People v. Barton

• Citation: 52 Cal.App.5th 1145,266 Cal.Rptr.3d 742
• Decision Date: 04 August 2020
• Docket Number: F076599
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Deanna Twilla BARTON, Defendant and Appellant.

52 Cal.App.5th 1145

266 Cal.Rptr.3d 742

The PEOPLE, Plaintiff and Respondent,

v.Deanna Twilla BARTON, Defendant and Appellant.

F076599

Court of Appeal, Fifth District, California.

Filed August 4, 2020

Linnéa M. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Catherine Chatman, and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

PEÑA, J.

Deanna Twilla Barton (defendant) pleaded guilty to furnishing methamphetamine ( Health & Saf. Code, § 11379, subd. (a) ) and maintaining a place for the sale of a controlled substance (id. , § 11366). (Undesignated statutory references are to the Health and Safety Code.) For enhancement purposes, she admitted to having twice been convicted of violating section 11379. As part of the plea agreement, defendant waived her appeal rights. In return, additional charges were dismissed and she received a stipulated prison sentence of eight years eight months, which included a pair of three-year enhancements for the drug-related priors (see former § 11370.2, subd. (c)).

Defendant entered her plea on September 25, 2017. She was sentenced on October 23, 2017. In the interim, on October 11, 2017, Governor Brown approved Senate Bill No. 180 (2017–2018 Reg. Sess.) (Senate Bill 180), which went into effect on January 1, 2018. The legislation amended section 11370.2 by eliminating its three-year enhancements for most drug-related prior convictions.

In an earlier opinion, we determined the waiver of appeal rights precluded defendant from challenging the legality of the stipulated sentence. Defendant petitioned the California Supreme Court for review, the petition was granted, and the matter was transferred back to this court. We have been instructed to reconsider the cause in light of Assembly Bill No. 1618 (2019–2020 Reg. Sess.) (Assembly Bill 1618), which added Penal Code section 1016.8. As of January 1, 2020, "[a] provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments ... that may retroactively apply after the date of the plea is void as against public policy." ( Pen. Code § 1016.8, subd. (b) ; see Stats. 2019, ch. 586.)

Relying on the " Estrada rule" (see In re Estrada (1965) 63 Cal.2d 740, 748, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada )), defendant contends Senate Bill 180 is retroactive and thus invalidates the portion of her sentence imposed under former section 11370.2. She alleges the proper remedy is to vacate the enhancements and leave the remainder of her plea agreement intact—except for the waiver of her appeal rights. Defendant argues the waiver provision is void by retroactive application of Assembly Bill 1618. The People concede Senate Bill 180 and Assembly Bill 1618 apply retroactively to this case, but they argue defendant's remedy is to be resentenced within the confines of the plea agreement. The People assume the trial court must strike the invalid enhancements but can impose any punishment allowable for the crimes to which defendant pleaded guilty.

We agree with the parties on the issues of retroactivity. However, as to remedy, we will follow the analytical approach this court used in People v. Ellis (2019) 43 Cal.App.5th 925, 257 Cal.Rptr.3d 79, which recently received approval by the California Supreme Court in People v. Stamps (2020) 9 Cal.5th 685, 706–707, 264 Cal.Rptr.3d 769, 467 P.3d 168 ( Stamps ). In Stamps , the court observed a trial court cannot alter the terms of a plea bargain by changing the length of a stipulated sentence without the parties' mutual consent. The Stamps opinion addressed the issue in a slightly different context, but we conclude its holding applies here. The trial court " ‘may not proceed as to the plea other than as specified in the plea’ without the consent of the parties." ( Id. at p. 704, 264 Cal.Rptr.3d 769, 467 P.3d 168, quoting Pen. Code, § 1192.5.) Furthermore, even if both parties assent to a modification, the trial court has " ‘near-plenary’ " authority under Penal Code section 1192.5 to withdraw its approval of the agreement. ( Stamps , at p. 708, 264 Cal.Rptr.3d 769, 467 P.3d 168.)

The parties' proposed remedies contemplate unilateral changes to a material term of the plea agreement and impliedly disavow the trial court's ability to withdraw its approval of the same in light of changed circumstances. As explained herein, the proposals must be rejected unless the Legislature intended for Senate Bill 180 to override the strictures of Penal Code section 1192.5. The legislative history discloses no such intent.

By retroactive application of Senate Bill 180, certain terms of the plea agreement are no longer authorized by law. The parties can modify the agreement to eliminate the provisions involving former section 11370.2, which would be the functional equivalent of having the trial court strike the enhancements, but the court is not obligated to approve the agreement as so modified. The parties can also renegotiate the agreement, subject to the trial court's approval, or they can proceed to trial on reinstated charges. Therefore, we reverse the judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises from events occurring while defendant's son was incarcerated at the Sierra Conservation Center in Tuolumne County. Defendant was reportedly "involved in preparing cards laced with methamphetamine and then placing those cards into the US mail to be sent to the [prison]." On February 7, 2015, she was found in possession of methamphetamine and a "meth pipe" while attempting to visit her son. On the same date, law enforcement officers executed a search warrant at her residence and seized "over 240 grams of methamphetamine ... plus a scale."

Defendant was charged with possession of methamphetamine in a prison facility ( Pen. Code, § 4573.6 ; count I), conspiracy to send methamphetamine into a prison via mail (id. , §§ 182, subd. (a)(1), 4573; count II), furnishing methamphetamine in violation of Health and Safety Code section 11379 (count III), maintaining a place for the sale of methamphetamine in violation of section 11366 (count IV), bringing a controlled substance and associated paraphernalia into a prison facility ( Pen. Code, § 4573 ; count V), and furnishing methamphetamine to a person held in custody (id. , § 4573.9; count VI). In relation to count III and for purposes of Health and Safety Code former section 11370.2, defendant was alleged to have suffered two prior convictions under section 11379. She was further alleged to have served a prior prison term. (Pen. Code, former § 667.5, subd. (b)).

In exchange for defendant's guilty plea as to counts III and IV, plus admission of the prior conviction allegations and a waiver of her appeal rights, the People agreed to dismiss all remaining charges and stipulate to a fixed prison sentence of eight years eight months. The trial court accepted the agreement and found defendant had knowingly and voluntarily entered her pleas and waived her rights. Defendant was sentenced to the specified prison term, which was calculated using the lower term of two years for count III, plus eight months for count IV, and two consecutive three-year enhancements under former section 11370.2, subdivision (c).

Three weeks after she was sentenced, defendant filed a notice of appeal. By subsequent order of this court, a certificate of probable cause was deemed to have been timely filed. In People v. Barton (2019) 32 Cal.App.5th 1088, 244 Cal.Rptr.3d 489 ( Barton I ), we dismissed the appeal based on defendant's waiver of her appellate rights.

In October 2019, while the case was pending before the California Supreme Court, the governor approved Assembly Bill 1618. (Stats. 2019, ch. 586.) Soon thereafter, the People moved to have the case transferred back to this court. On January 2, 2020, the California Supreme Court granted the motion and ordered the transfer, directing us to vacate Barton I and reconsider the cause in light of Assembly Bill 1618. At our request, the parties filed supplemental briefing on (1) the impact of Assembly Bill 1618 and (2) the appropriate remedy in the event of a remand based on retroactive application of Senate Bill 180.

DISCUSSION

Senate Bill 180

Senate Bill 180 eliminated the enhancement provisions upon which the bulk of defendant's sentence was based. (§ 11370.2, subd. (c); Stats. 2017, ch. 677, § 1.) In her words, the stipulated prison term was lawful when she executed the plea agreement, but it "became unauthorized after the sentencing." Since the new law took effect while her case was on appeal, defendant claims entitlement to its benefits.

Absent evidence to the contrary, it is presumed the Legislature intends for statutory amendments that reduce the punishment for a crime to apply retroactively in cases where the judgment is not final on the statute's operative date. ( People v. Brown (2012) 54 Cal.4th 314, 323, 142 Cal.Rptr.3d 824, 278 P.3d 1182 ; Estrada, supra , 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.) "The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses." ( People v. Nasalga (1996) 12 Cal.4th 784, 792, 50 Cal.Rptr.2d 88, 910 P.2d 1380.) Accordingly, and based on recent case law, we accept the People's concession that Senate Bill 180 applies retroactively in this case. ( People v. McKenzie (2020) 9 Cal.5th 40, 45-48, 51, 259 Cal.Rptr.3d 224, 459 P.3d 25 ; People v. Millan (2018) 20 Cal.App.5th 450, 455–456, 228 Cal.Rptr.3d 647.)

Assembly Bill 1618

Assembly Bill 1618 added section 1016.8 to the Penal Code. (Stats. 2019, ch. 586, § 1.) The statute codifies the holding of Doe v. Harris (2013) 57 Cal.4th 64, 158 Cal.Rptr.3d 290, 302 P.3d 598, i.e., "that the...