defendant’s choice”
whether to ask a trial court to exercise its new discretion on remand. (Id. at
p. 708.)
On October 14, 2020, the Supreme Court remanded defendant’s case to
us with directions to vacate our prior decision and reconsider the matter in
light of Stamps. Defendant submitted supplemental briefing in which he
argued that he is entitled to a limited remand, as set forth in Stamps, for the
opportunity to seek relief under Senate Bill 1393. The Attorney General did
not submit supplemental briefing, and we agree with defendant that he is
entitled to a limited remand to seek the opportunity to have the trial court
exercise its discretion.
Thus, we vacate our decision of May 22, 2019, and remand the matter
to allow defendant to request relief under Senate Bill 1393. If defendant
chooses not to request relief, or the trial court “declines to exercise its
discretion under section 1385, that ends the matter . . . .” (Stamps, supra,
9 Cal.5th at p. 707.) But if the court is inclined to exercise its discretion in
defendant’s favor, the prosecution will be entitled to withdraw from the plea
agreement, and the court will be entitled to withdraw its approval of the plea
agreement. (Id. at pp. 707–708.)
In his supplemental briefing, defendant also argues he is entitled to
have his one-year enhancement under section 667.5, subdivision (b) stricken.
Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.)
(Senate Bill 136) amended section 667.5, subdivision (b) to provide for a one-
year prior prison term sentence enhancement only for sexually violent
offenses, as defined in Welfare and Institutions Code section 6600,
3
subdivision (b). (Stats. 2019, ch. 590, § 1; People v. Petri (2020)
45 Cal.App.5th 82, 94.) Senate Bill 136 applies retroactively to defendant
because his sentence was not final at the time the new law became effective
on January 1, 2020. (Petri, at p. 94; In re Estrada (1965) 63 Cal.2d 740, 744–
745.) As noted above, the Attorney General did not submit supplemental
briefing and has not responded to defendant’s argument. We agree with
defendant that his one-year sentence under section 667.5, subdivision (b)
must be stricken because the amendment ameliorates punishment and his
case was not yet final when the legislation became effective.
While we conclude that the prior enhancement must be stricken,
however, we do not agree with defendant’s suggestion that the remainder of
the plea bargain necessarily remains in place. Defendant urges us to follow
People v. Matthews (2020) 47 Cal.App.5th 857 (Matthews), a case decided
before Stamps. In Matthews, the court concluded Senate Bill 136 required
that the defendant’s prison priors be stricken, but determined the remainder
of the plea bargain should remain intact. (Matthews, at p. 869.) In reaching
this conclusion, the Matthews court relied on Harris v. Superior Court (2016)
1 Cal.5th 984 (Harris), which held the prosecution was not entitled to set
aside a plea agreement when a defendant sought to have his sentence
recalled pursuant to Proposition 47. (Matthews, at p. 868.) The Matthews
court explained the primary purpose of Senate Bill 136, similar to the
purpose of Proposition 47, is to reduce prison sentences, save taxpayers
millions of dollars, keep families together, redirect funds to evidence-based
rehabilitation and reintegration programs, and move away from failed mass
incarceration policies. (Matthews, at pp. 868–869.) The court reasoned those
“benefits would not be fully realized if the trial courts and the People could
abandon a plea agreement whenever a defendant seeks retroactively to
4
obtain elimination of an enhancement invalidated by Senate Bill No. 136.”
(Id. at p. 869.)
As we have noted, however, Matthews was decided before Stamps, and
did not have the benefit of its reasoning. Under Stamps, the critical inquiry
in determining whether a defendant can strike an enhancement while
maintaining the remainder of his plea bargain is whether “the Legislature
intended to overturn long-standing law that a court cannot unilaterally
modify an agreed-upon term by striking portions of it under [the new law].”
(Stamps, supra, 9 Cal.5th at p. 701; People v. Hernandez (2020)
55 Cal.App.5th 942, 957 (Hernandez).) Unlike Proposition 47 in Harris,
where such intent was manifest in the language of the statute (Stamps, at
p. 704), there is no evidence that the Legislature, in enacting Senate Bill 136,
intended “ ‘to change well-settled law that a court lacks discretion to modify a
plea agreement unless the parties agree to the modification.’ ” (Hernandez,
at p. 957, quoting Stamps, at p. 702; see People v. Griffin (Nov. 30, 2020,
A159104) __ Cal.App.5th __ [2020 Cal.App. Lexis 1138, *5–*12].)
Defendant contends Stamps is distinguishable because “[t]here is a
significant difference . . . between Senate Bill No. 1393, which only gives
courts discretion to strike a serious felony prior, and Senate Bill No. 136,
which now prohibits imposition of a sentence based on a prior prison term for
a non-sex offense related prior conviction.” The Fifth Appellate District
recently rejected the same argument in Hernandez, noting that difference “is
not the dispositive issue in this case.” (Hernandez, supra, 55 Cal.App.5th at
p. 957.) Rather, “[t]he scope of the trial court’s authority on remand . . .
depends on 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
5
enhancements are stricken.” (Id. at p. 957.) And here, as in Stamps, there is
nothing to indicate the Legislature intended Senate Bill 136 to effect such a
change. (Hernandez, at pp. 957–958.) Thus, while Senate Bill 136, unlike
Senate Bill 1393, requires the court to strike the one-year enhancement
under section 667.5, subdivision (b), it does not require the prosecutor and
trial court to leave the remainder of the plea agreement intact.3
Accordingly, on remand the trial court must strike the prior prison
term enhancement under section 667.5, subdivision (b). The prosecution may
then determine whether it will “agree to modify the bargain to reflect the
downward departure in the sentence,” or withdraw from the plea agreement.
(Stamps, supra, 9 Cal.5th at p. 707.) The trial court likewise may withdraw
its prior approval of the plea agreement. (Id. at p. 708.)
In sum, we remand this matter to the trial court with instructions to
strike the prior prison enhancement under section 667.5, subdivision (b) and
allow the prosecution to either accept the reduced sentence or withdraw from
the plea agreement, or allow the trial court to withdraw its approval, if it
chooses to do so. Defendant is also afforded the opportunity to seek relief
under Senate Bill 1393, and if the trial court is inclined to exercise its
discretion to strike the section 667, subdivision (a) enhancements, the
prosecution may accept a reduced sentence or withdraw from the plea
agreement, or the trial court may withdraw its approval.
3 We note the recently published case from Division Five of this court,
People v. Griffin, supra, __ Cal.App.5th __ [2020 Cal.App. Lexis 1138, *2,
*13–*19], disagreed with Hernandez, supra, 55 Cal.App.5th 942, 947, 959,
about the trial court’s authority to impose a longer sentence than provided in
the original plea agreement if the parties enter a new plea agreement on
remand. Because we do not know whether the parties will enter a new plea
agreement, and no party has raised or briefed that issue in this case, we will
not address it.
6
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A154509
People v. Galindo
7