Filed 9/14/20 P. v. Arellano CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B300847
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA112598)
v.
EDGAR ARELLANO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Salvatore Sirna, Judge. Reversed and
remanded with directions.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Scott A. Taryle, Deputy
Attorney General, for Plaintiff and Respondent.
Edgar Arellano, sentenced pursuant to a negotiated plea
agreement to state prison for 22 years for first degree burglary
with prior conviction enhancements, moved for resentencing
pursuant to Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1 & 2)
(Senate Bill 1393), which, effective January 1, 2019, allows the
trial court to exercise its discretion to strike or dismiss Penal
Code section 667, subdivision (a), prior serious felony
enhancements. The trial court denied the motion, ruling Senate
Bill 1393 was not retroactive and, in any event, did not apply
when the defendant had agreed in a negotiated plea to a specific
prison term that included those enhancements.
While Arellano’s appeal of the denial of his postjudgment
motion was pending in this court, the Supreme Court decided
People v. Stamps (2020) 9 Cal.5th 685 (Stamps), holding Senate
Bill 1393 applies to any case not yet final on appeal on its
effective date; a defendant sentenced pursuant to a negotiated
plea agreement need not obtain a certificate of probable cause to
claim on appeal the new law applies to him or her; Senate
Bill 1393 applies to negotiated sentences, at least to a limited
extent; but, if the trial court is inclined to exercise its discretion
not to impose a prior serious felony enhancement that was part of
a negotiated sentence, the prosecutor is entitled to withdraw
assent to the plea agreement.
Based on Stamps, we reverse the postjudgment order
denying Arellano’s motion for resentencing and remand the
matter to provide Arellano the opportunity to ask the trial court
to exercise its discretion not to impose the prior serious felony
enhancements and, if such a request is made, for the parties and
the trial court to follow the process approved in Stamps.
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FACTUAL AND PROCEDURAL BACKGROUND
In April 2016 Arellano was arrested after he entered the
dormitory room of a female college student while she was
sleeping. While in the room, Arellano removed some of the
student’s undergarments from a laundry hamper. Arellano was
not a student at the college and did not have permission to be in
the dormitory.
In January 2017, pursuant to a negotiated agreement,
Arellano pleaded no contest to first degree burglary with a person
present and admitted a 1999 first degree burglary conviction as a
prior strike and 1999 and 2002 first degree burglary convictions
as prior serious felony convictions under section 667,
subdivision (a)(1). He was sentenced to an aggregate state prison
term of 22 years, consisting of the six-year upper term for
residential burglary, doubled, plus two five-year terms for the
prior serious felony enhancements.
This court affirmed Arellano’s conviction in a nonpublished
opinion on November 29, 2017. (People v. Arellano (Nov. 29,
2017, B281513).) Arellano’s petition for review in the California
Supreme Court (S246344) was denied February 14, 2018. His
petition for writ of certiorari with the United States Supreme
Court was denied April 22, 2019, at which time the judgment
became final. (See People v. Buycks (2018) 5 Cal.5th 857, 876,
fn. 5 [“[a] judgment becomes final when the availability of an
appeal and the time for filing a petition for certiorari with the
United States Supreme Court have expired”].)
On June 5, 2019 Arellano petitioned for resentencing under
Senate Bill 1393. The trial court denied the petition on June 27,
2019, ruling, “Defendant’s sentence in this matter was an agreed
upon disposition between defendant and the People. Defendant
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expressly agreed to the sentence and admitted two strikes prior
[sic] under Penal Code section 667(a)(1). Defendant failed to
provide the court with competent authority that SB 1393 is to be
applied retroactively, and the plain language of the amended
Penal Code sections do not contemplate retroactive applicability.”
Arellano filed a timely notice of appeal. He did not seek or
obtain a certificate of probable cause.
DISCUSSION
On September 30, 2018 the Governor signed Senate
Bill 1393, which amended Penal Code sections 667,
subdivision (a), and 1385, subdivision (b), effective January 1,
2019, to allow the trial court to exercise its discretion to strike or
dismiss a prior serious felony conviction for purposes of
sentencing a defendant convicted of a serious felony. As the
Attorney General acknowledges, contrary to the trial court’s
ruling, the new law applies to all judgments not final as of
January 1, 2019. (Stamps, supra, 9 Cal.5th at p. 699 [“We agree
with defendant that, under [In re] Estrada [(1965) 63 Cal.2d 740],
Senate Bill 1393 applies to his case retroactively because his
judgment is not yet final. Eliminating the prior restriction on the
court’s ability to strike a serious felony enhancement in
furtherance of justice constitutes an ameliorative change within
the meaning of Estrada”]; see People v. Zamora (2019)
35 Cal.App.5th 200, 208; People v. Garcia (2018) 28 Cal.App.5th
961, 973.)
Arellano and the Attorney General agree, in supplemental
letter briefs filed following the Supreme Court’s decision in
Stamps, supra, 9 Cal.5th 685 that Stamps has resolved the
remaining issues presented by this appeal.
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First, the Supreme Court held a certificate of probable
cause is not required for a defendant, who entered a plea
pursuant to a negotiated agreement for a specific prison term, to
assert on appeal entitlement to the benefits of an ameliorative
change in the law: “Stamps does not seek to put aside or
withdraw his plea. He does not urge that his plea was invalid
when made. Instead, he seeks relief because the law
subsequently changed to his potential benefit. His appeal, then,
does not attack the plea itself and does not require a certificate of
probable cause.” (Stamps, supra, 9 Cal.5th at p. 698.)
Second, again contrary to the trial court’s ruling, that
Arellano agreed as part of a negotiated plea to a specific prison
term including two prior serious felony conviction enhancements
does not necessarily preclude Arellano from benefitting from
Senate Bill 1393: “As we reasoned ante, we agree with defendant
that Senate Bill 1393 should be applied retroactively to him, and
the circumstance that his conviction resulted from a plea
agreement did not change that conclusion.” (Stamps, supra,
9 Cal.5th at p. 705.)
Third, the trial court is not authorized to unilaterally
modify the plea agreement by striking the serious felony
enhancement but otherwise keeping the remainder of the
bargain—the position advocated by Arellano in his appeal.
(Stamps, supra, 9 Cal.5th at p. 707.) As the Supreme Court
explained, if the defendant asks the trial court to exercise its
discretion to strike the enhancement(s) and the court declines to
do so, “that ends the matter and defendant’s sentence stands.”
(Ibid.) However, “[i]f the court indicates an inclination to
exercise its discretion under section 1385, the prosecution may, of
course, agree to modify the bargain to reflect the downward
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departure in the sentence such exercise would entail. Barring
such a modification agreement, ‘the prosecutor is entitled to the
same remedy as the defendant—withdrawal of assent to the plea
agreement.’” (Ibid.) Finally, even if the prosecutor and the
defendant agree the negotiated prison term should be reduced by
eliminating the prior serious felony enhancement, the trial court
retains its authority to withdraw approval of the plea agreement.
(Id at p. 708.)
In accordance with the Supreme Court’s holdings in
Stamps, we reverse the trial court’s order denying Arellano’s
postjudgment motion for resentencing. The matter is remanded
to give Arellano the opportunity to ask the trial court to exercise
its discretion, subject to the approval of the People, to reduce his
negotiated sentence by striking one or both of the prior serious
felony enhancements that are now part of his sentence.
DISPOSITION
The order denying Arellano’s postjudgment motion is
reversed. The matter is remanded with directions to the superior
court to consider Arellano’s request, if he elects to make one, to
reduce his sentence by dismissing one or both the prior serious
felony enhancements previously imposed and, if a request is
made, to follow the process described by the Supreme Court in
Stamps, supra, 9 Cal.5th 685.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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