Enhancements for drug priors must be stricken if not final on appeal: For plea bargains-a new deal must be reached
People v. Barton (Cal. Ct. App., Aug. 4, 2020, No. F076599) 2020 WL 4462790
Facts: Barton pleaded guilty to furnishing methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and maintaining a place for the sale of a controlled substance (id., § 11366). Barton admitted to having twice been convicted of violating section 11379. In her plea agreement, Barton waived her appeal rights 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.
Barton entered her plea on September 25, 2017 and was sentenced on October 23, 2017. On October 11, 2017, Governor Brown approved Senate Bill No. 180 (2017–2018 Reg. Sess.) 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.
The California Supreme Court granted a petition for review and the case was transferred back to the Court of Appeal to reconsider it in light of 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)), Barton argued that Senate Bill 180 is retroactive and 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.
The People conceded that 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.
Analysis: Senate Bill 180 eliminating three-year enhancements for most drug-related priors is retroactive-and change in plea requires consent of both parties and approval of the court.
The California Supreme Court in People v. Stamps (2020) 9 Cal.5th 685, 706–707, ––– Cal.Rptr.3d ––––, ––– P.3d –––– (Stamps) held that 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 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, ––– Cal.Rptr.3d ––––, ––– P.3d ––––, 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, ––– Cal.Rptr.3d ––––, ––– P.3d ––––.)
Here, Senate Bill 180, invalidated terms of the plea agreement and agree to have 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. The Court reversed the judgment and remand for further proceedings.
Senate Bill 180 eliminated the enhancement provisions and the new law took effect while her case was on appeal so Barton is entitled to its benefits.
Assembly Bill 1618-defendants cannot waive future benefits of change in the law in plea bargains
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 circumstance ‘the parties enter into a plea agreement does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them.’ ” (Stamps, supra, 9 Cal.5th at p. 705, ––– Cal.Rptr.3d ––––, ––– P.3d ––––, quoting Pen. Code, § 1016.8, subd. (a)(1).) The statute further declares, “A provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy.” (Pen. Code, § 1016.8, subd. (b).)
The California Supreme Court has “applied the Estrada rule to statutes that merely made a reduced punishment possible.”
Penal Code section 1016.8, subdivision (a)(4) states: “A plea bargain that requires a defendant to generally waive unknown future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may occur after the date of the plea is not knowing and intelligent.” Subdivision (b) of the statute omits the word “unknown” and says any “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.” Barton’s waiver of the right “to appeal from [the trial court’s] sentence” does not preclude her from seeking retroactive application of Senate Bill 180.2
Some plea agreements, like the one in this case, “specify the punishment to be imposed as a condition of the plea.” (People v. Brown (1986) 177 Cal.App.3d 537, 548, 223 Cal.Rptr. 66.) Such conditions are authorized by Penal Code section 1192.5. (Stamps, supra, 9 Cal.5th at p. 700, ––– Cal.Rptr.3d ––––, ––– P.3d ––––; Brown, at p. 548, 223 Cal.Rptr. 66.) The specified sentence is an “integral part” of the agreement, i.e., a material term of the contract. (People v. Panizzon (1996) 13 Cal.4th 68, 73, 77–78, 86) Barton argued that the court “should use its power under Penal Code section 1260” to vacate the unauthorized enhancements, which would reduce her sentence by six years and leave the remainder of the plea agreement intact. Her position is “based on the Estrada claim being an implied term of the plea agreement.” Pursuant to this rationale, she characterizes the proposed remedy as “a form of specific performance of the plea bargain.”
Neither Estrada nor Assembly Bill 1618 dictate the appropriate remedy. The parties’ plea agreement is now unenforceable because Senate Bill 180 invalidated the enhancements upon which nearly 70 percent of the stipulated sentence is based
Senate Bill 180 applies retroactively and that the sentence agreed to under the plea bargain is now unauthorized. As a result, the parties’ plea agreement is unenforceable and the trial court cannot approve of the agreement in its current form. (See Pen. Code, § 1192.5; In re Williams, supra, 83 Cal.App.4th at p. 945, 100 Cal.Rptr.2d 144 [“the trial court cannot approve a plea bargain that calls for an unlawful sentence. (see People v. Aragon (1992) 11 Cal.App.4th 749, 756–757, 14 Cal.Rptr.2d 561 [“When a guilty plea is invalidated the parties are generally restored to the positions they occupied before the plea bargain was entered”].) The parties may then enter into a new plea agreement, which will be subject to the trial court’s approval, or they may proceed to trial on the reinstated charges.