Filed 6/25/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B305655
(Super. Ct. No. 18F-04895)
Plaintiff and Respondent, (San Luis Obispo County)
v.
ANTHONY STEVEN
RUGGERIO, JR.,
Defendant and Appellant.
Anthony Steven Ruggerio, Jr., appeals from the trial
court’s order denying his motion to strike the one-year prior
prison term enhancement (Pen. Code,1 § 667.5, subd. (b)) from his
state prison sentence. He contends the court should have
granted his motion because Senate Bill No. 136 (S.B. 136) applies
retroactively to cases, like his, that are not yet final. We conclude
that a judgment imposing but suspending execution of a sentence
is not final for purposes of S.B. 136 retroactivity where, as here, a
defendant “may still timely obtain direct review of [the] order
revoking probation and causing the state prison sentence to take
1 Statutory references are to the Penal Code.
effect.” (People v. Esquivel (June 17, 2021, S262551) __ Cal.5th
__, __ (Esquivel) [p. 1].) We accordingly vacate the order denying
Ruggerio’s motion and remand.
FACTUAL AND PROCEDURAL HISTORY
In 2017, prosecutors charged Ruggerio with domestic
violence (§ 273.5, subd. (a)), assault with force likely to cause
great bodily injury (§ 245, subd. (a)(4)), and battery (§ 242). They
also alleged that Ruggerio had previously served a term in state
prison. Ruggerio pled guilty to the domestic violence charge and
admitted the prison prior in exchange for a five-year state prison
sentence (four years on the conviction plus one year on the prison
prior) and dismissal of the remaining two charges. The trial
court accepted the plea, imposed the agreed-upon sentence,
suspended its execution, and ordered Ruggerio to serve five years
of formal probation.
Three years later, Ruggerio admitted that he violated
the terms of probation. The trial court revoked probation and
ordered the execution of the five-year prison sentence. The court
denied Ruggerio’s motion to strike the one year imposed for his
prison prior, concluding that his case was already final when S.B.
136 took effect.
DISCUSSION
When the trial court sentenced Ruggerio in 2017,
section 667.5, subdivision (b), required it to add one year to his
sentence because of his prior prison term. (People v. Jennings
(2019) 42 Cal.App.5th 664, 681 [enhancement mandatory unless
stricken].) The Legislature subsequently enacted S.B. 136 (2019-
2020 Reg. Sess.), which, effective January 1, 2020, limits the
applicability of prior prison term sentence enhancements to
terms served for sexually violent offenses. (See Stats. 2019, ch.
2
590, § 1; Jennings, at p. 681.) S.B. 136’s provisions apply
retroactively to cases that are not yet final on appeal.
(Jennings, at pp. 681-682.)
Ruggerio did not serve his prior prison term for a
sexually violent offense. His case is not final. (Esquivel, supra,
__ Cal.5th at pp. __ [pp. 1, 7-9, 13].) He is therefore entitled to
take advantage of the ameliorative provisions of S.B. 136.
(People v. Andahl (2021) 62 Cal.App.5th 203, 210-211, review
granted June 16, 2021, S268336 (Andahl); People v. France
(2020) 58 Cal.App.5th 714, 718-723, review granted Feb. 24,
2021, S266771 (France).)
But the proper remedy is not to order the trial court
to strike the prison prior and let Ruggerio serve the remaining
four years of his sentence, as he contends. Nothing in the
legislative history of S.B. 136 suggests that the Legislature
intended that the bill permit defendants to “‘“whittle down [their]
sentence[s] ‘but otherwise leave [their] plea bargain[s] intact.’”’”
(People v. Stamps (2020) 9 Cal.5th 685, 706 (Stamps); see France,
supra, 58 Cal.App.5th at pp. 731-734 (conc. & dis. opn. of Pollak,
P. J.), review granted; People v. Joaquin (2020) 58 Cal.App.5th
173, 176-179, review granted Feb. 24, 2021, S266594; People v.
Griffin (2020) 57 Cal.App.5th 1088, 1093-1096, review granted
Feb. 17, 2021, S266521 (Griffin); People v. Hernandez (2020) 55
Cal.App.5th 942, 957-959, review granted Jan. 27, 2021, S265739
(Hernandez).) Such a remedy “would result in the court making
‘unilateral changes to a material term of the plea agreement’
without the consent of the prosecution,” something not permitted
under California law. (Hernandez, at p. 957; see § 1192.5.) We
disagree with our colleagues who have reached a contrary
conclusion. (See Andahl, supra, 62 Cal.App.5th at pp. 212-215,
3
review granted; France, supra, 58 Cal.App.5th at pp. 727-730,
review granted.)
Instead, on remand, the trial court must dismiss the
one-year sentence enhancement imposed for Ruggerio’s prior
prison term. (Hernandez, supra, 55 Cal.App.5th p. 958, review
granted.) The court may then wish to withdraw its approval of
the plea agreement. (Stamps, supra, 9 Cal.5th at pp. 706-707.)
Prosecutors, too, may wish to withdraw from the agreement. (Id.
at p. 707.) Or perhaps they will “agree to modify the bargain to
reflect [Ruggerio’s preferred] downward departure in [his]
sentence,” and the court will approve the new plea. (Ibid.)
However the new plea is reached (if at all), it may not include a
sentence longer than the five-year term in Ruggerio’s original
plea.2 (Griffin, supra, 57 Cal.App.5th at pp. 1097-1099, review
granted; see People v. Collins (1978) 21 Cal.3d 208, 216-217.)
DISPOSITION
The trial court’s April 15, 2020, order denying
Ruggerio’s motion to strike the one-year sentence enhancement
2 We reject the Attorney General’s argument that the trial
court may impose a post-plea sentence longer than that Ruggerio
originally bargained for. Such “vindictiveness” would run counter
to the Legislature’s ameliorative purpose in enacting S.B. 136
and would have a “chilling effect on the right to appeal.” (People
v. Hanson (2000) 23 Cal.4th 355, 366.) That said, nothing in this
opinion should be read as considering “a situation where the
parties fail to enter into a new plea agreement . . . and [Ruggerio]
is convicted at trial.” (Griffin, supra, 57 Cal.App.5th at p. 1097,
fn. 6, review granted.) “Whether the . . . court could [then]
sentence [Ruggerio] to a term in excess of the originally agreed
upon sentence, and what circumstances might affect that
determination, are questions well beyond the scope of the present
appeal.” (Ibid.)
4
imposed pursuant to section 667.5, subdivision (b), is vacated,
and the matter is remanded with directions to strike the
enhancement from Ruggerio’s sentence and proceed in a manner
consistent with this opinion.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
5
Matthew G. Guerrero, Judge
Superior Court County of San Luis Obispo
______________________________
Arielle Bases, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Michael R. Johnsen and
David W. Williams, Deputy Attorneys General, for Plaintiff and
Respondent.