Filed 4/16/21 P. v. Hansen 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F080006
Plaintiff and Respondent,
(Super. Ct. No. CR-19-005448)
v.
RAYMOND HANSEN, JR., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy
Ashley, Judge.
Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance A. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian
Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Before Levy, Acting P.J., Franson, J. and Peña, J.
INTRODUCTION
Defendant Raymond Hansen, Jr., entered into a negotiated plea agreement in
which he pled no contest to felony hit and run with injury (Veh. Code, § 20001, subd. (a);
count I) and admitted a prior prison term enhancement (Pen. Code, § 667.5, former subd.
(b)). (Undesignated statutory references are to the Penal Code.) Pursuant to the
agreement, the court sentenced defendant to a stipulated term of four years plus a
consecutive one-year term for the prior prison term enhancement, for a total term of five
years. After defendant was sentenced, the Legislature enacted Senate Bill No. 136
(2019–2020 Reg. Sess.) (Senate Bill 136), which provides a prior prison term
enhancement will only apply if a defendant served the prior prison term for a qualifying
“sexually violent offense” as that phrase is defined in Welfare and Institutions Code
section 6600, subdivision (b).
On appeal, defendant asks us to apply Senate Bill 136 retroactively and strike his
prior prison term enhancement. The People agree defendant’s prior prison term
enhancement should be stricken pursuant to Senate Bill 136 and they assert, because
defendant received the maximum possible sentence for his conviction and he admitted no
enhancements other than the now-invalid prison prior, remand is not necessary for
resentencing.
We agree the prior prison term enhancement is no longer authorized and must be
stricken but conclude remand is necessary for further proceedings consistent with this
opinion and People v. Stamps (2020) 9 Cal.5th 685 (Stamps).
FACTUAL BACKGROUND
Defendant was charged with felony hit and run with injury in violation of Vehicle
Code section 20001, subdivision (a) (count I), three serious felony strike priors pursuant
to section 667, subdivision (d), and a one-year prison prior enhancement under section
667.5, former subdivision (b). He was also charged with misdemeanor manslaughter in
violation of section 192, subdivision (c)(2) in count II.
2.
On June 20, 2019, defendant entered a negotiated plea agreement in which he pled
no contest to felony hit and run with injury in violation of Vehicle Code section 20001,
subdivision (a) (count I) with the understanding his section 667, subdivision (d) strike
priors would be stricken. He also admitted the section 667.5, former subdivision (b) prior
prison term enhancement. As part of the stipulated plea agreement, the People dismissed
count II for misdemeanor vehicular manslaughter in violation of section 192, subdivision
(c)(2), and defendant was sentenced to the Department of Corrections and Rehabilitation
for a term of four years on count I plus an additional consecutive one-year term for the
prior prison term enhancement, for a total of five years’ imprisonment.
DISCUSSION
In his sole issue on appeal, defendant argues the prior prison term enhancement
imposed pursuant to section 667.5, former subdivision (b) must be stricken in light of
Senate Bill 136, which was signed into law on October 8, 2019, and became effective on
January 1, 2020. He argues if we determine striking the one-year enhancement would
invalidate the plea, the matter should be remanded to allow the court to fashion a
resentence in accordance with applicable statutes and rules, provided the aggregate term
does not exceed the stipulated sentence. Relatedly, he asserts our court has jurisdiction to
alter the terms of a negotiated plea bargain when an ameliorative statute is enacted,
particularly where, as here, a defendant’s sentence includes an enhancement that is no
longer authorized. He asserts the issue can be raised on appeal without a certificate of
probable cause but, regardless, he sought and the court granted a certificate of probable
cause. The People concede Senate Bill 136 applies retroactively to this case and the
prison prior enhancements should be stricken. (See In re Estrada (1965) 63 Cal.2d 740,
742.) They also assert, because defendant received the maximum possible sentence for
his conviction and he admitted no enhancements other than the now-invalid prison prior,
remand was not necessary for resentencing.
3.
At the time defendant was charged, convicted, and sentenced, section 667.5,
former subdivision (b) provided, in part:
“[W]here the new offense is any felony for which a prison 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 or county jail term imposed under subdivision (h)
of Section 1170 or when sentence is not suspended for any felony ….”
After defendant was sentenced, but while his case was still pending on appeal, the
Legislature enacted Senate Bill 136 (Stats. 2019, ch. 590, § 1). Effective January 1,
2020, section 667.5, subdivision (b) now provides, in pertinent part:
“[W]here the new offense is any felony for which a prison 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 ….”
In other words, a prior prison term enhancement will now only apply if a defendant
served the prior prison term for a qualifying “sexually violent offense.” The Legislature
did not expressly declare or in any way indicate it did not intend Senate Bill 136 to apply
retroactively. “When an amendatory statute … lessens the punishment for a crime …, it
is reasonable for courts to infer, absent evidence to the contrary and as a matter of
statutory construction, that the Legislature intended the amendatory statute to
retroactively apply to the fullest extent constitutionally permissible—that is, to all cases
not final when the statute becomes effective. [Citations.]” (People v. Garcia (2018) 28
Cal.App.5th 961, 972.) Thus, we conclude, and the parties agree, Senate Bill 136 applies
retroactively to this case and, because defendant’s prior prison term was not served for a
sexually violent offense as that phrase is defined in Welfare and Institutions Code section
6600, subdivision (b), the related enhancement imposed pursuant to section 667.5, former
subdivision (b) has been rendered invalid and must be stricken. (See People v.
4.
Hernandez (2020) 55 Cal.App.5th 942, 956–957, review granted Jan. 27, 2021, S265739
(Hernandez); accord, People v. Barton (2020) 52 Cal.App.5th 1145, 1159.)
We next consider the appropriate remedy. After briefing in this case was
completed, the California Supreme Court issued its ruling in Stamps, supra, 9 Cal.5th
685, which considered the impact of Senate Bill No. 1393 (2017–2018 Reg. Sess.)
(Senate Bill 1393)—allowing 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, at pp. 700–708.) The Stamps court analyzed
Senate Bill 1393’s legislative history and concluded it did “not demonstrate any intent to
overturn existing law regarding a court’s lack of authority to unilaterally modify a plea
agreement” or “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.” (Id. at pp.
702, 704.) Accordingly, Stamps held a defendant who entered into a negotiated plea
agreement can seek the court’s exercise of its discretion pursuant to Senate Bill 1393’s
amendments to sections 667, subdivision (a), and 1385. (Stamps, at p. 706.) If the court
exercises its discretion to dismiss a prior serious felony enhancement, the prosecution
may agree to modify the plea bargain to reflect the downward departure in the sentence
such exercise would entail. (Id. at p. 707.) However, “[b]arring such a modification
agreement, ‘the prosecutor is entitled to the same remedy as the defendant—withdrawal
of assent to the plea agreement ….’ [Citation.]” (Ibid.) Additionally, the court may
withdraw its prior approval of the plea agreement. (Id. at p. 708.)
In Hernandez, supra, 55 Cal.App.5th 942, our court held that, like Senate Bill
1393, Senate Bill 136’s legislative history also reveals no intent by the Legislature to
permit the trial court to unilaterally modify a plea agreement once a prior prison term
enhancement is stricken. (Hernandez, supra, at p. 958, review granted; accord, Stamps,
supra, 9 Cal.5th at pp. 702, 704; People v. Barton, supra, 52 Cal.App.5th at pp. 1156–
1157, 1159.) Accordingly, when a prior prison term enhancement is no longer authorized
5.
pursuant to Senate Bill 136, but it was part of a negotiated plea agreement, the trial court
must dismiss the enhancement. (Hernandez, supra, at p. 958.) However, the trial court
cannot unilaterally modify the plea agreement by keeping the remainder of the bargain
intact. (Id. pp. 958–959.) Rather, once the trial court dismisses the prior prison term
enhancement, the People may then either agree to modify the bargain to reflect the
downward departure in the sentence or choose to withdraw from the original plea
agreement. (Id. at pp. 958–960.) Additionally, the court may withdraw its prior approval
of the plea agreement. (Id. at p. 960.)
Although we recognize review has been granted, we see no reason to depart from
our analysis and conclusion in Hernandez. Thus, while we agree defendant’s prior prison
term enhancement is now unauthorized and must be stricken, we conclude remand is
appropriate. “[O]n remand, the trial court must dismiss the prior prison term
enhancement[]. ‘[T]he prosecution may … agree to modify the bargain to reflect the
downward 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 ….” [Citation.] [¶] Further, the
court may withdraw its prior approval of the plea agreement.’” (Hernandez, supra, 55
Cal.App.5th at p. 960, review granted; accord, Stamps, supra, 9 Cal.5th at pp. 707–708.)
The parties may then enter into a new plea agreement, which will be subject to the trial
court’s approval, or they may proceed to trial on the reinstated charges. (People v.
Barton, supra, 52 Cal.App.5th at p. 1159.)
DISPOSITION
The judgment is reversed and remanded to the superior court with directions to
strike defendant’s admission and the consecutive one-year term imposed for the section
667.5, former subdivision (b) prior prison term enhancement, and for further proceedings
consistent with Stamps, supra, 9 Cal.5th 685.
6.