Filed 2/16/21 P. v. Woldberg CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C089523
Plaintiff and Respondent, (Super. Ct. No. 19F436)
v.
COREY WILLIAM WOLDBERG,
Defendant and Appellant.
In a global settlement agreement, defendant Corey William Woldberg pleaded no
contest to, among other things, two failure to appear charges, admitted a strike prior, and
admitted two prior prison term enhancements in exchange for a stipulated term of six
years in state prison and dismissal of the remaining charges and allegations and several
other pending matters. As part of the agreement, defendant waived his right to appeal the
stipulated sentence.
1
Defendant’s appointed counsel filed an opening brief that sets forth the facts of the
case and asks this court to review the record and determine whether there are any
arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After examining the
record, we requested supplemental briefing from the parties on the effect on defendant’s
case of two newly enacted pieces of legislation: Assembly Bill No. 1618 (Assembly Bill
1618), which created Penal Code section 1016.8 (statutory section references that follow
are to the Penal Code) regarding the viability of a waiver clause in a plea agreement with
respect to future changes in the law, and Senate Bill No. 136 (Senate Bill 136), which
amended section 667.5, subdivision (b) to limit the underlying offenses that qualify for a
prior prison term enhancement.
After considering the parties’ supplemental briefs, we conclude defendant is not
prohibited from seeking on appeal the retroactive application of a beneficial change in the
law under Senate Bill 136, and that he no longer qualifies for the two prior prison term
enhancements. We shall therefore reverse the judgment and remand this matter to the
trial court with directions to strike the enhancements. In accordance with the California
Supreme Court’s recent decision in People v. Stamps (2020) 9 Cal.5th 685, 705-709
(Stamps), the People and the court shall have the opportunity to withdraw their prior
approval of the plea agreement.
FACTS AND PROCEDURAL HISTORY
On August 21, 2017, defendant was present in court and ordered to appear for a
settlement conference on September 25, 2017, in Shasta County case No. 17F3903.
Defendant failed to appear as ordered and a bench warrant was issued for his arrest.
On July 2, 2018, defendant was present in court on case No. 17F3903, and was
ordered to appear on July 11. Defendant again failed to appear, and a warrant was issued
for his arrest. Later, defendant was released and promised to appear in court on
November 2, 2018. He did not appear.
2
In January 2019, defendant was charged in Shasta County case No. 19F436 with
three counts of failure to appear on a felony charge (§ 1320, subd. (b)). For all three
counts, it was alleged that in 2001 defendant suffered a prior strike conviction within the
meaning of section 1170.12 for arson of the property of another (§ 451, subd. (d)). It was
also alleged as to all three counts that defendant was released on bail or his own
recognizance in two other cases (Shasta County case Nos. 17F3903 and 18F3997) at the
time of the charged offenses (§ 12022.1). Following a preliminary hearing, defendant
was held to answer on the charges.
In March 2019, defendant made a Marsden motion to relieve his appointed
counsel. Following an in-camera hearing, the court granted the Marsden motion and
appointed the same conflict counsel to represent defendant in all three of his pending
cases. A week later, defendant moved to discharge his newly appointed counsel. After
an in-camera hearing, the court denied the motion. The following day, defendant made
another Marsden motion to relieve his appointed counsel. After further conversing with
his attorney, however, defendant withdrew the Marsden motion.
On March 15, 2019, defendant entered into a global plea agreement resolving all
of his pending matters. Under the terms of the agreement, in case No. 19F436, defendant
pleaded no contest to two counts of failing to appear (§ 1320, subd. (b), counts one and
two), admitted a strike prior for a previous 2001 felony arson conviction (§ 451, subd.
(d)), and admitted added allegations of having served two prior prison terms for
convictions of Health & Safety Code section 11378. In case No. 17F3903, defendant
pleaded no contest to an added count of violating Vehicle Code section 23103.5. In case
Nos. 18M2271 and 17M3133, defendant pleaded no contest to two counts of resisting,
obstructing, or delaying a peace officer (§ 148.1, subd. (a)(1)). He also admitted that his
no contest plea in case No. 17F3903 constituted an admission to a violation of a
probation petition filed in case No. 16F1607. The parties stipulated to a term of six years
in state prison with all other remaining counts, allegations, and pending cases dismissed
3
with a Harvey waiver. Paragraph 43 of the agreement stated: “I hereby waive and give
up my right to appeal from the stipulated sentence I will receive in this case.”
In accordance with the parties’ plea agreement, the court sentenced defendant to
the stipulated six-year state prison term, calculated as follows: in case No. 19F436, the
low term of 16 months for count one (failure to appear), doubled to 32 months for the
strike prior, plus a consecutive 16 months (one-third the midterm, doubled) for count two
(failure to appear), plus one year for each of defendant’s two prior prison term
enhancements (§ 667.5, subd. (b)). In each of the three misdemeanor cases (case Nos.
17F3903, 18M2271, and 17M3133), the court imposed a sentence of credit for time
served.
The court awarded defendant 75 actual days and 74 conduct days for 149 days of
credit. Defendant disagreed with the credit computation, claiming he was entitled to
credit on case No. 19F436 for days in custody on his other misdemeanor cases that had
been dismissed with a Harvey waiver. On March 27, 2019, defendant moved to
withdraw his plea on grounds that the misdemeanor custody credits to which he was
entitled in the unrelated and dismissed cases should have been applied to his felony
sentence. A week later, defendant withdrew his request to withdraw his plea.
Defendant timely appealed. The trial court granted his request for a certificate of
probable cause.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and requesting that this court review the record to
determine whether there are any arguable issues on appeal. (People v. Wende, supra,
25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30
days of the date of filing of the opening brief.
4
Defendant filed a supplemental brief contending his counsel was ineffective
because he misled him on the consequences of his plea. According to defendant, his trial
counsel misadvised him that he would be eligible to participate in an outside drug
treatment program in the alternative custody program shortly after arriving in prison
notwithstanding his prior arson conviction. He claims he would not have pleaded no
contest had he understood the true consequences of his plea. He also argues his 2001
arson conviction should not have qualified as a strike for purposes of the present case
because he never signed anything agreeing that it would be a strike when he pleaded to
the offense.
In order to establish a claim of ineffective assistance of counsel, the defendant has
the burden of demonstrating that counsel’s performance was deficient because it fell
below an objective standard of reasonableness under prevailing professional norms and
he or she was prejudiced by that deficiency. (People v. Lopez (2008) 42 Cal.4th 960,
966.) “ ‘Unless a defendant establishes the contrary, we shall presume that “counsel’s
performance fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If
the record “sheds no light on why counsel acted or failed to act in the manner
challenged,” an appellate claim of ineffective assistance of counsel must be rejected
“unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.” [Citations.]’ ” (Ibid.) “A claim of
ineffective assistance in such a case is more appropriately decided in a habeas corpus
proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; see People v.
Jones (2003) 29 Cal.4th 1229, 1254 [ineffective assistance claims properly resolved on
direct appeal only where record affirmatively discloses no rational tactical purpose for
counsel’s act or omission].)
We conclude defendant has failed to carry his burden to establish that trial counsel
provided inadequate representation during the plea proceedings. The record is silent as to
5
what trial counsel told defendant about the consequences of his plea, and specifically
about his eligibility for an alternative custody program upon arrival at prison. Here,
beyond defendant’s self-serving statements in his supplemental brief, nothing in the
record supports his factual representations regarding what his counsel advised him about
the consequences of the plea. We will not consider facts provided for the first time on
appeal. (See People v. Pena (1972) 25 Cal.App.3d 414, 421-422, disapproved on other
grounds by People v. Duran (1976) 16 Cal.3d 282, 292.) Defendant’s ineffective
assistance of counsel claim thus fails on direct appeal and is more properly raised in a
habeas corpus petition.
We also reject defendant’s argument that his prior arson conviction should not
have qualified as a strike for the purposes of the present case. Again, nothing in the
record supports defendant’s contentions that he was never made aware that his arson
conviction could be alleged as a strike in a subsequent criminal prosecution, and no
evidence shows what his counsel at the time informed him about the nature of his plea
agreement in 2001, which is not included in the record on appeal. (People v. Pena,
supra, 25 Cal.App.3d at pp. 422-423 [recognizing elementary principle that in reviewing
a trial court judgment on direct appeal, an appellate court is limited to matters contained
in the record of the trial proceedings].)
Nor can defendant prevail on a claim that he can only be punished presently for a
prior conviction under the three strikes law if he knew of that consequence at the time of
his earlier plea. By analogy, a defendant whose prior conviction strike preceded the
effective date of the three strikes law was nonetheless properly subjected to the use of
that strike against him in a subsequent criminal proceeding. (See, e.g., People v. James
(2001) 91 Cal.App.4th 1147; Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302.)
Under the California Constitution, moreover, “[a]ny prior felony conviction of any
person in any criminal proceeding, whether adult or juvenile, shall subsequently be used
without limitation for purposes of impeachment or enhancement of sentence in any
6
criminal proceeding.” (Cal. Const., art. I, § 28, subd. (f)(4).) That provision was
originally passed by the electorate in 1982, well before defendant pleaded to the arson
offense in 2001. (Prop. 8, June 8, 1982.)
Having rejected the arguments defendant raised in his supplemental brief, we turn
to the questions we asked the parties to address in supplemental briefing, namely, the
affect, if any, of Assembly Bill 1618 and Senate Bill 136 on the sentence imposed here.
A. Assembly Bill 1618
Assembly Bill 1618 added section 1016.8 (Stats. 2019, ch. 586, § 1), which
codifies the holding in Doe v. Harris (2013) 57 Cal.4th 64 (Doe) that entering into a plea
agreement does not effectively insulate parties from changes in the law the Legislature
has intended to apply to them. (Stamps, supra, 9 Cal.5th at p. 705.) The statute provides
in relevant part: “A plea bargain that requires a defendant to generally waive unknown
future benefits of legislative enactments, initiatives, appellate decisions, or other changes
in the law that may occur after the date of the plea is not knowing and intelligent.”
(§ 1016.8, subd. (a)(4).) The statute further provides: “A provision of a plea bargain that
requires a defendant to generally waive future benefits of legislative enactments,
initiatives, appellate decisions, or other changes in the law that may retroactively apply
after the date of the plea is void as against public policy.” (§ 1016.8, subd. (b).)
The parties agree that Assembly Bill 1618 applies retroactively to defendant’s
case. We concur. Although ordinarily new statutes are presumed to operate
prospectively (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287), “ ‘in the absence of a
savings clause providing only prospective relief or other clear intention concerning any
retroactive effect, “a legislative body ordinarily intends for ameliorative changes to the
criminal law to extend as broadly as possible, distinguishing only as necessary between
sentences that are final and sentences that are not.” ’ ” (Stamps, supra, 9 Cal.5th at
p. 699; In re Estrada (1965) 63 Cal.2d 740, 745; People v. Nasalga (1996) 12 Cal.4th
7
784, 790, fn. 5 [for purposes of determining retroactive application of an amended
criminal statute, a judgment is not final until the time for petitioning for a writ of
certiorari in the United States Supreme Court has passed].) While section 1016.8 does
not reduce the punishment for any particular crime, the California Supreme Court has
“applied the Estrada rule to statutes that merely made a reduced punishment possible.”
(People v. Frahs (2020) 9 Cal.5th 618, 629; People v. Superior Court (Lara) (2018)
4 Cal.5th 299.) Here, voiding a waiver provision in a plea agreement to allow a
defendant to challenge an enhancement that no longer applies given a recent change in
the law would potentially lessen the punishment for a class of persons. The Estrada rule
thus applies.
Given the statutory language of Assembly Bill 1618, and in light of section
1016.8’s express public policy prohibition against a provision of a plea bargain requiring
a defendant to generally waive future benefits of legislative enactments or case law, we
conclude that Paragraph 43 of defendant’s plea agreement waiving his “right to appeal
from the stipulated sentence [he would] receive in this case” is void and unenforceable as
to future beneficial changes in the law. Defendant may therefore challenge the two prior
prison term enhancements based on a subsequent beneficial change in the law.
B. Senate Bill 136
When defendant was sentenced in March 2019, the version of section 667.5,
subdivision (b) in effect 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, eff. Jan. 1, 2019.) While defendant’s appeal was pending, the Legislature passed
Senate Bill 136, which amended section 667.5, subdivision (b) to limit a prior prison term
enhancement to people who have served a sentence for certain sexually violent offenses.
(Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) The amended provision states: “Except
where subdivision (a) applies, where the new offense is any felony for which a prison
8
sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section
1170 is imposed or is not suspended, 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, provided that no additional term shall be imposed under this
subdivision for any prison term served prior to a period of five years in which the
defendant remained free of both the commission of an offense which results in a felony
conviction, and prison custody or the imposition of a term of jail custody imposed under
subdivision (h) of Section 1170 or any felony sentence that is not suspended.” (§ 667.5,
subd. (b).)
The parties agree, as do we, that Senate Bill 136 applies retroactively to cases not
yet final on appeal because it ameliorates punishment for serving a prior prison term.
(Accord, People v. Matthews (2020) 47 Cal.App.5th 857, 864-865 [Senate Bill 136
applies retroactively because it lessens punishment for a person who no longer qualifies
for the enhancement]; People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Senate Bill
136 applies retroactively to cases not yet final on appeal]; People v. Jennings (2019)
42 Cal.App.5th 664, 680-682 [same]; In re Estrada, supra, 63 Cal.2d at pp. 745-748.)
We also agree with the parties that defendant no longer qualifies for the two 1-year prior
prison term enhancements because he admitted he served prior prison terms for two
violations of Health and Safety Code section 11378, which are not sexually violent
offenses.
The parties diverge, however, on the appropriate remedy. Defendant contends the
prior prison term enhancements should be stricken and the remainder of the plea
agreement left intact. People, on the other hand, argue that the enhancements should be
stricken but that the matter should be remanded to the trial court so that it may conduct a
full resentencing and reconfigure defendant’s sentence to accomplish the stipulated six-
year prison term agreed to under the plea agreement. Based on our Supreme Court’s
9
recent decision in Stamps, we conclude the enhancements must be stricken upon remand,
but that the prosecution should be given the opportunity to withdraw from the plea
agreement if it chooses.
In Stamps, the defendant pleaded no contest to one count of first degree burglary
and stipulated to a nine-year sentence consisting of two years for the burglary, doubled
under the Three Strikes law (§ 1170.12, subd. (c)(1)), plus five years for a prior serious
felony enhancement (§ 667, subd. (a)(1)). (Stamps, supra, 9 Cal.5th at p. 693.) In
exchange for the plea, two other counts of first degree burglary and a second prior serious
felony enhancement allegation were dismissed. (Ibid.)
At the time of sentencing, the trial court did not have discretion to strike the
serious felony enhancement imposed under section 667, subdivision (a)(1). (Stamps,
supra, 9 Cal.5th at p. 693.) However, while defendant’s appeal was pending, Senate Bill
No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) took effect, giving trial courts the
discretion to dismiss such enhancements. (Stamps, at p. 693.) On appeal, the defendant
argued that Senate Bill 1393 applied retroactively to his case and required a remand so
the trial court could decide whether to strike the serious felony enhancement, while
otherwise preserving the plea agreement. (Stamps, at p. 693.)
After concluding that the defendant was not required to obtain a certificate of
probable cause, and that Senate Bill 1393 applied retroactively to his case on appeal, the
Supreme Court turned to the question of remedy. (Stamps, supra, 9 Cal.5th at pp. 700-
709.) The court rejected the defendant’s argument that the proper remedy was to remand
the matter to the trial court to consider striking the serious felony enhancement, while
otherwise maintaining the balance of the negotiated plea agreement. (Id. at p. 700.)
Noting that the parties entered into a plea agreement for a specific prison term, the court
held that under long-standing law (see, e.g., § 1192.5), once a court has accepted the
terms of a plea agreement, it cannot modify the terms of that bargain without the
agreement of the parties. (Stamps, at pp. 700-701.) While recognizing that the
10
Legislature could authorize courts to modify or invalidate the terms of a plea agreement
without affording the People an option to rescind the agreement, the court found nothing
to demonstrate the Legislature intended Senate Bill 1393 to have that effect. (Stamps, at
pp. 702-704.)
In reaching its conclusion, the court distinguished Harris v. Superior Court (2016)
1 Cal.5th 984 (Harris), which held that the People are not entitled to withdraw from a
plea agreement when a defendant petitions to have a felony conviction recalled and
resentenced as a misdemeanor under Proposition 47 (enacted by the electorate Nov. 4,
2014). (Stamps, supra, 9 Cal.5th at pp. 702-704; see Harris, at p. 993.) In Harris, it was
undisputed that the defendant was entitled to have his conviction reduced and resentenced
as a misdemeanor under Proposition 47. (Harris, at p. 989.) The question before the
court was whether the People should be permitted to withdraw from the plea on the basis
that the resentencing would deprive them of the benefit of their bargain. (Id. at pp. 988-
989.) The court held that the answer to this question depended on the “intent behind
Proposition 47.” (Harris, at p. 991.) Based on “unambiguous language” that Proposition
47 applies to defendants convicted by plea, and the expressed intent of Proposition 47 to
reduce the number of nonviolent offenders in state prisons, the court concluded that the
Legislature intended to modify or invalidate the terms of plea agreements without
affording the People the option to withdraw from the agreement. (Harris, at pp. 992-
993.)
Unlike the legislation in Harris, the court noted that Senate Bill 1393 was “silent
regarding pleas.” (Stamps, supra, 9 Cal.5th at p. 704.) Further, the court held, allowing a
defendant to strike an enhancement under Senate Bill 1393 while otherwise retaining the
benefits of the bargain would frustrate the legislative intent to have the law apply
uniformly, by creating “special rules” for plea cases. (Stamps, at p. 704.) Thus, the court
held that Senate Bill 1393 was not intended “to change well-settled law that a court lacks
11
discretion to modify a plea agreement unless the parties agree to the modification.”
(Stamps, at p. 702.)
Rejecting the defendant’s argument that he should be permitted to “ ‘ “whittle
down the sentence ‘but otherwise leave the plea bargain intact’ ” ’ ” (Stamps, supra, 9
Cal.5th at p. 706), the court concluded in Stamps that the proper remedy is to give
defendant the choice whether to seek relief under Senate Bill 1393, knowing that if the
trial court exercises its discretion to strike the enhancement, the People (and the court)
will be entitled to withdraw their prior approval of the plea agreement. (Stamps, at pp.
706-709.)
In this case, the changes made by Senate Bill 136 limiting the prior offenses that
qualify for a prior prison term enhancement are similar to the changes made by Senate
Bill 1393 allowing courts to dismiss a serious felony enhancement in furtherance of
justice. Although Senate Bill 136 is mandatory, and the trial court’s authority under
Senate Bill 1393 is discretionary, both Stamps and Harris make clear that the key inquiry
is not whether legislation is mandatory or discretionary, but whether the Legislature
intended the legislation to overturn existing law that a court cannot modify an agreed-
upon term without the parties’ agreement. (Stamps, supra, 9 Cal.5th at pp. 701-705;
Harris, supra, 1 Cal.5th at pp. 991-992.) We conclude that Senate Bill 136 reflects no
such intent, as it 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.) Our interpretation does not nullify the legislative purpose
behind the ameliorative provisions of the legislation because the legislation was never
intended to overturn the “well-settled law” that a court lacks discretion to modify a plea
agreement without the parties’ consent. (Stamps, at p. 702.)
The two 1-year prior prison term enhancements were a material part of
defendant’s plea bargain, under which the People dismissed the remaining charges and
allegations and several other pending matters. As a result of the retroactive change in the
12
law, the prior prison term enhancements are no longer authorized and must be stricken.
Thus, we remand this matter to the trial court with directions to strike the enhancements,
allowing the People (and the court) the opportunity to withdraw their approval of the
plea.
DISPOSITION
The judgment is reversed and remanded to the superior court with directions to
strike the two 1-year prior prison term enhancements under section 667.5, subdivision
(b), and to allow the People and court the opportunity to withdraw their prior approval of
the plea agreement. Once the new judgment is entered, the trial court is directed to
prepare a new abstract of judgment, reflecting the new judgment, and forward a copy to
the Department of Corrections and Rehabilitation.
HULL, J.
I concur:
HOCH, J.
13
BLEASE, J., Concurring and Dissenting.
I agree with the majority that the claims in defendant’s supplemental brief are
without merit, and that Assembly Bill No. 1618 (2019-2020 Reg. Sess.) (Assembly Bill
1618) and Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) both apply
retroactively to this case. I do not agree that striking the prior prison term enhancements
pursuant to Senate Bill 136 gives the People the option of withdrawing from the plea.
A plea agreement generally does not insulate the parties from subsequent changes
in the law even if the change alters the terms of the agreement. Although the parties and
the trial court may not unilaterally alter the terms of a plea agreement, subsequent
statutory enactments or amendments may effectively alter its terms. (Doe v. Harris
(2013) 57 Cal.4th 64, 66 (Doe).) In California, the general rule is that plea agreements
will be “ ‘ “deemed to incorporate and contemplate not only the existing law but the
reserve power of the state to amend the law or enact additional laws for the public good
and in pursuance of public policy. . . .” ’ ” (Ibid.) “That the parties enter into a plea
agreement thus does not have the effect of insulating them from changes in the law that
the Legislature has intended to apply to them.” (Ibid.)
While parties may agree that a plea’s consequences will remain fixed
notwithstanding future changes in the law, prosecutorial and judicial silence on the issue
should not ordinarily be interpreted to be an implied promise that the defendant will not
be subject to an amended law. (Doe, supra, 57 Cal.4th at p. 71; id. at p. 73 [“the rule in
California is that a plea agreement’s reference to a statutory consequence attending a
conviction, even when coupled with prosecutorial and judicial silence on the possibility
the Legislature might amend the statute, does not give rise to an implied promise that the
defendant, by pleading guilty or nolo contendere, will be unaffected by a change in the
law”].) Thus, the fact that a change in the law may disadvantage one party or the other to
a plea agreement generally does not afford the disadvantaged party the right to revoke it.
(Harris v. Superior Court (2016) 1 Cal.5th 984, 991-993 (Harris).) A limited exception
1
to this latter rule applies where a subsequent change in the law completely eviscerates a
plea bargain by rendering a defendant no longer vulnerable to any punishment. (See
People v. Collins (1978) 21 Cal.3d 208, 214-215.) That exception does not apply here as
defendant is still subject to substantial punishment even after the two prison priors are
stricken.
The majority does not apply this general rule, instead giving the People the option
to withdraw from the plea based on People v. Stamps (2020) 9 Cal.5th 685 (Stamps).
Stamps is readily distinguished from the case before us, and cannot justify departure from
the rule that application of a change in the law does not allow a party to withdraw from a
plea agreement.
While it is true that the Supreme Court in Stamps held that the prosecution must be
given the opportunity to withdraw from a plea bargain if a defendant requests, and the
trial court was inclined, to exercise newly granted discretion to strike a prior serious
felony enhancement under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill
1393), the court did so based on well-settled law that limits the court’s unilateral
authority to strike an enhancement yet maintain other provisions of a plea bargain.
(Stamps, supra, 9 Cal.5th at pp. 700-701, 704-708.) The court reasoned that when
enacting Senate Bill 1393, the Legislature did not “intend[] to overturn long-standing law
that a court cannot unilaterally modify an agreed-upon term [of a plea agreement] by
striking portions of it under [Penal Code] section 1385.” (Stamps, at p. 701.) As the
court explained, “the remedy [the] defendant seeks, to allow the court to strike the serious
felony enhancement but otherwise retain the plea bargain, would frustrate the
Legislature’s intent to have [Penal Code] section 1385 apply uniformly, regardless of the
type of enhancement at issue, by granting the court a power it would otherwise lack for
any other enhancement.” (Id. at p. 704.) While the Supreme Court agreed that the
defendant should be given the opportunity to request that the trial court exercise its newly
granted discretion to strike the prior serious felony enhancement, it concluded the People
2
should be allowed to withdraw from the plea bargain if the trial court indicated its
inclination to exercise its discretion to strike the enhancement. (Id. at p. 707.)
Senate Bill 136, by contrast, confers no such discretion on trial courts. Instead, in
enacting Senate Bill 136, the Legislature declared that those who served a prior prison
term for offenses other than certain sexually violent offenses should no longer be subject
to the prior prison term enhancement under Penal Code1 section 667.5, subdivision (b).
Unlike in Stamps, where a trial court might choose to exercise discretion to unilaterally
change the terms of the plea bargain contrary to section 1192.5,2 the trial court here
would not unilaterally change the terms of the plea bargain—it would exercise no
discretion at all. Defendant’s plea agreement, which is deemed to incorporate changes in
the law such as Senate Bill 136 (Doe, supra, 57 Cal.4th at p. 73), simply would be
conformed to apply the new law by striking the now inapplicable enhancements (see
Harris, supra, 1 Cal.5th at pp. 990-991 [requiring parties to comply with changes in the
law made retroactive to them does not violate the terms of a plea agreement]).
Although Stamps distinguished Harris, the manner in which Harris was
distinguished does not support the result reached by the majority here. Stamps
summarized Harris’s treatment of Proposition 47 and its resentencing provision, section
1170.18, as follows: “The electorate thus evinced an intent that these offenses be treated
as misdemeanors no matter how or when a defendant suffered the conviction. As Harris
reasoned, to allow the prosecution, in response to a successful resentencing petition, to
withdraw from a plea agreement and reinstate dismissed charges would frustrate electoral
1 Undesignated statutory references are to the Penal Code.
2 Section 1192.5 allows a plea to “specify the punishment,” and further provides in
relevant part: “Where 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.”
3
intent to treat these offenses uniformly as misdemeanors, essentially denying meaningful
relief to those convicted through plea bargains. [Citation.]” (Stamps, supra, 9 Cal.5th at
p. 704.)
Stamps distinguished Harris through section 1192.5. “Similar considerations do
not apply here. Nothing 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. As
discussed, Senate Bill 1393’s amendment of section 1385 now allows a trial court to
strike a serious felony enhancement just as it may do with any other enhancement.
Unlike in Harris, the remedy defendant seeks, to allow the court to strike the serious
felony enhancement but otherwise retain the plea bargain, would frustrate the
Legislature’s intent to have section 1385 apply uniformly, regardless of the type of
enhancement at issue, by granting the court a power it would otherwise lack for any other
enhancement. That Senate Bill 1393 is silent regarding pleas and provides no express
mechanism for relief undercuts any suggestion that the Legislature intended to create
special rules for plea cases involving serious felony enhancements.” (Stamps, supra, 9
Cal.5th at p. 704.)
Section 1192.5 provides an essential context to understanding and applying
Stamps. Rather than creating a new exception to the rule that a party disadvantaged by a
change in the law cannot unilaterally withdraw from a plea agreement, Stamps simply
applied, through section 1192.5, well-established rules addressing the trial court’s
exercise of its discretion to alter the terms of the plea agreement. Although the
Legislature, through Senate Bill 1393, gave trial courts new authority to alter a plea
agreement by striking a serious felony enhancement, this legislation did not alter the
terms of any plea agreement. Only a trial court, through the exercise of its discretion to
strike the serious felony enhancement, may alter the terms of the plea agreement pursuant
to Senate Bill 1393. Stamps did no more than come to the unsurprising conclusion that
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section 1192.5 applied where a trial court chose to reject the plea and strike the serious
felony enhancement.
Since this case involves a legislative rather than a judicial alteration of a plea
agreement, the general rule applies and the People should not be allowed to withdraw
from the plea.
BLEASE, Acting P.J.
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