People v. Felix CA5

P
Filed 12/30/20 P. v. Felix CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT


    THE PEOPLE,
                                                                                             F080189
           Plaintiff and Respondent,
                                                                             (Super. Ct. No. CR-18-004767)
                    v.

    EDGAR FELIX,                                                                          OPINION
           Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy
Ashley, Judge.
         Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M.
Vasquez, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Meehan, Acting P.J., Snauffer, J. and DeSantos, J.
       Defendant Edgar Felix was sentenced to an agreed-upon term of imprisonment
based on a plea agreement. He contends on appeal that the one-year prior prison term
enhancement imposed as part of the plea agreement should be stricken pursuant to Penal
Code section 667.5, subdivision (b),1 as amended by Senate Bill No. 136 (2019?2020
Reg. Sess.) (Senate Bill 136). The parties agree defendant is entitled to the benefit of
Senate Bill 136. Defendant contends we may strike the enhancement without remanding
the matter to the trial court. The People contend the trial court and the People must be
permitted to rescind approval of the plea agreement in light of People v. Stamps (2020)

9 Cal. 5th 685

(Stamps). We vacate the sentence, order the prior prison term enhancement
stricken, and remand for further proceedings consistent with Stamps. In all other
respects, we affirm.
                              PROCEDURAL SUMMARY
       On August 10, 2018, the Stanislaus County District Attorney charged defendant
with being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 1), being a
felon in possession of ammunition (§ 30305, subd. (a)(1); count 2), and driving without a
valid driver’s license (Veh. Code, § 12500, subd. (a); count 3). As to counts 1 and 2, the
complaint alleged defendant had suffered a prior felony “strike” conviction within the
meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and
had served a prior prison term (§ 667.5, subd. (b)).
       On September 9, 2019, defendant entered a plea of no contest on count 1 and
admitted the prior prison term allegation. The prior prison term was served for
a conviction of burglary (§ 459). The plea agreement stipulated that the prior strike
conviction would be stricken for the purposes of the Three Strikes law sentencing
pursuant to People v. Superior Court (Romero) (1996) 

13 Cal. 4th 497

, and the court



1      All further statutory references are to the Penal Code unless otherwise stated.


                                             2.
would impose a total term of four years as follows: on count 1, the court would impose
an upper term of three years, plus a one-year prior prison term enhancement.
       On the same date, the trial court struck the prior strike conviction allegation and
imposed the stipulated sentence.
       On October 23, 2019, defendant filed a notice of appeal.
                                 FACTUAL SUMMARY
       On December 6, 2013, defendant was convicted of first degree burglary.
       The parties stipulated to the following factual basis of the current offenses: “[O]n
or about August 8, 2018, in the County of Stanislaus, sheriff’s deputies saw the
defendant, Edgar Felix, traveling in a motor vehicle doing 76 miles an hour in a 50-mile-
an-hour zone. Upon pulling him over for that traffic violation, they noticed that the
defendant was on felony searchable probation …. A probation search of the defendant
revealed a loaded firearm in the defendant’s possession.”
                                      DISCUSSION
       A.     Defendant’s Prior Prison Term Enhancement Must Be Stricken
       Defendant argues his prior prison term enhancement must be vacated based on the
retroactive application of Senate Bill 136. The People agree, as do we.
       Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b)
to limit application of prior prison term enhancements to only prior prison terms that
were served for sexually violent offenses as defined by Welfare and Institutions Code
section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That
amendment applies retroactively to all cases not yet final on Senate Bill 136’s effective
date. (People v. Lopez (2019) 

42 Cal. App. 5th 337

, 342, citing In re Estrada (1965) 

63 Cal. 2d 740

, 742.)
       Here, the trial court imposed a one-year section 667.5, subdivision (b) prior prison
term enhancement based on a term of imprisonment for burglary (§ 459), which is not a
violent sexual offense as defined in Welfare and Institutions Code section 6600,

                                             3.
subdivision (b). On January 1, 2020, defendant’s case was not yet final. Therefore, as
the parties agree, defendant is entitled to the ameliorative benefit of Senate Bill 136’s
amendment to section 667.5, subdivision (b).
       B.     Remedy
       The parties disagree on the appropriate remedy. Their disagreement surrounds the
impact striking the prior prison term enhancement has on the plea agreement. Defendant
contends that he did not waive his right to the benefit of ameliorative changes in the law
like that effected by Senate Bill 136 and therefore his entitlement to the benefit of such
changes is incorporated in the plea agreement. For that reason, and because the trial
court imposed the maximum possible sentence, he contends that we may strike the prior
prison term enhancement without remanding for the trial court to exercise its discretion.
The People argue that 

Stamps, supra

, 

9 Cal. 5th 685

, controls and on remand, after the
trial court strikes the prior prison term enhancement, the trial court and prosecutor must
be afforded the opportunity to rescind their approval of the plea agreement. We agree
with the People.
       This court recently confronted the issue now before us. In People v. Hernandez
(2020) 

55 Cal. App. 5th 942

(Hernandez), we decided that when a prior prison term
enhancement imposed as a term of a plea agreement is stricken pursuant to Senate
Bill 136, the prosecutor and the trial court must be afforded the option to rescind approval
of the agreement. We reach the same outcome here.
       Generally, where an appellate court strikes a portion of a sentence, remand for “ ‘a
full resentencing as to all counts is appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018)

5 Cal. 5th 857

, 893.) That rule applies equally to resentencing after reversal of a count of
conviction or striking of an enhancement. (See ibid., citing with approval People v.
Sanchez (1991) 

230 Cal. App. 3d 768

, 771–772 [consideration of all sentencing choices on



                                               4.
remand is appropriate after reversal for erroneous application of a section 12022.1 on-bail
enhancement]; People v. 

Lopez, supra

, 42 Cal.App.5th at p. 342.)
       However, the full resentencing rule does not apply when a plea agreement
specifies the punishment to be imposed. (People v. Barton (2020) 

52 Cal. App. 5th 1145

,
1156 (Barton).) A plea agreement is a form of contract to which a court consents to be
bound by approving the agreement. (People v. Segura (2008) 

44 Cal. 4th 921

, 929–930.)
A trial court “may approve or reject [a negotiated plea] agreement, but the court may not
… [approve the agreement and then] effectively withdraw its approval by later modifying
the terms of the agreement it had approved.” (Id. at pp. 931?932; see § 1192.5.)
Therefore, when a portion of an agreed-upon sentence must be stricken, full resentencing
is not appropriate because it would not conform with the terms of the plea agreement.
(Barton, at p. 1156; 

Hernandez, supra

, 55 Cal.App.5th at p. 957.)2
       The available remedies after striking a portion of an agreed-upon sentence are to
restore the parties to the status quo ante or, if the legislature so intended, to strike only the
portions modified by the enactment and leave the remainder of the agreement intact.
(See 

Stamps, supra

, 9 Cal.5th at pp. 695–696; Harris v. Superior Court (2016) 

1 Cal. 5th 984

, 991 (Harris); People v. 

Segura, supra

, 44 Cal.4th at pp. 929–930; People v. Collins
(1978) 

21 Cal. 3d 208

, 215.) The Legislature “ ‘may bind the People to a unilateral
change in sentence without affording them the option to rescind the plea agreement.’ ”
(Stamps, at p. 703; accord, 

Hernandez, supra

, 55 Cal.App.5th at pp. 957?958.) However,
we do not presume that to be the case. As a default position, a court “may not proceed as


2      We also note that a trial court cannot ignore a change in the law and decline to
modify an agreed-upon sentence as based on the terms of a plea agreement. (See Doe v.
Harris (2013) 

57 Cal. 4th 64

, 66 [“That the parties enter into a plea agreement … does not
have the effect of insulating them from changes in the law that the Legislature has
intended to apply to them.”].) As defendant correctly notes, he is entitled to the benefit
of ameliorative changes in the law like that effected by Senate Bill 136. Such unknown
future benefits cannot be waived by plea bargain. (§ 1016.8, subds. (a) & (b).)


                                               5.
to the plea other than as specified in the plea” (§ 1192.5), and therefore cannot modify
only a part of an agreed-upon sentence, unless such a modification is a result of a change
in the law and the defendant establishes “the Legislature [(or electorate)] intended to
overturn long-standing law that a court cannot unilaterally modify an agreed-upon term
by striking portions of it” while leaving the remainder intact (Stamps, at p. 701; accord,
Harris, at pp. 987, 992; Hernandez, at p. 953.) Contrary to defendant’s suggestion,
neither the silence of a plea agreement on the impact of future unknown benefits nor the
statutory prohibition on waiver of unknown future benefits (§ 1016.8, subds. (a) & (b))
entitles a defendant who has accepted a “negotiated stipulated sentence[] ‘to whittle down
the sentence “but otherwise leave the plea bargain intact.” ’ ” (Stamps, at p. 706; accord,
Hernandez, at p. 954.)
       In Stamps, the Supreme Court considered the impact of Senate Bill No. 1393
(Senate Bill 1393)—which allows a trial court to strike a serious felony enhancement
pursuant to section 667, subdivision (a)—on sentences not yet final on appeal that were
imposed pursuant to plea agreements. (

Stamps, supra

, 9 Cal.5th at pp. 692, 701–703.)
The court discussed the legislative history of Senate Bill 1393 and concluded that it did
“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.” (Stamps, at p. 702.) For that reason, the Stamps court
determined that “[n]othing in the language and legislative history of Senate Bill 1393
suggests an intent to modify section 1192.5’s mandate that ‘the court may not proceed as
to the plea other than as specified in the plea’ without the consent of the parties.”
(Stamps, at p. 704.)
       The Stamps court explained that the same test applied in Harris but the intent of
the electorate was different in enacting the operative law. (

Stamps, supra

, 9 Cal.5th at
pp. 702–703.) In Harris, the defendant had “pled [guilty] to felony grand theft (§ 487,
subd. (c)) and admitted a prior robbery conviction in exchange for a six-year prison term

                                              6.
and dismissal of a robbery count.” (Stamps, at p. 702.) Before the defendant’s case was
final on appeal, Proposition 47 was passed, and he petitioned to have his conviction
reduced to a misdemeanor. (Ibid.) Critical to whether the prosecutor could withdraw
from the plea agreement after the defendant sought reduction of his felony conviction to a
misdemeanor was the “intent behind Proposition 47.” (Stamps, at p. 702.) Harris noted
that Proposition 47 expressly applied to a person “ ‘serving a sentence for a conviction,
whether by trial or by plea[.] Harris reasoned that ‘[b]y expressly mentioning
convictions by plea, Proposition 47 contemplated relief to all eligible defendants.’ ”
(Stamps, at p. 703.)
       Here, as discussed above, Senate Bill 136 requires that prior prison term
enhancements be stricken for any eligible defendant whose case is not final on appeal.
However, like Senate Bill 1393, as discussed in Stamps, the legislative history for Senate
Bill 136 reveals no “intent to modify section 1192.5’s mandate that ‘the court may not
proceed as to the plea other than as specified in the plea’ without the consent of the
parties.” (

Stamps, supra

, 9 Cal.5th at p. 704; accord, 

Hernandez, supra

, 55 Cal.App.5th
at pp. 957?958; 

Barton, supra

, 52 Cal.App.5th at pp. 1150, 1156–1157.)3 The legislative
history for Senate Bill 136 is “silent regarding pleas and provides no express mechanism
for relief undercut[ting] any suggestion that the Legislature intended to create special
rules for plea cases.” (Stamps, at p. 704; accord, Hernandez, at p. 958.) Because the
Legislature did not express any intent for Senate Bill 136 to operate as an exception to the
rule that a court cannot modify an agreed-upon sentence without the parties’ agreement,




3       The Senate floor analysis for Senate Bill 136 identified the goals behind the
legislation—eliminating an enhancement that “re-punishe[d] people for previous jail or
prison time served … [and] exacerbate[d] existing racial and socioeconomic disparities in
[the] criminal justice system.” (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of
Sen. Bill No. 136 (2019?2020 Reg. Sess.) as amended Sept. 3, 2019, p. 2.)


                                             7.
we conclude that the matter must be remanded to allow the People and the trial court the
opportunity to rescind approval for the plea agreement.4
                                     DISPOSITION
       The sentence is vacated and remanded to the superior court with directions to
strike the prior prison term enhancement (§ 667.5, subd. (b)), and for further appropriate
proceedings consistent with 

Stamps, supra

, 

9 Cal. 5th 685

. In all other respects, the
judgment is affirmed.




4      We note that at least two courts of appeal have concluded courts may strike prior
prison term enhancements from an agreed-upon sentence pursuant to Senate Bill 136 but
must leave all other portions of the sentence intact. (People v. Matthews (2020) 

47 Cal. App. 5th 857

, 861; People v. Petri (2020) 

45 Cal. App. 5th 82

, 85–86.) For the reasons
discussed in this opinion, we agree with Hernandez and disagree with Matthews and
Petri.


                                            8.

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