Filed 7/22/21 P. v. Mathis 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F080260, F080262
Plaintiff and Respondent,
(Super. Ct. Nos. 18CR-03247,
v. 17CR-03659)
RANDALL STEVEN MATHIS,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Paul C. Lo,
Judge.
Deanna L. Lopas, 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, Daniel B. Bernstein and Peter H.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Franson, J. and Smith, J.
Defendant Randall Steven Mathis entered a stipulated plea agreement that
included three one-year prior prison term enhancements. He contends on appeal that his
three enhancements 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 People agree. We strike defendant’s prior prison term enhancements. As
so modified, we affirm.
PROCEDURAL SUMMARY
On November 3, 2017, the Merced County District Attorney filed an information
in case No. 17CR-03659, charging defendant with burglary (§ 459; count 1). The
information further alleged defendant had served six prior prison terms (§ 667.5,
subd. (b)).
On January 10, 2018, pursuant to a stipulated plea agreement, defendant pled no
contest to count 1 and admitted having suffered three prior prison terms. The admitted
prior prison terms were served for 2008, 2010, and 2012 burglary convictions. In
exchange for his plea, the court struck the three remaining enhancement allegations and
indicated a six-year term of imprisonment, suspended pending defendant’s successful
completion of the Merced County drug treatment program.
On the same date, the trial court sentenced defendant to the stipulated sentence as
follows: on count 1, three years (the upper term) plus three one-year prior prison term
enhancements. The court suspended the sentence and granted defendant a term of
probation, requiring defendant to successfully complete a drug treatment program.
On July 5, 2018, the Merced County District Attorney filed a complaint in case
No. 18CR-03247, charging defendant with grand theft (§ 487; count 1).
On August 1, 2018, pursuant to a stipulated plea agreement, defendant pled no
contest to count 1 in case No. 18CR-03247. In exchange for his plea, the trial court
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
imposed a stipulated eight-month term (one-third of the middle term) to run
consecutively to the term imposed in case No. 17CR-03659, suspended the sentence, and
again granted defendant probation, requiring defendant to complete a drug treatment
program.
On August 30, 2019, defendant was terminated from drug court as a result of his
failure to successfully complete the drug treatment program. On October 23, 2019, the
trial court terminated defendant’s probation and imposed the previously suspended
sentences in case Nos. 18CR-03247 and 17CR-03659, for a total term of six years
eight months in prison.
On November 5, 2019, defendant filed a notice of appeal.
DISCUSSION2
Defendant argues his prior prison term enhancements must be stricken 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, 341–342, citing In re Estrada (1965)
63 Cal.2d 740, 742.)
Here, the trial court imposed three one-year section 667.5, subdivision (b) prior
prison term enhancements for terms served for three convictions for second degree
burglary (§ 459), which is not a sexually violent offense as defined in Welfare and
2 Because defendant raises only legal issues the facts underlying the offenses are not
relevant and are omitted from this opinion.
3.
Institutions Code section 6600, subdivision (b).3 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). Defendant’s
prior prison term enhancements must therefore be stricken.
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
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.) 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.
3 The stricken prior prison term allegations alleged defendant had served prior terms
of imprisonment for grand theft (§ 487), which is also not a sexually violent offense as
defined in Welfare and Institutions Code section 6600, subdivision (b).
4.
(Barton, at p. 1156; People v. Hernandez (2020) 55 Cal.App.5th 942, 957, review granted
Jan. 27, 2021, S265739 (Hernandez).)4
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 People v. Stamps (2020) 9 Cal.5th 685, 695–696 (Stamps); Harris v. Superior Court
(2016) 1 Cal.5th 984, 991; 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 a 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 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.)
As we explained in Hernandez, 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.” (Hernandez,
4 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.”].) A defendant 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.
supra, 55 Cal.App.5th at p. 954; People v. Griffin (2020) 57 Cal.App.5th 1088, review
granted Feb. 17, 2021, S266521; People v. Joaquin (2020) 58 Cal.App.5th 173, review
granted Feb. 24, 2021, S266594; see Stamps, supra, 9 Cal.5th at p. 704.)5 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,
remand to allow the People and the trial court the opportunity to rescind approval for the
plea agreement is required unless (1) the maximum possible sentence was imposed on all
counts, or (2) the trial court and the People would certainly have approved the plea
agreement on the terms that remain after the prior prison term enhancements are stricken.
(See People v. Buycks, supra, 5 Cal.5th at p. 896, fn. 15; People v. Jones (2019) 32
Cal.App.5th 267, 273; People v. Bell (2020) 47 Cal.App.5th 153, 199.)
In the case at bar, defendant pled no contest to all offenses charged in case
Nos. 18CR-03247 and 17CR-03659 and was sentenced to the maximum possible
sentence—three years (the upper term) for burglary (§ 459) and a consecutive term of
eight months (one-third the middle term) (§ 1170.1, subd. (a)) for grand theft (§ 487).
While we would normally remand to the trial court for further proceedings consistent
5 A different conclusion was reached in People v. France (2020) 58 Cal.App.5th
714 (review granted Feb. 24, 2021, S266771). The France court reasoned that because
courts do not have discretion regarding whether to strike prior prison term enhancements
under Senate Bill 136, the Legislature intended trial courts to strike prior prison term
enhancements imposed as part of a negotiated plea while leaving the other terms intact.
(France, at pp. 729–730 & p. 729, fn. 6 [“[I]t matters very much whether a court makes a
discretionary change to a plea bargain (as in Stamps[, supra, 9 Cal.5th 685]) or the
Legislature makes a change in the law that necessarily affects the bargain (as here).”].)
We respectfully disagree as we explained in Hernandez. (Hernandez, supra, 55
Cal.App.5th at pp. 957–958.)
6.
with Hernandez and Stamps, remand to the trial court to permit the People or the trial
court to rescind approval for the plea agreement would be futile. We therefore strike the
prior prison term enhancements without remanding to the trial court for further
proceedings.
DISPOSITION
Defendant’s prior prison term enhancements (§ 667.5, subd. (b)) are stricken. The
trial court is directed to prepare an amended abstract of judgment, reflecting that the prior
prison term enhancements have been stricken. The court shall forward a copy of the
amended abstract of judgment to the appropriate entities. As so modified, the judgment
is affirmed.
7.