People v. Houle

• Decision Date: 18 May 2021
• Docket Number: A159055
• Citation: 64 Cal.App.5th 395,278 Cal.Rptr.3d 720
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carl Lee HOULE, Jr., Defendant and Appellant.

64 Cal.App.5th 395

278 Cal.Rptr.3d 720

The PEOPLE, Plaintiff and Respondent,

v.Carl Lee HOULE, Jr., Defendant and Appellant.

A159055

Court of Appeal, First District, Division 3, California.

Filed May 18, 2021

Maria T. Rogers, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, Roni Dina Pomerantz and Victoria Ratnikova, Deputy Attorneys General, for Plaintiff and Respondent.

Jackson, J. Defendant was sentenced to a stipulated six-year prison term after entering into a plea deal to resolve three cases including this one, wherein he pleaded no contest to one count of unlawfully possessing a concealed dirk or dagger pursuant to Penal Code section 21310 ;¹ admitted having a prior strike within the meaning of section 667, subdivisions (d) and (e) and section 1170.12, subdivisions (b) and (c); and serving two prior prison terms within the meaning of section 667.5, subdivision (b). At the time of defendant's sentencing, section 667.5, subdivision (b) required a one-year enhancement for each prior prison term served for "any felony," with an exception not applicable here. (Stats. 2018, ch. 423, § 65.)

After the judgment was entered, Senate Bill No. 136 (2019–2020 Reg. Sess.) (SB 136) amended section 667.5, subdivision (b), effective January 1, 2020, to narrow the category of cases in which the prior prison term enhancement applies to those based on sexually violent offenses.² Defendant appeals, arguing this amendatory statute applies retroactively and requires the court to strike the two one-year enhancements he received based on his admission of two prior prison terms while leaving the rest of his stipulated sentence intact.³

The People agree the amended version of section 667.5, subdivision (b) applies in this case but contend the proper remedy is to strike the enhancements and remand to the trial court to exercise its discretion "to achieve a new sentence as near as possible to the six-year stipulated term."

We hold that remand is appropriate in order for the trial court to strike the section 667.5, subdivision (b) enhancements. We further hold that SB 136 has rendered the parties’ plea bargain unenforceable, such that on remand the trial court must restore the parties to the status quo ante . ( People v. Stamps (2020) 9 Cal.5th 685, 706–707, 264 Cal.Rptr.3d 769, 467 P.3d 168 ( Stamps ).) The parties may enter into a new plea agreement, but, if they do, the trial court may not impose a longer sentence than defendant's original six-year term. ( People v. Collins (1978) 21 Cal.3d 208, 216–217, 145 Cal.Rptr. 686, 577 P.2d 1026 ( Collins ).)

FACTUAL AND PROCEDURAL BACKGROUND

On April 26, 2019, an information was filed charging defendant with one count of unlawfully carrying a concealed dirk or dagger ( § 21310 ). The information also alleged defendant had a prior strike conviction (§§ 667, subds. (d), (e), 1170.12, subds. (b), (c)) and served two prior prison terms ( § 667.5, subd. (b) ).

On July 23, 2019, defendant pleaded no contest to the charged offense and admitted the prior strike and prior prison term allegations. In exchange, defendant received a stipulated six-year prison term in this case, the reduction of a felony to a misdemeanor charge for intimidation of a witness in a second case (§ 136.1), and the dismissal of a third case involving an unspecified charge(s). Accordingly, on September 26, 2019, the trial court imposed the stipulated six-year sentence, consisting of a four-year term for unlawfully carrying a concealed dirk or dagger and two one-year enhancements for the two prior prison terms.

As mentioned, effective January 1, 2020, section 667.5, subdivision (b) was amended to eliminate the enhancement for all prior prison terms except those based on sexually violent offenses. Based on this amendment, defendant filed a timely notice of appeal on November 25, 2019, requesting and receiving a certificate of probable cause.

DISCUSSION

The parties agree that newly amended section 667.5, subdivision (b), which is remedial in nature in that it eliminates punishment for a broad category of individuals, should apply retroactively to all eligible persons with nonfinal judgments, including defendant. We also agree. (See People v. Matthews (2020) 47 Cal.App.5th 857, 865, 261 Cal.Rptr.3d 266 [SB 136 applies retroactively to the enhancement component of a defendant's stipulated sentence under a plea bargain, following In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ].) It is well established that an amendatory statute like section 667.5, subdivision (b) that eliminates or lessens punishment is presumed to apply in all cases not yet reduced to final judgment as of the statute's effective date, unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent." ( People v. Nasalga (1996) 12 Cal.4th 784, 793, 50 Cal.Rptr.2d 88, 910 P.2d 1380 ; see In re Estrada , at p. 747, 48 Cal.Rptr. 172, 408 P.2d 948.) Nothing in the text of amended section 667.5, subdivision (b) suggests a contrary legislative intent. Accordingly, because the trial court enhanced defendant's stipulated sentence under section 667.5, subdivision (b) based on prior offenses that were not sexually violent, the amendment applies retroactively to him.

The parties disagree, however, on the appropriate remedy. Defendant, in his opening brief, asked this court to strike his two one-year enhancements and leave the remainder of his plea bargain intact—actions not requiring remand to the trial court. In his reply brief, defendant took a new position, asking this court to remand to the trial court with instructions to strike the enhancements and to permit (1) defendant to agree to the original six-year term, (2) the trial court to reject the plea bargain, and (3) the prosecutor to agree to a new term or to withdraw from the plea bargain and reinstate all charges in all three of his cases while limiting his exposure in the three cases to no more than six years. Then, in a letter to the court dated January 13, 2021, defendant returned to his initial position, asking this court to strike the enhancements while leaving the rest of his stipulated sentence intact, citing a new First District case ( People v. France (2020) 58 Cal.App.5th 714, 272 Cal.Rptr.3d 689, review granted Feb. 24, 2021, S266771).

The People, in turn, contend the proper remedy is to remand the matter to the trial court to strike the two one-year enhancements and to exercise its sentencing discretion "to achieve a sentence as near as possible to the six-year stipulated term," citing People v. Navarro (2007) 40 Cal.4th 668, 681, 54 Cal.Rptr.3d 766, 151 P.3d 1177. The People reason that defendant "already received the benefit of the bargain—namely, avoiding trial, the reduction of the felony intimidation of a witness charge to a misdemeanor in another case, and the outright dismissal of a third case"—and "nothing in amended section 667.5, subdivision (b) suggests it was intended to permit defendants to avoid stipulated sentences that could otherwise be reached by resentencing."

During the briefing of this appeal, the California Supreme Court issued a new decision ( Stamps, supra , 9 Cal.5th 685, 264 Cal.Rptr.3d 769, 467 P.3d 168 ) that, we conclude, forecloses defendant's initial argument that the enhancements should be stricken but the remainder of the plea bargain left intact. In Stamps , the defendant received a stipulated nine-year sentence under a plea bargain that included a five-year prior serious felony conviction enhancement. ( Id. at pp. 692–693, 264 Cal.Rptr.3d 769, 467 P.3d 168.) Before the judgment was final, Senate Bill No. 1393 (2017–2018 Reg. Sess.) (SB 1393) was enacted, affording the trial court new discretion to strike a serious felony enhancement in furtherance of justice. ( Stamps , at pp. 692–693, 700, 264 Cal.Rptr.3d 769, 467 P.3d 168.) The court held that the matter should be remanded to permit the defendant to ask the trial court to exercise its newly granted discretion to strike the enhancement, but made clear the trial court did not have discretion on remand to strike the enhancement but to otherwise maintain the plea bargain: "If defendant stood convicted of a crime with an enhancing prior as a result of trial or an open plea of guilty as charged, his case could be remanded for the court to reconsider its sentence in light of its newly conferred authority to strike the enhancement. This case is procedurally different because both parties entered a plea agreement for a specific prison term." ( Stamps , 9 Cal.5th at p. 700, 264 Cal.Rptr.3d 769, 467 P.3d 168.) "Section 1192.5 allows a plea to ‘specify the punishment’ and ‘the exercise by the court thereafter of other powers legally available to it,’ and ‘[w]here the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea .’ (Italics added.)" ( Stamps , at p. 700.) Thus, "to justify a remand for the court to consider striking his serious felony enhancement while maintaining the remainder of his bargain, defendant must establish not only that Senate Bill 1393 applies retroactively, but that, in enacting that provision, the Legislature intended to overturn long-standing law that a court cannot unilaterally modify an agreed-upon term by striking portions of it under section 1385." ( Id . at p. 701, 264 Cal.Rptr.3d 769, 467 P.3d 168.)

The Stamps court then reviewed the legislative history of SB 1393 and concluded that, while the Legislature gave the court the same discretion to strike a serious felony enhancement that it...