Filed 4/21/21 P. v. McLarney CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077473
Plaintiff and Respondent,
v. (Super. Ct. No. SCD277868)
RYAN P. MCLARNEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Laura W. Halgren, Judge. Sentence modified and case remanded with
directions.
Neil Auwarter, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and
Respondent.
Ryan P. McLarney pleaded guilty to violating a domestic restraining
order with a previous conviction within seven years (Pen. Code,1 § 166,
subds. (c)(1) & (4)). He admitted three prison priors (§ 667.5, subd. (b)). As
part of the agreement, the prosecutor agreed to dismiss the alleged strike
prior (§ 667, subds.(b)-(i)) and to not oppose local time as a condition of
probation with 365 days in local custody.
McLarney failed to appear for sentencing. When he was later brought
to court, the trial judge denied probation and sentenced McLarney to a term
of six years in prison (the three-year upper term, plus three years for the
prison priors).
McLarney made a subsequent motion to strike the prison priors
pursuant to Senate Bill No. 136. The trial court denied the motion. In June
2020, this court granted McLarney’s request for a constructive notice of
appeal. McLarney filed an appeal from the order denying his motion to strike
the prison priors.
In this appeal, the parties properly agree the prison priors are now
invalid following the enactment of Senate Bill No. 136 and that they must be
stricken. They disagree as to the manner in which this court handles the
striking of the priors. McLarney argues we should simply strike the priors,
modify the sentence, and affirm as modified. The People argue we should
remand the case to the trial court with directions to strike the priors and to
allow the People to withdraw from the plea agreement if they choose to do so.
We opt for a different approach.
As we will discuss below, the law is unsettled as to the ability of the
People or the court to withdraw from a plea agreement when a post-
1 All further statutory references are to the Penal Code.
2
sentencing law change reduces the punishment that the court imposed based
on the plea agreement.
DISCUSSION2
The parties properly agree the court must strike the three prison priors
in light of subsequent legislative changes. Accordingly, we will not discuss
the state of the law regarding prison priors. The issue in this appeal is what
is the proper remedy for the change in the status of such priors.
The People contend the court should remand the case to the trial court
with directions to strike the three prison priors and to allow the District
Attorney to withdraw from the plea agreement if that office deems it
appropriate. The People rely on People v. Hernandez (2020) 55 Cal.App.5th
942, 946 (Hernandez), review granted January 27, 2021, S265739, among
other cases for the proposition that postjudgment law changes that reduce
the sentences for persons who have pleaded guilty should allow the
prosecutor or the court to withdraw from the plea agreement.
McLaney, on the other hand, argues we should simply strike the prison
priors, modify the judgment, and affirm. McLarney relies on a different line
of cases holding such postjudgment law changes benefitting defendants, do
not trigger a right of the court or the prosecutor to withdraw from the plea
agreement. (People v. Matthews (2020) 47 Cal.App.5th 857; People v. France
(2020) 58 Cal.App.5th 714, review granted Feb. 24, 2021, S266771.)
The Attorney General’s reliance on Hernandez is questionable in this
case. In Hernandez, the parties stipulated to the sentence and the court
accepted the limitation on its sentencing power (§ 1192.5). In this case, the
prosecution did not oppose local time as a condition of probation, with only
2 The facts of the underlying crime are not relevant to the resolution of
this appeal. We have omitted the usual statement of facts.
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the stipulation to 365 days in local custody. Because of McLarney’s failure to
appear for sentencing, the trial court denied probation and imposed the six-
year term. There was never a stipulation to a prison term.
We find the question of the District Attorney’s right to withdraw from
the plea agreement on remand to be entirely speculative. We understand the
Attorney General is seeking our approval of the proposition the prosecutor
should have the right to withdraw. There has not been such a request from
the District Attorney.
We note the prosecution was content to settle for a probationary
sentence rather than take the case to trial. If the prosecutor is allowed to
withdraw from the agreement, then McLarney would be entitled to a jury
trial. The three-year upper term imposed by the trial court is already greater
punishment than that for which the prosecution had bargained. It is not at
all clear the prosecutor would seek to withdraw from the agreement that
produced a greater sentence than the People originally accepted. In short, we
decline to weigh in on an uncertain body of law where it is somewhat
doubtful the issue will arise on remand.
We think the better approach here is to remand with directions to
strike the priors and to allow the parties on remand to bring such motions as
they deem appropriate. If there is no withdrawal from the guilty plea
agreement, the court should enter a modified judgment reflecting the reduced
sentence. If the parties bring motions with regard to the plea agreement, we
are confident the trial court will examine such motions carefully and apply
the law appropriately. If motions regarding the plea are brought on remand,
we express no opinion regarding the merits of any challenge to the
agreement.
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DISPOSITION
The sentence is vacated. The case is remanded to the trial court with
directions to strike the three prison priors alleged under section 667.5,
subdivision (b). The court shall permit the parties to bring such motions
regarding the sentence as they deem appropriate. We express no opinion
regarding the appropriate ruling on such motions. If the court declines to set
aside the plea agreement then the court shall impose judgment consistent
with the views expressed in this opinion and amend the abstract of judgment
to reflect the modified sentence.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
DO, J.
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