People v. Brunsvik

• Decision Date: 17 September 2021
• Docket Number: C093014
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS CRAIG BRUNSVIK, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS CRAIG BRUNSVIK, Defendant and Appellant.

C093014

California Court of Appeals, Third District, Shasta

September 17, 2021

NOT TO BE PUBLISHED

Super Ct. No. 18F2009

Robie J.

Defendant Nicholas Craig Brunsvik pled no contest to receiving stolen property and resisting a peace officer and admitted a prior prison term under Penal Code^[1] section 667.5 subdivision (b). The plea agreement included a stipulated sentence of four years, split into six months in county jail followed by a three-year, six-month term of mandatory supervision. Defendant ultimately violated the terms of his mandatory supervision and the court ordered him to serve the remainder of the term in custody. Defendant now appeals asserting the one-year prior prison term enhancement must be stricken because of recently adopted Senate Bill No. 136 (2019-2020 Reg. Sess.). Under the circumstances of this case we will modify the judgment to strike the enhancement.

FACTUAL AND PROCEDURAL BACKGROUND

The prosecution charged defendant with one count of receiving stolen property and two counts of misdemeanor resisting a peace officer. The prosecution also alleged defendant had served a prior prison term for a 2012 conviction for evading a peace officer. Defendant pled no contest to the receiving stolen property count and one resisting a peace officer count and admitted the prior prison term allegation. The court dismissed the outstanding count, along with two other misdemeanor cases, consistent with the plea agreement.

At the sentencing hearing, in December 2018, the court imposed the agreed-upon sentence of four years, including the upper term of three years for the receiving stolen property count, one year for the prior prison term enhancement, and 180 days to run concurrently, for the resisting a peace officer count. The four-year term was split into a six-month term in custody and three years six months on mandatory supervision. Defendant did not file a notice of appeal.

Defendant eventually admitted two violations of the terms of his mandatory supervision. In October 2020, the court remanded defendant into custody and ordered defendant to serve the remainder of his sentence in custody. Defendant then filed a notice of appeal.

DISCUSSION

Defendant argues Senate Bill No. 136 applies retroactively to him and asserts the prior prison term enhancement must be stricken. The People disagree, both with respect to the retroactivity of Senate Bill No. 136 and to the proposed remedy. We agree Senate Bill No. 136 applies retroactively and find it appropriate in this case to strike the enhancement.

I Retroactivity

Senate Bill No. 136 was signed by the Governor on October 8, 2019 and, effective January 1, 2020, amended section 667.5, subdivision (b) to eliminate the one-year prior prison term enhancement for most prior convictions. (Stats. 2019, ch. 590, § 1.) An exception, not applicable here, is made for a qualifying prior conviction of a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b).

The People assert Senate Bill No. 136 should not be applied retroactively to defendant's case because defendant's sentence included a mandatory supervision component. In their view, defendant's sentence was imposed on the date of his sentencing hearing and the judgment in the case became final after he failed to appeal at that point. Thus, they conclude, the judgment in defendant's case was final before Senate Bill No. 136 took effect, and its ameliorative benefits should not extend to defendant under In re Estrada (1965) 63 Cal.2d 740.

Our Supreme Court recently considered a similar issue in People v. Esquivel (2021) 11 Cal.5th 671. In Esquivel, the defendant pled no contest to a felony and admitted two prior prison terms. (Id. at p. 673.) The trial court suspended execution of a state prison sentence and placed the defendant on probation, the terms of which defendant proceeded to violate. (Ibid.) The court then ordered the sentence into effect. (Ibid.) Defendant appealed and, while the appeal was pending, the Legislature passed Senate Bill No. 136. (Ibid.) Considering whether In re Estrada extended the benefits of Senate Bill No. 136 to the defendant, despite the fact he had not appealed the original order placing him on probation, our Supreme Court observed the “case was not final” at that point “because the ‘criminal prosecution or proceeding' brought against defendant was not complete when the ameliorative legislation at issue took effect. [Citation.] Defendant had not exhausted direct review of the order causing his carceral punishment to take effect. The time for him to seek that review had not expired. And he had not successfully completed probation.” (Id. at p. 678.) Thus, our Supreme Court concluded, “legislation ameliorating punishment presumptively applies to suspended execution cases pending on appeal from an order causing a previously imposed sentence to take effect.” (Id. at p. 681.)

We see no reason why defendant's situation should be treated differently in this respect from the defendant in Esquivel. Although defendant was placed on mandatory supervision, rather than probation, defendant “had not exhausted direct review of the order causing his carceral punishment to take effect” when his sentence was initially imposed. (People v. Esquivel, supra, 11 Cal.5th at p. 678.) As the People acknowledge, the appellate cases considering In re Estrada's applicability to cases involving mandatory supervision have concluded that the imposition of a split sentence is not a “final judgment” under In re Estrada. (People v. Lopez (2020) 57 Cal.App.5th 409, 412 [“a defendant who remains on mandatory supervision is not yet subject to a final judgment”]; People v. Martinez (2020) 54 Cal.App.5th 885, 889 [“a split sentence consisting of a county jail term followed by a period of mandatory supervision does not automatically become a final judgment of conviction for purposes of Estrada retroactivity when the time to appeal from the imposition of that sentence expires”]; People v. Conatser (2020) 53 Cal.App.5th 1223, 1229 [same].)

None of the cases the People cite for the proposition that mandatory supervision is different than probation involved the application of Estrada retroactivity. And, the People's argument distinguishing defendant's sentence from a probation sentence, which asserts defendant's sentence was imposed at sentencing, rather than suspended, as it typically would be for probation, relies on a distinction between suspended imposition and suspended execution of sentence that was rejected by Esquivel, and has been rejected by other appellate courts considering Estrada's applicability. (People v. Esquivel, supra, 11 Cal.5th at p. 678; see also People v. Andahl (2021) 62 Cal.App.5th 203, 209-210, review granted June 16, 2021, S268336; People v. Martinez, supra, 54 Cal.App.5th at p. 893.) Thus, we conclude the benefits of Senate Bill No. 136 extend to defendant.

II Remedy

As to the remedy, we observe appellate courts are currently split on how to retroactively apply Senate Bill No. 136 to plea agreements with stipulated sentences that include prior prison term enhancements. (See, e.g., People v France (2020) 58 Cal.App.5th 714, 730, review granted Feb. 24, 2021, S266771 [appellate court striking unauthorized prior prison term enhancement; prosecution may not withdraw from plea agreement]; People v. Hernandez (2020) 55 Cal.App.5th 942, 944, review granted Jan. 27, 2021, S265739 [allowing the People to withdraw from plea agreement when prior prison term enhancement is stricken; no cap as to any subsequent sentence]; People v. Joaquin (2020) 58 Cal.App.5th 173, 175, review granted Feb. 24, 2021, S266594 [Senate Bill No. 136 renders plea agreement unenforceable; “[o]n remand, the parties may enter into a new plea agreement, but, if they do, the trial court may not impose a longer sentence than that in the original agreement”].) Our Supreme Court is now poised to provide clarification. In the meantime, we believe it is appropriate to strike the enhancement at issue here.

As a threshold matter, the parties disagree about whether the remedy in this case is dictated by People v. Stamps (2020) 9 Cal.5th 685 (Stamps). In Stamps, our Supreme Court considered the applicability of Senate Bill No. 1393 (2017-2018 Reg. Sess.), which allowed a trial court to dismiss a serious felony enhancement in furtherance of justice, as provided under section 1385, to a plea agreement that included the admission of a serious felony enhancement. (Stamps, supra, at p. 693.) Our Supreme Court concluded the remedy should be to remand the matter, give defendant an opportunity to seek relief under Senate Bill No. 1393, and allow the prosecution the opportunity to withdraw from the plea agreement if the trial court “indicates an inclination to exercise its discretion under section 1385.” (Stamps, at p. 707.)

The court reasoned, “Senate Bill [No.] 1393 was intended to bring a court's discretion to strike a five-year serious felony enhancement in line with the court's general discretion to strike other enhancements. Thus, the Legislature gave a court the same discretion to strike a serious felony enhancement that it retains to strike any other sentence enhancing provision. Its action did not operate to change well-settled law that a court lacks discretion to modify a plea agreement unless the parties agree to the modification.” (Stamps supra, 9 Cal.5th at p. 702.) Thus, “to allow the court to strike the serious felony enhancement but otherwise retain the plea bargain, would frustrate the Legislature's intent to have section 1385 apply uniformly, regardless of the type of enhancement at issue, by...