People v. Hernandez, F080131

• Court: California Court of Appeals
• Writing for the Court: POOCHIGIAN, J.
• Citation: 269 Cal.Rptr.3d 824,55 Cal.App.5th 942
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose Antonio HERNANDEZ, Defendant and Appellant.
• Decision Date: 14 October 2020
• Docket Number: F080131

55 Cal.App.5th 942
269 Cal.Rptr.3d 824

The PEOPLE, Plaintiff and Respondent,
v.
Jose Antonio HERNANDEZ, Defendant and Appellant.

F080131

Court of Appeal, Fifth District, California.

Filed October 14, 2020

Certified for Partial Publication.^*

Conness A. Thompson, Martinez, 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, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

POOCHIGIAN, J.

269 Cal.Rptr.3d 826

55 Cal.App.5th 944

INTRODUCTION

Appellant/defendant Jose Antonio Hernandez entered a plea negotiation in which he agreed to a term of 10 years in state prison. The 10-year term included the imposition of two prior prison term enhancements. In this appeal, he asserts the enhancements must be dismissed because of the subsequent enactment of Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136) that amended Penal Code ¹ section 667.5, subdivision (b) and, on remand, the prosecution may refile previously dismissed counts but he cannot be sentenced to more than the 10-year term that the prosecution agreed to as part of the plea agreement.

Based on the California Supreme Court's recent ruling in People v. Stamps (2020) 9 Cal.5th 685, 264 Cal.Rptr.3d 769, 467 P.3d 168 ( Stamps ), we vacate the sentence and remand to the trial court to dismiss the prior prison term enhancements, and further hold the People may then either agree to modify the bargain to reflect the downward departure in the sentence, or choose to withdraw from the original plea agreement, and the court may choose to withdraw its prior approval of the plea agreement.

FACTS ²

On August 1, 2019, officers responded to a business on a dispatch that a person was brandishing a weapon at an employee. Upon arrival, an officer contacted Jaime Baez, a security guard at the business, while other officers located defendant. Defendant was in possession of a black folding knife and arrested.

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Baez reported that he saw defendant loitering behind the business and told him to leave. Defendant became mad and said he was not going to leave because he was a paying customer. Defendant produced a knife, took steps toward Baez, and said he was going to stab him. Baez became fearful for his life and removed his firearm from his holster. He gave several warnings to defendant and told him the police had been called and were on their way. Defendant began to walk away and was apprehended when the officers arrived.

PROCEDURAL BACKGROUND

On August 5, 2019, a complaint was filed in the Superior Court of Kern County that charged defendant with count 1, assault with a deadly weapon, a knife ( Pen. Code, § 245, subd. (a)(1) );³ and count 2, criminal threats (§ 422) with an enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)).

269 Cal.Rptr.3d 827

As to both counts, it was alleged defendant had two prior strike convictions; two prior serious felony enhancements (§ 667, subd. (a)); and four prior prison term enhancements ( § 667.5, subd. (b) ).

The plea hearing

On August 15, 2019, the court was scheduled to conduct the preliminary hearing. However, the parties advised the court they had reached a plea agreement. The court stated the terms to defendant:

"It has been indicated to me that you are going to plead guilty or no contest to Count 1, assault with a deadly weapon, which is a serious felony, you are going to admit you have two prior strike convictions and that you have served two prior terms in prison. You would receive a total of ten years in the Department of Corrections. And all remaining charges will be dismissed. [¶] ... [¶] In order to reach this disposition I have agreed that I'm going to strike one of your two strike convictions, so your sentence would be doubled, so it would be a total of ten years."

Defendant agreed that the court correctly stated the terms of the plea agreement, and that he read, understood, and signed the waiver of rights form.

After being advised of and waiving his constitutional rights, defendant pleaded no contest to count 1, assault with a deadly weapon, and admitted the two prior strike convictions and two prior prison term enhancements. The court granted the People's motion to dismiss count 2 and the personal use enhancement, and the two additional prior prison term enhancements, on the

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condition the plea remains in full force and effect. The court referred the matter to the probation department.

The sentencing hearing

On September 13, 2019, the court conducted the sentencing hearing. The court dismissed the prior strike conviction pursuant to section 1385 and stated it would "go ahead and impose the ten years as previously indicated." Defendant was sentenced to the upper term of four years for count 1, doubled to eight years as the second strike sentence, plus two consecutive one-year terms for the prior prison term enhancements, consistent with the terms of the plea agreement.

The court ordered defendant to pay a $300 restitution fine (§ 1202.4, subd. (b)), suspended the $300 parole revocation fine (§ 1202.45), and ordered victim restitution in an amount to be determined (§ 1202.4, subd. (f)). The court also imposed a $40 court operations assessment fee (§ 1465.8) and a $30 criminal conviction assessment fee ( Gov. Code, § 70373 ).

On October 16, 2019, defendant filed a timely notice of appeal, and the court granted his request for a certificate of probable cause.

DISCUSSION

I. The Prior Prison Term Enhancements

Defendant's negotiated disposition was for a sentence of 10 years, which included two one-year terms for the section 667.5, subdivision (b) prior prison term enhancements. In the initial briefing on this case, defendant argued, and the People conceded, that the two one-year enhancements must be dismissed based on the subsequent enactment of Senate Bill 136 that amended section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.)

After briefing was completed, the California Supreme Court's issued its ruling in

269 Cal.Rptr.3d 828

People v. Stamps, supra , 9 Cal.5th 685, 264 Cal.Rptr.3d 769, 467 P.3d 168. As we will discuss below, Stamps held that as a result of Senate Bill 1393's amendments to section 667, subdivision (a) and section 1385, the trial court may now exercise its discretion to dismiss a prior serious felony enhancement, but the prosecution may also withdraw from a plea agreement if that enhancement was part of a specified sentence. (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1–2; Senate Bill 1393.)

55 Cal.App.5th 947

After Stamps was decided, this court requested supplemental briefing from the parties as to the appropriate remedy once the prior prison term enhancements are stricken, and whether the prosecution could withdraw from the plea agreement.

Defendant argues the section 667.5, subdivision (b) enhancements must be stricken, the prosecution cannot withdraw from the plea agreement, and Stamps is distinguishable since the amendment in that case only granted the trial court discretion to decide whether to dismiss the prior serious felony enhancement, whereas Senate Bill 136 now mandates dismissal of the prior prison term enhancements. Defendant states the prosecution may refile the dismissed charges, but the court cannot resentence him to any more than the 10-year term that was agreed to by the parties in the original negotiated disposition, as directed in People v. Collins (1978) 21 Cal.3d 208, 145 Cal.Rptr. 686, 577 P.2d 1026 ( Collins ).

The People counter that based on the rationale in Stamps , the district attorney may completely withdraw from the original plea agreement since there is no evidence the Legislature intended that Senate Bill 136's amendments to section 667.5, subdivision (b) permit the court to unilaterally change the terms of the plea agreement once the prior prison term enhancements are stricken.

As we will explain, we agree with the People's argument and are compelled to remand consistent with Stamps.

A. Section 667.5 and Senate Bill 136

At the time of defendant's plea and sentencing hearing, " section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. [Citation.] Courts nevertheless had discretion to strike that enhancement pursuant to section 1385, subdivision (a). [Citation.] Effective as of January 1, 2020, Senate Bill No. 136 (Reg. Sess. 2019–2020) amends section 667.5, subdivision (b) to limit its prior prison term...