Filed 2/24/21 P. v. Washington 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C089530
Plaintiff and Respondent, (Super. Ct. No. 18FE020095)
v.
RAFPHAEL WASHINGTON,
Defendant and Appellant.
Defendant Rafphael Washington pleaded no contest to a number of charges related
to drunk driving and admitted he had served a prior prison term. In a separate case, he
pleaded no contest to misdemeanor spousal abuse. The trial court sentenced defendant to
serve an aggregate term of seven years, including a one-year enhancement for the prior
prison term.
1
The parties agree the one-year sentence enhancement imposed on defendant
pursuant to Penal Code section 667.5, subdivision (b),1 must be stricken because of
recently adopted legislation. Following the California Supreme Court’s decision in
People v. Stamps (2020) 9 Cal.5th 685, we requested supplemental briefing as to the
proper remedy.
We conclude that, by virtue of the retroactive change in the law, defendant’s one-
year enhancement is unauthorized and must be stricken. We reverse the judgment and
remand this matter to the trial court with directions to strike the one-year prior prison
term enhancement and resentence defendant.
Defendant also raised a number of claims related to sentencing and errors in the
abstract of judgment. In light of our conclusion and remand, we do not need to address
these claims.
BACKGROUND2
Defendant pleaded no contest to multiple Vehicle Code offenses and accepted the
trial court’s indicated sentence of seven years. The People objected to the indicated
sentence and sought the maximum possible sentence of eight years six months given
defendant’s history.
Specifically, defendant pleaded no contest to three felonies and two
misdemeanors: driving under the influence of alcohol with a prior similar conviction
within 10 years (Veh. Code, §§ 23152, subd. (a), 23550.5 – count one); driving with a
blood alcohol level of 0.15 percent or more with a prior similar conviction (Veh. Code,
§§ 23152, subd. (b), 23578, 23550.5 – count two); driving on a suspended license (Veh.
Code, § 14601.2, subd. (a) – count three); driving without ignition interlock device (Veh.
1 Undesignated statutory references are to the Penal Code.
2 The underlying substantive facts are not relevant to any issue on appeal and are
not recounted here.
2
Code, § 23247, subd. (e) – count four); and failing to stop at the scene of an accident
(Veh. Code, § 20002, subd. (a) – count five).
Three prior convictions were alleged: (1) Conviction for vehicular manslaughter
with gross negligence in 1987 (§ 192, subd. (c)(3)), a strike; (2) Conviction for robbery in
1979 (§ 211), a serious felony conviction and strike; and (3) driving under the influence
resulting in bodily injury in 2011, (Veh. Code, § 23153, subd. (a)), and having served a
prison term (§ 667.5, subd. (b).) Defendant admitted having sustained a prior serious
felony conviction for robbery (§§ 1192.7, subd. (c), 667, subds. (b)-(i), 1170.12) and
having served a prior prison term (§ 667.5, subd. (b)). In a separate case, defendant
pleaded no contest to misdemeanor domestic violence (§ 243, subd. (e)(1)).
In accordance with the plea, the trial court sentenced defendant to serve the upper
term of three years on count two, doubled for the prior strike, plus one year for the prior
prison term enhancement.3 The trial court also imposed various fines and fees.
Defendant filed a timely notice of appeal. The trial court denied defendant’s
request for a certificate of probable cause.
DISCUSSION
Senate Bill No. 136
In supplemental briefing, both parties agree the one-year prior prison term
enhancement must be stricken pursuant to the amendment to section 667.5, subdivision
3 As to the other counts and one prior serious felony conviction, the trial court
imposed and stayed, pursuant to section 654, the upper term for count one – driving
under the influence, and dismissed the prior serious felony conviction for vehicular
manslaughter under section 1385. On the misdemeanors, the trial court imposed and
stayed, pursuant to section 654, punishment on the conviction for driving on a suspended
license and leaving the scene of an accident. The trial court imposed a sentence of
140 days on the conviction for failing to have an ignition interlock device on his vehicle,
to be served concurrently with the 140-day sentence for misdemeanor spousal battery.
3
(b), by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1, eff. Jan. 1,
2020).
Signed by the Governor on October 8, 2019, and effective January 1, 2020, Senate
Bill No. 136 amends section 667.5, subdivision (b), to eliminate the one-year prior prison
term enhancement for most prior convictions. (Sen. Bill No. 136 (2019-2020 Reg. Sess.)
§ 1.) An exception, not applicable here, is made for a qualifying prior conviction on a
sexually violent offense, as defined in Welfare and Institutions Code section 6600,
subdivision (b).
Because Senate Bill No. 136 became effective before defendant’s judgment
becomes final, we agree with the parties that the amended law will apply to him
retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of
contrary legislative intent, ameliorative criminal statutes apply to all cases not final when
statute takes effect].) As a result of the retroactive change in the law, the prior prison
term enhancement is no longer authorized and must be stricken.
As to remedy, the parties have different approaches. Defendant contends the
remedy in People v. Collins (1978) 21 Cal.3d 208 is appropriate: to ensure both parties
receive the benefit of the plea agreement they bargained for, the prosecution may
reinstate charges if it so chooses and defendant’s exposure is limited to the term of the
original plea agreement. The People contend the case should be remanded to allow the
prosecution to either accept the reduction of the sentence or withdraw from the plea
agreement. We conclude neither proposed remedy is correct because this case does not
involve a negotiated plea agreement with a stipulated sentence. Rather, in this case,
defendant pleaded no contest to all counts and admitted prior convictions and accepted
the trial court’s indicated sentence. Because the trial court did not impose the maximum
sentence, we conclude the matter must be remanded to the trial court to strike the prior
prison term enhancement and resentence defendant.
4
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with
directions to strike the one-year prior prison term enhancement imposed pursuant to
Penal Code section 667.5, subdivision (b), and resentence defendant.
/s/
HOCH, J.
I concur:
/s/
BLEASE, Acting P. J.
I concur in the result:
/s/
MURRAY, J.
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